Why are women divided over PFA?

Another Rant by BettyJean Kling

Ok – I have had it- Enough! What the hell is going on here? I want some answers and I want them now! Damn it every time something comes up to help women get ahead the Right wing jumps up and insists women don’t need it and the left jumps up and says yes they do. Why are women divided over every damned thing that comes up that is supposed to benefit them? I am sick to death of this crap. Let’s have it out here and now!

What Is the Paycheck Fairness Act (PFA)?

  • Under the current Equal Pay Act, once employees have provided prima facie evidence of sex discrimination, the burden of proof shifts to the employer to show that the difference in wages results from “any factor other than sex.”
  • The PFA eliminates the “any factor other than sex” defense and replaces it with a “bona fide factor other than sex” defense. Employers can only use this “bona fide factor” defense if they demonstrate that business necessity demands it.
  • However, if the employee demonstrates that an alternative employment practice exists that would serve the same business purpose without producing a gender differential and that the employer has refused to adopt such alternative practice, then employers may not use this defense.
  • The PFA makes employers liable for unlimited punitive damages in addition to compensatory damages in cases of sex discrimination.
  • The PFA makes it easier to bring class action lawsuits in such cases.

Policy Objections

  • Now employers must justify their pay practices with a “bona fide” factor other than sex and defend it in the courts. If employees can find an alternative business practice that does not result in a pay disparity, employers must adopt it. Under the PFA, government and the courts dictate business practices to employers.
  • The PFA removes the Equal Pay Act’s limits on punitive and compensatory damages.
  • It specifies that workers are automatically members of a class action suit unless they opt out.
  • Section 9 of the PFA instructs the Office of Federal Contract Compliance Programs (OFCCP) to reinstitute the Equal Opportunity Survey (EOS) and use the survey to identify federal contractors for further investigation.
  • The Department of Labor discontinued this survey after concluding that it failed to identify sexual discrimination. A detailed study found that the EOS had a 93 percent false-positive rate and a 33 percent false-negative rate. Most companies identified as discriminating did not, while a third of companies discriminating were missed by the survey. The EOS did little better than random chance at identifying discrimination.
  • In addition to requiring the OFCCP to use a flawed survey, the PFA prevents the OFCCP from using the best science available in discrimination cases.

Economic Effects

  • By facilitating lawsuits:
  • The PFA would give a windfall to trial lawyers, exposing employers to unlimited punitive damages.
  • The PFA would encourage trial lawyers to initiate many frivolous class-action suits in hopes of winning a few large judgments.
  • The successful lawsuits could transfer billions of dollars from employers to trial lawyers, bankrupting businesses and costing jobs.
  • The increased legal risks would also reduce the incentive for business owners to start new business or invest in and expand their firms, thereby costing even more jobs.
  • The PFA means millions of dollars for trial lawyers but fewer jobs for most Americans.
  • Under the PFA the courts will micromanage businesses.
  • For instance, the courts would have to decide: Does experience constitute a “bona fide factor other than sex”?
  • A woman earning less than a more experienced man could argue that her employer should be required to send her to training and then pay both employees identical wages. She would have a strong case to argue that experience was not a “bona fide” factor because an alternative employment practice would eliminate the disparity.
  • Government micromanaging over areas in which the courts have no business expertise would reduce business competitiveness and cost jobs.

James Sherk is Bradley Fellow in Labor Policy in the Center for Data Analysis at The Heritage Foundation.

According to Michelle Malkin ready to label it thus guaranteeing its automatic death by sending every dutiful conservative woman to her own corner without question

“Paycheck Fairness Act” (aka The Feminism Run Amok bill): Also on schedule for a vote today. This is yet another piece of left-wing, social engineering legislation that shows how out of touch Democrats are with the electorate’s priorities. Does anyone other than Rachel Maddow, the liberals on The Spew, and tenured man-haters on campus still care about the mythical discriminatory wage gap? And didn’t the Lily Ledbetter Act — the first act Obama signed into law nearly two years ago — already “fix” the “problem?”

