[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1687 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 1687
To amend the Fair Labor Standards Act of 1938 to provide more effective
remedies to victims of discrimination in the payment of wages on the
basis of sex, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 19, 2005
Ms. DeLauro (for herself, Mr. Wexler, Mr. Moran of Virginia, Mr. Van
Hollen, Mr. George Miller of California, Mr. Gutierrez, Mr. DeFazio,
Mr. Cuellar, Mr. Stark, Mr. Oberstar, Mr. Farr, Mr. Engel, Mr.
McDermott, Mr. Dingell, Mrs. Maloney, Mr. Holt, Mr. Pallone, Ms.
Berkley, Mrs. McCarthy, Ms. Schakowsky, Mr. Miller of North Carolina,
Mr. Boswell, Mr. Jackson of Illinois, Mr. Honda, Mr. Weiner, Mr. Frank
of Massachusetts, Mrs. Tauscher, Mr. Sherman, Mr. Lantos, Mr. Dicks,
Mr. McGovern, Mr. Price of North Carolina, Mr. Cummings, Ms. Wasserman
Schultz, Ms. Baldwin, Mr. Kennedy of Rhode Island, Mr. Tierney, Mr.
Scott of Georgia, Mr. Udall of New Mexico, Ms. Corrine Brown of
Florida, Mr. Nadler, Ms. McCollum of Minnesota, Mrs. Jones of Ohio, Mr.
Hinchey, Mr. Strickland, Ms. Lee, Mr. Kildee, Mr. Crowley, Ms. Pelosi,
Mr. Grijalva, Ms. Slaughter, Mr. Neal of Massachusetts, Mr. Langevin,
Mr. Evans, Mr. Abercrombie, Mr. Wu, Mr. Allen, Ms. Solis, and Ms.
Woolsey) introduced the following bill; which was referred to the
Committee on Education and the Workforce
_______________________________________________________________________
A BILL
To amend the Fair Labor Standards Act of 1938 to provide more effective
remedies to victims of discrimination in the payment of wages on the
basis of sex, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Paycheck Fairness Act''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Women have entered the workforce in record numbers over
the past 50 years.
(2) Even today, women earn significantly lower pay than men
for work on jobs that require equal skill, effort, and
responsibility and that are performed under similar working
conditions. These pay disparities exist in both the private and
governmental sectors. In many instances, the pay disparities
can only be due to continued intentional discrimination or the
lingering effects of past discrimination.
(3) The existence of such pay disparities--
(A) depresses the wages of working families who
rely on the wages of all members of the family to make
ends meet;
(B) undermines women's retirement security, which
is often based on earnings while in the workforce;
(C) prevents the optimum utilization of available
labor resources;
(D) has been spread and perpetuated, through
commerce and the channels and instrumentalities of
commerce, among the workers of the several States;
(E) burdens commerce and the free flow of goods in
commerce;
(F) constitutes an unfair method of competition in
commerce;
(G) leads to labor disputes burdening and
obstructing commerce and the free flow of goods in
commerce;
(H) interferes with the orderly and fair marketing
of goods in commerce; and
(I) in many instances, may deprive workers of equal
protection on the basis of sex in violation of the 5th
and 14th amendments.
(4)(A) Artificial barriers to the elimination of
discrimination in the payment of wages on the basis of sex
continue to exist decades after the enactment of the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.) and the Civil
Rights Act of 1964 (42 U.S.C. 2000a et seq.).
(B) Elimination of such barriers would have positive
effects, including--
(i) providing a solution to problems in the economy
created by unfair pay disparities;
(ii) substantially reducing the number of working
women earning unfairly low wages, thereby reducing the
dependence on public assistance;
(iii) promoting stable families by enabling all
family members to earn a fair rate of pay;
(iv) remedying the effects of past discrimination
on the basis of sex and ensuring that in the future
workers are afforded equal protection on the basis of
sex; and
(v) ensuring equal protection pursuant to Congress'
power to enforce the 5th and 14th amendments.
(5) The Department of Labor has important and unique
responsibilities to help ensure that women receive equal pay
for doing work that is substantially equal to men's work.
(6) The Department of Labor is responsible for--
(A) collecting and making publicly available
information about women's pay;
(B) ensuring that companies receiving Federal
contracts comply with anti-discrimination affirmative
action requirements of Executive Order 11246 (relating
to equal employment opportunity);
(C) disseminating information about women's rights
in the workplace;
(D) helping women who have been victims of pay
discrimination obtain a remedy; and
(E) being proactive in investigating and
prosecuting equal pay violations, especially systemic
violations, and in enforcing all of its mandates.
