[The Act] mandates that the business necessity defense “shall not apply” when the employee “demonstrates that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.” But what if the employer has refused because it has concluded that the alternative is — contrary to the employee’s assertion — more costly or less efficient? What if the employee and employer disagree on what the business purpose is or should be?
This approach also could make employers vulnerable to attack for responding to market forces. Take an employer who gives a hefty raise to a valued male employee who has gotten a job offer from a competitor. Would a court agree that the raise advanced a legitimate business purpose or could the employer be slammed unless he also bumps up the salary of a similarly situated female employee?
This could be a significant new paperwork burden for employers, and serve as a stepping stone for additional micromanaging of how employees are compensated. An ambitious Congress may decide that it would prefer to move toward the bureaucrats’ version of “fairness” rather than trust compensation decisions to the relatively free market, fulfilling the long-held feminist dream of enacting a comparable-worth regime.
The Washington Post’s critique is welcome, but there are additional reasons to oppose this legislation that the editorial misses.