On the Democrat presidential campaign trail, both Hillary Clinton and Bernie Sanders have been harping again on the so-called “war on women” and demanding pay equity. At a recent rally in a packed gym in Des Moines, Clinton framed the issue bluntly, “We have got to have equal pay for equal work.”
Working off his more “progressive” playbook, Sanders echoed Clinton’s message in his own inimitable way, “And, when we talk about decent and fair wages, there is another injustice we must address. I’m talking to the men now…stand with the women and demand pay equity for women workers!”
Late last week, in a transparent bid to energize the Democrat campaign on the pay equity issue, President Obama laid out new rules that would require every company with more than 100 employees to report salaries based on race, gender, and ethnicity, setting up the federal government to actively engage in a nation-wide fishing investigation for pay disparities. Armed with that data, the Equal Employment Opportunity Commission hopes to target companies for paying women less than their male counterparts with massive investigations and systemic discrimination lawsuits to follow.
As with so many of the Obama administration’s initiatives, the rule is an executive action that doesn’t need congressional approval and is expected to be greenlighted by the Office of Management and Budget.
Aside from the onerous additional reporting burdens this new rule will impose on large employers, some will wonder whether gathering all this pay data will reveal any equal pay violations at all. The administration has traveled this road unsuccessfully before.
In 2009, in a campaign designed to ferret out equal pay violations among government contractors, the Office of Federal Contract Compliance Programs (OFCCP), the agency charged with policing compliance with Executive Order 11246 requirements for equal opportunity and affirmative action, launched a nation-wide pay equity audit program.
From 2009 through 2014, the OFCCP conducted aggressive, wall-to-call investigations of the pay practices at 23,734 federal contractor facilities. The agency’s number one goal was to find pay discrimination. It found such discrimination in only one-half of 1% of its audits. Stated differently, OFCCP found that 99.5% of all contractors paid women fairly. Does that sound like a war on women?
I’m sure this result came as a shocking disappointment to all those federal bureaucrats, but surely didn’t come as much of a surprise at all to human resources professionals and leaders of American industry. Contrary to the continual whining of Democrat candidates about the dire plight of women in the workplace, equal pay for women has been the law of the land for more than a half-century, and the vast majority of companies have complied to the letter of the law.
Since 1963 it has been unlawful under the federal Equal Pay Act for an employer to pay a female employee less than a male employee for equal work. Sex discrimination in wages is also prohibited by Title VII of the Civil Rights Act of 1964. For employees of federal contractors and subcontractors, Executive Order 11,246 prohibits gender-based pay discrimination.
Also, 46 states have anti-discrimination statutes mandating equal pay for equal work. While the enforcement schemes of these laws vary from state to state, the remedies those statutes provide are comparable to those available under federal laws.
Today, the Equal Pay Act and Title VII provide a woman who prevails on her wage discrimination claim a virtual smorgasbord of effective remedies. They include, but aren’t limited to, back pay, attorneys’ fees, injunctive relief, prejudgment interest, $300,000 in punitive and compensatory damages, an additional $10,000 in penalties, and a prison sentence of up to six months for an employer who willfully violates the law.
A government contractor or subcontractor — as some 270,000 American companies are — may face serious penalties for gender-based wage discrimination, including termination or suspension of any existing contract, and be required to take remedial action including elimination of illegal pay practices, seniority relief, and monetary and equitable relief to identified class members.
Campaign rhetoric and simplistic election-year sound-bites can and do mislead voters into thinking that gender-based wage discrimination is a national crisis and that women have no recourse whatsoever in the face of invidious pay discrimination by their heartless employers. Nothing could be further from the truth. Several layers of tough federal and state laws protect women from pay discrimination.
Vigorous enforcement of the arsenal of tough federal and state laws prohibiting sex discrimination in wages will ensure continued progress toward the important national goal of true equal opportunity, as well as pay equity, for all. The Democrats’ populist campaign mantra about “pay equity” is hollow rhetoric.
Systemic denial of equal pay for equal work is not only a myth, but based on its 2009-2014 audit, the OFCCP knows that it is a flat out lie. The results of that comprehensive OFCCP audit showing across the board compliance with the law is proof that American industry has taken the requirement of equal pay for equal work seriously.
Thankfully, President Obama’s executive directive on collection of pay equity data won’t become effective until September 2017. So, there is a chance that the rule will never take effect, as a new Republican president may sweep aside all of President Obama’s executive orders and allow the American industry to continue its past practice of pay equity for women in the workplace.
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