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Our Turn: GAP Act will help end pay inequity

  • Sen. Shelley Moore Capito AP

  • Sen. Kelly Ayotte AP



For the Monitor
Thursday, April 14, 2016

In 2016, it should be common sense that women and men get equal pay for equal work. Your salary should be based on your experience and qualifications – not your gender. But unfortunately, gender-based wage differences still exist, and for many women, discrimination in the workplace is an ever-present concern. As female senators, we know firsthand the challenges women face in their careers.

This is a serious problem, which is why we worked with both employees and stakeholders from the business community to create the Gender Advancement in Pay (GAP) Act. On Equal Pay Day, we believe we should do everything in our power to ensure our society is treating women fairly – and ending gender-based pay discrimination should be a major part of that.

Currently, if an individual feels they are the victim of gender-based pay discrimination, there are a patchwork of laws they could turn to.

The Equal Pay Act and Title VII both provide guidance on pay discrimination claims, but the Equal Pay Act has been shaped by conflicting judicial interpretations. As a result, some employees receive protections not available to other employees, simply based on their geography or job function. The underlying laws are sound but are in desperate need of clarification.

The GAP Act takes a sensible approach to strengthening these laws and addressing pay discrimination without creating further opportunities to line the pockets of trial lawyers. The bill makes it clear that employers must pay women and men equal wages for equal work, while still preserving the ability to award merit pay and allow for flexible schedules.

One area in particular where the GAP Act would help empower employees and encourage equal pay is salary secrecy.

According to the Institute for Women’s Policy Research, about half of workers were discouraged or outright prohibited from discussing their pay with co-workers. Some employees are currently protected from discrimination for discussing their pay, yet despite the law, many workplaces have “pay secrecy” policies. When employees can discuss their pay with co-workers, they are more likely to uncover incidents of gender-based pay discrimination.

Knowing this, the GAP Act would prohibit retaliation against employees who discuss their pay and tell employers that they can’t institute pay secrecy policies. And after getting feedback from people in our states, we strengthened the GAP Act to make clear that employers cannot sidestep this protection.

Expanding transparency surrounding salaries and pay is an easy fix that has earned support on both sides of the aisle – in 2014, President Obama signed an executive order along the same lines.

We also felt it was important to make technical fixes for the process of filing a complaint, like addressing the loophole that allows employers to explain away differences of pay between genders, or the “factor other than sex” defense.

In the Equal Pay Act, a defendant employer can explain a pay differential through one of four affirmative defenses – a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a factor other than sex.

While the first three defenses are straightforward, the courts have offered differing interpretations of the fourth, leaving a loophole for companies to explain away pay differences.

Our bill would remedy that by clarifying that the “factor other than sex” must be a “business-related factor,” such as education, training or experience. This clarification will help ensure that employees receive the same protection no matter what court hears their argument and that companies cannot fall back on vague reasoning when responding to a complaint.

Finally, our bill needed some teeth – so the GAP Act also creates a civil penalty for companies found to have engaged in willful wage discrimination. While the penalty is capped based on the size of the employer, the penalties will be used to fund studies on the wage gap and help spread strategies to increase the representation of women in high-wage, high-demand occupations.

By clarifying the patchwork of laws and judicial interpretations that currently guide equal pay complaints and empowering employees, the GAP Act will take major strides toward eliminating gender-based wage discrimination.

Respecting women and treating them fairly is a basic issue that both Republicans and Democrats can agree on, and we share common ground in wanting to fight pay discrimination.

We want to make sure that every woman has equal opportunity to accomplish her dreams, and on Equal Pay Day, we urge our colleagues to join us and swiftly pass the GAP Act.

(Republican Kelly Ayotte of Nashua represents New Hampshire in the United States Senate. Republican Shelley Moore Capito represents West Virginia in the United States Senate.)