Parity...

I'm a little disturbed by the equal pay issue that's being kicked back and forth between the candidates. Obama supports the Fair Pay Restoration Act and McCain opposes it. The FPRA is Congress's attempt to address last year's Supreme Court decision in Ledbetter v. Goodyear where the court, in a 5-4 decision, disallowed a woman's claim for discriminatory pay because it was filed too late. The majority's rationale there was that the discriminatory act occurred when the pay decision was made, and not when each affected paycheck was issued. Ledbetter argued that each paycheck was a discriminatory act and should be actionable under Title VII. Enter the FPRA.

FPRA wants to make each paycheck a discriminatory act regardless of when the original discrimation occurred which resulted in the lower compensation. This would mean an affected party (woman, minority, etc.) could sue an employer at any point, even many years later, as long as her claim is filed within 180 days of picking up her last discriminatorily-lower paycheck.

Now I'm all for equal pay, and I don't know that there's any rational, legitimate arguments not to be for equal pay. (Wingnut opinions that disparate pay is good to encourage women to stay in the home are not being considered.) But calling something a Fair Pay Restoration Act does not magically restore fair pay. (Any more than cleverly named acts determine one's level of patriotism, or that no child will indeed be left behind.) It should really be called an Indefinite Deadline Extension for Challenging Discriminatory Pay Act, because that's all it does. Does extending this deadline make things fairer for women in the workplace?

McCain's position is that this act does way more harm than good, opening up avenues of litigation to disgruntled employees that should have been closed years earlier. This drives up expenses for all businesses, both large and small, and increases, what is often, frivolous lawsuits by employees who, like many employees out there, feel underpaid, underappreciated, and maybe a little vindictive when they are ready to leave a job.

Obama's position is that this act will make it harder for companies to get away with discriminatory acts. I'm not sure that's even true, but even if it is, making something harder to do doesn't mean it's the right thing to do. You could force companies to report every pay dollar to a Federal agency by age, sex, race, religion and location. That would make discrimination more difficult, but it would raise tremendous costs for businesses and taxpayers, not to mention civil libertarian issues.

In addition, discriminated parties have less incentive to investigate discriminatory practices, knowing they can wait until they're ready to leave before filing a claim. These claims give them leverage which they can use to milk the company into generous settlements or severances so the company doesn't have to shell out tons of money in litigation expense fees, or insurance policies to cover these types of situations. This may make it less likely that discrimination will decrease, and more likely that the law will be abused.

The media casts this issue as pro-women, like abortion lite. I see it more as pro-plaintiff, not very different from the opposition to tort and medical malpractice reform. The same issues are at play.