69–006 

110TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 110–783 

PAYCHECK FAIRNESS ACT 

JULY 28, 2008.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. GEORGE MILLER of California, from the Committee on 

Education and Labor, submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 1338] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Education and Labor, to whom was referred 

the bill (H.R. 1338) 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, 

having considered the same, report favorably thereon with an 

amendment and recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Paycheck Fairness Act’’. 

SEC. 2. FINDINGS. 

Congress finds the following: 

(1) Women have entered the workforce in record numbers over the past 50 

years. 

(2) Despite the enactment of the Equal Pay Act in 1963, many women continue to earn significantly lower pay than men for equal work. 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; 


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(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) These barriers have resulted, in significant part, because the Equal Pay 

Act has not worked as Congress originally intended. Improvements and modifications to the law are necessary to ensure that the Act provides effective protection to those subject to pay discrimination on the basis of their sex. 

(C) 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 and the Equal Employment Opportunity Commission have important and unique responsibilities to help ensure that women 

receive equal pay for equal 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) The Equal Employment Opportunity Commission is the primary enforcement agency for claims made under the Equal Pay Act, and issues regulations 

and guidance on appropriate interpretations of the law. 

(8) With a stronger commitment by the Department of Labor and the Equal 

Employment Opportunity Commission to their 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. 

(9) 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) BONA-FIDE FACTOR DEFENSE AND MODIFICATION OF SAME ESTABLISHMENT REQUIREMENT.—Section 6(d)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 

206(d)(1)) is amended—

(1) by striking ‘‘No employer having’’ and inserting ‘‘(A) No employer having’’; 

(2) by striking ‘‘any other factor other than sex’’ and inserting ‘‘a bona fide 

factor other than sex, such as education, training, or experience’’; and 

(3) by inserting at the end the following: 

‘‘(B) The bona fide factor defense described in subparagraph (A)(v) shall apply 

only if the employer demonstrates that such factor (i) is not based upon or derived 

from a sex-based differential in compensation; (ii) is job-related with respect to the 

position in question; and (iii) is consistent with business necessity. Such defense 

shall not apply where the employee demonstrates that an alternative employment 


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practice exists that would serve the same business purpose without producing such 

differential and that the employer has refused to adopt such alternative practice. ‘‘(C) For purposes of subparagraph (A), employees shall be deemed to work in the 

same establishment if the employees work for the same employer at workplaces located in the same county or similar political subdivision of a State. The preceding 

sentence shall not be construed as limiting broader applications of the term ‘establishment’ consistent with rules prescribed or guidance issued by the Equal Opportunity Employment Commission.’’. (b) APPLICATION OF PROVISIONS.—Section 6(d)(1) of the Fair Labor Standards Act 

of 1938 (29 U.S.C. 206(d)(1)) is further 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) NONRETALIATION PROVISION.—Section 15 of the Fair Labor Standards Act of 

1938 (29 U.S.C. 215(a)(3)) is amended— (1) in subsection (a)(3), by striking ‘‘employee has filed’’ and all that follows 

and inserting ‘‘employee— ‘‘(A) has made a charge or filed any complaint or instituted or caused to 

be instituted any investigation, proceeding, hearing, or action under or related to this Act, including an investigation conducted by the employer, or 

has testified or is planning to testify or has assisted or participated in any 

manner in any such investigation, proceeding, hearing or action or in an 

investigation conducted by the employer, or has served or is planning to 

serve on an industry Committee; or 

‘‘(B) has inquired about, discussed or disclosed the wages of the employee 

or another employee.’’; and 

(2) by adding at the end the following: 

‘‘(c) Subsection (a)(3)(B) shall not apply to instances in which an employee who 

has access to the wage information of other employees as a part of such employee’s 

essential job functions discloses the wages of such other employees to individuals 

who do not otherwise have access to such information, unless such disclosure is in 

response to a complaint or charge or in furtherance of an investigation, proceeding, 

hearing, or action under section 6(d) or an investigation conducted by the employer. 

Nothing in this subsection shall be construed to limit the rights of an employee provided under any other provision of law.’’. 

(d) 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 damages 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’’. 

(e) 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—


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(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 

rates of compensation that are equal to those paid to similarly-situated male 

employees. 

(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 and evaluating the effectiveness of such activities in achieving the purposes of this Act. 

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; 


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(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. 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 awarded, as appropriate, to encourage proactive efforts to comply with this Act. 

(b) CRITERIA FOR QUALIFICATION.—The Secretary of Labor shall set criteria for receipt of the award, including a requirement that an employer has made substantial 

effort to eliminate pay disparities between men and women, and deserves special 

recognition as a consequence of such effort. The secretary shall establish procedures 

for the application and presentation of the award. 

(c) BUSINESS.—In this section, the term ‘‘employer’’ 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. 8. 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. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND PAY EQUITY DATA COLLECTION. 

(a) BUREAU OF LABOR STATISTICS DATA COLLECTION.—The Commissioner of Labor 

Statistics shall continue to collect data on women workers in the Current Employment Statistics survey. 

(b) OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS INITIATIVES.—The Director of the Office of Federal Contract Compliance Programs shall ensure that employees of the Office—

(1)(A) shall use the full range of investigatory tools at the Office’s disposal, 

including pay grade methodology; 

(B) 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 

(C) shall not require a multiple regression analysis or anecdotal evidence for 

a compensation discrimination case; 

(2) 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 


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1 U.S. Equal Employment Opportunity Commission, ‘‘The Equal Pay Act Turns 40,’’ available 

at: http://www.eeoc.gov/epa/anniversary/epa-40.html. 

2 29 USC § 206(d) 3 U.S. Small Business Association, Women in Business: A Demographic Review of Women’s 

Business Ownership (Aug. 2006), available at: http://www.sba.gov/ADVO/research/ 

rs280tot.pdf. 4 Jody Feder & Linda Levine, CRS Report, Pay Equity Legislation in the 110th Congress, at 

1 (May 2, 2008) 5 Institute for Women’s Policy Research, Memo to John Roberts: The Gender Gap is Real 

(2005). 

Manual (2000), and shall consider only factors that the Office’s investigation reveals were used in making compensation decisions; and 

(3) shall reinstate the Equal Opportunity Survey, as required by section 60- 

2.18 of title 41, Code of Federal Regulations, designating not less than half of 

all nonconstruction contractor establishments each year to prepare and file such 

survey, and shall review and utilize the responses to such survey to identify 

contractor establishments for further evaluation and for other enforcement purposes as appropriate. 

(c) DEPARTMENT OF LABOR DISTRIBUTION OF WAGE DISCRIMINATION INFORMA- TION.—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. 10. AUTHORIZATION OF APPROPRIATIONS. 

There are authorized to be appropriated $15,000,000 to carry out this Act. 

PURPOSE

When President Kennedy signed the Equal Pay Act (EPA) into 

law in 1963 he observed that the statute ‘‘adds to our laws another 

structure basic to democracy’’ and ‘‘affirms our determination that 

when women enter the labor force they will find equality in their 

pay envelope.’’ 1 Forty-five years later, women have made tremendous progress in the workplace.2 They comprise almost half of this 

country’s workforce and more than 6 million businesses are owned 

by women.3 Despite these gains, women continue to be held back 

by wage discrimination. As a result of loopholes in the law and 

weak sanctions for violations, the EPA is ineffective in combating 

unequal pay. Women working full-time year-round earn 77 cents 

for every dollar earned by a man.4 The Paycheck Fairness Act, H.R. 

1338 modernizes the EPA and brings the country one step closer 

to ensuring that women earn equal pay for equal work. 

Pay disparity’s long-term impact on women’s lifetime earnings is substantial and can cost a woman anywhere from $400,000 to $2 

million over her lifetime.5 H.R. 1338 will strengthen the EPA to 

make it a more effective means to combat wage discrimination. 

Specifically the bill: (1) expands the establishment requirement so 

female employees to look beyond their physical workplace to find 

a male comparator; (2) extends anti-retaliation protections so employees are free to discuss or disclose salary information; (3) clarifies the affirmative defense of ‘any factor other sex’; (4) establishes 

a grant program to fund training programs for women on employer/ 

employee negotiations; (5) directs the Secretary of Labor to conduct 

studies and provide information to employers, labor organizations 

and the general public on ways to eliminate pay disparities; (6) permits the Secretary of Labor to offer technical assistance to employers when carrying out wage evaluations; (7) makes it easier for 

women to join class action lawsuits ; (8) mandates that the Equal 


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Employment Opportunity Commission (EEOC) survey available 

pay data and issue regulations to provide for the collection of pay 

data from employers, which identifies workers by sex, race and national origin; and (9) codifies the use of the Equal Opportunity Survey (EO) by Office of Federal Contract Compliance (OFCCP) for 

non-construction workers. 

COMMITTEE ACTION INCLUDING LEGISLATIVE HISTORY AND VOTES IN

COMMITTEE

105TH CONGRESS

Senator Thomas Daschle (D–SD) introduced S. 71, the Paycheck 

Fairness Act, on January 21, 1997. The bill had 23 cosponsors and 

was referred to the Committee on Labor and Human Resources. 

Congresswoman Rosa DeLauro (D–CT) introduced H.R. 2023, the 

Paycheck Fairness Act, on June 24, 1997. The bill had 95 cosponsors and was referred to the Committee on Education and the 

Workforce. H.R. 2023 was then referred to the Subcommittees on 

Workforce Protections and Employer-Employee Relations. No further action was taken on either bill. 

106TH CONGRESS

Senator Thomas Daschle (D–SD) introduced S. 74, the Paycheck 

Fairness Act, on January 19, 1999. The bill had 31 cosponsors and 

was referred to the Committee on Health, Education, Labor, and 

Pensions. Congresswoman Rosa DeLauro (D–CT) introduced H.R. 

541, the Paycheck Fairness Act, on February 3, 1999. The bill was 

referred to the Committee on Education and the Workforce and the 

Subcommittees on Workforce Protections and Employer-Employee 

Relations. 

The Senate Committee on Health, Education, Labor, and Pensions held a hearing on gender-based wage discrimination on June 

8, 2000. The hearing, ‘‘Examining the Bureau of Labor Statistics 

Report which Provides a Full Picture of the Gender-Based Wage 

Gap, the reasons for these Gaps and the Impact this Discrimination has on Women and Families, and the Effectiveness of Current 

Laws and Proposed Legislative Solutions, and S. 74, 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,’’ featured testimony from Dr. Katherine Abraham, 

Commissioner, Bureau of Labor Statistics; Dr. June O’Neill, professor of economics and finance, Baruch College, Zicklin School of 

Business; Dr. Heidi Hartmann, Director, Institute for Women’s Policy Research; Anita Hattiangadi, economist, Employment Policy 

Foundation; Barbara Berish Brown, partner, Paul, Hastings, 

Janofsky & Walker, LLP; Judith Applebaum, vice president and director of employment opportunities, National Women’s Law Center; 

and Gail Shaffer, chief executive officer, Business and Professional 

Women/USA. Testimony was submitted for the record by Irasema 

Garza, Director, Women’s Bureau, U.S. Department of Labor. 

