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Senator Kamala Harris Unveils Aggressive Equal Pay Proposal


A week ago, Democratic Senator Kamala Harris announced her proposal to eliminate the gender pay gap by proposing an aggressive equal pay policy.  Under the proposal, companies would face a 1% profit fine for every 1% wage gap that they allowed to exist.  Senator Harris predicts that nearly $180 million would be collected in fines within the first decade of this proposal being put into place.  As well, employers would be banned “from implementing policies that perpetuate the pay gap” including forced arbitration agreements for pay discrimination complaints.

For employers (with more than 100 employees) to avoid paying these fines, they would be required to achieve a new type of “equal pay certification” every two years under a new federal program regulated by the Equal Employment Opportunity Commission.  Notably, Senator Harris would place the burden on employers to prove they are not discriminating, as opposed to the burden currently being on employees to prove their individual cases of discrimination.  To say this burden shifting would be a monumental change is an understatement.  With the burden currently being on employees to prove discrimination, it can often amount to a long drawn out and expensive process (something many employees cannot afford.)  Should this proposal from Senator Harris go into effect and the burden shift, employers would immediately be at a severe disadvantage.

And what would happen with the money collected in fines?  That money would be put toward supporting paid family and medical leave, a policy proposal popular with many Democrats around the country.

Now at this point, many readers are likely wondering what happens next, now that Senator Harris has announced this proposal.  For starters, Senator Harris is running for President in 2020.  She has announced she would implement this proposal via executive action (should she be elected President), without the help of Congress.  However, as many scholars have pointed out, the fines that would be imposed on employers are in essence a tax...something that only Congress can impose.  (With that being said, it has been clarified that Senator Harris would only use executive action as to federal contractors.)  If Senator Harris were elected President and sought to have Congress pass legislation which mirrored this proposal, that would present a more interesting situation.  Would Congress play ball?  Perhaps.  That would in essence come down to which political party controlled Congress.  Something tells me if Republicans had majority control of either the House of Senate, they would likely resist supporting any legislation.  On the other hand, if Democrats were in control, employers would likely better get ready for sweeping changes.



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