McCain opposes equal pay bill in Senate
Senator John McCain says that he opposes a bill (in the Senate) that would force companies to pay women the same amount of money they pay men (for the same work). The reason? Such a law would lead to more lawsuits. And no, I’m not making this up.
Senate Republicans killed the bill Wednesday night on a 56-42 vote that denied the measure the 60 votes needed to advance it to full debate and a vote. Majority Leader Harry Reid, D-Nev., had delayed the vote to give McCain’s Democratic rivals, Sens. Hillary Rodham Clinton and Barack Obama, time to return to Washington to support the measure, which would make it easier for women to sue their employers for pay discrimination.
McCain skipped the vote to campaign in New Orleans.
“I am all in favor of pay equity for women, but this kind of legislation, as is typical of what’s being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems,” the expected GOP presidential nominee told reporters. “This is government playing a much, much greater role in the business of a private enterprise system.”
To me, the situation is both simply and difficult. It’s simple because I believe that women should be paid just as much as men. So, a law should be passed, one would say, to accomplish this.
On the other hand, there’s also this minor thing called the US Constitution. I’m not aware of any article that grants the US federal government the right to force employers to pay women the same amount of money as they pay men. ‘Lawsuits’ isn’t a good reason to oppose the bill, but the Constitution most certainly is.
So what do you need to do? Well, either amend the Constitution or let states handle it. And why not the latter? States are perfectly able to make similar laws and to enforce them.
At issue here is whether or not employees ought to be able to sue over alleged discrimination that occurred many years ago. To me, the current 6 month window seems too short, but opening up the possibility of a lawsuit over something that occurred 20-25 years ago doesn’t seem like a good idea either (not discounting the possibility that real discrimination didn’t occur- it probably did, and probably even more so than now) but the employer might not be able to defend against the charges when so much time has passed. It’s pretty important to establish whether or not the woman was actually doing the same job as male cohorts, for example, as there may well have been differences in the level of responsibility and hours worked. All of that would need to be established, and the records to verify one way or another might not be traceable after many years have passed.
I suspect government CAN impose this sort of a law without violating the Constitution, otherwise the Civil Rights Act wouldn’t have stood. I don’t think that you can make a law against refusing blacks entry into a business but you can’t make another one that forces equal pay for equal work amongst the genders. In fact, I’d wager that the Civil Rights Act could be interpreted to cover just such an eventuality, which would mean that this law is merely to make it administratively more simple to sue on the basis of pay discrimination.
It’s called the Commerce Clause, Michael. As Claudia notes, the Constitution does allow the federal government to pass a law making it illegal to discriminate on the basis of gender, because of the effect such discrimination has on interstate commerce.
The Ledbetter case in the Supreme Court, which only involved statutory interpretation, not setting a Constitutional policy, was correctly decided. From a policy standpoint, I’m with Christine. 6 months is too short, 25 years is too long. Make it about 3 years, and that would work fairly well.
Make it about 3 years, and that would work fairly well.
Of course it wouldn’t work as well if the real goal is a political "gotcha" during a presidential campaign.
Exactly, Christine. The equal pay requirement is already law, and I’m certain Senator McCain supports it. The bill under consideration is simply to allow suits to be filed for violations for an almost unlimited period of time, even 20 or 30 years after the actual pay discrimination occured. It is entirely propery for him to oppose that bill, and has nothing to do with opposing "equal pay for women."
This is a fairly complex problem that cannot be solved by slapping a quick fix regulation band-aid on it beucase pay is not "fair". Off the top of my head, right or wrong one reason for the overall disparity may be that some women chose to take maternity leave. The economic risk to a company and costs of a woman possibly leaving work for a period of time or indefinitely to take care a baby above and beyond the given family medical leave act time. There are probably others, but this is just one I could think of quickly.
That being said, I think this should be looked at from an equal pay for equal productivity standpoint. I think companies should quantify what productivity is for specific jobs, and pay accordingly. Just because a man and a woman have the same job (or a man and a man or a woman and a woman for that matter) doesn’t mean they should be paid the same.
Jay_C, it’s not easy for a woman to win a case under the existing law (which nobody wants to change, other than how long you can wait before filing a claim). She has to prove that the employer discriminated against her in her pay specifically because of her gender. Simply showing that she is paid less than the guy in her department is not sufficient.
Pat, perhaps I misspoke, what I was suggesting was an alternative to the current method (suggesting productivity as the ruler rather than simply having the same e job) I don’t think I said anything contrary to your argument, was I?
I’m not sure, Jay_C…. your language about "slapping a quick fix regulation band-aid" made me think you were not understanding what the current law actually is. The debate over the "Ledbetter Bill" is not over whether a prohibition on gender-based pay discrimination SHOULD be the law, it already IS the law. The only thing currently being debated in Congress is how long a time a person harmed by such pay discrimination has to file a suit for violations of that law.
If you’re proposing that the underlying law itself should be changed, that’s fine with me (though I think it fundamentally is already basically as you wish it to be), but it needs to be clear that the underlying prohibition on pay discrimination is NOT what’s being debated and voted on in the Senate right now. That’s why Michael’s first sentence is false. McCain does not oppose a bill to do that. He only opposes a bill which would extend the time period allowed for a woman to bring suit under the existing law.
I’m sorry, but simply saying the current system doesn’t work, so we can’t do anything to fix it is not a good enough reason.