107TH CONGRESS

Senator Thomas Daschle (D–SD) introduced S. 77, the Paycheck 

Fairness Act, on January 22, 2001. The bill had 32 cosponsors and 

was referred to the Committee on Health, Education, Labor, and 


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Pensions. Congresswoman Rosa DeLauro (D–CT) introduced H.R. 

781, the Paycheck Fairness Act, on February 22, 2001. The bill had 

196 cosponsors and was referred to the Committee on Education 

and the Workforce. Once in committee, it was referred to the Subcommittees on Workforce Protections and Employer-Employee Relations. No further action was taken on either bill. 

108TH CONGRESS

Senator Thomas Daschle (D–SD) introduced S. 76, the Paycheck 

Fairness Act, on January 7, 2003. The bill had 20 cosponsors and 

was referred to the Committee on Health, Education, Labor, and 

Pensions. Congresswoman Rosa DeLauro (D–CT) introduced H.R. 

1688, the Paycheck Fairness Act, on April 9, 2003. The bill had 116 

cosponsors and was referred to the Committee on Education and 

the Workforce. The committee referred it to the Subcommittees on 

Workforce Protections and Employer-Employee Relations. No further action was taken on any bill. 

109TH CONGRESS

On April 19, 2005, Congresswoman Rosa DeLauro (D–CT) introduced the Paycheck Fairness Act. The bill had 111 cosponsors and 

was referred to the Committee on Education and the Workforce. 

The Committee referred it to the Subcommittees on Workforce Protections and Employer-Employee Relations. The same day that 

Congresswoman DeLauro introduced her bill, Senator Hillary 

Rodham Clinton (D–NY) introduced S. 841, the Paycheck Fairness 

Act. The bill had 18 cosponsors and was referred to the Committee 

on Health, Education, Labor, and Pensions. No further action was 

taken on either bill. 

110TH CONGRESS

On March 6, 2007, Congresswoman Rosa DeLauro (D–CT) introduced H.R. 1338, the Paycheck Fairness Act. The bill has 230 cosponsors and was referred to the Committee on Education and 

Labor, where it was referred to the Subcommittee on Workforce 

Protections. That same day, Senator Hillary Rodham Clinton (D–

NY) introduced S. 766, the Paycheck Fairness Act. The bill has 22 

cosponsors and was referred to the Committee on Health, Education, Labor, and Pensions. 

On Thursday, April 12, 2007, the Senate Committee on Health, 

Education, Labor, and Pensions held a hearing titled ‘‘Closing the 

Gap: Equal Pay for Women Workers.’’ The hearing examined enforcement of the Equal Pay Act of 1963, the Fair Pay Act and the 

Paycheck Protection Act. At the hearing the following people presented testimony: Evelyn Murphy, President, WAGE Project, Inc. 

and Resident Scholar of the Women’s Research Center at Brandeis 

University; Jocelyn Samuels, Vice President for Education and Employment at the National Women’s Law Center; Dr. Philip Cohen, 

Associate Professor and Director of Graduate Studies for the Department of Sociology at the University of North Carolina; and 

Barbara Brown, Attorney at Paul Hastings. 

On Tuesday, April 24, 2007, the House Committee on Education 

and Labor conducted a hearing on gender based wage discrimination. At this hearing, ‘‘Strengthening the Middle Class: Ensuring 


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6 U.S. Census Bureau, U.S. Bureau of Labor Statistics, Annual Demographic Survey (Aug. 

2006). 7The Paycheck Fairness Act (H.R. 1338), 110th Congress, 1st Sess. (2007) (opening statement 

of Congresswoman Lynn Woolsey [D–CA]) 

Equal Pay for Women,’’ the Committee heard testimony describing 

the scope and causes of gender-based wage disparity.6 Witnesses 

included: Congresswoman Rosa DeLauro (D–CT); Congresswoman 

Eleanor Holmes Norton (D–D.C. Del.); Catherine Hill, Research Director for the American Association of University Women; Heather 

Boushey, Senior Economist at the Center for Economic and Policy 

Research; Dedra Farmer, Plaintiff in the Wal-Mart sex-discrimination class action lawsuit; and Diana Furchtgott-Roth, Director of 

the Center for Employment Policy at the Hudson Institute. 

On Wednesday, July 11, 2007, the House Labor Subcommittee on 

Workforce Protections held a legislative hearing on H.R. 1338, ‘‘The 

Paycheck Fairness Act.’’ The hearing focused on H.R. 1338 and the 

wage disparity that exists from the moment men and women enter 

the workforce—a disparity that only grows over time.7 Witnesses 

included: Evelyn Murphy, President, WAGE Project, Inc. and Resident Scholar of the Women’s Research Center at Brandeis University; Joseph Sellers, Partner with the law firm of Cohen, Milstein, 

Hausfeld & Toll, PLLC; Marcia Greenberger, Co-President of the 

National Women’s Law Center; and Camille A. Olson, Partner at 

Seyfarth Shaw, LLP. 

Committee on Education and Labor Full Committee mark-up of the 

Paycheck Fairness Act 

On Thursday, July 24, 2008, the Committee on Education and 

Labor met for a full committee markup of H.R. 1338. The Committee adopted by voice vote an amendment in the nature of a substitute offered by Chairman Miller and reported the bill favorably 

as amended by a vote of 26–17 to the House of Representatives. 

The Miller amendment incorporates the provisions of H.R. 1338 

with the following modifications: 

• Adds language to the bill’s findings section about the EEOC’s 

role in combating gender-based wage discrimination. 

• Narrows the ‘any factor other than sex’ standard to provide 

that the bona fide factor defense shall only apply if the employer 

demonstrates that the such factor is not derived from or based 

upon a sex-based differential in compensation; is job-related with 

respect to the position in question; and is consistent with business 

necessity. • Changes the establishment requirement from a nationwide 

standard to a countywide standard and further provides that consistent with EEOC rules and guidance, establishment could be 

broader than county when, for example, there is a central administrative unit making hiring and pay decisions for employees in different locations. • Retains the anti-retaliation protections for employees who discuss or disclose wage information but limits when those protections 

will extend to employees who have access to payroll information as 

part of an essential function of their job. These employees, such as 

payroll and human resources personnel, are not protected if they 

disclose that payroll information to employees who do not otherwise have access to that information. However, their disclosure of 


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8 U.S. Bureau of Labor Statistics data on full-time workers, See, Feder & Levine, supra note 

4 at 3. 

wages will be protected if they: (1) disclose wage information with 

another employee who also has access to wage information such as 

their supervisor; (2) disclose their own wages; or (3) disclose wage 

information in response to or in furtherance of an internal employer or governmental investigation. • Deletes what was originally Section 7 of the bill, which directed the Secretary of Labor to develop voluntary guidelines for 

employers to evaluate job categories based on characteristics such 

as skill, education and responsibility. 

Additionally, the following amendments were offered but not 

adopted: • Representative Cathy McMorris Rodgers (R–WA) offered an 

amendment to the amendment in the nature of a substitute which 

would have substituted the text of H.R. 6025 for the H.R. 1338. 

The amendment was ruled to be not germane because it did not 

deal with the subject matter of the underlying bill, which was to 

address pay discrimination against women. • Representative Tom Price (R–GA) offered an amendment to the 

amendment in the nature of a substitute which would have required the Secretary of Labor to conduct a study on how the bill 

would affect recruitment and hiring by employers. The Price 

amendment would have delayed implementation of the underlying 

bill for 90 days while the study was being conducted. The amendment failed by a vote of 17–26. • Representative Price (R–GA) offered a second amendment to 

the amendment in the nature of a substitute which would have 

limited the amount of attorneys’ fees that could be awarded in a 

suit brought under the Equal Pay Act. However, attorneys’ fees are 

already limited to only those which are reasonable, and the amendment raised separation of powers issues. The amendment was defeated by a vote of 17–25. • Ranking Member Howard McKeon (R–CA) offered an amendment to the amendment in the nature of a substitute which would 

have required the Bureau of Labor Statistics to report to Congress 

on the price of gasoline and its effect on women workers within 90 

days of enactment of the bill. Chairman Miller ruled that Ranking 

Member McKeon’s amendment was not germane; Mr. McKeon appealed the Chairman’s ruling, and the McKeon appeal was defeated 

by a vote of 16–25. 

SUMMARY

The Paycheck Fairness Act of 2007 updates and strengthens the 

EPA. Due to weaknesses in the law, the landmark 1963 legislation 

has not lived up to its original purpose. Women working full-time 

earned just 58.9 cents to the dollar that men earned when the EPA 

was passed in 1963. The wage gap has narrowed slightly since 

then—but persists as a significant problem for American women. 

Today women on average earn just 77 cents to the dollar that men 

earn.8 H.R. 1338 is a critical step forward in the fight to eliminate 

pay disparity which ‘‘depresses wages and living standards for employees necessary for their health and efficiency; prevents maximum utilization of the available labor resources; tends to cause 


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9P.L. 88–38. 10Section 3(c) 2 provides that employees who have access to wage information of other employees as part of an essential job junction are not protected if they disclose the wages to workers who do not otherwise have access to such information. These employees’ wage disclosures 

are protected if they disclose those wages to an employee who also has access to that information, disclose their own wages, or disclose wages in the or disclose wages in response to or in 

furtherance of a government or internal employer investigation. 11 Institute for Women’s Policy Research, Memo to John Roberts: The Gender Gap is Real 

(2005). 

12There was support for ‘‘equal pay’’ dating back to World War I when the War Board enforced regulations requiring pay equity. See: Elizabeth Wyman, The Current Framework of Sex/ 

Gender Discrimination Law: The Unenforced Promise of Equal Pay Acts: A National Problem 

Continued 

labor disputes, thereby burdening, affecting, and obstructing commerce; and constitutes an unfair method of competition.’’ 9 Congress 

has a responsibility to amend the EPA and modernize the law so 

that it can better achieve its intended purpose. 

H.R. 1338 builds upon the EPA and closes numerous loopholes 

that have enabled unscrupulous employers to evade liability under 

the law. The bill strengthens the penalties available under the EPA 

to include compensatory and punitive damages. The bill prohibits 

retaliation against workers who discuss or disclose salary information 10; it expands the establishment requirement so that an employee can find a comparator at any workplace in the same county; 

it clarifies that one of the employer affirmative defenses against a 

disparity in pay must be related to the job in question and consistent with business necessity; and it reforms the class-action 

standard so that women with claims of unequal pay will automatically be part of a class action lawsuit unless they chose to ‘‘opt-out’’ of the case. 

The bill also strengthens the role government will play in combating wage discrimination. It accomplishes this by increasing the 

role of the EEOC and the Department of Labor (DOL). H.R. 1338 

authorizes additional training for EEOC staff on recognizing and 

remedying wage discrimination, requires DOL to collect data and 

codifies the use of the EO Survey by OFCCP for non-construction 

contractors. Finally, H.R. 1338 authorizes DOL to award competitive grants to be used for salary negotiation education and training 

programs for women and girls. 

