[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1598 Introduced in House (IH)]
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118th CONGRESS
1st Session
H. R. 1598
To amend the Fair Labor Standards Act of 1938 to prohibit
discrimination in the payment of wages on account of sex, race, or
national origin, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 14, 2023
Ms. Norton 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 prohibit
discrimination in the payment of wages on account of sex, race, or
national origin, 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.
(a) Short Title.--This Act may be cited as the ``Fair Pay Act of
2023''.
(b) Reference.--Except as provided in section 8, whenever in this
Act an amendment or repeal is expressed in terms of an amendment to, or
repeal of, a section or other provision, the reference shall be
considered to be made to a section or other provision of the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.).
SEC. 2. FINDINGS.
Congress finds the following:
(1) Wage rate differentials exist between equivalent jobs
segregated by sex, race, and national origin in Government
employment and in industries engaged in commerce or in the
production of goods for commerce.
(2) Discrimination in hiring and promotion has played a
role in maintaining a segregated work force.
(3) Many women and people of color work in occupations
dominated by individuals of their same sex, race, and national
origin.
(A) While a wage rate differential exists in nearly
every occupational field, traditionally male jobs tend
to pay better than traditionally female jobs which
require equal skill, effort, and responsibility, and
which are performed under similar working conditions.
(B) Traditionally male jobs that are low-wage
require less skill, education, and certifications than
traditionally female jobs that are low-wage, despite
their generally receiving higher pay.
(4) In 2015, a woman in the United States working in a
full-time, year-round job earned 80 cents for every dollar
earned by a man working in a full-time, year-round job.
(A) The wage gap is larger when the data is
disaggregated by race. Among women who hold full-time,
year-round jobs in the United States, African-American
women were paid on average, only 63 percent of what
White men were paid in 2015, while Native Hawaiian and
Other Pacific Islander women were paid 60 percent,
American Indian and Alaska Native women were paid 58
percent, and Hispanic and Latina women were paid only
54 percent.
(B) The gender pay gap persists across educational
levels. As a result, women who complete college degrees
are less able to pay off their student loans promptly,
leaving them paying more and for a longer time than
men. In 2012, among students who graduated in 2007-
2008, women working full-time had paid off 33 percent
of their student loan debt on average, while men
working full-time had paid off 44 percent of their
debt.
(C) In the United States, mothers are primary or
sole breadwinners in nearly 40 percent of families. Yet
the wage gap for mothers is larger than for women
overall. According to 2013 data, mothers employed full-
time, year round are paid 71 cents for every dollar
paid to fathers. It is worse for single mothers with
full-time, year-round jobs, who are paid just 58 cents
for every dollar paid to fathers.
(D) A conservative estimate is that women employed
in the United States lose a combined total of nearly
$500 billion every year due to the wage gap. These
women, their families, businesses and the economy
suffer as a result. Lost wages mean families have less
money to save for the future or to spend on basic goods
and services--spending that helps drive the economy.
(E) Statistical analysis shows that 62 percent of
the wage gap can be attributed to occupational and
industry differences; differences in experience and
education; and factors such as race, region and
unionization. That leaves 38 percent of the gap
unaccounted for, leading researchers to conclude that
factors such as discrimination and unconscious bias
continue to affect women's wages.
(5) The existence of such wage rate differentials--
(A) depresses wages and living standards for
employees necessary for their health and efficiency;
(B) prevents the maximum utilization of the
available labor resources;
(C) tends to cause labor disputes, thereby
burdening, affecting, and obstructing commerce;
(D) burdens commerce and the free flow of goods in
commerce;
(E) constitutes an unfair method of competition;
and
(F) contributes to poor living conditions, poor
nutrition, and fewer opportunities for families with
children under 18 where the mother is the sole or
primary breadwinner.
(6) Section 6(d) of the Fair Labor Standards Act of 1938
prohibits discrimination in compensation for ``equal work'' on
the basis of sex.
(7) Artificial barriers to the elimination of
discrimination in compensation based upon sex, race, and
national origin continue to exist more than five decades after
the passage of section 6(d) of the Fair Labor Standards Act of
1938, the Equal Pay Act of 1963, and the Civil Rights Act of
1964 (42 U.S.C. 2000a et seq.). Elimination of such barriers
would have positive effects.
