It would also eliminate the current $300,000 cap on punitive damages, giving trial lawyers a much stronger incentive to introduce lawsuits.
And it would change how class-action discrimination suits work. Currently, people choose to sign on for class-action suits. Under the Paycheck Fairness Act, these suits would operate under an opt-out basis. Every employee of the discriminated gender at a particular business would be included by default, Sherk explains, making potential class sizes enormous.
The ensuing cost to businesses — both to insure against frivolous lawsuits and fight them — could be enormous, making “America a less desirable place to do business,” according to Diana Furchtgott-Roth, a senior fellow at the Manhattan Institute.
That leaves the aspect of the bill that its proponents seem to have emphasized most: that it lets workers share their salary information with each other. But there’s one hiccup here: The National Labor Relations Act of 1935 already protects this right. Staffers from the offices of the bill’s sponsors, Senator Barbara Mikulski (D., Md.) and Representative Rosa DeLauro (D., Conn.) were unavailable to explain before press time how the Paycheck Fairness Act differs from the New Deal–era legislation on this issue.
Not surprisingly, many Republicans, including Senator Hatch, strongly oppose the legislation.
“It doesn’t seem to matter to Senate Democrats that federal law already prevents gender-based pay discrimination,” he says. “Why let that fact get in the way of a message-tested bill that would dramatically increase costly litigation on job creators at a time when our economy is so weak?”
Further, many conservatives question the existence of a wage gap in the first place. AEI’s O’Neill argued that the data used to suggest the problem of sex-based wage discrepancies don’t take into account the fact that many women make less remunerative career choices. James Sherk concurred, arguing that data that controls for occupation, education, and other important variables show virtually no wage gap.
So instead of helping workers, the Paycheck Fairness Act could actually make their jobs harder by increasing costs to the businesses that hire them. It’s pretty clear that the legislation is doomed, but it’s also clear that feminist groups and congressional Democrats will use its probable defeat as more grounds of a Republican “war on women.”
— Betsy Woodruff is a William F. Buckley Fellow at the National Review Institute.