STATEMENT AND COMMITTEE VIEWS

The Committee on Education and Labor is committed to protecting the rights of workers in the workplace. Forty-five years 

after the passage of the EPA, women continue to earn less than 

men for the same work. The long-term impact of pay disparity on 

women’s earnings is substantial and can cost a woman anywhere from $400,000 to $2 million over her lifetime.11 Women have been 

unable to utilize the protections afforded under the EPA because 

loopholes and ineffective sanctions have all but paralyzed the law. 

H.R. 1338 strengthens the EPA to more effectively combat wage 

discrimination. The bill builds upon Congress’ efforts forty-five 

years ago when the EPA was enacted and is another step forward 

to close the wage gap between men and women. 

A. HISTORY OF THE EQUAL PAY ACT

In 1963, Congress first 12 addressed the issue of unequal pay 

when it passed the EPA as an amendment to the Fair Labor 


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and Possible Solution from Maine, 55 Me. L. Rev. 23 (2004). In addition, Congress had considered ‘‘equal pay’’ bills as early as 1955, and the Kennedy and the two previous administrations 

supported equal pay legislation as well. House Committee on Education and Labor, House Report No. 309 (May 20, 1963) as found in House Committee on Education and Labor, Legislative 

History of the Equal Pay Act of 1963, U.S. Government Printing Office (December 1963), at 36, 

59, 66, 67. 13 29 U.S.C. § 206(d). 14Senate Committee on Labor and Public Welfare, Senate Report No. 176 (May 13, 1963) as 

found in, Legislative History of the Equal Pay Act of 1963, supra note 12 at 42. 15 Introduction of S. 409, Senator McNamara, House Committee on Education and Labor as 

found in, Legislative History of the Equal Pay Act of 1963, supra note 12 at 1, 10–11. 

16 Id. 17 Id. See also: House Report 309, as found in Legislative History of the Equal Pay Act of 1963, 

supra note 12 at 43. 18 Id,at 66. 19 Comments of Representative Frelinghuysen as found in, Legislative History of the Equal 

Pay Act, supra note 12 at 43. 

Standards Act (FLSA).13 The purpose of the legislation was broadly 

remedial to eliminate once and for all gender-based discriminatory 

pay practices: 

The objective of the legislation is to insure that those 

who perform tasks which are determined to be equal shall 

be paid equal wages. The wage structure of all too many 

segments of American industry has been based on an ancient but out moded belief that a man, because of his role 

in society, should be paid more than a woman even though 

his duties are the same. This bill would provide, in effect, 

that such an outmoded belief can no longer be implemented and that equal work will be rewarded with equal 

wages.14

As with minimum wages, overtime and the protection of child laborers, the EPA enshrined ‘‘equal work for equal pay regardless of 

sex’’ as another fair labor standard in the FLSA.15 Other versions 

of equal pay legislation had been introduced in 1963 and before, 

but because DOL had already developed ‘‘a now familiar system of 

regulations and procedures for investigation, administration and 

enforcement,’’ Congress decided that a simple expansion of the 

FLSA to include pay equity was the ‘‘most efficient and least difficult course of action.’’ 16 Upon introduction of the bill, Senator 

McNamara stated: 

Such a utilization serves two purposes: First, it eliminates the need for a new bureaucratic structure to enforce 

equal pay legislation. And second, compliance should be 

made easier because of both industry and labor’s long-established familiarity with existing fair labor standards 

provisions.17

Some legislators felt that the bill legislation did not go far 

enough but voted for it because it was ‘‘a good start * * * in eliminating the unfairness of unequal pay.’’ 18

In passing the EPA, Congress intended that ‘‘men and women 

doing the same job under the same working conditions * * * 

[would] receive equal pay.’’ 19 Representative Frelinghuysen elaborated on the standard: 

* * * the jobs in dispute must be the same in work content, effort, skill and responsibility requirements, and in 

working conditions * * * it is not intended to compare unVerDate Aug 31 2005 08:02 Jul 29, 2008 Jkt 069006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\HR783.XXX HR783

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20Id. at 11. 21 Representative Frelinghuysen, ‘‘jobs in dispute must be same in work content, effort, skill 

and responsibility requirements and in working conditions.’’ Id. at 83; Representative Powell, 

citing the International Labor Organization Constitution which provides ‘‘men and women 

should receive equal remuneration for work of equal value.’’ Id. at 11; Representative Dwyer, 

referring to the ‘‘same kind of work’’ Id, at 61; Representative Donohue referring to ‘‘similar 

jobs.’’ Id. at 68; Senator McNamara, ‘‘it is not the intent of the Senate that jobs must be identical.’’ Id. at 91. See also, 29 C.F.R. § 1629.13 defining equal work as work that is ‘‘substantially 

equal.’’ 22 Id. at 16, 81. 23 29 U.S.C. § 206(d)(1). 24Legislative History of the Equal Pay Act, supra note 12 at 16. 25 Id. 26P.L. 88–352. 27 42 U.S.C. § 2000e et. seq. 

related jobs, or jobs that have been historically and normally considered by the industry to be different.20

At the same time, ‘‘equal pay for equal work’’ did not mean that 

the jobs in question had to be identical. They were to be similar 

in terms of ‘‘work content, effort, skill and responsibility requirements and in working conditions.’’ 21

In addition, the floor debate made clear that under the EPA, discrimination against one individual would be actionable and a showing of a pattern and practice of discrimination would not be required. Senator McNamara stated: 

It is inconceivable that this Congress should write legislation that would permit selective discrimination which, 

without doubt, would occur mostly likely against those individuals who are least able to protest. It is certainly the 

intent of the Senate that an employer will have violated 

this act if he discriminates against one employee, just as 

he will violate it if he discriminates against many.22

While the EPA was aimed at eradicating wage differentials based 

on sex, it was not intended to limit other kinds of pay inequity not 

based on gender. As such, even though the employee might show 

that the employer’s wages were unequal as compared to a man, the 

EPA does provide employers with affirmative defenses to justify 

the differences in pay if such differences are based on: (1) seniority 

systems; (2) merit systems; (3) systems that measure earnings by 

quality or quantity of production; or (4) ‘‘any factor other than 

sex.’’ 23

While the last affirmative defense was written broadly, Congress 

intended that any proffered reason for a pay differential be a bona 

fide one. In addition, the drafters made sure that the employer was 

shouldered with the burden of proving the legitimacy of its practice,24 making clear that these affirmative defenses were never intended to ‘‘shield employers who have a plan or system in place 

that is devised to evade the law.’’ 25

B. EPA, TITLE VII, AND SECTION 1981

On July 2, 1964, President Lyndon Johnson signed the Civil 

Rights Act of 1964 26 into law. The Act was historic legislation prohibiting discrimination in employment, among other things, on the 

basis of race, color, religion, national origin and sex.27 While the 

EPA and Title VII—passed only one year apart—both prohibit sex 

discrimination in pay and provide overlapping coverage, there are 


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28Feder & Levine, supra note 4 at 8. In terms of coverage, under EPA all employees are cov- ered so long as the employer has at least $500,000 in annual revenue. 29 U.S.C. 

§ 203(s)(1)(A)(ii). Under Title VII, employees who work for an employer with fewer than 15 employees will fall outside of Title VII’s requirements. 42 U.S.C. § 2000e(b). 29 29 U.S.C. § 255. 30 42 U.S.C. § 2000e–5(e)(1). This deadline is extended to 300 days if the charge is also covered 

by a state or local antidiscrimination law. Id. 31 127 S. Ct. 2162 (2007). 32 ‘‘Overview of the Equal Pay Act,’’ AAUW.Www.aauw.org/advocay/laf/lafnetwork/library/ 

payequitylepa.efm. 33 Id. 34 29 U.S.C. § 216. 35Feder & Levine, supra note 4 at 6, which state that compensatory damages include such 

items as pain and suffering, medical expenses and emotional distress. 36 Id. Punitive damages may be recovered when the employer acted with malice or reckless 

indifference. 37 Id. 38 Id. 39 Id. 

distinct differences between the application of Title VII and the 

EPA in sex-based wage discrimination cases.28

Statute of Limitations/Exhaustion of Administrative Remedies: 

Under the EPA, an aggrieved person has 2 years (or 3 years in a 

case of a willful violation) from the date of any instance of unequal 

pay to file a claim in court.29 Under Title VII, a worker must file 

her claim within 180 days of a violation.30 Specifically, following 

the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Company, Inc.,31 in cases of pay discrimination, she must file 

her charge within 180 days of the employer’s decision to pay her 

a salary based on sex (rather than, as long-standing law had held, 

180 days after each discriminatory paycheck). 

Burden of Proof: When alleging discrimination under the EPA, 

an employee is required to show that a man and a woman working 

in the same establishment and doing substantially the same job 

are receiving unequal pay. However, she does not bear the burden 

of proving that the employer intentionally committed wage-based 

gender discrimination. Once the employee has made a showing of 

unequal pay, the burden of proof shifts to the employer to show 

that the pay inequity is not due to gender discrimination.32

By contrast, under Title VII a plaintiff must typically prove that 

the employer intentionally discriminated against her, and she retains the burden of proving discrimination throughout the case. 

However, unlike an EPA complainant, a Title VII plaintiff is not 

required to demonstrate that she performed substantially the same 

(or equal) work as higher paid males, so long as she has other evidence of discrimination such as proof that a man worked fewer 

hours or evidence that she would have been paid more had she 

been a man.33

Damages: A plaintiff who successfully proves wage discrimination under the EPA can only recover backpay, and unless the employer can show that it acted in good faith, an equal amount in liquidated damages.34 Conversely, under Title VII a plaintiff is entitled to backpay, compensatory damages,35 as well as punitive damages 36 for ‘‘intentional’’ wage discrimination.37 Title VII damages 

compensatory and punitive damages do have monetary ‘‘caps,’’ which vary depending on the size of the employer.38 However, in 

no event may these damages exceed $300,000.39

Section 1981: While it does not cover sex-based discrimination, 

Section 1981 is worth comparing as well. Passed as part of the 

Civil Rights Act of 1866, Section 1981 forbids discrimination on the 


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40 42 U.S.C. 1981(a). 41 Closing the Gap: Pay Equity for Women Workers, Hearing Before the U.S. Senate Health, 

Education, Labor and Pensions Committee Education and Labor Committee, 110th Cong., 1st 

Sess. (2007) (written testimony of Jocelyn Samuels, Vice President for Education and Employment, National Women’s Law Center, at 1) [Hereinafter Samuels’ Testimony]. 42Supra note 6. 43Perspectives on Wage Inequality and Workplace Solutions, Hearing Before the Education 

and Labor Committee, 110th Cong., 1st Sess. (2007) (written testimony of Business and Professional Women/USA and Business and Professional Women’s Foundation at 4) (Hereinafter Business and Professional Women’s Testimony). 44 Equal Pay for Working Families, National and State Data on the Pay Gap and Its Costs, A Joint Research Project of the AFL–CIO and the Institute for Women’s Policy Research at 1 

(1999). 45 Judy Goldberg Day and Catherine Hill, Behind the Pay Gap, Association of American University Women (AAUW) (April 23, 2007). 46 Id. 47 Business and Professional Women’s Testimony at 3. 48Strengthening the Middle Class: Ensuring Equal Pay for Equal Work, Hearing Before the 

Education and Labor Committee, 110th Cong., 1st Sess. (2007) (written testimony of Heather 

Boushey, Senior Economist at the Center for Economic and Policy Research, at 1) [hereinafter 

Boushey Testimony]. 

basis of race or national origin in the making and enforcement of 

contracts.40 Such contracts may be between employee and employer 

or between businesses. Plaintiffs in Section 1981 cases may recover 

compensatory and punitive damages. But, unlike Title VII, those 

damages are not limited. Under current law, an employee receiving 

unequal pay for equal work on the basis of race may recover punitive damages without an arbitrary statutory limit, for example, but 

one receiving unequal pay on the basis of sex cannot. 

