Paycheck Fairness Act

Floor Speech

BREAK IN TRANSCRIPT

Mr. Speaker, I rise today in opposition to H.R. 7, the Democrats' conveniently titled, but painfully misguided, Paycheck Fairness Act, which should be called the paychecks for trial lawyers act.

We all agree on the fundamental principle of this bill: women should not be paid less than men for the same work.

That is not up for debate; and, for me, it has never been up for debate; and, for our country, it hasn't been since 1963, when the Equal Pay Act amended the Fair Labor Standards Act, making equal pay the law of the land.

Moreover, in 1964, title VII of the Civil Rights Act codified nondiscrimination rules for employment, making it illegal to discriminate on the basis of race, color, national origin, religion, and sex.

The question before us today is whether the Democrats' Paycheck Fairness Act provides any additional protections to women in the workplace. The answer is a resounding no.

The United States has some of the most varied and complex workplaces in the world. Before the onslaught of COVID-19, women were earning merited paychecks in record numbers. According to a Harvard University analysis and numerous other studies, the difference in earning between men and women comes down to choices made regarding careers and parenting. Many working women take advantage of flexible work schedules to meet their diverse needs. A survey by Pew found 70 percent of working mothers say that a flexible schedule is extremely important.

Democrats aren't giving the full story when they talk about pay differences. Women are making career choices that are best for themselves and their families. Limiting their freedom to do so is wrong. Congress has no place in telling women their career choices are wrong, yet Democrats are hellbent on telling all Americans how to live their lives, how to spend their money, and now how to make career decisions.

The Paycheck Fairness Act is not a win for women in the slightest. It is a false promise that creates opportunities and advantages only for trial lawyers looking for easy payouts while causing irreparable harm to employers. By making it much easier to bring lawsuits of questionable validity against employers, trial lawyers will be able to force employers into settlements or try for unlimited paydays from jury awards, lining their own pockets and dragging women through tedious, never-ending legal proceedings.

In the United States, we believe in innocence until proven guilty, but this bill assumes otherwise. Under current law, business owners can defend themselves from a claim of pay discrimination by proving that a pay differential is based on legitimate, business-related factors other than sex.

H.R. 7 would radically alter this law, requiring a business owner to convince a judge or jury that the pay differential was required by ``business necessity.'' This is a nearly impossible burden of proof to meet that will lead to unfair judgments against business owners because the plain meaning of the term ``business necessity'' is that the pay differential must be absolutely essential to the business.

H.R. 7 would also result in a flood of litigation in front of judges and juries, who will delve into employer compensation decisions even when the employer can demonstrate that those decisions are based on legitimate, business-related reasons having nothing to do with the sex of the employee.

Fearing Big Government and liability risks that could leave them bankrupt, many business owners will likely implement rigid pay bands--a model used by government and unionized businesses. This means workers will not be compensated on the basis of merit.

This is the opposite of the American Dream. As one columnist wrote: ``equality of opportunity--not outcomes--is the American ideal.''

On top of the legal jeopardy this bill creates for employers, H.R. 7 also mandates that business owners submit mountains of worker pay data to the Federal Government. This will pose significant threats to the confidentiality and privacy of workers' pay data, create a data stash that would be impossible to protect or interpret, and cost business owners more than $600 million annually.

This bill purports to champion equality for women, yet it disregards the 40 percent of small businesses owned by women that will be forced to implement pay policies found in government-run workplaces and be stuck paying through the nose in compliance costs if this bill passes.

Even worse, H.R. 7 will severely limit workplace flexibility for women. Many working women take advantage of flexible work schedules to meet their diverse needs, yet this harmful legislation completely ignores this reality and threatens to take away the choices and freedom necessary for them to retain employment.

We know employees prefer workable and flexible schedules, and now is not the time to limit these options for women who have been hit particularly hard by the COVID-19 pandemic.

Should my Democrat colleagues wish to discuss additional policies which will foster the advancement of women in the workplace, we can consider legislation that safely reopens our schools and businesses, provides the flexibility and support to expand work-based learning programs and create viable pathways that enable more individuals to reskill and build fulfilling careers on their own terms, and promotes career and technical education, to name a few.

Unfortunately, my Democrat colleagues would rather impose radical and unworkable policy under the guise of progress than find bipartisan solutions which foster environments where individuals are empowered to succeed and make the decisions that are best for them.

