Sen. Kamala Harris pledged Monday to eliminate the gender wage gap, releasing a campaign proposal billed as “the most aggressive equal pay proposal in history.”
“This has got to end, and it is an outrage,” Harris (D-Calif.) told a crowd in Los Angeles on Sunday.
What would the plan do?
Companies would face a 1 percent profit fine for every 1 percent wage gap that they allow to exist in their ranks. The fines would total $180 billion in the first decade, according to the campaign‘s projections, with smaller takes in later years as companies come into compliance. The money would support paid family and medical leave under the FAMILY Act, a bill widely embraced by Democrats and sponsored by one of Harris’ rivals, Sen. Kirsten Gillibrand (D-N.Y.).
To avoid paying fines, businesses with 100 or more employees would have to achieve a new type of “equal pay certification“ every two years under a new federal program headed by the Equal Employment Opportunity Commission. The Harris campaign, in its announcement, said her plan would require employers to prove they’re not engaging in discrimination. The current system, by contrast, puts the burden on employees to prove individual cases of discrimination — a process that can take years and run up monstrous legal fees.
“Our current equal pay laws rely exclusively on proving instances of individual discrimination and place the burden entirely on employees to hold big corporations accountable,” the campaign’s fact sheet says. “But too often, individual cases of discrimination go unnoticed or are too difficult or expensive to prove in court, and workers face increasingly high barriers in banding together to prove their claims.“
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Harris’ plan would also require companies to report the percentage of women in leadership positions and the percentage of women who are their top earners. In addition, it would require federal contractors to prove equal pay certification in order to bid for contracts over $500,000.
How would it work?
Harris says she won’t wait for Congress — “she’ll take executive action herself.“
But it’s unclear how that would work. Harris’ plan effectively proposes a new tax on employers, a power that the Constitution gives to Congress alone. (A campaign spokesman later clarified that Harris’ pledge to use executive power only applies to the plan for federal contractors.)
She also promises to “significantly strengthen and expand anti-discrimination protections“ under Title VII of the Civil Rights Act of 1964, but doesn’t provide more detail on what she would do absent changes to the law.
Harris‘ plan builds upon changes made by the Obama administration to collect detailed data from companies on race, ethnicity and gender through an expanded EEOC reporting form, called the EEO-1. A federal judge recently instructed the EEOC to collect the expanded data by Sept. 30, but the Trump administration has signaled it won’t be able to comply and has appealed the order.
Furthermore, the EEOC has for years been criticized as ineffective, strapped by backlogs and a shortage of cash (though Harris says the penalties from companies would strengthen the commission). The EEOC’s work ground to a halt earlier this year when Republican Sen. Mike Lee (R-Utah) held up the nomination of a Democratic member, resulting in the loss of a quorum for the five-member commission. The EEOC could find itself in the same situation come July, when commissioner Charlotte Burrows’ term is set to expire.
It‘s conceivable that Senate Republicans could stonewall her nominations and gut the commission altogether.
Harris also says her plan would ban companies “from implementing policies that perpetuate the pay gap,” including forced arbitration agreements for pay discrimination complaints. It doesn’t specify how she would do that without changes to the law, or whether the ban would extend to sexual harassment complaints.
What have other Democrats proposed?
Most Democratic candidates support the Paycheck Fairness Act, House-approved legislation that would strengthen penalties for businesses that pay unequal wages and protect employees from retaliation for sharing information about their salaries. They also support the FAMILY Act for paid leave and a $15 minimum wage.
Rebecca Rainey contributed to this report.