This week, the Paycheck Fairness Act (S. 797 and H.R. 1591), a bill that would update the Equal Pay Act, failed to advance in the Senate. This is the second time the bill failed, the first being in 2010.
One of those loopholes is that the Equal Pay Act currently allows compensatory damages of back wages but does not permit employees to recover punitive damages. This is different from other federal statutes, such as Title VII, which allows the employee to recover punitive damages for intentional discrimination. The Paycheck Fairness Act would have amended the Equal Pay Act to allow for the recovery of punitive damages and would have also required employers to show the pay disparity is due to something other than gender and is related to job performance. Another change that was proposed by the Paycheck Fairness Act was that all employees in class actions would have to opt-out of the class action, instead of the current requirement that employees have to opt-in to the lawsuit. This procedural difference would have made class actions under the Equal Pay Act larger liabilities for employers who violate the law.