Mr. Speaker, I urge a ``no'' vote on H.R. 7, and I reserve the balance of my time.

BREAK IN TRANSCRIPT

Mr. Speaker, proponents of H.R. 7 claim that despite current prohibitions against pay discrimination, female workers are still paid, on average, considerably less than male workers and, as a result, a pernicious wage gap exists. However, many studies demonstrate that the gap is not necessarily the product of workplace discrimination.

In fact, this gap nearly disappears when factors such as hours worked per week, rate of leaving the workforce, and industry and occupation are considered.

A 2020 study by compensation software company PayScale found that when controlling for job title, years of experience, industry, location, and other compensable factors, women earned 98 percent as much as men.

A 2009 study commissioned by the U.S. Department of Labor found a gender wage gap of between 4.8 and 7.1 percent when controlling for economic variables between men and women.

A 2018 Harvard study found that the gap in pay between female and male bus and train operators working for the Massachusetts Bay Transportation Authority, MBTA, can be explained by the workplace choices that women and men make rather than other factors, such as discrimination. The study found that the earnings gap for MBTA bus and train operators is explained by the fact that the male operators took 48 percent fewer unpaid hours off and worked 83 percent more overtime hours per year than the female operators.

I want to point out that I am giving you facts here, Mr. Speaker, facts.

These differences are not due to any different work options faced by female and male operators. Rather, the study found that the female operators had a greater demand for workplace flexibility and a lower demand for overtime work hours than the male operators.

Pay discrimination is wrong and already illegal. We probably cannot say that enough. Any new legislation to combat pay discrimination should be based on facts, not supposition, not projection. The facts seem to be sorely missing from this debate.

Mr. Speaker, H.R. 7 requires that the employer defense must be consistent with ``business necessity,'' a broad and ill-defined term.

We don't know how the courts will interpret this sweeping requirement, but we do know the dictionary says it means ``absolutely essential'' or ``indispensable.''

How can an employer prove that any one factor determining employee pay could rise to the level to be necessary for the survival of the business?

Proponents of H.R. 7 will argue this phrase has been adopted from title VII, as amended by the 1991 Civil Rights Act, but the phrase has spawned endless litigation because of its lack of clarity. Anyone who thinks this concept is simple and can just be carried over from title VII is either naive or has been misled.

Further, the dubious concept of business necessity was developed under controversial so-called disparate impact analysis and cannot simply be slapped onto the Equal Pay Act, especially where, as mandated by H.R. 7, damages are unlimited. In contrast, under title VII, in disparate impact cases, damages are limited to backpay and benefits.

BREAK IN TRANSCRIPT

Ms. FOXX. Another provision in H.R. 7 requires that, in addition to proving business necessity, an employer must prove the business necessity accounts for 100 percent of the differential in compensation at issue. This is impossible to do. How can an employer explain slight differences in compensation based on educational level, experience, or quality of work on the job?

This bill is going to make it impossible for employers to pay differentially on merit for anything. It is a bad bill, and we should not be passing it.

I urge my colleagues to vote ``no.''

BREAK IN TRANSCRIPT

Mr. Speaker, H.R. 7 would create impossible conditions in which to operate for businessowners large and small. It would result in endless litigation in front of judges and juries, who will delve into employer compensation decisions even when there has been a showing that those decisions are not based on sex.

Alternatively, businessowners will simply decide not to risk liability of unlimited damages, which could bankrupt them, and the end result will be the use of pay bands by employers, which imposes a government civil service model on the private sector that will result in everyone in the workplace being compensated equally without regard to merit.

This is a very broad goal of liberals in general: Pay everybody the same and stifle innovation, stifle initiative, stifle anybody being different.

This is the wrong thing for our country. That is not the way the United States of America operates. We value innovation, we value entrepreneurism, we value independent thinking. We don't want to crush everybody into thinking the same way. That is the way civil service works. That is the way the unions work. That is not the way it should be in private industry, which has made this country great.

This bill stalls upward mobility. It hurts all employees striving to succeed on the job, who want to be rewarded for their efforts.

For these reasons and others, H.R. 7's provisions are unworkable and will benefit only trial lawyers, not innovative, hardworking workers.

BREAK IN TRANSCRIPT

I thank the majority leader for his compliments of me. When Howard Coble first introduced me to the Republican Conference here he said, I was ``a feisty mountain woman from the Blue Ridge, who goes bear hunting with a switch.'' And so I have cherished that description of me over the years. I am a feisty woman because I grew up extraordinarily poor.

