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Democrats reintroduced the Paycheck Fairness Act, a long-pending bill aimed at closing the wage gap between men and women, in the House and Senate on Wednesday, but attorneys say the legislation is unlikely to make it through Congress despite the Obama administration's support.

Sen. Barbara A. Mikulski, D-Md., and Rep. Rosa DeLauro, D-Conn., introduced the legislation to amend the Fair Labor Standards Act "to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex" in their respective chambers. The Senate legislation currently has 23 co-sponsors, and the House bill has 130.

But lawyers told Law360 that despite the passion of its supporters, there is no reason to believe the current iteration of the bill will fare better than its predecessors in terms of making it to the president's desk.

"This has been around for a number of congresses," Ilyse Schuman of Littler Mendelson PC said. "It continues to be an important message piece for its supporters, but that doesn't mean that its prospects for passage are any better this congress than they were in the last congress."

Despite an endorsement from the president, a previous version of the bill introduced in May failed to clear the Senate in June when a bid to invoke cloture by Senate Majority Leader Harry Reid, D-Nev., was defeated 52-47 in a straight party-line vote. And an earlier version of the bill cleared the House in 2009, but later also stalled out in the Senate.

Debate over the proposed legislation has long been contentious and is likely to remain so. Proponents tout the proposed law as a solution to a gender gap in salaries that results in women being paid 77 cents for every dollar paid to men, while critics see it as a needless entryway to frivolous and costly lawsuits against the business community.

"Equal pay is not just a problem for women, but for families, who are trying to pay their bills, trying to get ahead, trying to achieve the American Dream, and are getting a smaller paycheck than they have earned for their hard work," bill sponsor DeLauro said after reintroducing the bill of which she has introduced a version in each of the past eight congresses.

According to proponents like DeLauro, the proposed law is broadly designed to close the pay gap by giving women more legal tools to negotiate with employers for equal pay, closing court-created loopholes in the Equal Pay Act and other legislation, creating strong incentives for employers to abide by the law, and strengthening federal enforcement efforts.

Specifically, it would require employers to justify any disparity in wages between a man and a woman for doing the same job with proof that the disparity is job-related and necessary for business, in addition to not being based on sex, as opposed to only asking employers to prove that the difference is due to a factor other than sex.

The proposed legislation would also strive to make pay policies more transparent by barring employers from retaliating against employees who discuss salary information with co-workers. Additionally, it would allow alleged victims of discrimination to ask for punitive damages, as well as let the U.S. Equal Employment Opportunity Commission collect gender-based pay data.

Many of the bill's provisions have raised controversy among employers that fear the legislation could not only open them up to more litigation, but also unnecessarily tie their hands in making payscale determinations.

"The precedent that this sets for potentially unlimited damages under the Equal Pay Act is obviously of great concern to the employer community," Schuman said. "And the way in which it significantly restricts the ability of employers to set pay rates based on very valid reasons such as professional experience or even location is very troubling to employers."

A change that would make class actions brought under the Equal Pay Act opt-out cases for class members, as opposed to opt-in cases as they are now, has also raised concerns on the management side.

"It seems to be sort of an invitation to major class litigation," Larry Lorber of Proskauer Rose LLP said.

With resistance from business groups and Republicans expected for the latest iteration of the Paycheck Fairness Act, attorneys say its chances for passage look slim.

"It is hard to see the house passing it because, unlike Ledbetter - which really was a technical statute of limitations bill but otherwise didn't change anything - this would be a massive, substantial change to the law," Lorber said, referring to the Lilly Ledbetter Fair Pay Act, which was signed into law in 2009.

The Paycheck Fairness Act's fate doesn't look good in the Senate either, according to Schuman, who pointed out that Democrats still don't have the 60 votes that likely would be required to move the bill forward.

While employers should keep an eye on the bill's progress, its passage doesn't appear imminent, Lorber said.

Still, even without the passage of the Paycheck Fairness Act, employers must remain attuned to pay equity issues, lawyers say. Whether or not Congress ultimately passes the bill, employment regulators are expected to stay focused on issues of pay equity during Obama's second term, so existing laws aimed at combating pay discrimination based on sex will be vigorously enforced.

The president even highlighted equal pay for women as a priority in his inaugural address.

"[O]ur journey is not complete until our wives, our mothers and daughters can earn a living equal to their efforts," Obama said.

If you feel you would like to explore your employment law options, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.

Source: Abigail Rubenstein, Relaunched Paycheck Fairness Act Unlikely To Become Law, Law360 (Jan. 24, 2013)