C. WOMEN CONTINUE TO EARN LESS THAN MEN

While progress has been made, ‘‘equal pay for women is not yet 

a reality in our country.’’ 41 As previously noted a woman working 

full-time, year-round earns 77 cents for every dollar a male 

earns.42 Pay disparity can be even worse for minority women. Compared to men, African American women earn 66 cents to the dollar; 

Latinas earn 55 cents to the dollar; and Asian-American women 

earn slightly more than 80 cents to the dollar.43 Each year, pay inequity causes American families to lose $200 billion in income, resulting in an annual loss to each working woman’s family of more 

than $4,000.44

In April 2007, the American Association of University Women 

(AAUW) released a study finding that not only do men earn more 

than women at the outset of their careers, but the wage gap grows 

wider as women age.45 Women one year out of college make 80 percent of what men earn, and 10 years later, make only 69 percent.46

As compared to men with only a high school diploma, women with 

graduate degrees earn only slightly more ($41,995 compared to 

$40,822).47

Many argue that the wage gap is the result of ‘women’s choices,’

including the choice of college major and occupation.48 However the 

AAUW study found that different choices do not fully explain the 

pay gap: 

[AAUW’s] analysis showed that men and women’s different choices can explain only some of the wage gap. After 

controlling for factors like experience, educational attainment, enrollment status, GPA, institution selectivity, age, 

race/ethnicity, region, marital status and children, a five 

percent difference in the earnings of male and female colVerDate Aug 31 2005 08:02 Jul 29, 2008 Jkt 069006 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\HR783.XXX HR783

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49Strengthening the Middle Class: Ensuring Equal Pay for Equal Work, Hearing Before the 

Education and Labor Committee, 110th Cong., 1st Sess. (2007) (written testimony of Catherine 

Hill, Research Director at the American Association of University Women, at 1) [hereinafter Hill 

Testimony]. 50 Id. at 4. 51 United States General Accounting Office, Women’s Earnings: Work Patterns Partially Explain Difference Between Men’s and Women’s Earnings, GAO–04–35 (Oct. 2003). 52 Id. 53Linda Babcock and Sara Laschever, ‘‘Women Don’t Ask: Negotiations and the Gender Divide’’ (2003). See also, The Lilly Ledbetter Fair Pay Act of 2007, Hearing Before the Education 

and Labor Committee, 110th Cong., 1st Sess. (2007) (written testimony of Deborah Brake, Law 

Professor at the University of Pittsburgh Law School, at 2) [hereinafter Brake Testimony]. 54 Brake Testimony, at 2. 55 Id. 56 Id. 57 Boushey at 3. Id. at 5. 58 Boushey Testimony, at 4. See also, Bureau of Labor Statistics 2005. 59 Id. 60 Id. 

lege graduates is unexplained. It is reasonable to assume 

that this difference is the product of discrimination. 

Furthermore, AAUW’s analysis showed that in almost every field 

in which women work, those working full-time earn less than men, 

although the size of the gap varies.49 Controlling for this similar 

set of factors, ten years after graduation there is a twelve percent 

difference in the earnings of recent male and female college graduates that is unexplained and attributable only to gender.50 The 

General Accounting Office (GAO) in a 2000 study came to a similar 

conclusion and found that women on average earn only 80 percent 

of what men earn, even after considering factors that can impact 

earnings such as marital status, race, children and income, work 

patterns such as experience and hours worked.51 The 20 percent 

pay gap between men and women was unexplained.52

Pay disparity increases and follows women throughout their careers. A Carnegie Mellon University study 53 found that male students who graduated with masters degrees earned starting salaries 

approximately $4,000 higher than their female counterparts. Professor Deborah Brake offered this example in her testimony before 

the Committee: if a 22-year-old man initially earns $30,000 and the 

female earns $25,000 and they receive identical 3-percent annual 

raises, the pay gap would widen to $15,000 by the time the workers 

reach 60, with a total difference of $361,171 over their employment 

lives. If the male earns 3-percent annual interest on the difference, 

the total disparity would be $568,834.54 Moreover, this pay gap not 

only impacts women’s annual earnings but also has a significant 

impact on her retirement savings, including employer pension 

plans, percentage-based employer contributions to retirement savings plans and even Social Security.55

The wage gap is a threat to this country’s middle class and the 

loss of women’s income represents a ‘‘huge loss to the economy in 

unrealized consumption and investment, as well as reduced tax 

revenues to governments at all levels.’’ 56 With seventy percent of 

all mothers in the labor force,57 and with married mothers typically 

providing over one-third of the family income,58 now more than 

ever, women’s participation in the labor market is necessary for 

families to survive.59 While more families have a working wife, 

family income has failed to grow as much as it did in the decades 

just after World War II.60 Prior to the early 1970’s, a married-couple’s family income grew by 3 percent per year on average and inVerDate Aug 31 2005 08:02 Jul 29, 2008 Jkt 069006 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\HR783.XXX HR783

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61 Id. at 4–5. 62The Paycheck Fairness Act, H.R. 1338, Hearing Before the Education and Labor Committee, 

Subcommittee on Workforce Protections, 110th Cong. 1st Sess. (written testimony of Joseph M. 

Sellers, Cohen Milstein, Hausfeld & Toll PLLC at 15). [Hereinafter Sellers Testimony]. 63 Id. 64Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 617 (2007) (Ginsburg, J. dissenting). 

See also, Sellers Testimony at 15. 65Sellers Testimony. 66 Id. 67The Lilly Ledbetter Fair Pay Act of 2007, Hearing Before the Education and Labor Committee, 110th Cong., 1st Sess. (2007) (written testimony of Wade Henderson, President and CEO 

of the Leadership Conference on Civil Rights, at 3) [hereinafter Henderson Testimony]. 68 Id. 69 Brake Testimony at 4. 70 Id. 71 Id. at 5. 72Sellers Testimony at 16. 

come growth was about the same for families with and without a 

working wife. However, since then, income for married-couple families without a working wife grew at an annual average rate of just 

0.1 percent, while the income growth for families with a working 

wife grew by less than one-percent.61

a. Pay discrimination is difficult to detect 

In today’s workplace, pay discrimination is often extremely difficult to detect: ‘‘Unlike most personnel actions, the results of 

which are readily evident to many employees, the levels of compensation paid to an employee are rarely known to co-workers.’’ 62

Employees typically do not have access to information which would 

raise a suspicion of pay discrimination, and workplaces often discourage, if not outright prohibit, discussions between employees 

about salaries.63 As Justice Ginsburg observed in Ledbetter v. 

Goodyear Tire & Rubber Co., ‘‘comparative pay information * * * 

is often hidden from the employee’s view.’’ 64 Employee compensation is regularly kept confidential by employers and may only be 

known by the individual employee, payroll staff and manager(s).65

In addition, many employers have policies prohibiting salary discussions.66 One-third of private sector employers have adopted specific rules prohibiting employees from discussing their wages with 

co-workers.67 Only one in ten employers has adopted a pay openness policy.68 Finally, for those employees who do know what their 

colleagues earn, they often lack information about the contributing 

factors that might influence pay levels, including performance, education and/or training. 

Pay discrimination is rarely accompanied by circumstances suggestive of gender discrimination.69 Disparate pay might not begin 

with a woman’s initial salary determination but can readily develop with a decision to increase the pay of male colleagues. While 

employees are normally aware of which employees receive promotions, they are less likely to know when colleagues receive a pay 

raise.70 For example, an employee who receives a three-percent 

raise would have no reason to suspect pay discrimination when she 

does not know about the raises her colleagues earn.71

Discussions about wages are necessary to identify pay disparity, 

‘‘absent ready access to the pay levels of their co-workers and the 

factors that led to those pay levels, most employees lack the knowledge needed to make a viable claim of pay discrimination under the 

EPA.’’ 72 Once a lawsuit is filed, discovery of wage data is available 

to help aggrieved employees develop their case; however, in order 


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73Sellers Testimony. See also, Equal Employment Opportunity Commission, EEOC Litigation 

Statistics FY 1997 to FY 2006, Available at http: www.eeoc.gov/stats/litigation.html (out of 403 

suits filed in 2006, only 10 included EPA claims). 74The Paycheck Fairness Act, H.R. 1338, Hearing Before the Education and Labor Committee, 

Subcommittee on Workforce Protections, 110th Cong. 1st Sess. (written testimony of Evelyn 

Murphy, President of the WAGE Project) [hereinafter Murphy Testimony]. The Paycheck Fairness Act, H.R. 1338, Hearing Before the Education and Labor Committee, Subcommittee on 

Workforce Protections, 110th Cong. 1st Sess. (written testimony of Marcia Greenberger, CoPresident of the National Women’s Law Center) [hereinafter Greenberger Testimony]. 75 BLS Plans to Drop Data on Women From Payroll Survey Creates ‘Firestorm’, BNA Daily 

Labor Report (March 7 2005). 76 ‘‘BLS has found that employers often to not have gender information in the same place they 

have earnings information.’’ Statement of Commissioner Kathleen Utgoff, supra note 76. 77PL–109–149 (December 2006). 78The 2007 Labor-HHS appropriations bill was passed as part of a Continuing Resolution, and 

this provision went unchanged. The provision is contained in the 2008 Labor-HHS Appropriations bill passed by both the House and Senate but vetoed by the President. 79 H.J. Res.20, which then became P.L. 110–5 on February 15, 2007. 80 H.R. 3043. 81 EEOC, 35 Years of Ensuring the Promise of Opportunity, available at: http://www.eeoc.gov/ 

abouteeoc/35th/history/index.html 82 National Women’s Law Center, Comment Letter on Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors; Equal Opportunity Survey (March 28, 2006) 

(letter on file with author). 

to learn more about employee salaries, however women need to 

have some basis to file suit in the first place. However, because employees lack knowledge about pay levels and the reasons behind 

different employer pay decisions ‘‘only a small percentage [of 

claims] make specific allegations of pay discrimination.’’ 73

b. Lack of data on pay disparity 

Data collection is a critical component understanding what is 

really happening with women’s wages workplace. In addition, sufficient data about pay discrimination is an invaluable tool for those 

agencies—such as the EEOC and the OFCCP—charged with enforcing employment discrimination laws such as the EPA. However, 

experts agree that these agencies have minimal information about 

gender-based disparities in pay.74 Additionally, the Bush Administration has halted (or attempted to halt) many of the data collection initiatives already in place for collecting information about 

women and men’s wages. 