And the majority leader is correct, I would not tolerate discrimination against me. I won't tolerate discrimination against anyone. I abhor discrimination. I am also an Italian American. I abhor that kind of discrimination and have fought against that. I fought against racial discrimination. I doubt there are many people in this body that fought more against discrimination against women than I have or mentored more women than I have.

However, the majority leader also said something that made me think of the phrase, ``all things being equal.'' Well, rarely are all things equal. Obviously, when all things are equal, we want no discrimination, everybody to be treated the same. That is what I want.

I have one child, a daughter. I have two grandchildren, a grandson and a granddaughter. I certainly don't want either one of them discriminated against on the basis of anything.

But, I say to Mr. Hoyer, yes, 82 cents has been disputed. We hear the same old tired ``statistics.'' They are not accurate. So let's stop doing that. Let's deal with the facts.

H.R. 7 is not the answer to discrimination. It is going to make it more difficult for employers to create jobs and to pay women and everybody equally. We need alternatives and we have one.

BREAK IN TRANSCRIPT

Ms. FOXX. Women, in terms of employment and pay, have made great strides in this country. When I was graduating from high school, basically there were three open professions for women: nursing, teaching, and being a secretary. We have come a long way. We have also come a long way in terms of wages.

Do we have ways to go in this country in terms of the way everybody thinks about people who are different from them? We certainly do. Republicans and Democrats both agree that pay discrimination is repugnant and illegal. I will say it again and again. It is repugnant and illegal.

Despite misguided claims from the other side, this underlying principle is not up for debate. Women should not be paid less than men for equal work.

However, Republicans are not in the business of passing radical and prescriptive bills just to get flashy headlines and score cheap political points.

We are equally committed to promoting both fairness and strong policymaking, and when judged by these standards, today's bill falls woefully short. Pay discrimination is illegal.

You know, we have really heard nothing about the inadequacies of the current law or the current processes. What we have heard is that we need new legislation. Republicans disagree with that. Again, we want pay discrimination to be illegal and we want any such cases to be treated seriously and to be looked at. This bill offers no new protection against pay discrimination in the workplace, however. And that is sorely lacking in this bill.

Mr. Speaker, H.R. 7 is nothing more than a trial lawyer payout at the expense of hardworking women. I urge a ``no'' vote, and I yield back the balance of my time.

BREAK IN TRANSCRIPT

Ms. FOXX. Madam Speaker, I yield myself such time as I may consume, and I rise in opposition to the en bloc amendments.

Madam Speaker, in America, discriminating in pay based on sex is illegal, as codified in the Equal Pay Act and the Civil Rights Act.

Democrats claim H.R. 7 will improve upon these bipartisan laws to create new opportunities for women to fight pay discrimination. What H.R. 7 actually does is create new opportunities for trial lawyers to earn higher paychecks while offering no new protections for pay discrimination in the workplace.

Unfortunately, I cannot support any of the Democrat amendments to H.R. 7 because none of them addresses the numerous unworkable and onerous provisions in the bill.

I appreciate that Representative Beyer's amendment recognizes the very serious problems with H.R. 7 by attempting to place a fig leaf on the expansive government data collection mandate in the bill. However, the Equal Employment Opportunity Commission, EEOC, is still required to implement the draconian data collection scheme in the underlying bill, which is still extremely misguided, expensive, and unnecessary.

H.R. 7 requires business owners to submit reams of pay data to the EEOC disaggregated by job category, race, sex, and ethnicity. Moreover, the collection mandate also includes other employment-related data, including hiring, termination, and promotion data, which even the discredited 2016 Obama administration pay data collection scheme did not include.

The data collection mandate in H.R. 7 raises several concerns.

First, it puts at risk volumes of highly confidential pay data involving millions of individual workers. We all know of the widespread data breaches the Federal Government has suffered.

Second, EEOC will not be able to manage or properly use this data. It has never been explained what exactly the EEOC will do with this data. Madam Speaker, data is not the same as information.

Third, this mandate is overly burdensome. Under the Obama administration scheme, the data cells required from business owners when they file an Employer Information Report, EEO-1, with EEOC expanded 180 cells to 3,660. Let me say that again: from 180 cells to 3,660. H.R. 7's scheme will add on hundreds, if not thousands, of more data cells.