(A) Problems in the economy created by
discrimination through wage rate differentials would be
reduced. In 2012, the U.S. economy would have produced
additional income of $447.6 billion if women received
equal pay; this represents 2.9 percent of 2012 gross
domestic product.
(B) Fewer working women and people of color would
earn low wages, thereby reducing dependence on public
assistance. The total increase in women's earnings with
pay equity represents more than 14 times what the
Federal and State governments spent in fiscal year 2012
on Temporary Assistance to Needy Families.
(C) Working family members earning a fair rate of
pay would encourage stable families and reduce poverty.
The poverty rate for all working women would be cut in
half, falling to 3.9 percent from 8.1 percent. The very
high poverty rate for working single mothers would fall
by nearly half, from 28.7 percent to 15.0 percent, and
two-thirds would receive a pay increase.
SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS.
(a) Amendment.--Section 6 (29 U.S.C. 206) is amended by adding at
the end the following:
``(h)(1)(A) Except as provided in subparagraph (B), no employer
having employees subject to any provision of this section shall
discriminate, within any establishment in which such employees are
employed, between employees on the basis of sex, race, or national
origin by paying wages to employees in such establishment in a job that
is dominated by employees of a particular sex, race, or national origin
at a rate less than the rate at which the employer pays wages to
employees in such establishment in another job that is dominated by
employees of the opposite sex or of a different race or national
origin, respectively, for work on equivalent jobs, nor shall such
employer between such employees discriminate on the basis of sex, race,
or national origin in any other terms, conditions, privileges, or
benefits of employment.
``(B) Nothing in subparagraph (A) shall prohibit the payment of
different wage rates to employees where such payment is made pursuant
to--
``(i) a seniority system;
``(ii) a merit system;
``(iii) a system that measures earnings by quantity or
quality of production; or
``(iv) a differential based on a bona fide factor other
than sex, race, or national origin, such as education,
training, or experience, except that this clause 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 if 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
``(II) upon the employer succeeding under subclause
(I), the employee fails to demonstrate that the
differential produced by the reliance of the employer
on such factor is itself the result of discrimination
on the basis of sex, race, or national origin by the
employer.
``(C) The Equal Employment Opportunity Commission shall issue
guidelines specifying criteria for determining whether a job is
dominated by employees of a particular sex, race, or national origin
for purposes of subparagraph (B)(iv). Such guidelines shall not include
a list of such jobs.
``(D) An employer who is paying a wage rate differential in
violation of subparagraph (A) shall not, in order to comply with the
provisions of such subparagraph, reduce the wage rate of any employee.
``(2) No labor organization or its agents representing employees of
an employer having employees subject to any provision of this section
shall cause or attempt to cause such an employer to discriminate
against an employee in violation of paragraph (1)(A).
``(3) For purposes of administration and enforcement of this
subsection, any amounts owing to any employee that have been withheld
in violation of paragraph (1)(A) shall be deemed to be unpaid minimum
wages or unpaid overtime compensation under this section or section 7.
``(4) In this subsection:
``(A) The term `labor organization' means any organization
of any kind, or any agency or employee representation committee
or plan, in which employees participate and that exists for the
purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.
``(B) The term `equivalent jobs' means jobs that may be
dissimilar, but whose requirements are equivalent, when viewed
as a composite of skills, effort, responsibility, and working
conditions.''.
(b) Conforming Amendment.--Section 13(a) (29 U.S.C. 213(a)) is
amended in the matter before paragraph (1) by striking ``section 6(d)''
and inserting ``sections 6 (d) and (h)''.
SEC. 4. PROHIBITED ACTS.
