Washington Post Editorial | September 28, 2010
But the bill does not stop there. It also mandates that the business necessity defense “shall not apply” when the employee “demonstrates that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.” But what if the employer has refused because it has concluded that the alternative is — contrary to the employee’s assertion — more costly or less efficient? What if the employee and employer disagree on what the business purpose is or should be?
This approach also could make employers vulnerable to attack for responding to market forces. Take an employer who gives a hefty raise to a valued male employee who has gotten a job offer from a competitor. Would a court agree that the raise advanced a legitimate business purpose or could the employer be slammed unless he also bumps up the salary of a similarly situated female employee?
Discrimination is abhorrent, but the Paycheck Fairness Act is not the right fix.