Nondiscriminatory Pay – After Ledbetter, the Next Steps to Stopping Sex-Based Pay Discrimination

Today marks a critical point in the year, a date that should make us as a Tennesseans and as U.S. citizens not simply ashamed but motivated to action. April 28 (known as Equal Pay Day) marks the point into the year a woman would have to work to in order to catch up with her male counterpart’s pay in 2008.

Large steps in closing the pay disparity between man and women have been made since the Equal Pay Act of 1963, which made it illegal for employers to pay women less than men for equal work. And Tennessee lawmakers took a strong step forward in 2004 with The Equal Pay Remedies and Enforcement Act that put teeth in Tennessee discrimination law. Then, in January this year, even further progress was made with the The Lilly Ledbetter Fair Pay Act. This law, designed to reduce employers’ ability to continue unfair, sex-based discriminatory pay practices, expanded the statute of limitations and closed the legal loophole that allowed employers to continue discriminatory pay practices if previously they haven’t been caught.

Now before Congress is the Paycheck Fairness Act S. 182. This is an important bill for reasons better explained in just a moment. Since we’ve congratulated ourselves on our symptoms of wage disparity lessening and before discuss PFA’s remedies, let us take stock nearly three months into the year where women, on average, would have to work to make the same as their male counterparts.

Neither Tennessee nor any other U.S. state can claim women’s pay has reached equity with men’s. Perhaps this is not workplace discrimination. But if we weren’t discrimination and instead a statistical error, wouldn’t at least one state have its women making the same as its men–or even a little more? How, as an aggregate, can a 20% gap still exist between what men and women make be explained if not a matter of legally sanctioned sex discrimination?

What the Paycheck Fairness Act gives to the Equal Pay Act is muscle. PFA would allow, without retaliation, male and female employees to share information about their pay (*cough* Ledbetter *cough*) in order to evaluate if he or she is subject to wage discrimination. The PFA will also reduce the umbrella of “affirmative defense,” which allows discriminating employers to pay female less than male employees if the company can suggest some factor other than sex for the pay discrepancy. (One successful argument for unfair pay have included the argument that male workers are more aggressive in salary negotiations.)

As with arguments for nursing home neglect lawsuits or product liability lawsuits, business cannot be allowed to decide for itself where the balance of dollars and fairness lies. The Paycheck Fairness Act allows punitive and compensatory damages where the current EPA law only allows fixed, limited damages with backpay, which are often insubstantial losses to motivate the company or to motivate whistleblowing. PFA puts sex-based wage discrimination on par with damages a discriminated person can be awarded for racial or religious discrimination under current federal law.

If you believe you are a victim of sex-based paycheck discrimination, take a moment to read the my employment law firm’s article on Tennessee workplace discrimination to get a better sense of whether you might have an actionable workplace gender discrimination lawsuit. If after review you believe you have been disparately paid for your work at a Tennessee workplace or in neighboring Kentucky or Georgia, give my Nashville law offices a call at 1-800-705-2121 or contact us through our workplace lawsuit form.

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