Economist June O’Neill deconstructs Washington’s equal pay gap obsession:

Women in the workplace don’t face rampant pay discrimination, and yet the Senate may soon pass a bill—already passed in the House—premised on the erroneous charge that they do. The Paycheck Fairness Act (PFA) would be a harmful addition to the many federal laws that already protect women and men from labor-market discrimination.

The original Equal Pay Act of 1963 made it illegal for firms to pay different wages to women and men who performed equal work on jobs in the same establishment. Title VII of the 1964 Civil Rights Act outlawed discrimination against women and minorities in all aspects of employment, including hiring, promotion and compensation. Additional protections came with the 1978 Pregnancy Discrimination Act; the 1991 amendments to Title VII, which boosted penalties for discrimination; and the 2009 Lilly Ledbetter Act, which essentially eliminated the time limit for filing discrimination claims.

In addition, for more than 40 years two major federal agencies have been dedicated to fighting labor-market discrimination: the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance.

Why do we need still more legislation? The reason, say the bill’s sponsors, is that women earn 77% as much as men, according to the Bureau of Labor Statistics. But this figure refers to the annual earnings of full-time, year-round workers. It doesn’t compare comparable men and women, and it doesn’t reflect that full-time men work 8%-10% more hours per week than full-time women.

It also doesn’t reflect what research of mine and others have shown: Men typically accumulate more continuous work experience and therefore acquire higher productivity in the labor market. In fact, the gender gap shrinks to between 8% and 0% when the study incorporates measures such as work experience, career breaks and part-time work…

As far as I am concerned- Malkin brainwashed Conservative women and I am ashamed to say – I have not read up on this because NOW was pushing Reproduction rights instead of Paycheck Fairness until the last day – then it was too damned late.

Soooooo Ladies – can I have some comments – true comments not Malkin spin and the usual name calling – explaining why women were not fighting for this bill and how it got lost in the shuffle.

Oh and somebody Tell Malkin what the Lily Ledbetter Act was about and that it did not address this at all—but then again she knows that  doesn’t she! Aren’t the Conservative women tired of being lied to?


11 Responses

  1. […] This post was mentioned on Twitter by Elin Stebbins Waldal, BettyJean. BettyJean said: Why are women divided over PFA?: Another Rant by BettyJean Kling Ok – I have had it- Enough! What the hell is g… http://bit.ly/bDICtC […]

  2. I can guess if you like.

    Because women can become pregnant, that may subliminally enter into the job market equation. If women routinely make 10-20 less than men, that tends to offset the possible time lost to pregnancy and the female employee possibly not returning at all afterwards.

    Just a guess.

    If all things are equal, pay wise, perhaps the male gets a subliminal edge, once again, because of the pregnancy issue.

  3. As an employment lawyer, and having represented both sides for fourteen years, the PFA was the right thing to do. The Supreme Court deviated from prior precedent when it decided Lily Ledbetter’s case. The PFA was a beautiful example of the checks and balances our founders intended. It is still true that women are paid less than men. There is absolutely no windfall on lawyers or facilitation of lawsuits here – this is simply shoring up protections that were put in place in 1964. It is absolutely practical for an employer to have a legitimate reason for every decision. No additional burden is placed on the employer by this act that was not already being carried. So, Betty Jean, I can only guess that the division is classic destructionism. Our democracy is frayed enough to fall apart over the next ten years because we as a nation have thrived on conflict and character assassination between the parties. Our youth are addicted to video games and our adults are busy with golf and other escapes. While we’ve been having fun, those of us who can afford fun, or escapist activities, the Executive Branch has morphed into something that would frighten Lincoln and every other hero of democracy. Think about it – how else can CNN and Fox keep their ratings if they are not constantly dwelling on bad news? Of course, at base is the patriarchal pathology – women must be divided against one another for men to keep the male privilege inherent in our society, which privilege has not been eliminated by the PFA or any other legislation. I wish I knew the answer – I believe TMU will be an answer and appreciate what you do, BJ! It will come down to enough people telling the truth and bringing people together to call out the plutocracy and demand that our Constitution is respected.