Bureau of Labor Statistics (BLS) Employment Statistics: For over 

forty years, BLS has been collecting data on female workers and 

comparing them to their male counterparts. This data has formed 

the basis for its monthly report on the employment situation.75 In 

2005 BLS stopped collecting this data, citing employer inconvenience.76 In response, Congress passed (and the President signed 

into law) the 2006 Labor HHS appropriations bill,77 which contained a provision mandating BLS to continue to collect data on 

women workers.78 This language was retained for FY07 through a 

continuing resolution 79 and is also part of the 2008 Labor-HHS Appropriations bill passed by both the House and Senate but vetoed 

by the President.80

Recognizing the value of collecting these statistics, the Paycheck 

Fairness Act requires BLS to continue to gather these statistics. 

Equal Employment Opportunity Commission (EEOC): The EEOC 

was created by the Civil Rights Act of 1964, and was given litigation enforcement authority in 1972.81 Experts agree that enhanced 

data collection by the EEOC, whose mission is to eliminate unlawful employment discrimination by the enforcement of anti-discrimination laws, is essential.82 The Paycheck Fairness Act requires the 


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83 Id. 84 Id. 85 Id. at 2. 86 Id. 87 Id. 88 Id. 89 71 Fed. Reg. 3373 (Jan. 20, 2006). 

EEOC to survey existing data and determine what additional data 

is needed to enhance enforcement of the law. 

Office for Federal Contract Compliance programs (OFCCP): 

OFCCP is unique in that it is required by law to affirmatively conduct reviews to ensure that contractors with federal contracts are 

in compliance with equal employment measures, including Executive Order 11246, which prohibits discrimination in employment on 

the basis of race, color, religion, national origin and gender. About 

one-fifth of the labor force works for an employer who contacts with 

the federal government.83

Equal Opportunity Survey: The EO Survey was developed over 

three Administrations to ensure nondiscrimination in federal employment. It was intended to track employment data and to improve the enforcement of anti-discrimination requirements—including gender-based wage discrimination—of federal contractors.84

Prior to the EO survey, OFCCP conducted targeted compliance reviews. Because of limited resources, OFCCP only reviews approximately four percent of contractors each year.85

The EO Survey was designed to enable OFCCP to be far more 

effective in detecting and remedying wage discrimination and in 

encouraging self-awareness and self-evaluation among contractors 

as a means of increasing compliance.86 It was developed to query 

employers on an annual basis (to be eventually sent to at least onehalf of all contractors each year) about their affirmative action program activities, their personnel actions (e.g. hires and promotions) 

and their compensation of full-time employees, all aggregated by 

job group, race and gender.87

The first survey was sent out in 2000 during the Clinton Administration, but the Bush Administration which took office soon after, 

did not take any action on the surveys that were returned and did 

not follow-up on those surveys that were not returned.88 In 2003 

and 2004, it sent out fewer and fewer surveys until 2005, when it 

failed to send out any at all. In January 2006, the OFCCP proposed 

eliminating the EOC survey altogether.89 The Paycheck Fairness 

Act would codify this very important enforcement tool for the 

OFCCP. 

Standards in Conducting Systematic Wage Discrimination Analysis: As a way of measuring more effectively whether or not employers were engaged in gender-based wage discrimination, the 

Clinton Administration developed a methodology to be used in the 

OFCCP’s compliance reviews. The OFCCP asked employers to provide data on its pay levels (or pay grades), and then using the data, 

compared wages based on race, ethnicity and gender. If there were 

any pay disparities, the OFCCP requested employers to correct 

them. 

Generally, employers were not supportive of this analysis, arguing that differences in wages between men and women did not necessarily prove that they were engaging in gender-based discrimination. As a result, the Bush Administration published a formal guidVerDate Aug 31 2005 08:02 Jul 29, 2008 Jkt 069006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\HR783.XXX HR783

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90 71 Fed. Reg. 35124 (June 16, 2006). 91 Pallavi Gogoi, For Women, a Failure to Negotiate, Business Week (April 22, 2005) (quoting 

Lee E. Miller, co-author of A Woman’s Guide to Successful Negotiation). 92 Corning Glass Works v. Brennan, 417 U.S. 188, 206 (1974)(citing the 2nd Circuit decision, 

474 F.2d 226, 234 (1973). 93Linda Babcock, Nice Girls Don’t Ask, Harvard Business Review (Oct. 2003). 94Dina W. Pradel, Hannah Riley Bowles and Kathleen McGinn, When Gender Changes the 

Negotiation, Harvard Business School (Feb. 13, 2006). 95 Id. 96 Id. 97 Id. 98 Id. 

ance document that expressly prohibited OFCCP from using a ‘‘pay 

grade’’ analysis in conducting its compliance reviews. Under this 

guidance, OFCCP is required to conduct time-consuming analyses, 

including the gathering of anecdotal evidence before determining 

that a contractor is engaging in wage discrimination.90

The Paycheck Fairness Act acknowledges that the ‘‘pay grade’’ analysis is a useful tool (even if it does not prove wage discrimination, it indicates some evidence of it), and simply provides that 

OFCCP, ought to be allowed to use it, along with other tools, when 

performing compliance reviews. This section does not impose the 

‘‘pay grade’’ methodology as the sole means the OFCCP can use in 

determining if contractors for federal contracts are in compliance, 

but encourages its use in conjunction with other tools. 

c. Women are less likely to negotiate 

Further contributing to the wage gap is the failure of high numbers of women to negotiate for higher salaries and promotions: 

‘‘most women hardly negotiate when they get a job offer * * * because they look at the offer as the goal, not the beginning of a relationship.’’ 91 While negotiation is a contributing factor to the wage 

gap, it does not justify gender-based pay discrimination. As the Supreme Court noted: ‘‘Congress enacted the Equal Pay Act * * * 

recognizing the weaker bargaining position of many women and believing that discrimination in wage rates represented unfair employer exploitation of this source of cheap labor.’’ 92

Researchers have found there are several reasons women fail to 

negotiate for themselves in the workplace.93 Women often do not 

promote their own interests, choosing instead to focus on others 

and believing that employers will recognize and reward them for 

good work. In addition, the culture in many workplaces ostracizes 

women who are ambitious and advance themselves. A study 94 conducted by Harvard University and Carnegie Mellon University examined the starting salaries of MBA men and women who recently 

graduated from top business schools. Researchers noted that there 

was no difference between the salaries negotiated by men and 

women in jobs where ‘‘compensation standards were relatively clear 

to potential hires.’’ 95 However, in jobs where salaries were not 

clear, ‘‘male MBAs negotiated salaries that were $10,000 higher, on 

average, than those negotiated by female MBAs.’’ 96

The wage gap which occurs with the initial salary remains with 

a female worker throughout her career; over a 30-year career with 

an annual 3 percent raise, a woman loses $600,000.97 The study 

did find, however, that women tend to be more successful when negotiating on behalf of others. Put in the position of negotiating for 

another employee, women were able to secure compensation that 

was 18 percent greater than what they negotiated for themselves.98


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99Shankar Vedantam, Salary, Gender and the Social Cost of Haggling, WASH. POST (July 30, 

2007) at A07. 100 Id. 101 ‘‘PROGRESS and Girl Scouts Create New Badge to Teach Negotiation Skills,’’ available at: 

http://www.heinz.cmu.edu/whatsnew/archives/2006/girl—scouts.html (last visited July 22, 

2008). 102Greenberger Testimony at 5. 103Sellers Testimony at 3. 104 Id. 105 Id. at 4. 106Wyman, supra note 12, See also, Greenberger Testimony. 

Researchers concluded that the hesitation women have in advocating for themselves is not unreasonable. Women who initiate negotiations with their employer are responded to differently than 

men, and ‘‘both men and women were likely to subtly penalize 

women who asked for more * * * ’’ 99

While all employees have an economic incentive to negotiate, 

women are more likely to consider the risk involved and ‘‘those 

risks are higher for women than for men.’’ 100 Employers have a responsibility to ensure that men and women are compensated equally for equal work. Consequently, if a man asks for a raise or negotiates a higher salary during the hiring process, women who perform the same or a substantially similar job should have their compensation levels adjusted accordingly. Furthermore, programs must 

be created to help strengthen the negotiation skills of girls and 

women. Linda Babcock one of the authors of the Carnegie Mellon 

study has begun a pilot project with the Girl Scouts creating a new 

‘badge’ for negotiation. This project seeks to help girls learn negotiating by observing adults, practicing themselves and teaching negotiation skills to others.101 H.R. 1338 authorizes the Secretary of 

Labor to award competitive grants aimed at training girls and 

women on negotiation skills, an important tool in ending genderbased wage discrimination. 

D. THE EQUAL PAY ACT HAS BEEN INEFFECTIVE IN ERADICATING PAY

DISPARITY

A plaintiff raising a claim under the EPA carries a heavy burden 

of proof in establishing a case for gender-based discrimination. To 

make out a prima facie case, she must not only show that a pay 

disparity exists between employees of the same ‘‘establishment,’’

but she must also identify specific employees of the opposite sex 

holding equal positions who were paid higher wages.102 Courts will 

look to whether the work between the plaintiff and her comparator(s) was ‘‘equal or substantially equal * * * considering such 

factors as skill, effort, responsibility and working conditions.’’ 103

While a plaintiff does not have to demonstrate the work was 

identical, she has to show that it is somewhere between similar 

and identical. As such, the meaning of ‘‘equal work’’ has generated 

significant uncertainty about what a woman must demonstrate 

when comparing herself to a co-worker in order to satisfy this 

standard.104 Courts often compare ‘‘superficial features of the jobs 

and overlook fundamental similarities that are masked by trivial 

differences.’’ 105

In addition, the courts have tended to define ‘‘equal work’’ very 

strictly despite the clear intent of Congress that the EPA be remedial and that ‘‘equal work’’ means similar not identical.106 In her 

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107 555 F2d 1164 (3rd Cir. 1977). 108 Id. See as well: Noel v. Medtronic Electromedics, Inc., 973 F. Supp 1206 (Dist. Co. 1997), 

where a plaintiff failed to prove her prima facie case (substantial identity of job functions) when 

she showed that some but not all of her and her male comparator’s job functions were identical. 109Meeks v. Computer Ass’n Int’l, 15 F. 3rd 1013, 1017 (courts presume that multiple offices 

are not a single establishment unless unusual circumstances are demonstrated.) 110Samuels Testimony at 5 (citing Meeks v. Computer Ass’n Int’l, 15 F.3d at 232). 111Sellers Testimony at 15. (citing Juliene James, The Equal Pay Act in the Courts: A DeFacto White-Collar Exemption, 79 N.Y.U.L. REV. 1873 (2004)). 112 Id. 113 195 F. Supp. 2d 853 (W.D.Tex. 2002). 

tions, Marcia Greenberger, co-president of the National Woman’s 

Law Center cited Angelo v. Bacharach Instrument Company 107 as 

one of many examples. In that case female ‘‘bench assemblers’’ in 

light assembly alleged that they were paid less than men who were 

classified as ‘‘heavy assemblers.’’ An engineering expert testified— along with the women—that the jobs were substantially the same 

in terms of ‘‘skill, effort and responsibility.’’ Despite this, the court 

held that the jobs were comparable but not equal.108

a. Establishment 

The EPA states that to assert a claim, a plaintiff must find a 

male comparator within the same physical location is paid more; 

and courts have interpreted this provision strictly.109 Plaintiffs 

must ‘‘demonstrate that pay disparity exists between employees in 

the same ‘‘establishment’’—that is, a distinct physical place of business rather than * * * an entire business or ‘‘enterprise’’ which 

may include several separate places of business.’’ 110 This means 

that an employer who has two stores in nearby towns can legally 

pay the male manager in store A more than female manager in 

store B despite the fact that they do the exact same job. 

