National Journal

Last month, to mark Equal Pay Day, the Paycheck Fairness Act was brought to the Senate floor and defeated — much to Democratic Sen. Barbara Mikulski's chagrin. Mikulski described herself as "volcanic" over the loss.

Let's hope the lava has cooled. A careful reading of the latest American Time Use Survey conducted by the Bureau of Labor Statistics indicates that Sen. Mikulski's Paycheck Fairness Act would not have substantively helped its target audience: women.


The BLS conducts annual surveys on how Americans use their time. The most recent American Time Use Survey found that on the days that they worked, employed men worked an average of 55 minutes more than employed women. Part of this difference can be explained simply. Women are far more likely to work part-time. But even among full-time workers, men generally put in more hours. Men worked an average of 8.5 hours a day compared with women's 7.9, according to the latest time-use data.

The ATUS also found that women perform more household activities than men on an average day and that women provide more physical care for children under the age of 18 than men do. Perhaps because many women bear the brunt of domestic work, almost twice as many women worked part-time than men in 2012, according to ATUS.

These findings on how women and men use their time offer useful context for examining the simple ratio the Census Bureau used to calculate the size of the current gender wage gap. The infamous "77 cents" women allegedly earn on average for every $1 that men earn on average is something President Obama has frequently referenced. And, it's a claim that led the The Washington Post to twice give Obama "Pinocchios," the paper's way of indicating that particular public comments do not comport with the facts. The bottom line is this: Given that so many more women than men work part-time, using a ratio of the overall median incomes of men and women to proclaim that women make only 77 cents to every $1 men make for equal work is not accurate.

It's quite misleading.

Much has been written about the gender wage discrepancy. Here is what gets far less attention. The wage gap is smaller on the whole when looking at weekly wages: Women earn 81 cents for every dollar that men make. It is smaller still when looking at hourly wages: Women take in 86 cents for every dollar earned by their male peers. Finally, with unmarried women bringing in 96 cents for almost every dollar paid to unmarried men, the gender pay gap is almost nonexistent. In fact, this suggests that the way married couples divide household and childcare responsibilities may be the real root of pay differences.

This is not to say that a pay disparity between the sexes does not exist, only that the imperative punch of "77 cents" is more of a convenient tool for arousing feelings of political anger than an accurate description of reality.

To what degree, and to what end, can new legislation address income disparity between the sexes to the extent it exists? That was the alleged purpose of the Paycheck Fairness Act.

In 1963, the Equal Pay Act became law, with Republican support. The law demands equal pay for equal work. The Equal Pay Act gives the Equal Employment Opportunity Commission reasonable latitude to enforce the law by investigating the records of employers and makes it illegal for an employer to discriminate against an employee who has lodged a complaint about pay discrimination.

The EEOC publishes annual charts on how many charges are filed and resolved under the Equal Pay Act. Except for fiscal 1994 and 1995, more than 53 percent of the charges filed under Equal Pay Act in the past 21 years were found to have been filed with "no reasonable cause." During that same period, the number of cases filed with "reasonable cause" reached a peak of 10.5 percent during fiscal 2003. In other words, a system is already in place for women to bring complaints of wage discrimination and have their claims investigated. That system has found a very limited set of legitimate problems.

In March, during the debate about the Paycheck Fairness Act, Republican Sen. Deb Fischer of Nebraska offered an amendment that would have reaffirmed the Bennett Amendment, a Republican-sponsored amendment to Title VI of the Civil Rights Act that applies equal-pay-for-equal-work provisions to all professional occupations — something not addressed in the EPA as originally written. Fischer's amendment also would have awarded grants to certain industries for training a more productive workforce and determining workforce needs. It was supported by all of the female Senate Republicans, yet it was denied a vote.

The Paycheck Fairness Act did not reaffirm the Bennett Amendment.

Instead, the Paycheck Fairness Act would have given the employee filing a claim of wage discrimination the authorization to seek unlimited punitive damages in addition to back pay. That provision may have given underpaid women a chance to collect fair pay but it also would have been a boon to trial lawyers who would be able to seek unlimited amounts of money in damages. Trial lawyers also would have benefited from Section 3(a) of the bill, which presumes the accused company is guilty and requires the company to prove its innocence under three narrow provisions. And, as noted in Section 10(a) of the bill, the Paycheck Fairness Act would have cost taxpayers $15 million for government agencies like the EEOC to enforce when we're already facing a federal debt over $17 trillion. By comparison, Sen. Fischer's amendment would have cost a mere $2.5 million.

The Paycheck Fairness Act included other disconcerting provisions such as the fallacy in Section 2. It claims that the gender pay disparity exists and can "only be due to continued intentional discrimination or the lingering effects of past discrimination." It also included an open invitation to the EEOC to issue new regulations in order to collect payment information from American employers, "including the imposition of burdens on employers."

Supporters of the Paycheck Fairness Act claim this bill was introduced to help women. A closer look at it — and at government statistics that depict the workforce's actual demographics and work-hour patterns — show that the people who would have benefited most from this bill are trial lawyers and government bureaucrats. Sen. Mikulski mocked that idea in her "volcanic" speech on the Senate floor in support of the Paycheck Fairness Act. But it's clear that if the Paycheck Fairness Act had passed, the real losers would have been businesses, already burdened with overregulation. The number of new regulations businesses must contend with has increased to more than 800 per year in recent years and as the Small Business Association has found, small businesses are already more burdened by government regulation than bigger businesses.

On issues of equal pay, the following must be clear: Republicans absolutely support equal pay for equal work. Republicans support women in however they choose to spend their time, whether working or caring for children or both. Most important, Republicans support the Equal Pay Act and amendments like Sen. Fischer's that strengthen it, not bills like the Paycheck Fairness Act that don't substantively help women.

Kathy Brugger is the president of the National Federation of Republican Women and continues to be a longtime Republican activist. Previously, Brugger served as a president of the California Federation of Republican Women. She serves on the California Republican Party Executive Committee and Central Committee. For more than 30 years, Brugger has also served as an elected school board member. She and her husband run their own business.

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