It's a presidential election year, and it's time for the frontrunners to pander - really pander - to the voters although not necessarily to ones constituents. It truly pains me to say that Senators Clinton and Obama are doing just that with sponsored and co-sponsored bills in Congress, The Fair Pay Act (S.1843) and the Paycheck Fairness Act (S.766).
Why Worry? The Fair Pay Act is an amendment to an amendment to a law. That means that they're either fine tuning the law or they can't get it right. The Fair Pay Act is actually an amendment to the Equal Pay Act of 1963 (I don't know about the Equal Pay Acts of 1968, 1973, and 1864 - yes 1864) which was an amendment to the Fair Labor Standards Act of 1938. At its core the Act makes it illegal (again) to base pay on sex, but it adds something that no previous such law did: it allows class action suits for compensatory and punitive damages. Do I smell a gaggle of trial lawyers in the vicinity?
I was recently a party to a class action suit against a credit card company, a huge credit card company. I didn't know I was a party to it, but one day I received a check for $23.60 and in reading the fine print attached, I found that that was my reward for having been screwed some years prior. I also looked up the case and found that the attorneys were rewarded $120 million!
One of life's inequities? If you're not a trial lawyer, perhaps. Something to worry about? You betcha. Why? Because the average employee, given a chance to sue his or her employer, will do so based on some false hope that they will hit the jackpot. Pay discrimination is discrimination, and discrimination means big bucks. The employee doesn't know beans about their minor stake in class action suits.
If you as an employer come under the Equal Employment Opportunity Commission (EEOC) and, I assume, the OFCCP (for federal contractors), you have another reason to worry. You will have to disclose how you came to pay the pay you pay for any particular job, coughing up the statistics used ... if you used any. No reflection on the company, but often pay grades - like starter dough - have their inception in a grade structure invented in the 1960s with no rationale past 2002. Way back when, HR managers used to get together and share information, and we knew the basis for paying a janitor or a secretary or a department manager because we had job descriptions and we had comps from other companies such as ours. Yes, there was sex discrimination in pay, but I'm willing to bet that there isn't one-fiftieth the purposeful discrimination today. [If you've read my previous editorials, I simply do not buy the statistics from vested interests regarding the disparity between men and women's pay.]
That's Only The First Act. Since neither Clinton nor Obama can be sure that they've garnered sufficient women's votes, they've co-sponsored a second bill which I'm sure will become part of their stump speeches from this point on, the Paycheck Fairness Act.
This is a doozie for which they've surreptitiously resurrected "comparable worth." I didn't care much for President Reagan, but I sure agreed with him when he called that concept, "cockamamie." His choice of words could haven't been better. But I'm getting ahead of myself as well as those of you who have never dealt with comparable worth.
The Paycheck Fairness Act requires in essence that jobs performed by men and women are paid about the same. Now this seems fair when we're talking about the same jobs, i.e., nurse and nurse, plumber and plumber, office manager and office manager provided that the offices are about the same size etc. But no, that is not the gist of this Act, and here's where a history lesson is in order.
Way back in 1983, there was a case, AFSCME v. Washington,* which imposed "comparable worth standards" on the State of Washington. [In 1984, Minnesota became the first state to impose comparable worth "standards" for all state employees.] First, it should be noted that comparable worth was more a political argument than one for compensation analysts, almost all of whom understood that the concept was based on comparing apples and oranges. The basis for AFSCME was a state compensation system based on grades, but it's easier to describe this in terms of Minnesota's 1984 statute. Minnesota said that, since registered nurses and vocational education teachers were at the same grade level, they should be paid comparable wages. However, the nurses - mostly women - were paid $1,732 a month while vocational education teachers - mostly men - were paid $2,260.
Inequity or Politics? Unequal? Well, no and maybe. The "no" is based on the fact that you simply can't compare the two jobs. Regardless of whether they're in the same grade, doing the job of a nurse in no way is related to doing the job of a vocational teacher. For that matter being a nurse and being a teacher aren't related. Which is more important? Depends on whether I'm in pain or in need of skills. When I'm in pain, I want the nurse, and she's worth her weight in gold. Well, in 1984, she was. [Today - and I can only speak from experience - there appear to be almost as many male as female nurses.]
The Washington examples and the root of the lawsuit were truck drivers and laundry workers. That was a little more difficult to separate mentally, but when we HR managers at the time tried to get a handle on the disparity between jobs, we just couldn't do it. We were thinking rationally, not politically. Who was behind all this? NOW and unions. Unions saw comparable worth as a way to get more money for certain jobs, and NOW saw a way to get more money for women. Only trouble was, the concept wouldn't fly.
Well, thanks to Clinton and Obama** (and Kennedy and Tom Harkin and others), they're trying to launch it again. The question is why? I don't think there's more than one answer to that, and it has nothing to do with constituents. It's politics as usual. What does surprise me is that I became so agitated by these moves. Having been disillusioned for the past seven years, I didn't think I would care anymore. It's the new HR managers' battle, if they even understand the implications for their "systems" of compensating jobs. I've already been through the corporate battles with the states and federal agencies. And yet, I do care. Must have something to do with not being willing to suffer fools lightly if at all.
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*Chief Justice John Roberts said that, in referring to the Washington state decision, that it was "unsupported by the language or logic of the Supreme Court case it purported to be based on." When Roberts was nominated for the Supreme Court, some women voiced concern about his attitude toward women and compensation. (See the Nominating Hearing of the Senate Judiciary Committee.)
**Senator Obama should know better. When being interviewed about his book, "The Audicity of Hope" (which I highly recommend), there was following question and answer:
"Q: What has surprised you most about the way Washington works?
A: How little serious debate and deliberation takes place on the floor of the House or the Senate."If these bills pass, he will have proved a point. Too bad.
Note: Having nothing better to do, someone recently berated me for using so many parentheses and parenthetical thoughts in my essays. In her honor, I have switched to brackets.
All Rights Reserved. Copyright 2008 by Ethan A. Winning