The establishment requirement contributes to the difficulty that 

plaintiffs face when asserting an EPA claim. It limits the ability of 

women to bring an EPA claim, since many times, women might not 

have a true comparator in their physical workplace. Today’s employers are much different than they were forty-five years ago 

when the EPA was first enacted. Many have multiple facilities at 

which the same jobs are performed, and some locations may have 

only one person in a certain position (i.e. manager, or supervisor). 

The establishment requirement has particularly inhibited the 

ability of women who occupy higher level positions in the workplace to assert an EPA claim. In these cases, employers have been 

able to successfully assert that women in higher-level positions 

have unique job duties and therefore have no comparator in the 

same establishment.111 In fact, as one commentator noted, women 

in ‘‘administrative, managerial and executive positions have experienced a high rate of dismissal of their EPA claims because their 

jobs are more easily viewed as unique and therefore lack an appropriate comparator.’’ 112

This is clearly illustrated by the court’s decision in Georgen-Saad 

v. Texas Mutual Insurance Company.113 In that case, the complainant was a senior vice-president of finance who was being paid less 

than the other senior-vice presidents in the company. The court rejected the Georgen-Saad’s claim that any of the positions required 

‘‘equal skill, effort and responsibility,’’ and elaborated: 

According to Defendant, there are no male comparators 

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114 Id. at 856. 115 29 C.F.R. 1620.9 provides: (a) Although not expressly defined in the FLSA, the term ‘‘establishment’’ had acquired a well settled meaning by the time of enactment of the Equal Pay Act. 

It refers to a distinct physical place of business rather than to an entire business or ‘‘enterprise’’ which may include several separate places of business. Accordingly, each physically separate 

place of business is ordinarily considered a separate establishment. (b) In unusual circumstances, two or more portions of a business enterprise, even though located in a single physical place of business, may constitute more than one establishment. For example, the facts might 

reveal that these portions of the enterprise are physically segregated, engaged in functionally 

separate operations, and have separate employees and maintain separate records. Conversely, 

unusual circumstances may call for two or more distinct physical portions of a business enterprise being treated as a single establishment[emphasis supplied]. For example, a central administrative unit may hire all employees, set wages, and assign the location of employment; employees may frequently interchange work locations; and daily duties may be virtually identical and 

performed under similar working conditions. Barring unusual circumstances, however, the term 

′′establishment′′ will be applied as described in paragraph (a) of this section. 116 586 F.Supp. 1144 (D.C. 1984). Note, the U.S. Claims Court in Molden v. U.S., 11 Cl.Ct. 

604 (1987) distinguished the D.C. court’s application of establishment nationwide. It stated that: ‘‘Grumbine adopted an evaluation on a nationwide basis in order to give effect to the legislative 

purpose of providing equal pay for equal work. In contrast, defendant has acknowledged in the 

case at bar that plaintiffs have demonstrated equal skill, effort, and responsibility with other 

employees in the two Chicago offices.’’ As a result ‘‘there [was] no need to expand the definition 

of an ‘‘establishment’’ to include the Civil Service in its entirety as in Grumbine.’’ 117 Id. 

sponsibility under similar working conditions. The Court 

agrees. The sealed exhibits filed with Defendant’s Motion 

for Summary Judgment include job descriptions for the 

Senior Vice Presidents of Investments, Insurance Services, 

Underwriting Services, Underwriting and Policy Holder 

Services, Public Affairs, Internal Audit, Benefits/Loss Prevention, Administration, Data Processing Services, and 

Branch Operations/Marketing. 

The assertion that any one of these jobs requires ‘‘equal 

skill, effort, and responsibility’’ as Plaintiff’s Senior Vice 

President of Finance position cannot be taken seriously. 

These are Senior Vice Presidents in charge of different aspects of Defendant’s operations; these are not assemblyline workers or customer-service representatives. In the 

case of such lower-level workers, the goals of the Equal 

Pay Act can be accomplished due to the fact that these 

types of workers perform commodity-like work and, therefore, should be paid commodity-like salaries. However, the 

practical realities of hiring and compensating high-level 

executives deal a fatal blow to Equal Pay Act claims.114

In 1986, the EEOC issued regulations interpreting the definition 

of establishment under the EPA.115 The regulation in part provides 

that an establishment can encompass more than a single physical 

establishment when the employer has a central administrative unit 

charged with making salary and employee decisions. In Grumbine 

v. United States 116 the Court held that for purposes of the EPA, ‘the establishment’ was the Civil Service in its entirety and that a 

woman could not be paid less than a man merely because she 

worked in a different location.’’ 117

The plaintiff in Grumbine was a Regional Counsel of Customs 

Service working in Baltimore, Maryland and was the only female 

among the nine Regional Counsels. The counsels were spread out 

among nine regions; however the eight males were paid more than 

the one female counsel. Consequently, the plaintiff raised a claim 

of pay discrimination under the EPA. The government argued that 

the Regional Counsels each worked in different ‘‘establishments’’ for purposes of the EPA. The court rejected this defense and 


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118 Id. 119 Id. at 1148. 120 Vickers v. Intern’l Baking Co., 2000 U.S. Dist. LEXIS 17995 (N.D. Tex.). 121 Id. at *15. 122Marshall v. Dallas Indep. Sch. Dist., 605 F.2d 191, 194 (5th Cir. 1979). 123 519 F.2d 53 (5th Cir. 1975). 124 Brownlee v. Gay & Taylor Inc., 642 F.Supp. 347, 350 (D. Kan. 1986); Vickers v. Intern’l 

Baking Co., 2000 U.S. Dist. LEXIS 17995 (N.D. Tex.). 125 ILL. 93rd G.A., P.L. 93–6 126 629 U.S.C. § 206(d)(1). 127See for example: Fallon v. Ill, 882 F. 2d 1206 (7th Cir. 1989); AAUW supra note 34. 

found: 118 ‘‘It would hardly make sense to permit an employer to 

rely on geographic ‘‘establishment’’ concept in defense of an equal 

pay practice when that employer has itself adopted a uniform, nongeographic pay policy and system.’’ 119

Courts apply the EEOC regulation to apply establishment can include more than one physical location. In 2000, a court 120 held that 

a female district sales manager in the Dallas/Fort Worth facility 

could compare herself other district sales managers in the State of 

Texas for purposes of the plaintiff’s EPA claim. The plaintiff in the 

case had no comparator in her physical establishment. As a result, 

the court reasoned that limiting her comparators to a single physical establishment ‘‘would effectively permit a large employer with 

national operations to exempt its managerial staff (each of whom 

is in charge of a single facility) from the reach of the EPA.’’ 121 The 

5th Circuit held that a school district with 182 schools was a single 

establishment for purposes of an EPA claim 122 as were thirteen elementary schools operated by a single school district near Houston 

Texas.123

Numerous courts have recognized that there is a trend in the law 

interpreting ‘‘establishment’’ to include all places of business of one 

corporation or a multi-employer.124 Under these circumstances the 

courts have recognized that accountability flows from the decision 

making structure. It is clear that the single-location establishment 

interpretation is an unworkable standard in today’s workplace and 

threatens to eliminate a large number of women from the Act’s protections. 

Recognizing that the single-site establishment has limited women’s ability to assert an EPA claim, H.R. 1338 expands where a 

worker can look to find a comparator. Under the bill, a woman can 

look to a similarly situated male co-worker anywhere in the same 

county or similar political subdivision of a state. Workplaces in the 

same county operate under the same cost of living and labor market conditions. County-wide comparisons are already the law in Illinois under the state’s Equal Pay Act.125 However, consistent with 

EEOC rules and guidance, including 29 CFR 1620.9, the bill does 

not restrict courts from applying establishment more broadly than 

county. 

b. Any factor other than sex 

Under the EPA, employers can affirmatively defend and justify 

unequal pay if it is based on: (1) seniority systems; (2) merit systems; (3) systems that measure earnings by quality or quantity of 

production; or (4) ‘‘any factor other than sex.’’ 126 Historically, 

courts have interpreted the ‘‘any factor other than sex’’ criteria so 

broadly that it embraces an almost limitless number of factors, so 

long as they do not involve sex.127 Consequently, it is the fourth 


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128Wyman, supra note 12 at34. 129 506 U.S. 965 (1992). 130 Id. 131 Corning Glass Works 417 U.S. 188 (1974); Greenberger Testimony at 6. 132Greenberger Testimony at 6–7. 133 1993 U.S. Dist. LEXIS 10331. 

affirmative defense that has posed the ‘‘greatest problems for 

women pressing an EPA claim,’’ 128 and employers have been able 

to prevail in these cases by asserting a range of ‘‘other than sex’’ factors. 

Moreover, there is no consensus among the circuit courts as to 

whether a factor other than sex under the EPA needs to be business related, and the Supreme Court has failed to resolve this 

issue. It denied certiorari in the case of Randolph Cent. Sch. Dist. 

v. Aldrich 129 with three justices dissenting and acknowledging the 

conflict among the circuits.130

To the detriment of an effective Equal Pay Act, many courts have 

found that the ‘‘factors other than sex’’ need not be business-related 

or even related to the particular position in question. In addition, 

employers are able to successfully raise factors such as market 

forces and prior salaries (even if they are based on a discriminatory 

wage) that in themselves undermine the goals of the Equal Pay 

Act.131 Marcia Greenberger explains: 

Cases such as these undermine both the spirit and analytical approach of the Equal Pay Act. What was intended 

to be an affirmative defense for an employer—a defense 

that demands that the employer carry the burden of proving that its failure to pay equal wages for equal work is 

based on a legitimate reason—has instead been converted 

by these courts into a requirement merely that an employer articulate some obstensibly nondiscriminatory basis 

for its decisionmaking. Because their basis can so easily 

mask criteria that are at bottom based on sex, the courts’

failure to engage in searching analysis circumvents the 

burden Congress intended employers to bear.132

To ensure a broadly remedial statute, designed to eradicate the 

gender pay gap for women and men performing equal work, the 

Equal Pay Act’s affirmative defense of a factor other than sex must 

be clarified to require that the factor be job-related, not derived or 

based upon a sex-based differential, and consistent with business 

necessity. A review of court cases reveals the loopholes that these 

reforms would fix. 

