U.S. Sen. Kamala Harris, a Democratic presidential candidate from California, speaks at a campaign stop on May 15, 2019 in Nashua, New Hampshire. (Spencer Platt/Getty Images)
U.S. Sen. Kamala Harris on Monday released a plan as part of her 2020 presidential bid that would require employers to show they are not paying women less than men for similar work, and would fine those that are, a senior campaign official said.
The California Democrat's plan would change how challenges to pay discrimination are administered by placing the burden on companies rather than employees, who often face costly lawsuits in taking on their employers, the official said.
Harris’ plan would require large companies to report — among other information — the overall pay and total compensation gap that exists between men and women, and to get an “Equal Pay Certification” from the Equal Employment Opportunity Commission, which would post compliance reports on its website.
To get certified, companies would have to align their pay policies with best practices, including allowing employees to discuss their pay and banning the practice of asking potential hires about prior salary history.
Businesses that don’t get the EEOC certification would be fined 1% of their average daily profits during the last fiscal year for every 1% wage gap. Those fines would help fund family and medical leave, which Harris’ campaign said was a significant driver of the pay gap, calling it a “wage penalty” that women pay when caring for a new child or a sick parent.
“Generally, it is difficult for individual employees to even know when there's been a wage gap, even know when they've been discriminated against,” said Vasu Reddy, senior policy counsel for workplace programs at the National Partnership for Women & Families (NPWF). “That information is not freely available and many companies have secrecy policies in place that punish workers or prohibit them from discussing their pay with their coworkers.”
Equal Pay in California
“Taking some of the burden off of employees means that you are able to proactively prevent those gaps as opposed to relying on employees who may or may not have all the information, who may or may not have the resources to pursue a claim, who may be afraid of retaliation to pursue a claim — and should hopefully make it easier for those gaps to get revealed,” she added.
Not all are sold on Harris' plan: Paul Grossman, general counsel for the California Employment Law Council, a Los Angeles-based nonprofit made up of about 70 of the state's largest employers, said "it's just not that simplistic."
"Raw data on jobs rarely has relevance to whether or not there is pay discrimination," said Grossman, co-author of "Employment Discrimination Law," noting that multiple objective and subjective factors go into determining pay. "When you drill down, sometimes there is discrimination and sometimes there isn’t."
"All of our members share the Senator’s commitment" to equal pay, he added. "The proposal is just too simplistic and would lead to conclusions that are inaccurate."
Another critic, Anastasia Boden, a Sacramento-based lawyer with the conservative leaning Pacific Legal Foundation, said Harris' plan is "misguided" and would place a "hefty" burden on businesses.
"It's going to drive up the cost of doing business, largely as a boon to plaintiffs' lawyers," Boden said. "Businesses are going to balk at it because it may paint them in a light that's not fair."
In California, women are paid from $0.41 to $0.80 for every $1 paid to a white man — a wide range that varies by race — despite efforts by lawmakers to bridge that gap, including a series of recent amendments to the state’s Equal Pay Act. The total annual wage losses for California women amount to more than $87 billion a year, according to the NPWF.
Harris is one of more than 20 people running for the Democratic nomination for president. Other candidates have made the gender pay gap a part of their campaign, including Sens. Kirsten Gillibrand, Bernie Sanders and Elizabeth Warren, as well as businessman Andrew Yang and motivational speaker Marianne Williamson.
Some of Harris’ proposals also fit into efforts already being made by equal-pay advocates. That includes the Paycheck Fairness Act, introduced into the U.S. Senate this year (and co-sponsored by Harris and a number of other presidential candidates, including Sens. Cory Booker, Amy Klobuchar, Gillibrand, Sanders and Warren), said Reddy of NPWF. The legislation would authorize the EEOC to collect compensation data and would prohibit asking about salary history.
While Reddy said she hadn't seen proposals like Harris' corporate accountability one, she said some states have taken a more preventive approach: Minnesota and New Jersey have laws requiring employers to collect gender wage-gap data, and some states have considered bills requiring any company bidding on a public contract to first obtain an equal pay certificate.
“Transparency about wages is a really important piece of fighting for equal pay because it can help the people who are enforcing equal pay laws identify where the most problematic industries are, where the most problematic job categories might be coming up, and really understand how to target their enforcement,” Reddy said.
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