(7) With a stronger commitment by the Department of Labor
to its responsibilities, increased information about the
provisions added by the Equal Pay Act of 1963, wage data, and
more effective remedies, women will be better able to recognize
and enforce their rights.
(8) Certain employers have already made great strides in
eradicating unfair pay disparities in the workplace and their
achievements should be recognized.
SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.
(a) Required Demonstration for Affirmative Defense.--Section
6(d)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)(1))
is amended by striking ``(iv) a differential'' and all that follows
through the period and inserting the following:
``(iv) a differential based on a bona fide factor other than sex,
such as education, training or experience, except that the bona fide
factor defense shall apply only if--
``(I) the employer demonstrates that--
``(aa) such factor--
``(AA) is job-related with respect to the
position in question; or
``(BB) furthers a legitimate business
purpose, except that this item shall not apply
where 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; and
``(bb) such factor was actually applied and used
reasonably in light of the asserted justification; and
An employer that is not otherwise in compliance with this paragraph may
not reduce the wages of any employee in order to achieve such
compliance.''
(b) Application of Provisions.--Section 6(d)(1) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206(d)(1)) is amended by adding at the
end the following: ``The provisions of this subsection shall apply to
applicants for employment if such applicants, upon employment by the
employer, would be subject to any provisions of this section.''.
(c) Elimination of Establishment Requirement.--Section 6(d) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)) is amended--
(1) by striking ``, within any establishment in which such
employees are employed,''; and
(2) by striking ``in such establishment'' each place it
appears.
(d) Nonretaliation Provision.--Section 15(a)(3) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 215(a)(3)) is amended--
(1) by striking ``or has'' each place it appears and
inserting ``has''; and
(2) by inserting before the semicolon the following: ``, or
has inquired about, discussed, or otherwise disclosed the wages
of the employee or another employee, or because the employee
(or applicant) has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
hearing, or action under section 6(d)''.
(e) Enhanced Penalties.--Section 16(b) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(b)) is amended--
(1) by inserting after the first sentence the following:
``Any employer who violates section 6(d) shall additionally be
liable for such compensatory or punitive damages as may be
appropriate, except that the United States shall not be liable
for punitive damages.'';
(2) in the sentence beginning ``An action to'', by striking
``either of the preceding sentences'' and inserting ``any of
the preceding sentences of this subsection'';
(3) in the sentence beginning ``No employees shall'', by
striking ``No employees'' and inserting ``Except with respect
to class actions brought to enforce section 6(d), no
employee'';
(4) by inserting after the sentence referred to in
paragraph (3), the following: ``Notwithstanding any other
provision of Federal law, any action brought to enforce section
6(d) may be maintained as a class action as provided by the
Federal Rules of Civil Procedure.''; and
(5) in the sentence beginning ``The court in''--
(A) by striking ``in such action'' and inserting
``in any action brought to recover the liability
prescribed in any of the preceding sentences of this
subsection''; and
(B) by inserting before the period the following:
``, including expert fees''.
(f) Action by Secretary.--Section 16(c) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(c)) is amended--
(1) in the first sentence--
(A) by inserting ``or, in the case of a violation
of section 6(d), additional compensatory or punitive
damages,'' before ``and the agreement''; and
(B) by inserting before the period the following:
``, or such compensatory or punitive damages, as
appropriate'';
(2) in the second sentence, by inserting before the period
the following: ``and, in the case of a violation of section
6(d), additional compensatory or punitive damages'';
(3) in the third sentence, by striking ``the first
sentence'' and inserting ``the first or second sentence''; and
(4) in the last sentence--
(A) by striking ``commenced in the case'' and
inserting ``commenced--
``(1) in the case'';
(B) by striking the period and inserting ``; or'';
and
(C) by adding at the end the following:
``(2) in the case of a class action brought to enforce
section 6(d), on the date on which the individual becomes a
party plaintiff to the class action''.
SEC. 4. TRAINING.
The Equal Employment Opportunity Commission and the Office of
Federal Contract Compliance Programs, subject to the availability of
funds appropriated under section 11, shall provide training to
Commission employees and affected individuals and entities on matters
involving discrimination in the payment of wages.
SEC. 5. NEGOTIATION SKILLS TRAINING FOR GIRLS AND WOMEN.
(a) Program Authorized.--
(1) In general.--The Secretary of Labor, after consultation
with the Secretary of Education, is authorized to establish and
carry out a grant program.
(2) Grants.--In carrying out the program, the Secretary of
Labor may make grants on a competitive basis to eligible
entities, to carry out negotiation skills training programs for
girls and women.
