Litigators

Kamala Harris's Equal Pay Plan Acknowledges The Weakness Of Lawsuits

It feels like an admission that courts cannot close the disparity.

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Senator Kamala Harris (Photo by Ethan Miller/Getty Images)

The Lilly Ledbetter Fair Pay Act is a very American solution to the problem of gender pay disparity. The Act makes it easier for women to sue their employers for gender discrimination in pay. It amends the statute of limitations to count each paycheck as a new act of discrimination, and allows women to pursue their claims under the Civil Rights Act. It’s a perfectly litigious solution for our extremely litigious society.

Raise your hand if you are a woman who is getting shafted every two weeks who now feels like it’s a good idea to sue your employer.

The problem is that even if you find out that you are being paid less than a male colleague for the same work, the jump to suing your employer is a large one. First of all, you kind of have to be ready to find a new job, one that is probably going to probably pay you less than a man too. And you better find that job before you file your lawsuit. Also, if you file, you have to be prepared to have your entire professional history become part of the public record. Your employer will certainly argue that you aren’t being paid less because you’re a woman — you’re being paid less because you suck.

Lawsuits put the onus on the woman to hold her employer to account. Kamala Harris has rolled out a plan to put the onus on government to hold employers to account. From the New York Times:

Unlike previous federal legislation regarding the pay gap, which asked workers to report or sue their employer if discrepancies were suspected, Ms. Harris’s plan would proactively force companies with 100 or more employees to obtain an “equal pay certification” every two years, showing that they were paying men and women the same for analogous work, her campaign said…

Under Ms. Harris’s proposal, companies that do not meet the pay certification standards would be fined 1 percent of their profits for every 1 percent difference in pay between men and women. The proposal also says that, should Congress fail to act, Ms. Harris would apply these standards to federal contractors unilaterally, barring companies that fail to obtain an “equal pay certification” from competing for federal contracts valued at more than $500,000.

“For too long, we’ve put the burden entirely on workers to hold corporations accountable for pay discrimination through costly lawsuits that are increasingly difficult to prove,” Ms. Harris’s campaign said in the announcement Monday. “We’ve let corporations hide their wage gaps, but forced women to stand up in court just to get the pay they’ve earned.”

I like reorienting this problem away from the courts and towards the government. I like the market transparency afforded to women who will be able to know if their potential employers have received this certification or not. I like that there’s a plan for action even assuming Republicans retain possession of one legislative branch and attempt to block everything for four-to-eight years.

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I don’t know if it will work. I don’t know if obtaining an “equal pay certification” will be used by employers to blunt the very lawsuits the Ledbetter Act tried to make easier. But I think this is an idea that’s worth a try.

The courts have failed to close the gender pay gap. It’s time for Congress to give it a try.

Kamala Harris Announces Plan to Close the Gender Pay Gap [New York Times]

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