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The Paycheck Fairness Act: Will It Go Anywhere?

If you've been keeping up with Congress, pending legislation called the Paycheck Fairness Act might sound familiar.

Spearheaded by New York Senator Kirsten Gillibrand and Senator Barbara Mikulski (D-Maryland), the act would require that employers explain pay disparities between men and women, so that said staffers would know whether the differences are sex-based or not. Also, the proposed law would prohibit employers "from retaliating against employees who discuss or disclose salary information with their co-workers." In addition, if a woman sued for pay discrimination, she would be able to get the same amount of money available under other race and ethnicity discrimination laws.

Harry Reid has just promised a vote next week. But reports have recently surfaced that put to question its viability.

For a bit of context, remember that a Paycheck Fairness Act was pitched in 2010, but failed 58-41.

And as with anything wage oriented, a lot of the upcoming debate will surely hinge on statistics, which are always the subject of disagreement.

One of the most polemic points is data suggesting that women make .77 on every dollar men do, which Gillibrand and others have used to back up the need for the act. This has stirred up quite a shitstorm, with some claiming that the numbers are not true when adjusted for education level.

Enter Sabrina L. Schaeffer, executive director of the Independent Women's Forum. On U.S. News and World Report, for example, she argued: "The differences in pay between men and women come down to choices. Choices women -- and men -- make have costs. More women than men choose to take time off to raise a family, but that's a far cry from discrimination. And costs are the result of a woman's freedom, not an injustice imposed on her by society."

Though we're yet to be convinced of this, the fact is that a lot of people will probably side with Schaeffer's point of view or that of other opponents such as Daniel Fisher, of Forbes.

Paraphrasing legal analysis, he claims that under the law:

"Employers must have one pay for a job, not only at the entry level, but throughout the organization. For example, what if a year after Fair Pay Shipping Co. hires John and Sally, John comes in and asks for a raise, but Sally does not. Under the existing law, Fair Pay Shipping is probably OK giving John a raise and not Sally. Not so if the Paycheck Fairness Act passes.

Therefore, companies will have far less flexibility in addressing different salary histories for new hires, different salary demands from existing employees, the size of pay raises for people promoted into new roles, and so on. The law would make these changes without real evidence that these steps will eliminate pay disparities between men and women or any thought on the impact of restricting a company's ability to respond to the different needs and demands of its employees."

Over at the Washington Post, Greg Sargent also doubts its success -- again, nodding to the bill's 2010 failure -- but says that it will probably be used by Dems as a major campaign talking point against their Republican opponents.

Three examples in what he calls the "next big battle in the war over women?" Senator Claire McCaskill (D-Missouri) reportedly plans on an "aggressive push" to prompt her rivals to explain their opposition to paycheck fairness. Elizabeth Warren also intends on highlighting Scott Brown's vote against the act in 2010 as "proof that he doesn't really have the middle class's interests at heart," a Massachusetts Democratic Party official told Sargent. Pols have mounted similar moves against the GOP in Virginia and Nevada.

Long story short: A lot of people support the PFA, but it looks like probably nearly as many people don't, for a variety of reasons. However, it's very likely that pols positions on this will have impact in upcoming Congressional races, as equal pay discussions might get tied to candidate's attitude toward the middle class.

Follow Victoria Bekiempis @vicbekiempis.


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