    Alessandro, I minored in Italian in school and adore your name. I agree with you – there is an inherent bias against women because of the procreation issue and the pay differential is a business decision that makes sense though illegal. Various legislation has been passed to combat it, but it is part of law firm politics and in every field as far as I can tell except maybe teaching at the primary school level. The values of corporations have nothing to do with life. liberty and the pursuit of happiness except for 2 percent at the expense of the other 98.

  4. by the way, the Lily Ledbetter Act did not eliminate the statute of limitations on pay claims – the Supreme Court did in the 70s based on a reasonable interpretation of statute. this is why I say that this is all much ado about nothing.

  5. This will be my last one, promise. 🙂 Here is a link to the summary of the bill:


    what people need to know is this does not do anymore than what judges were already deciding! This basically codifies the most well-respected decisions on the books interpreting the EPA. This has become important as we judicial activism on the bench masquarading as “statutory interpretation.” Unfortunately, the law has to be written very specifically to avoid the biased decision-making by people like Justice Antonin Scalia, who freely admits to holding beliefs that are inconsistent with a series of decisions by the Supreme Court. His opinions deviate from those decisions on the Constitution, and J. Scalia apparently does not care about that sort of stare decisis, the principle of following decisions previously made with few exceptions and only for very good reasons.

    Compensatory and punitive damages are already available for sex discrimination claims under Title VII. The good news is that this act will force insurance companies to evaluate their risk in a way that won’t promote litigation but settlement. People with valid claims will have an easier time pressuring employers (both insured and uninsured) to settle the claim instead of prolonging litigation, the typical defense tactic. As a defense lawyer, my tactics are efficient and designed to weed out unfounded claims. Some of my colleagues choose delay tactics that generate income without freeing up the judicial system. As a plaintiff’s lawyer, the deck is already stacked against me.

    Candidly, defense lawyers probably secretly support these bills because the judicial system just about put employment lawyers out of business more than once. During oral argument, I heard a judge lecture an EEOC lawyer for five minutes (a really long time in oral argument) over how the agency is failing in its mandate to help people resolve claims so that they won’t go to litigation. Federal judges mostly hear criminal and employment cases.

    Okay, my rant is probably over now! Thanks for a great topic, BJ.

    • Hehehehehe if your rant is not over – please continue! I asked and I usually do not get a decent answer – I am thrilled to finally get exactly what I deserve and then some.

      In fact – I am considering taking this – if you agree and making it into a piece of its own explaining to ALL women what it is really about and why ALL women should be fighting for it. TMU needs to make the case because if it comes from either side – it will be dead in the water.

      Are you game to make a non partisan argument for TMU to present?

      BettyJean Kling M.S, M. Ed Founder: The Majority United Sign up for our Email Newsletter http://www.TheMajorityUnited.com http://www.FreeMeNow.wordpress BTR. The Majority United Radio Mon 10 pm & Wed 9:30 pm Eastern Call-in Number: ( 347 ) 838-8011 http://www.blogtalkradio.com/FreeMeNow http://www.facebook.com/reqs.php#!/group.php?gid=112870418738402 Free US Now- “A victim’s first scream is for help; a victim’s second scream is for justice.” – Coral Anika Theill TMU IMAGINE Empowering Women To Unite & Mobilize ! Sign up for our Email Newsletter

  6. I believe the answer to your question on “why women are divided” is due to thier knowledge and personal experiences. I for one know that the amount a person makes SHOULD NOT BE BASED ON GENDER… Not passing the Bill to increase Woman’s wages is that men know if woman made the money they do….they could no longer control woman. The other women who are against this are no different than the men themselves and do this to keep thier jobs and connections in office. They know they could loss thier office if they take a stand on this topic. Even with my knowledge of the law and a degree as a paralegal. There is curuption in our legal system for example the best doc on Domestic Violence Continued: Contested Child Custody Nov 13, 2010 may help answer the true root of the problem why women are prevented from earning as they should…Video’s and Documentaries


  7. […] First it was the Paycheck Fairness Act- Why are women divided over PFA? […]

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