Senate Does Not Pass the Paycheck Fairness Act

The Paycheck Fairness Act bill, designed to lessen the gender wage gap, did not get the necessary Senate votes in order to move forward (it garnered only 58 votes out of the necessary 60 votes).

Under the current Equal Pay Act, once an employee established a prima facie evidence of pay discrimination based on sex, the burden of proof shifts to the employer to show that the said wage gap is due to "any other factor other than sex."

The Paycheck Fairness Act sought to replace the "any other factor other than sex" defense to "bona fide factor(s)." This meant that the employer would have had to demonstrate that the at-issue pay gap is due to business necessity. Once the employer successfully demonstrated the business necessity defense, the burden would shift back to the employee. The employee would then have to show that an alternate employment practice is available (i.e., an employment practice that will serve the same purpose BUT will not create the significant pay gap) and that the employer chose not to implement such an employment practice. The passing of the Paycheck Fairness Act would have made it easier for employees to bring class action lawsuit.