The PayCheck Fairness Act Is the Wrong Fix

Confessions of a Feminist on the Paycheck Fairness Act

It’s with a heavy heart that I realize that it is ok with me that the Paycheck Fairness Act didn’t pass the Senate. While I value equal pay, my beliefs about what needs to happen in order for that outcome to be achieved have to be balanced with my beliefs about the law and how businesses should be run.

Feminism is in my blood. I am a feminist. My mom and dad are feminists. My dad’s mom was a feminist. I also believe in our legal system, even when it frustrates me and makes me want to pull my hair out. Yet another part of me cares about making businesses run: run well, run with heart, and run efficiently. As you can imagine, these differing parts of me are sometimes at odds – figuring out how to run a feminist business well. It’s definitely not impossible, and I’ve seen some organizations excel at it! 

In Support of Pay Equality

For me, equal pay is less about ensuring that men and women get the same pay for the same work, although that’s important, but more about thinking systemically about the societal assumptions and pressures that assume that women’s careers matter less.

  • The problem isn’t as narrow as a perceived pay gap, or lack of gap, but more broadly the assumptions made of the role of women in American society. People tend to quote statistics to say that since the gap is closing, we’ve almost fixed the problem. My own company, PayScale, came out with an infographic titled "Do Men Really Earn More Money Than Women?" recently showing that, where men and women hold similar positions, and have similar experience, they tend to be paid relatively fairly. That looks great in the data and on paper. In the real world, as the infographic hints but largely understates, there is a point at which women tend to put their careers on hold and men tend not to.
  • Why is it assumed that women will put their careers on hold while men advance in their careers?  It's a systemic issue for American women. That’s not how it is everywhere; that’s not at all how it works in my family, where both my sisters are primary bread-winners and my brothers-in-law have taken responsibility for the household. 

Legal Considerations

I am somewhat of an anomaly among my generation because I believe in and support the work being done by our lawmakers and law enforcers. A certain orderly part of my brain believes that societies need laws to remain civil, and that those laws need to be followed, until they’re not needed anymore. If they’re not being followed, or if they’re not clearly written, I can see the value of amendments that clarify the enacting or enforcement of that law. 

Existing equal pay legislation should be enforced before coming up with new legislation. Admittedly, the Act was intended to do just that. Still, despite the provisions for training women and girls around negotiation, the feel of the act is more about policing behaviors than addressing the systemic issues.  Essentially, I want the first laws to work without need for additional regulation. Obviously there is still need for something to bring us to pay equality, but I don’t believe that additional legislation is the answer at this point.

What's Right for Business

Finally, the efficient business person in me is somewhat horrified by the Act. 

  • It’s important for HR and Compensation professionals to have the flexibility to make good, sound compensation choices. Those choices need to be fair. They should not be based on protected classes, but on experience, education, skill level, proficiency, performance, and market value. I understand the need to not discriminate and fully support that. I also value good compensation analysis for all positions – which requires an in-depth analysis of the factors that the Act would prohibit. At a time when companies are forced to think wisely about how they want to spend their compensation dollars, this type of analysis is crucial.
  • The provision that would prevent retaliation for disclosing wages of other employees is also concerning. While the feminist side of me prefers work environments sophisticated enough to have full transparency, the business side understands that not only is it not always possible, it’s not always necessary to do so to still have an organization run with heart. Of course there is a middle ground, such as a former employer of mine whose compensation policy stated that no one’s pay would be more than six times anyone else’s pay; I would love to see those kinds of policies becoming more commonplace, but still would disapprove of a federal mandate to do so.

When I look at the people who backed the Act and those who opposed it, I am even more concerned about my own gut instinct. I tend to align myself politically with those in support of the Act, although there were a couple of key players in the opposition camp that also have my respect. Something has to change – but would this legislation that is potentially damaging to businesses have been the thing to cause a real societal shift in the way women’s and men’s careers and work are valued? I have a hard time believing that.

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