Equal Pay Day was recently observed and brought attention to gender employment issues that the Paycheck Fairness Act would in part attempt to address. The FAMILY Act which would require providing paid family and medical leave also was discussed at the congressional hearing held on Equal Pay Day, while in February, the House of Representatives passed the Equality Act designed to prohibit discrimination based on sexual orientation or gender identity.
Separately, with the continued attention on the COVID-19 vaccinations, information is provided here on updated guidance from the Centers for Disease Control and Prevention on workplace vaccination programs.
March 24 was Equal Pay Day in the U.S. According to EEOC Chair Charlotte Burrows in her Equal Pay Day statement, women needed to work almost 15 months to earn the same amount as men did in 2020. The House Committee on Oversight and Reform marked Equal Pay Day by holding a hearing on “Honoring ‘Equal Pay Day’: Examining the Long-Term Economic Impacts of Gender Inequality”. Among the legislative proposals, which are discussed below that were considered during the hearing were the Paycheck Fairness Act (H.R. 7) and the FAMILY Act (H.R. 804).
The Paycheck Fairness Act (H.R. 7, S. 205) has been reintroduced by Rep. Rosa DeLauro, D-Conn., and Sen. Patty Murray, D-Wash. The bill has significant congressional support with 225 House and 49 Senate co-sponsors. This legislation was first introduced during the first term of former President George W. Bush and has been reintroduced in every subsequent session of Congress. The House of Representatives passed the bill during the last session of Congress, but it was not considered by the Senate. The legislation is pending before congressional committees. Chances of passage are much greater in the House of Representatives than in the Senate due to the latter’s filibuster rules, which require 60 votes to end debate on a bill.
The bill would modify the “factor other than sex” defense that is part of the Equal Pay Act of 1963 to provide that it would apply “only if the employer demonstrates that such factor (i) is not based upon or derived from a sex-based differential in compensation; (ii) is job-related with respect to the position in question; (iii) is consistent with business necessity; and (iv) accounts for the entire differential in compensation at issue. Such defense shall not apply where 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.”
The bill would prohibit retaliation for disclosure of salary information, for asking about the wage practices of the employer or for employees disclosing their own wages to co-workers. Employers would be prohibited from requesting wage information from applicants — several states and localities have passed laws that prevent employers from obtaining this information. The bill would provide for compensatory and punitive damages.
DeLauro and Sen. Kirsten Gillibrand, D-N.Y., have reintroduced the Family and Medical Leave Insurance Act (H.R. 804, S. 248). The bills have 198 House co-sponsors and 36 Senate co-sponsors. The legislation was introduced initially in 2013 and has been reintroduced in every subsequent Congress.
The bill would establish a Family and Medical Leave Insurance Trust Fund that would provide up to 12 weeks of paid family and medical leave due to the serious health condition of the individual or a relative, which would include a domestic partner. The initial maximum monthly payment would be $4,000, and this amount would be indexed to the national average wage index in subsequent years. The newly established trust fund would be financed through a payroll tax of 0.2% of wages that would be paid by both employees and employers. While the legislation could be passed by the House of Representatives, its chance of Senate passage is uncertain. During the last session of Congress, Republican members introduced a more limited bill that would be funded by allowing employees to take an advance on their Social Security benefits.
On Feb. 25, the House of Representatives passed the Equality Act (H.R. 5), which was introduced by Rep. David Cicilline, D-R.I.. A companion bill (S. 393) has been introduced in the Senate by Sen. Jeff Merkley, D-Ore. This bill prohibits discrimination based on sex, sexual orientation and gender identity in areas including employment, public accommodations and facilities, education, federal funding, housing, credit and the jury system. Specifically, the bill defines and includes sex, sexual orientation and gender identity among the prohibited categories of discrimination. The bill would amend Section 703 of Title VII of the Civil Rights Act of 1964, which states that it is an unlawful employment practice to fail or refuse to hire, discharge, or otherwise discriminate against anyone based on race, color, religion, sex or national origin. The bill would insert, after the word “sex,” the phrase “including sexual orientation and gender identity.”
This bill would codify last year’s Supreme Court decision in Bostock v. Clayton County, in which, by a 6-3 decision, the court ruled that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. As mentioned previously, due to Senate rules, it is uncertain whether this bill will be passed.
On March 16, the CDC issued updated guidance for workplace vaccination programs. The guidance includes information for employers whether they decide to offer vaccinations onsite or offsite. The CDC recommends that, no matter where vaccinations are administered, that employers should offer flexible, nonpunitive sick-leave options (e.g., paid sick leave) for employees with signs and symptoms after vaccination. The CDC also recommends that employers support transportation to off-site vaccination clinics, such as paying fares for taxis or ridesharing services, ensuring employees can maintain social distancing.
The CDC suggests that employers consider staggering employee vaccinations to avoid worker shortages that might occur due to vaccine side effects. The CDC recommends that employers offering workplace vaccinations consider providing them “to all people working at the workplace, regardless of their status as a contract or temporary employee.” For those employers who plan to require employees to be vaccinated, the CDC cautions that exemptions should be provided due to medical reasons or religious beliefs.
Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.