Section 15(a) (29 U.S.C. 215(a)) is amended--
(1) by striking the period at the end of paragraph (5) and
inserting a semicolon; and
(2) by adding after paragraph (5) the following:
``(6) to discriminate against any individual because such
individual has opposed any act or practice made unlawful by
section 6(h) or because such individual made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing to enforce section 6(h);
or
``(7) to discharge or in any other manner discriminate
against, coerce, intimidate, threaten, or interfere with any
employee or any other person because the employee inquired
about, disclosed, compared, or otherwise discussed the
employee's wages or the wages of any other employee, or because
the employee exercised, enjoyed, aided, or encouraged any other
person to exercise or enjoy any right granted or protected by
section 6(h).''.
SEC. 5. REMEDIES.
(a) Enhanced Penalties.--Section 16(b) (29 U.S.C. 216(b)) is
amended--
(1) by inserting after the first sentence the following:
``Any employer who violates subsection (d) or (h) of section 6
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
inserting ``any of'' after ``prescribed in'';
(3) in the sentence beginning ``No employees'', by striking
``No employees'' and inserting ``Except with respect to class
actions brought under subsection (f), no employee'';
(4) in the sentence beginning ``The court in'', 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
(5) by striking ``section 15(a)(3)'' each place it occurs
and inserting ``paragraphs (3), (6), and (7) of section
15(a)''.
(b) Action by Secretary.--Section 16(c) (29 U.S.C. 216(c)) is
amended--
(1) in the first sentence--
(A) by inserting ``or, in the case of a violation
of subsection (d) or (h) of section 6, 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 subsection
(d) or (h) of section 6, additional compensatory or punitive
damages''; and
(3) in the third sentence, by striking ``the first
sentence'' and inserting ``the first or second sentence''.
(c) Fees.--Section 16 (29 U.S.C. 216) is amended by adding at the
end the following:
``(f) In any action brought under this section for a violation of
section 6(h), the court shall, in addition to any other remedies
awarded to the prevailing plaintiff or plaintiffs, allow expert fees as
part of the costs. Any such action may be maintained as a class action
as provided by the Federal Rules of Civil Procedure.''.
SEC. 6. RECORDS.
(a) Records.--Section 11(c) (29 U.S.C. 211(c)) is amended--
(1) by inserting ``(1)'' after ``(c)''; and
(2) by adding at the end the following:
``(2) Every employer subject to section 6(h) shall preserve records
that document and support the method, system, calculations, and other
bases used by the employer in establishing, adjusting, and determining
the wage rates paid to the employees of the employer. Every employer
subject to section 6(h) shall preserve such records for such periods of
time, and shall make such reports from the records to the Equal
Employment Opportunity Commission, as shall be prescribed by the Equal
Employment Opportunity Commission by regulation or order as necessary
or appropriate for the enforcement of the provisions of section 6(h) or
any regulation promulgated pursuant to section 6(h).''.
(b) Small Business Exemptions.--Section 11(c) (as amended by
subsection (a)) is further amended by adding at the end the following:
``(3) Every employer subject to section 6(h) that has 25 or more
employees on any date during the first or second year after the
effective date of this paragraph, or 15 or more employees on any date
during any subsequent year after such second year, shall, in accordance
with regulations promulgated by the Equal Employment Opportunity
Commission under paragraph (8), prepare and submit to the Equal
Employment Opportunity Commission for the year involved a report signed
by the president, treasurer, or corresponding principal officer, of the
employer that includes information that discloses the wage rates paid
to employees of the employer in each classification, position, or job
title, or to employees in other wage groups employed by the employer,
including information with respect to the sex, race, and national
origin of employees at each wage rate in each classification, position,
job title, or other wage group.''.
(c) Protection of Confidentiality.--Section 11(c) (as amended by
subsections (a) and (b)) is further amended by adding at the end the
following:
``(4) The rules and regulations promulgated by the Equal Employment
Opportunity Commission under paragraph (8), relating to the form of
such a report, shall include requirements to protect the
confidentiality of employees, including a requirement that the report
shall not contain the name of any individual employee.''.
(d) Use; Inspections; Examination; Regulations.--Section 11(c) (as
amended by subsections (a) through (c)) is further amended by adding at
the end the following:
``(5) The Equal Employment Opportunity Commission may publish any
information and data that the Equal Employment Opportunity Commission
obtains pursuant to the provisions of paragraph (3). The Equal
Employment Opportunity Commission may use the information and data for
statistical and research purposes, and compile and publish such
studies, analyses, reports, and surveys based on the information and
data as the Equal Employment Opportunity Commission may consider
appropriate.