Job-Relatedness: In Boriss v. Addison Farmers Insurance Co.,133

the plaintiff brought an EPA claim alleging that in the ten years 

she worked for the employer as an underwriter, she was paid less 

than her male colleagues while performing substantially equal 

work. When comparing the plaintiff to three of her male colleagues, 

the employer alleged that the difference in pay was due to factors 

other than sex, including more underwriting experience and a college education, even though a college degree was not a prerequisite 

for the position. 

The court found that the employer successfully met its burden; 

the difference in pay was due to a ‘‘factor other than sex.’’ It noted, 

but did not consider, the fact that the higher salaries of the male 

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134 Id. at 23. 135 Id. citing, Covington v. SIU, 816 F.2d 317, 321–22 (1987). See also, Fallon v. State of IL, 

882 F.2d 1206 (7th Cir. 1989). 136 Id. 137 516 F. 3d 627 (7th Cir. 2008). 138 417 U.S. 188 (1974). See, Greenberger Testimony at 6. 139 Id. 140 470 F.3d 685 (7th Cir. 2006). 

ployment.134 In the end, it relied on a very broad interpretation of 

the ‘‘factor other than sex’’ and that the factor need not be related 

to the ‘‘requirements of the particular position in question, nor that 

it be a ‘business-related’ reason.’’ 135 All that needs to be evaluated 

is ‘‘whether the factor is discriminatorily applied or if it causes a 

discriminatory effect.’’ 136

In addition, the court held that employers can lawfully pay a 

male more than a similarly situated female employee if the motivation is to induce the male worker to take the job and/or if employers take into account what the employee was making at his prior 

job. Despite the fact that these situations may result in female 

employee[s] being paid less, the court stated that none of these situations violate the EPA. 

In addition, just this year, in the case of Warren v. Solo Company,137 reaffirmed its position that the Defendant need not show 

that a ‘‘factor other than sex’’ is related to the requirements of the 

particular position or a ‘‘business-related’’ decision, when it found 

that unequal pay was justified because the male employee had a 

college degree and two masters degrees, despite the fact that the 

degrees were unrelated to the jobs they were both performing. 

Derived from or based upon sex-based differentials: In 1974, the 

Supreme Court held that ‘‘market forces’’—such as the value given 

by the market to men’s and women’s work or the more effective 

bargaining power that men historically have—cannot be cited as a 

factor other than sex to evade liability.138 The court in Corning 

Glass Works noted that the company’s decision to pay women less 

for the same work men performed ‘‘took advantage of the market 

and was illegal under the EPA.’’ 139

Despite clear direction from the Supreme Court, lower courts, as 

recently as 2006, have accepted market forces as a defense to a pay 

disparity. In Merillat v. Metal Spinners, Inc.,140 for example, the 

plaintiff, who had been with the company for nearly 20 years, was 

promoted to a Senior Buyer position in the materials department. 

Around that time, the employer created a new position entitled 

‘‘Vice President of Procurement and Materials Management.’’ While 

the duties of both jobs were similar, the new position also included 

managing materials department employees (including the plaintiff). 

The job was offered to a male with a starting salary of $62,500. At 

that time, the plaintiff earned $49,800, and she helped to train the 

new employee for his position. 

The Merillat plaintiff brought an EPA claim against the employer who asserted the affirmative defense that the pay disparity 

was due to factors other than sex such as education, experience 

and market forces. The employer alleged that the plaintiff was paid 

more, in part because of education and experience, but also because 

his salary represented the market rate for the position in question. 

The court agreed and held that the pay disparity was due to factors 

other than sex, including education, experience and ‘‘the market 


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141 Id. at 698. 142 Id. at 697. 143 473 F. 2d 589 (3rd Cir. 1973). 144 Id, In addition, in this case females were not allowed to apply to work in the men’s department. 145 Id. at 596. 146 2007 U.S. Dist. LEXIS 18435 (S.D.N.Y. Mar. 8, 2007). 147 Id. 148 123 F. Supp. 2d 847 (D. Md. 2000). 

forces at the time of [his] hire.’’ 141 The court noted that it had previously ‘‘held that an employer may take into account market forces 

when determining the salary of an employee,’’ 142 although cautioning in a footnote against employers taking advantage of market 

forces to justify discrimination. 

Similarly, the 3rd Circuit, in the case of Hodgson v. Robert Hall 

Clothes,143 found that the employer was justified in paying the female workers less than the male workers because the ‘‘economic 

benefits to the employer justified a wage differential even where 

the men and women were performing the same task.’’ 144 In Hodgson, the court was comparing the higher wages of male sales people 

working in the men’s department of a store with the lower wages 

being paid to female sales people working in the ladies’ department. 

In finding for the employer, the court based its decision on the 

fact that the men’s department was more profitable than the ladies’

department even though the products sold by the women were of 

lesser quality and cost less than the goods sold in the men’s department. It concluded: ‘‘Without a more definite indication from Congress, it would not seem wise to impose the economic burden of 

higher compensation on employers. It could serve to weaken their 

competitive position.’’ 145

Some courts have also held that it is acceptable for an employer 

to pay male employees more than similarly situated female employees based on the higher prior salaries enjoyed by the male workers. 

In addition, employers can successfully justify paying a male employer more if the higher salary is a business tactic to lure [or retain] an employee. 

In Drury v. Waterfront Media, Inc.146 the plaintiff was hired as 

the Director of Project Management, responsible for organizing and 

managing all corporate projects, at a salary of $85,000 with an annual bonus of $15,000, and $25,000 in stock options (in her previous position, she had earned $85,000). Over a year later she was 

promoted to Vice-President of Production and Operations with a 

salary of $95,000 and a bonus potential of $20,000. 

However, another vice-president (for customer service) was paid 

$110,000 with the possibility of a $25,000 bonus and $50,000 in 

stock options. This difference was the basis of the plaintiff’s equal 

pay claim. In asserting its affirmative defense, however, the employer claimed that it was forced to pay the male vice-president 

more, not based on any sex-based wage differential but in order to 

lure him away from his prior employer. The court agreed and held 

that ‘‘salary matching and experience-based compensation are reasonable, gender-neutral business tactics, and therefore qualify as ‘‘a 

factor other than sex.’’ 147

The same conclusion was reached in Glunt v. GES Exposition 

Services,148 where the plaintiff brought a claim that her employer 


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149 Id. at 859. 150 Id. 151 Id. 152 613 F. 2d 706 (8th Cir.) 153 1996 U.S. Dist. LEXIS 1865 (S.D.N.Y. 1996). 154 49 F. Supp. 2d 208, 220 (S.D.N.Y. 1999) 155 Id. 156 691 F. 2d 873 (9th Cir. 1982) 157 427 F. 3rd 466 (7th Cir. 2005). 

violated the EPA in two ways. First, she alleged that in her capacity as a project coordinator she was paid less than three male coworkers while performing essentially the same function. Second, 

she alleged that after being promoted to account executive, her employer failed to raise her salary to a level parallel to the starting 

salaries of the three male account executives. The court found that 

in each case, factors other than sex justified the employer paying 

Glunt less than her similarly situated male co-workers. 

In its decision the court noted that ‘‘offering a higher starting 

salary in order to induce a candidate to accept the employer’s offer 

over competing offers has been recognized as a valid factor other 

than sex justifying a wage disparity.’’ 149 Furthermore, ‘‘prior salary 

may be one of several gender-neutral factors employed in setting 

the higher salary of a male coming in from the outside.’’ 150 In 

cases where a male employee is transferred or reassigned, ‘‘it is 

widely recognized that an employer may continue to pay [a transferred or reassigned employee] his or her previous higher wage 

without violating the EPA, even though the current work may not 

justify the higher wage.’’ 151

Several other court decisions have similarly upheld such pay disparities. In Horner v. Mary Institute 152 the Eighth Circuit Court 

allowed a private school to justify paying a male teacher it wanted 

to hire from the outside more pay because such payment was necessary to secure him for the position. In Englemann v. NBC,153 the 

Court found that ‘‘salary matching’’ was a valid defense to pay disparity; and in Sobol v. Kidder, Peabody & Co.,154 the Court held 

that a pay disparity is permissible when an employer paid males 

more as a ‘‘premium to attract and hire talented new bankers.’’ 155

Finally, in Kouba v. Allstate Ins. Co.,156 and Wernsing v. Department of Human Services,157 the courts allowed the employer to use 

prior salaries as a justifiable ‘‘factor other than sex.’’ In Kouba, the 

Ninth Circuit found that the employer had shown that the prior 

salary at issue corresponded roughly to ‘‘the employee’s ability 

* * * and predict [ed] a new employee’s performance as a sales 

agent,’’ while in Wernsing, the Seventh Circuit upheld the policy of 

the Illinois Department of Human Services that based its salary 

levels on prior earnings. 

In all of these cases, the courts essentially relied upon ‘‘market 

force’’ or ‘‘prior pay’’ arguments for pay differentials between men 

and women without requiring further evidence of the nature of that 

market force. Such evidence might include, for example, evidence 

that women’s earnings in a given position are not frequently or 

consistently lower than men’s, thereby demonstrating that the 

lower pay offer to a woman at hiring did not piggy-back on a sexbased differential. While market forces may be a legitimate basis 

for determining pay, market forces tainted with sex discrimination 

are not. The broadly remedial purpose of the EPA is undermined 

where a seemingly gender-neutral excuse for unequal pay between 


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158Griggs v. Duke Power, 515 F.2d 86 (4th Cir. 1975). 159 AAUW supra note 34. 160 401 U.S. 424 (1971). 161 Id. at 431. 162See: Earl M. Maltz, The Legacy of Griggs v. Duke Power Co.: A Case Study in the Impact 

of a Modernist Statutory Precedent, 1994 Utah L. Rev. 1353(1994) at pp. 1371–1372. 163 490 U.S. 642 (1989) 164 Id. at 659. 165 42 U.S.C. § 2000e(o)(1). 166 In 42 U.S.C. § 2000e(o)(1)(A), Congress also established the business necessity standard in 

case of employment practices involving selection: ‘‘the practice must bear a significant relationContinued 

similarly situated employees of opposite sex is based on or derived 

from a sex-based differential. 

Business Necessity: Under Title VII, in order to justify an employment practice that has the effect of discriminating against an 

employee on the basis of race, color, religion, national origin or sex 

(a disparate impact case), an employer must assert that the practice is consistent with business necessity. Like a disparate impact 

case, cases brought under the EPA, do not require a showing of intent. So a practice (which includes the payment of wages) that may 

be ‘‘fair in form but discriminatory in operation’’ 158 is prohibited 

under Title VII. The same is true with regard to the EPA. 

Both Title VII and the EPA afford the employer opportunities to 

defend their practices, but as previously explained, the ‘‘factor 

other than sex’’ defense under the EPA has been interpreted by the 

courts so broadly that nearly any explanation for a wage differential is acceptable.159 This is one of the main reasons that the EPA 

is ineffective. 

