Paycheck Fairness Act Fails; English-Only Policies in the News

On November 17, 2010, the Paycheck Fairness Act died in the U.S. Senate after falling two votes shy of the 60 needed for cloture and to begin debate on the bill. The bill proposed amendments to the Equal Pay Act of 1963 (EPA) that, among other things, would have removed certain caps on compensatory and punitive damages, changed class action practice in cases of this nature from opt-in to opt-out, and modified an EPA defense currently available to employers that could show pay disparities were due to "any factor other than sex" to a more rigorous consistent with business necessity standard. Many employer advocacy groups had criticized the legislation, and for now it appears employers will not be impacted by the bill's changes any time soon, although several advocates of the bill already have vowed to continue to pursue similar legislation.

Also in the news, the Equal Employment Opportunity Commission (EEOC) may begin taking a closer look at English-only work rules and policies. At a recent American Bar Association Section of Labor and Employment Law Conference, EEOC Commissioner Stuart J. Ishimaru voiced concern that some employers may use language-based work rules to discriminate against applicants and employees based on national origin. Although only a small number of language-based issues currently occupy the EEOC's national origin discrimination caseload, Commissioner Ishimaru described this as a policy area that deserves more attention. Employers should heed this call and consult counsel to ensure full legal compliance of any English-only rules they may have in place or are considering.