Administration, Members of Congress Try to Make Equal Pay Day Meaningful

Social Justice Policy Brief #36 | By: Stephen Thomas | March 25, 2022

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Policy Summary

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The U.S. Office of Personnel Management (OPM) will issue a proposed regulation later in 2022 to prohibit federal agencies from seeking or relying on an applicant’s salary history in the hiring process unless the applicant raises the issue of her or his own volition. The administration of President Joseph R. Biden Jr. and Vice President Kamala D. Harris announced the upcoming rulemaking on Equal Pay Day, March 15.

Equal Pay Day marks the symbolic day to which U.S. women must work since New Year’s Day 2021 to earn the same as men earn for solely 2021.

U.S. Rep. Jan Schakowsky, the U.S. House of Representatives’ Senior Chief Deputy Whip from Illinois, summed up the pay disparity this way: “In the 21st century, it seems unbelievable that while women are the primary or co-breadwinners in six out of ten households; they still earn only 77 cents to every dollar paid to men,” Schakowsky said in a statement. “This picture is even worse for African American and Hispanic women, who earn 68 cents and 59 cents, respectively, for every dollar men are paid. Women face pay discrimination throughout their lives, and it follows them into retirement with lower pensions and Social Security benefits because they earned lower wages than they deserved.”

Policy Analysis

The upcoming OPM rule is consistent with President Biden’s executive order dated June 25, 2021, which addressed pay gaps based on gender as well as race.

The rationale is this: If women and minorities are paid less for the same work, then using a previous employer’s salary as a basis for a new salary offer prolongs the inequity.

OPM’s rule, if it survives the administrative process and becomes a part of the Code of Federal Regulations, would affect federal employment, not private sector hiring. To implement a similar law for the private sector, Congress would need to act.

Congress tried. Democratic U.S. Rep. Rosa DeLauro of Connecticut introduced the Paycheck Fairness Act in the 117th Congress—it was not the first time she introduced the bill—and the measure passed the House on April 15, 2021, by a vote of 217-210. U.S. Rep. Brian K. Fitzpatrick of Pennsylvania was the only House Republican to vote for it. U.S. Sen. Patty Murray of Washington introduced the bill in the Senate where on June 8, 2021, the measure failed to achieve the three-fifths majority required to bring the bill to the floor. No Senate Republicans voted for it.

“While I am proud the House swiftly passed the Paycheck Fairness Act earlier this year, I was disappointed it failed in the Senate at the hands of a Republican filibuster,” DeLauro said in a statement. “Nonetheless, I am committed to continuing this fight until the day we finally make Equal Pay Day a thing of the past.”

The Paycheck Fairness Act addressed discrimination based on sex, which includes, according to a congressional summary of the legislation, “pregnancy, sexual orientation, gender identity, and sex characteristics.”

The summary goes on to point out that the act also “…limits an employer’s defense that a pay differential is based on a factor other than sex to only bona fide job-related factors in wage discrimination claims, enhances nonretaliation prohibitions, and makes it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee’s wages. The bill also increases civil penalties for violations of equal pay provisions.”

“Because women earn less, on average, than men, they must work longer for the same amount of pay. The wage gap is even greater for most women of color.”

Photos taken from: The U.S. Census Bureau

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The administration on March 15 announced additional steps to close the gender gap in federal employment:

Vice President Harris would host a virtual summit attended by “partners” nationwide who are doing all they can to stem the gender pay gap.
To address federal contractors, President Biden directed the Federal Acquisition Regulatory Council “to consider enhancing pay equity and transparency, including by limiting or prohibiting federal contractors from seeking and considering information about job applicants’ and employees’ existing or past compensation when making employment decisions, and appropriate accountability measures.”
The Labor Department issued a directive that would remind federal contractors of their obligation to conduct “pay equity audits [to] address and prevent pay disparities based on gender, race, or ethnicity.”

When OPM issues its proposed salary history regulation in the Federal Register, the federal government will accept public comments for a prescribed period. Even if the proposal becomes a part of the Code of Federal Regulations—with amendments or “as is”—there is no guarantee that it would not be challenged in the federal courts.