(3) Eligible entities.--To be eligible to receive a grant
under this subsection, an entity shall be a public agency, such
as a State, a local government in a metropolitan statistical
area (as defined by the Office of Management and Budget), a
State educational agency, or a local educational agency, a
private nonprofit organization, or a community-based
organization.
(4) Application.--To be eligible to receive a grant under
this subsection, an entity shall submit an application to the
Secretary of Labor at such time, in such manner, and containing
such information as the Secretary of Labor may require.
(5) Use of funds.--An entity that receives a grant under
this subsection shall use the funds made available through the
grant to carry out an effective negotiation skills training
program that empowers girls and women. The training provided
through the program shall help girls and women strengthen their
negotiation skills to allow the girls and women to obtain
higher salaries and the best compensation packages possible for
themselves.
(b) Incorporating Training Into Existing Programs.--The Secretary
of Labor and the Secretary of Education shall issue regulations or
policy guidance that provides for integrating the negotiation skills
training, to the extent practicable, into programs authorized under--
(1) in the case of the Secretary of Education, the
Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301
et seq.), the Carl D. Perkins Vocational and Technical
Education Act of 1998 (20 U.S.C. 2301 et seq.), the Higher
Education Act of 1965 (20 U.S.C. 1001 et seq.), and other
programs carried out by the Department of Education that the
Secretary of Education determines to be appropriate; and
(2) in the case of the Secretary of Labor, the Workforce
Investment Act of 1998 (29 U.S.C. 2801 et seq.), and other
programs carried out by the Department of Labor that the
Secretary of Labor determines to be appropriate.
(c) Report.--Not later than 1 year after the date of enactment of
this Act, and annually thereafter, the Secretary of Labor and the
Secretary of Education shall prepare and submit to Congress a report
describing the activities conducted under this section.
SEC. 6. RESEARCH, EDUCATION, AND OUTREACH.
The Secretary of Labor shall conduct studies and provide
information to employers, labor organizations, and the general public
concerning the means available to eliminate pay disparities between men
and women, including--
(1) conducting and promoting research to develop the means
to correct expeditiously the conditions leading to the pay
disparities;
(2) publishing and otherwise making available to employers,
labor organizations, professional associations, educational
institutions, the media, and the general public the findings
resulting from studies and other materials, relating to
eliminating the pay disparities;
(3) sponsoring and assisting State and community
informational and educational programs;
(4) providing information to employers, labor
organizations, professional associations, and other interested
persons on the means of eliminating the pay disparities;
(5) recognizing and promoting the achievements of
employers, labor organizations, and professional associations
that have worked to eliminate the pay disparities; and
(6) convening a national summit to discuss, and consider
approaches for rectifying, the pay disparities.
SEC. 7. TECHNICAL ASSISTANCE AND EMPLOYER RECOGNITION PROGRAM.
(a) Guidelines.--
(1) In general.--The Secretary of Labor shall develop
guidelines to enable employers to evaluate job categories based
on objective criteria such as educational requirements, skill
requirements, independence, working conditions, and
responsibility, including decisionmaking responsibility and de
facto supervisory responsibility.
(2) Use.--The guidelines developed under paragraph (1)
shall be designed to enable employers voluntarily to compare
wages paid for different jobs to determine if the pay scales
involved adequately and fairly reflect the educational
requirements, skill requirements, independence, working
conditions, and responsibility for each such job with the goal
of eliminating unfair pay disparities between occupations
traditionally dominated by men or women.
(3) Publication.--The guidelines shall be developed under
paragraph (1) and published in the Federal Register not later
than 180 days after the date of enactment of this Act.
(b) Employer Recognition.--
(1) Purpose.--It is the purpose of this subsection to
emphasize the importance of, encourage the improvement of, and
recognize the excellence of employer efforts to pay wages to
women that reflect the real value of the contributions of such
women to the workplace.
(2) In general.--To carry out the purpose of this
subsection, the Secretary of Labor shall establish a program
under which the Secretary shall provide for the recognition of
employers who, pursuant to a voluntary job evaluation conducted
by the employer, adjust their wage scales (such adjustments
shall not include the lowering of wages paid to men) using the
guidelines developed under subsection (a) to ensure that women
are paid fairly in comparison to men.
(3) Technical assistance.--The Secretary of Labor may
provide technical assistance to assist an employer in carrying
out an evaluation under paragraph (2).
(c) Regulations.--The Secretary of Labor shall promulgate such
rules and regulations as may be necessary to carry out this section.
SEC. 8. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN THE
WORKPLACE.
(a) In General.--There is established the Secretary of Labor's
National Award for Pay Equity in the Workplace, which shall be
evidenced by a medal bearing the inscription ``Secretary of Labor's
National Award for Pay Equity in the Workplace''. The medal shall be of
such design and materials, and bear such additional inscriptions, as
the Secretary of Labor may prescribe.
