Among the top items left on the Senate's to-do list before the November elections is a "paycheck fairness" bill, which would make it easier for women to file class-action, punitive-damages suits against employers they accuse of sex-based pay discrimination.
The bill's passage is hardly certain, but it has received strong support from women's rights groups, professional organizations and even President Obama, who has called it "a common-sense bill."
But the bill isn't as commonsensical as it might seem. It overlooks mountains of research showing that discrimination plays little role in pay disparities between men and women, and it threatens to impose onerous requirements on employers to correct gaps over which they have little control.
The bill is based on the premise that the 1963 Equal Pay Act, which bans sex discrimination in the workplace, has failed; for proof, proponents point out that for every dollar men earn, women earn just 77 cents.
But that wage gap isn't necessarily the result of discrimination. On the contrary, there are lots of other reasons men might earn more than women, including differences in education, experience and job tenure.
When these factors are taken into account the gap narrows considerably--in some studies, to the point of vanishing. A recent survey found that young, childless, single urban women earn 8 percent more than their male counterparts, mostly because more of them earn college degrees.
Moreover, a 2009 analysis of wage-gap studies commissioned by the Labor Department evaluated more than 50 peer-reviewed papers and concluded that the aggregate wage gap "may be almost entirely the result of the individual choices being made by both male and female workers."
In addition to differences in education and training, the review found that women are more likely than men to leave the workforce to take care of children or older parents. They also tend to value family-friendly workplace policies more than men, and will often accept lower salaries in exchange for more benefits. In fact, there were so many differences in pay-related choices that the researchers were unable to specify a residual effect due to discrimination.
Some of the bill's supporters admit that the pay gap is largely explained by women's choices, but they argue that those choices are skewed by sexist stereotypes and social pressures. Those are interesting and important points, worthy of continued public debate.
The problem is that while the debate proceeds, the bill assumes the answer: it would hold employers liable for the "lingering effects of past discrimination"--"pay disparities" that have been "spread and perpetuated through commerce." Under the bill, it's not enough for an employer to guard against intentional discrimination; it also has to police potentially discriminatory assumptions behind market-driven wage disparities that have nothing to do with sexism.
Universities, for example, typically pay professors in their business schools more than they pay those in the school of social work, citing market forces as the justification. But according to the gender theory that informs this bill, sexist attitudes led society to place a higher value on male-centered fields like business than on female-centered fields like social work.
The bill's language regarding these "lingering effects" is vague, but that's the problem: it could prove a legal nightmare for even the best-intentioned employers. The theory will be elaborated in feminist expert testimony when cases go to trial, and it's not hard to imagine a media firestorm developing from it. Faced with multimillion-dollar lawsuits and the attendant publicity, many innocent employers would choose to settle.
The Paycheck Fairness bill would set women against men, empower trial lawyers and activists, perpetuate falsehoods about the status of women in the workplace and create havoc in a precarious job market. It is 1970s-style gender-war feminism for a society that should be celebrating its success in substantially, if not yet completely, overcoming sex-based workplace discrimination.
Christina Hoff Sommers is a resident scholar and the director of the W. H. Brady Program at AEI.