``(6) In order to carry out the purposes of this Act, the Equal
Employment Opportunity Commission shall by regulation make reasonable
provision for the inspection and examination by any person of the
information and data contained in any report submitted to the Equal
Employment Opportunity Commission pursuant to paragraph (3).
``(7) The Equal Employment Opportunity Commission shall by
regulation provide for the furnishing of copies of reports submitted to
the Equal Employment Opportunity Commission pursuant to paragraph (3)
to any person upon payment of a charge based upon the cost of the
service.
``(8) The Equal Employment Opportunity Commission shall issue rules
and regulations prescribing the form and content of reports required to
be submitted under paragraph (3) and such other reasonable rules and
regulations as the Equal Employment Opportunity Commission may find
necessary to prevent the circumvention or evasion of such reporting
requirements. In exercising the authority of the Equal Employment
Opportunity Commission under paragraph (3), the Equal Employment
Opportunity Commission may prescribe by general rule simplified reports
for employers for whom the Equal Employment Opportunity Commission
finds that because of the size of the employers a detailed report would
be unduly burdensome.''.
SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSISTANCE PROGRAM; REPORT
TO CONGRESS.
Section 4(d) (29 U.S.C. 204(d)) is amended by adding at the end the
following:
``(4) The Equal Employment Opportunity Commission shall conduct
studies and provide information and technical assistance to employers,
labor organizations, and the general public concerning effective means
available to implement the provisions of section 6(h) prohibiting wage
rate discrimination between employees performing work in equivalent
jobs on the basis of sex, race, or national origin. Such studies,
information, and technical assistance shall be based on and include
reference to the objectives of such section to eliminate such
discrimination. In order to achieve the objectives of such section, the
Equal Employment Opportunity Commission shall carry on a continuing
program of research, education, and technical assistance including--
``(A) conducting and promoting research with the intent of
developing means to expeditiously correct the wage rate
differentials described in section 6(h);
``(B) publishing and otherwise making available to
employers, labor organizations, professional associations,
educational institutions, the various media of communication,
and the general public the findings of studies and other
materials for promoting compliance with section 6(h);
``(C) sponsoring and assisting State and community
informational and educational programs; and
``(D) providing technical assistance to employers, labor
organizations, professional associations and other interested
persons on means of achieving and maintaining compliance with
the provisions of section 6(h).
``(5) The report submitted biennially by the Secretary to Congress
under paragraph (1) shall include a separate evaluation and appraisal
regarding the implementation of section 6(h).''.
SEC. 8. CONFORMING AMENDMENTS.
(a) Congressional Employees.--
(1) Application.--Section 203(a)(1) of the Congressional
Accountability Act of 1995 (2 U.S.C. 1313(a)(1)) is amended--
(A) by striking ``subsections (a)(1) and (d) of
section 6'' and inserting ``subsections (a)(1), (d),
and (h) of section 6''; and
(B) by striking ``206 (a)(1) and (d)'' and
inserting ``206 (a)(1), (d), and (h)''.
(2) Remedies.--Section 203(b) of such Act (2 U.S.C.
1313(b)) is amended by inserting before the period the
following: ``or, in an appropriate case, under section 16(f) of
such Act (29 U.S.C. 216(f))''.
(b) Executive Branch Employees.--
(1) Application.--Section 413(a)(1) of title 3, United
States Code, as added by section 2(a) of the Presidential and
Executive Office Accountability Act (Public Law 104-331; 110
Stat. 4053), is amended by striking ``subsections (a)(1) and
(d) of section 6'' and inserting ``subsections (a)(1), (d), and
(h) of section 6''.
(2) Remedies.--Section 413(b) of such title is amended by
inserting ``or, in an appropriate case, under section 16(f) of
such Act'' before the period at the end.
SEC. 9. EFFECTIVE DATE.
The amendments made by this Act shall take effect 1 year after the
date of enactment of this Act.
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