EEOC has estimated that with the new reams of pay data added, the collection will cost business owners more than $600 million annually. I doubt that is going to help one single woman in this country.

Although this amendment purports to give EEOC more discretion to implement the pay data collection, this data collection mandate should simply be removed from the bill.

In any event, discretion cuts both ways, and the Democrat-controlled EEOC may choose to implement a data collection scheme even more expansive.

Let me be clear that the Beyer amendment does not improve the draconian pay data collection mandate in the underlying bill or the other serious flaws in other sections of H.R. 7 we have talked about today.

Representative Newman's amendment takes a longstanding reasonable requirement and makes it disruptive and unworkable.

First, the amendment requires a workplace notice posting of a partisan special-interest bill which fails to address pay discrimination in the workplace.

Second, under current law, covered employers must post a notice of the equal employment opportunity rights in a conspicuous place at the workplace. Employees who telecommute or otherwise do not have access to the physical notice must be provided an electronic version. Under Representative Newman's amendment, the employer must post electronic copies of a new notice on an internal website to which employees have access. This is unrealistic. H.R. 7 applies to millions of small businesses that do not have websites, much less internal websites for their employees.

In keep with the other impractical provisions in H.R. 7, the amendment adds another onerous requirement on small businesses that will be stuck with the bill.

Representative Ocasio-Cortez' amendment would create a new program for the Department of Labor to--I hate to say this word--``train'' employers regarding bias in negotiation and other wage-setting practices. The amendment includes a non-exhaustive list of 13 wage- setting practices on which employers allegedly need education. Employers may understandably review this list as 13 new ways for trial lawyers to allege violations of the Equal Pay Act.

I will compliment one aspect of Representative Ocasio-Cortez' amendment. It mentions compensation self-audits. Republicans agree that self-audits can be a useful tool in combating pay discrimination, and we urge support for the Republican substitute amendment which encourages employers to conduct self-evaluations to identify potentially unlawful pay differences and to take steps to rectify any unlawful pay practices. Unfortunately, H.R. 7 does not encourage these self-evaluations.

Representative Williams' amendment reestablishes the Obama-era National Equal Pay Enforcement Task Force. This amendment would establish another politically biased government bureaucracy that includes agencies such as the EEOC and the Department of Labor already tasked with enforcing laws against pay discrimination and ensuring compliance with those laws.

BREAK IN TRANSCRIPT

Ms. FOXX. Madam Speaker, I support equal pay for equal work. I don't know how many times Republicans have to say that, but we will keep saying it if necessary because equal pay for equal work is the right thing to do, but it is also required under two Federal statutes, and in most cases it is being adhered to.

Congress should focus on policies that will continue to increase economic opportunity and expand options for all workers. That is what we should be doing in the Education and Labor Committee: looking for ways to increase economic opportunity and expand options for all workers.

We shouldn't be doing away with pipeline jobs, we shouldn't be raising taxes, and we shouldn't be decreasing options for people to work in this country; but that is what this administration is doing, and that is what the other side is doing.

The Democrat amendments and the underlying bill fail miserably in terms of increasing options and expanding economic opportunity. It is pushing people into the bands, making everybody the same and treating everybody as though they have no individuality, they shouldn't be innovative, they shouldn't be creative, and they shouldn't strive for more. That is not the way to go.

Madam Speaker, I urge my colleagues to oppose the Democrat en bloc amendment and the underlying bill, and I yield back the balance of my time.

BREAK IN TRANSCRIPT

Ms. FOXX. Madam Speaker, I thank the gentlewoman for yielding.

Madam Speaker, I rise in support of this amendment, which was also introduced earlier this week by Representative Stefanik as a standalone bill, H.R. 2491, the Wage Equity Act of 2021.

Unlike the so-called Paycheck Fairness Act, which will unfairly punish businessowners and reward trial lawyers at the expense of workers, this amendment will effectively address pay discrimination in the workplace and help working women by ensuring pay differences among workers of the opposite sex are due to legitimate business-related reasons.

Among other commonsense provisions, this amendment will direct funds and research towards women's advancement in the workplace and will also authorize a grant program to educate women in college careers and technical programs on negotiating pay.

This amendment will also allow job applicants to disclose prior salary history voluntarily, ensuring they control this information as they see fit.

Madam Speaker, I urge my colleagues to support this amendment.

BREAK IN TRANSCRIPT

Source