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Column: Scoring Cheap Points for Paycheck Fairness

Here’s a radical notion: It is simultaneously possible to believe that women are entitled to equal pay and to not support the Paycheck Fairness Act.

Not that you’d know it from the rhetoric President Obama and fellow Democrats are happily flinging at Republicans who dare to oppose the measure.

“I don’t know why you would resist the idea that women should be paid the same as men and then deny that that’s not always happening out there,” Obama said Tuesday. “If Republicans in Congress … want to show that they do, in fact, care about women being paid the same as men, then show me.… They can join us, in this, the 21st century and vote yes on the Paycheck Fairness Act.”

Last week, as Senate Republicans blocked the measure from moving forward on the floor, Senate Majority Leader Harry Reid, D-Nev., issued a similar blast. “If Senate Republicans are ideologically opposed to ensuring equal pay for equal work, they are free to vote against passage of the Paycheck Fairness Act,” he offered.

Sen. Debbie Stabenow, D-Mich., went even further. “It is outrageous that in 2014 some in Congress apparently still think that women don’t deserve to earn the same amount as a man for doing the same job,” she said in a statement.

Oh come on.

Before you start checking the byline at the top of this piece and emailing the editor that there’s been a terrible mistake, let me be clear: I support ensuring that women receive equal pay for equal work — I have a bit of a vested stake in that issue myself. Unequal pay remains a problem, although not at the women-earn-77-cents-on-the-dollar level of Democrats’ sloganeering. Most relevantly, I’d vote for the Paycheck Fairness Act in the unlikely event that someone elected me to Congress.

But the level of hyperbole — actually, demagoguery — that Democrats have engaged in here is revolting. It’s entirely understandable, of course: The Senate is up for grabs. Women account for a majority of voters. They tend to favor Democrats. To the extent that women — and in particular, single women — can be motivated to turn out in a midterm election, waving the bloody shirt of unequal pay is smart politics.

Fairness is another matter. Since President John F. Kennedy signed the Equal Pay Act in 1963, it has been illegal for employers to pay women less than men for the same work. Of course, that wasn’t the end of the legislative story. As the case of Lilly Ledbetter demonstrated, numerous tweaks and improvements to the law have been required along the way. Ledbetter, for example, was stymied by the fact that — in part because of company policy banning the sharing of salary information — she did not know she was being paid less than male counterparts; by the time she realized and filed suit, according to the Supreme Court, the statute of limitations was up. Congress fixed that situation for future plaintiffs, which seems like a matter of simple logic and equity.

The Paycheck Fairness Act presents more complicated questions about proof and damages. In brief, the bill would make it harder for employers to rebut claims of gender-based pay discrimination. Currently, employers facing an equal pay claim can defend the differential by showing that it is “based on any other factor other than sex.” The Paycheck Fairness Act would tighten that gaping exception to require that it relate to “bona fide factors, such as education, training or experience.” Likewise, the measure would make it easier for plaintiffs to collect not only back pay but compensatory and punitive damages, including in class-action lawsuits. A third change would protect employees who discuss their compensation from being punished by their employer — a no-brainer in the aftermath of Ledbetter’s experience.

As I said, I’d vote “yes” on the bill. But I can understand the concerns of those who worry about floods of litigation and business decisions second-guessed by federal judges. There is a difference between opposing the Paycheck Fairness Act and opposing paycheck fairness. Politicians who choose to confuse the two may score a cheap political point, but it’s not a fair one.