(b) Criteria for Qualification.--To qualify to receive an award
under this section a business shall--
(1) submit a written application to the Secretary of Labor,
at such time, in such manner, and containing such information
as the Secretary may require, including at a minimum
information that demonstrates that the business has made
substantial effort to eliminate pay disparities between men and
women, and deserves special recognition as a consequence; and
(2) meet such additional requirements and specifications as
the Secretary of Labor determines to be appropriate.
(c) Making and Presentation of Award.--
(1) Award.--After receiving recommendations from the
Secretary of Labor, the President or the designated
representative of the President shall annually present the
award described in subsection (a) to businesses that meet the
qualifications described in subsection (b).
(2) Presentation.--The President or the designated
representative of the President shall present the award under
this section with such ceremonies as the President or the
designated representative of the President may determine to be
appropriate.
(d) Business.--In this section, the term ``business'' includes--
(1)(A) a corporation, including a nonprofit corporation;
(B) a partnership;
(C) a professional association;
(D) a labor organization; and
(E) a business entity similar to an entity described in any
of subparagraphs (A) through (D);
(2) an entity carrying out an education referral program, a
training program, such as an apprenticeship or management
training program, or a similar program; and
(3) an entity carrying out a joint program, formed by a
combination of any entities described in paragraph (1) or (2).
SEC. 9. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION.
Section 709 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-8) is
amended by adding at the end the following:
``(f)(1) Not later than 18 months after the date of enactment of
this subsection, the Commission shall--
``(A) complete a survey of the data that is currently
available to the Federal Government relating to employee pay
information for use in the enforcement of Federal laws
prohibiting pay discrimination and, in consultation with other
relevant Federal agencies, identify additional data collections
that will enhance the enforcement of such laws; and
``(B) based on the results of the survey and consultations
under subparagraph (A), issue regulations to provide for the
collection of pay information data from employers as described
by the sex, race, and national origin of employees.
``(2) In implementing paragraph (1), the Commission shall have as
its primary consideration the most effective and efficient means for
enhancing the enforcement of Federal laws prohibiting pay
discrimination. For this purpose, the Commission shall consider factors
including the imposition of burdens on employers, the frequency of
required reports (including which employers should be required to
prepare reports), appropriate protections for maintaining data
confidentiality, and the most effective format for the data collection
reports.''.
SEC. 10. REINSTATEMENT OF PAY EQUITY PROGRAMS AND PAY EQUITY DATA
COLLECTION.
(a) Bureau of Labor Statistics Data Collection.--The Commissioner
of Labor Statistics shall collect data on women workers in the Current
Employment Statistics survey.
(b) Office of Federal Contract Compliance Programs Initiatives.--
(1) In general.--The Director of the Office of Federal
Contract Compliance Programs shall ensure that employees of the
Office--
(A)(i) shall use the full range of investigatory
tools at the Office's disposal, including pay grade
methodology;
(ii) in considering evidence of possible
compensation discrimination--
(I) shall not limit its consideration to a
small number of types of evidence; and
(II) shall not limit its evaluation of the
evidence to a small number of methods of
evaluating the evidence; and
(iii) shall not require a multiple regression
analysis or anecdotal evidence for a compensation
discrimination case;
(B) for purposes of its investigative, compliance,
and enforcement activities, shall define ``similarly
situated employees'' in a way that is consistent with
and not more stringent than the definition provided in
item 1 of subsection A of section 10-III of the Equal
Employment Opportunity Commission Compliance Manual
(2000), and shall consider only factors that the
Office's investigation reveals were used in making
compensation decisions; and
(C) shall designate not less than half of all
nonconstruction contractor establishments each year to
prepare and file the Equal Opportunity Survey, required
by section 60-2.18 of title 41, Code of Federal
Regulations, and shall review and utilize the responses
to the survey to identify contractor establishments for
further evaluation.
(2) Regulations.--In promulgating any regulations with
respect to the compensation discrimination cases, the Secretary
of Labor, in establishing standards for similarly situated
employees, shall include examples of similar jobs.
(c) Department of Labor Distribution of Wage Discrimination
Information.--The Secretary of Labor shall make readily available (in
print, on the Department of Labor website, and through any other forum
that the Department may use to distribute compensation discrimination
information), accurate information on compensation discrimination,
including statistics, explanations of employee rights, historical
analyses of such discrimination, instructions for employers on
compliance, and any other information that will assist the public in
understanding and addressing such discrimination.
SEC. 11. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this Act.
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