Senate GOPs Make Tactical Move in Allowing Fair Pay Language

WASHINGTON – Senate Democrats took a small step last week toward assuring that women receive compensation equal to that of men performing the same or a similar job, but it appears the years-long effort is likely to go no further.

As part of the budget bill hammered out during an all-night session last week, Sen. Barbara Mikulski (D-Md.), chairwoman of the Senate Appropriations Committee, inserted language declaring that her legislation, the Paycheck Fairness Act, will not add to the nation’s deficit should it pass later this year.

Mikulski called her amendment “the functional equivalent of a sense-of-the-Senate resolution that the Senate should pass the Paycheck Fairness Act.” It was adopted by voice vote with no objection.

“Under the legislation I am proposing, no longer will women be on their own in fighting for equal pay for equal work,” Mikulski said. “In this country we say, ‘If you work hard and play by the rules, you will get ahead.’ We work hard every day, but we find that the rules are different for women than for men. Actually, the rules in many workplaces are rigged against us.”

The budget vote came as something of a surprise. Some form of the Paycheck Fairness Act has been around for 15 years. President Obama has strongly endorsed it, going so far as to request its passage in his State of the Union address. This year it has 43 co-sponsors – all Democrats.

Senate Republican filibusters in 2010 and 2012 killed the measure even though it carried majority support in both instances. It faces the same possible fate this year.

GOP acquiescence on the budget language doesn’t mean they’re prepared to embrace the legislation when it pops up in the future. Senate aides instead said permitting the non-binding language to pass was a tactical response – shielding members of the Republican conference from having to make a nettlesome vote.

Republican lawmakers are aware that their standing among women voters continues to erode in part because of the party’s stances on issues like abortion and availability of contraception. Leadership, aides said, saw no reason to cast a vote at this time on a proposal that doesn’t effectively advance the measure. If nothing else, they are now on record favoring equal pay for equal work – at least until Mikulski’s bill comes up for a vote.

It’s unlikely the Mikulski bill will vault the Senate’s 60-vote hurdle when, or if, it comes up for a vote without major change.

The Paycheck Fairness Act, which has been introduced in the House and the Senate, would, among other things, protect workers from sharing information about their compensation with other employees – a practice that now can result in dismissal. It requires employers to prove that any salary differences were based on qualifications, not gender, and allows plaintiffs in sex discrimination cases to seek punitive as well as compensatory damages.

The Society for Human Resource Management, generally composed of those who do the hiring, opposes the legislation and has produced talking points. The legislation, it said, “would outlaw the consideration of many legitimate pay factors, such as an employee’s level of education and training, professional experience and salary history.”

The bill’s requirements would also “make it extremely difficult for employers to use a ‘factors other than sex’ affirmative defense” for claims that are brought.

In the past, Republicans have focused opposition on a provision that fails to cap punitive damages in any salary discrimination cases.