There is an extremely effective and simple work around for companies which would avoid lawsuits. Pay grades.
The current system runs into problems because raises are compounded. Just like investment returns, your gains at the very beginning are much more important than your gains at the very end. Likewise, discrimination 20 years ago DOES strongly effect pay now.
Pay grades solve this problem by not compounding raises. Now pay is derived from an equation based on job, seniority, and performance, with as much emphasis placed on each category as the business wanted.
I’m sure there are other good ways of preventing decade old discrimination from carrying over as well, and businesses can pick whichever way that works for them. What seems unacceptable to me is to allow discrimination to fester simply because it is the status quo.
Kevin, nobody is saying let the status quo fester, so far as I know. The change proposed by the Democrats is basically to allow suits by women who were discriminated against 25 years ago, if that discrimination has resulted in lower wages for them today (because of the compound nature of raises). No company should have to defend actions that occurred 25 years ago. How could anybody possibly determine whether discrimination did or did not occur? Most folks, I suspect McCain included, want to see some reasonable compromise, allowing for suits up to, say, 3 years after the act of discrimination occurred.
Certainly companies are free to adopt rigid salary structures as you describe, but the government certainly can’t and shouldn’t mandate that process.
McCain’s point is less about lawsuits than the consequences of poorly drafted legislation for the people it is ostensibly supposed to help. The bill may sound like a good idea in principle, but what is the criteria for "fair"? And how do you enforce it? And has anyone thought yet about the unintended consequences; such as, making companies less likely to hire women?
Our bureaucratic system of government can’t stop people from entering the country illegally, can’t get food/water/medicine to disaster victims, and is barely able to deliver the mail correctly. If they can’t get the relatively simple things right, why should we have faith in their ability to make decisions regarding complex issues having variables as dynamic as those found in the marketplace? Especially when there are laws on the books already to deal with real discrimination?
I’ll confess to not knowing the contents of the bill as well as either Pat or Kevin apparently do - but if anyone thinks that Pelosi, Clinton and Reid are sponsoring a market-oriented approach to this issue that does not require a new massive central bureaucracy and adjoining federal powers, then you haven’t been paying attention to US politics. The support of those 3 senators is all I need to be highly suspicious of this bill until I get to review it in more detail. I will certainly give McCain the benefit of the doubt on this one, rather than assume he is on board for repression of women in general.
Pat, I could be wrong about the current legislation, but the thinking right after the supreme court decision was that people wanted to make each new paycheck renew the 180 day limit on filing a discrimination charge, so that even if you couldn’t prove a single act of discrimination on a particular pay raise, the pattern established over 20 years would constitute discrimination. However, if your paycheck was equalized, then you would only have 180 since your last bad check.
Right now, current pay is dependent on choices made 25 years ago. It is certainly hard to determine if those decisions are discriminatory, but it does not change the relationship. That is exactly why we should be encouraging methods of pay where current pay is independant of choices made 25 years ago. (pay grades are one possible solution). We could mandate pay, but that would re reckless and oppressive government. Smart government doesn’t tell people what they must do, it just simply says, the current system leads to inequality, and acts to prevent that inequality.
I should add, if we want pay to be dependant on choices 25 years ago, then we should be willing to stand behind those choices. It seems to me that businesses want the first (mostly because it’s the status quo) and not the second. Of course everyone wants what’s easiest for them, but when those actions result in significant inequalities, it is the duty of government to step in and encourage a more equal system.
Kevin… the mere fact that 2 paychecks are different is not proof of discrimination. Any 2 men who do the same job are unlikely to be paid exactly the same, either, depending on just how structured a company’s policies are. What the approach you and the bill advocate requires is to determine whether there were any discriminatory pay decisions made since the woman started working for that company (or the predecessory company that was bought out by the current company). That’s the only way to determine whether her paycheck today is the result of discriminatory actions.
Current pay of all employees is almost always dependent on a whole host of factors, including all the past pay decisions. There’s absolutely nothing illegal about that. The only illegal thing is to make pay decisions for inappropriate gender-based discriminatory reasons.
it’s true it’s not direct proof, but when women make %80 across the board to men, they either need to be across the board worse, or there needs to be discrimination. When you build up a pattern of less pay, with comparable performance, over many years the only logical conclusion is that discrimination has occurred. Can you at least admit that much?
This doesn’t directly force the company to do anything. They can look at their options: one would be to just hope they don’t get sued, one would be to evaluate every pay raise for the last 30 years, and one would be to switch to payment method that is less prone to long term accumulation of discrimination. Businesses are smart, and will quickly pick the third option.
Kevin, the 80% figure, to the extent it’s accurate at all, is a very BROAD average across the country. It doesn’t hold true in every company or every industry or every region, necessarily. More importantly, it is not proof that women are either "worse" or discriminated against. As someone pointed out earlier, they may be perfectly fine employees, but not have, on average the same amount of experience as men (because they took time off for child-rearing) or might not, on average, work as many overtime hours as men, or any other of a host of factors that have nothing to do with gender discrimination.
So no, I can’t "at least admit that much."
Beyond that, it is fundamentally unfair in almost all circumstances to allow ANYBODY to be sued for actions that took place 20 or 30 years ago. Particularly if you take the position that "pay differential = pay discrimination," then you are micro-managing how employers must behave, in a manner far beyond the minimum necessary to rectify the harms of gender-based discrimination.