RESOLUTION OF THE PHILADELPHIA BAR ASSOCIATION SUPPORTING LEGISLATION TO STRENGTHEN THE EQUAL PAY ACT

WHEREAS, 44 years after the passage of the 1963 Equal Pay Act (“EPA”), in 2008 women in the United States earned on average only 77 cents for every dollar earned by men;

WHEREAS, the wage gap begins when women first enter the workforce, before factors such as professional experience, family or parenthood could have an impact;

WHEREAS, the wage gap between women and men increases as women get older and as women gain more education;

WHEREAS, the wage gap between women and men exists across a wide spectrum of occupations, including the legal profession, at every educational level, and in every state and the District of Columbia;

WHEREAS, the EPA predates Title VII and other major civil rights laws that further informed Congress’s understanding about how to construct effective anti-discrimination statutes;

WHEREAS, restrictive interpretations of the law by some courts have diluted the effectiveness of the EPA;

WHEREAS, in 2007, the American Bar Association House of Delegates approved a report urging Congress to pass the Lilly Ledbetter Fair Pay Act to overturn the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co.;

WHEREAS, the Paycheck Fairness Act builds on the momentum of the Lilly Ledbetter Fair Pay Act and seeks to further the same fundamental goals that the Philadelphia Bar Association has supported for decades in its mission to eradicate discrimination in the workplace; and

WHEREAS, the American Bar Association’s Commission on Women in the Profession has prepared a Recommendation and Report on paycheck fairness which finds that the following “enhanced remedies and procedures” should be included, inter alia:

Allowing prevailing plaintiffs to recover compensatory and punitive damages in EPA cases;
Enabling EPA lawsuits to proceed as opt-out class actions pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure;
Prohibiting employers from retaliating against employees for sharing salary information;
Permitting an employer to assert an affirmative defense in an EPA action, only where the pay differential between men and women is not related to gender, is related to job performance, and is consistent with business necessity;
Allowing wage comparisons between female and male employees in facilities within the same county or similar political subdivision, not merely within the same facility;
Enhancing the United State Equal Employment Opportunity Commission’s ability to collect and survey pay data from employers; and
Reinstating the United State Department of Labor’s collection of gender-based data in the Current Employment Statistics Survey;

NOW, THEREFORE, BE IT RESOLVED THAT the Philadelphia Bar Association urges Congress to enact legislation that would provide more effective remedies, procedures and protections to those subjected to pay discrimination, including discrimination on the basis of gender, and that would help overcome the barriers to the elimination of such pay discrimination;

AND BE IT FURTHER RESOLVED, that the Chancellor is authorized to take any all appropriate steps to support the Recommendations and Report on paycheck fairness of the ABA’s Commission on Women in the Profession, and to otherwise implement the terms of this Resolution .

PHILADELPHIA BAR ASSOCIATION

BOARD OF GOVERNORS
ADOPTED: November 19, 2009