The business necessity defense originated in the case of Griggs 

v. Duke Power Co,160 decided in 1975. In that case, the Supreme 

Court determined that an employment practice, which resulted in 

the exclusion of black employees from certain jobs could only be 

justified in the case of business necessity (‘‘The touchstone is business necessity.’’).161 However, because the Court also introduced 

the concept of ‘‘job relatedness,’’ and appeared to use the two concepts interchangeably, there was some confusion over the years as 

what the correct standard should be.162 This culminated in the 

case of Wards Cove Packing Co., Inc. et. al. v. Antonio et. al.,163

where the Court abandoned the concept of business necessity altogether: 

* * * the dispositive issue is whether a challenged practice serves, in a significant way the legitimate employment 

goals of the employer [citations omitted]. The touchstone of 

this inquiry is a reasoned review of the employer’s justification for his use of the challenged practice. A mere insubstantial justification will not suffice * * * At the same 

time, though, there is no requirement that the challenged 

practice be ‘‘essential’’ or ‘‘indispensible’’ to the employer’s 

business.164

Congress responded, with the passage of the Civil Rights Act of 

1991, which overturned Wards Cove Packing and its brethren and 

enshrined the business necessity defense into law in Title VII disparate income cases.165 Under 42 U.S.C. 2000e(o)(1)(B) business 

necessity requires employment practices to ‘‘bear a significant relationship to a business objective of the employer.’’ 166 For the purVerDate Aug 31 2005 08:02 Jul 29, 2008 Jkt 069006 PO 00000 Frm 00029 Fmt 6659 Sfmt 6602 E:\HR\OC\HR783.XXX HR783

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ship to successful performance of the job.’’ Since EPA cases involve wages and wage scales, it 

is highly unlikely that a circumstance will arise where this definition will be applied. 167 42 U.S.C.§ 2000e(o)(2). 168Lanning v. SEPTA, 308 F. 3d 286 (3rd Cir. 2002); United States v. Delaware, 2004 U.S. 

Dist. LEXUS 4560 (D. Del 2004). 169Sellers Testimony. 170 42 U.S.C. § 2000e(o)(1). 171Sellers Testimony at 10. 172 42 U.S.C. § 2000e–2(n). 173Sellers Testimony at 11 174 ‘‘. . . if the employer shows to the satisfaction of the court that the act or omission giving 

rise to such action was in good faith and that he had reasonable grounds for believing that his 

act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended [29 

USCS §§ 201 et seq., generally; for full classification, consult USCS Tables volumes], the court 

may, in its sound discretion, award no liquidated damages or award any amount thereof not 

to exceed the amount specified in section 16 of such Act [29 USCS § 216].’’ 29 USCS § 260. In 

addition, one commentator has stated that even when ‘‘liquidated damages are unavailable . . . 

the amounts available to compensate plaintiffs tend to be insubstantial.’’ Greenberger Testimony 

at 7. 

poses of showing business necessity, ‘‘unsubstantiated opinion and 

hearsay are not sufficient; demonstrable evidence is required.’’ 167

Subsequent cases applying the business necessity standard illustrate that the more rigorous showing an employer must make to 

justify disparate treatment furthers the remedial purposes of Title 

VII.168

The Paycheck Fairness Act seeks to strengthen the EPA by insisting that the ‘‘factor other than sex defense * * * be confined to 

business practices shown to serve compelling and legitimate interests of the employer.’’ 169 Requiring an employer to show that a job 

is consistent with business necessity applies a term that is already 

specifically defined in civil rights law 170 and thereby provides 

workers and employers with a known legal standard for assessing 

pay disparities. 

c. Class actions 

The EPA requires plaintiffs to affirmatively ‘opt-in’ to a class action lawsuit. This is contrary to other employment discrimination 

laws, which allow women with a pay discrimination claim within 

a certified class to ‘opt-out’ of a multiple-claim case pursuant to 

Rule 23 of the Federal Rules of Civil Procedure.171 Title VII, for example, provides for claimants to ‘opt-out’ of multi-party claims.172

Allowing plaintiffs to opt-out, rather than requiring them to affirmatively opt-in, is important. The current EPA rule excludes 

women who may not be aware they have a claim and also excludes 

women who may even be aware they have a claim but are afraid 

that they will be retaliated against in the workplace if they affirmatively opt in. H.R. 1338 puts claimants under the EPA in the 

same position as other victims of discrimination who automatically 

become part of a class-action unless they affirmatively opt-out of 

the class.173

d. Damages 

Damages under the original EPA are limited to backpay and liquidated damages in the form of double back pay. No compensatory 

or punitive damages are available, and liquidated damages may 

only be recovered if the employer fails to demonstrate good faith 

and reasonable grounds for believing it was in compliance with the 

Act.174 By contrast, Title VII of the Civil Rights Act (Title VII) perVerDate Aug 31 2005 08:02 Jul 29, 2008 Jkt 069006 PO 00000 Frm 00030 Fmt 6659 Sfmt 6602 E:\HR\OC\HR783.XXX HR783

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175 Id. 176Sellers Testimony. 177 Id. 178The Ineffectiveness of Capped Damages in Cases of Employment Discrimination: Solutions 

Toward Deterrence; Ruggles, Vanessa; Connecticut Public Interest Law Journal; Vol. 6:1 at 147 

(2006) citing Kemezy v. Peters, 79 F.3d 33, 34 (7th Cir. 1996) (noting that ‘‘deterrence is a purpose of punishment, rather than, as the formulation implies, a parallel purpose, along with punishment itself, for imposing the specific form of punishment that is punitive damages’’) 179 2005 U.S. Dist. LEXIS 12151 (2005). 180 Id. 181 Brady, 2005 U.S. Dist. LEXIS 12151, at 10, aff’d 2008 U.S. App. LEXIS 13850 (2d Cir.). 182Supra note at 180. 183 In Defense of Punitive Damages in Products Liability: Testing Tort Anecdotes with Empirical Data; Rustad, Michael; Iowa Law Review; 78 at 12 (1992–1993). 

mits successful complainants to recover compensatory and punitive 

damages. 

EPA sanctions are inadequate and ‘‘deprive women subjected to 

pay discrimination of full relief.’’ 175 In addition, they do nothing to 

deter future discrimination in the workplace and are often viewed 

by employers simply as the cost of doing business. Joseph Sellers, 

testifying before the Subcommittee on Workforce Protections in 

July 2007, explained: 

The remedy fails to provide an adequate incentive for 

employers to engage regularly in the examination of their 

own compensation practices and to investigate and address 

any pay disparities that may be detected. Even the payment of lost wages doubled where an employer has failed 

to demonstrate it acted in good faith permits employers to 

tolerate the risk that employment practices resulting in 

gender-based pay disparities will be detected and challenged, as they can compute precisely the economic exposure and determine whether it is a tolerable cost of doing 

business.176

Damages under Title VII are capped and can be no more than 

$300,000.177 These caps do little to further the actual purpose of 

punitive damages, which is to punish the defendant and deter future misconduct by the defendant and others similarly situated.178

As such, the Paycheck Fairness Act does not limit damages in this 

regard. 

The unfairness of damage limitations is illustrated in Brady v. 

Wal-Mart Stores, Inc.179 where the plaintiff Patrick Brady brought 

a suit against Wal-Mart and the store manager, alleging violations 

of the American with Disabilities Act (ADA) and the New York 

Human Rights Law. In his suit, Brady, who has cerebral palsy, 

claimed Wal-Mart subjected him to adverse work conditions and a 

hostile work environment based on his disability. The jury agreed 

with Brady and awarded him a settlement for back pay and emotional pain and suffering, and $5 million award in punitive damages. Unfortunately, the ADA’s remedies are capped and the judge was required to reduce the award to $300,000.180 In his opinion, 

Judge Orenstein stated that his ruling ‘‘respects the law, but it 

does not achieve a just result,’’ 181 especially for one of the biggest 

companies in America.182

Punitive damages, especially uncapped punitive damages, are 

necessary to deter unscrupulous businesses from harming workers 

and consumers to gain a competitive advantage.183 Often, without 

punitive damages, a business may treat its labor violations as 


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184 Bureau of Justice Statistics, U.S. Dept. of Justice, Civil Justice Survey of State Courts, 

1992: Civil Jury Cases and Verdicts in Large Counties, Bureau of Justice Statistics Special Report NCJ 154346 (July 1995) [hereinafter ‘‘Bureau of Justice Statistics July 1995’’]; Bureau of 

Justice Statistics, U.S. Dept. of Justice, Civil Justice Survey of State Courts, 1996: Civil Trial 

Cases and Verdicts in Large Counties, 1996, Bureau of Justice Statistics Bulletin, NCJ 173426 

(Sept. 1999) [hereinafter ‘‘Bureau of Justice Statistics September 1999’’]; Bureau of Justice Statistics, U.S. Dept. of Justice, Civil Justice Survey of State Courts, 2001: Civil Trial Cases and 

Verdicts in Large Counties, 2001, NCJ 202803 (Apr. 2004) [hereinafter ‘‘Bureau of Justice Statistics April 2004’’]; Bureau of Justice Statistics, U.S. Dept. of Justice, Civil Justice Survey of State 

Courts, 2001: Tort Trials and Verdicts in Large Counties, 2001, NCJ 206240 (Nov. 2004) [hereinafter ‘‘Bureau of Justice Statistics November 2004’’]; Bureau of Justice Statistics, U.S. Dept. of 

Justice, Civil Justice Survey of State Courts, 2001: Punitive Damage Awards in Large Counties, 

2001, NCJ 208445 (Mar. 2005) [hereinafter ‘‘Bureau of Justice Statistics March 2005’’] 185 Brief of Amici Curiae in support of respondent in Philip Morris USA v Mayola Williams 

No. 05–1256 at 5. 186 Id at 9. 187 42 U.S.C. § 1981. 188 Court found it improper to award punitive damages in the absence of evidence of egregious 

conduct, willfulness, or malice on the part of the employer. Beauford v. Sisters of Mercy-Province 

of Detroit, Inc. 816 F2d. 1104 (6th Cir. 1987) 189The appellate court reduced the punitive award amount when it found that the employer’s 

discriminatory act was minor and quickly remedied. Circuit court reasoned that a higher 

amount would remove monetary incentive to remedy minor violations, and would remove incentive from escalating minor discrimination into major discrimination. Lust v. Sealy, Inc., 383 F3d. 

580 (7th Cir. 2004); See also, Jones v. Western Geophysical Co., 761 F.2d 1158 (5th Cir. 1985) 

(Employer who has been found to have engaged in racial discrimination need not pay punitive 

damages to plaintiff if said employer is taking steps to eliminate discrimination, and if evidence 

against employer is, at times, ambiguous and does not necessarily lead to the conclusion that 

the employer behaved maliciously in practice of racial discrimination); Beauford v. Sisters of 

Mercy-Province of Detroit, Inc., 816 F.2d 1104 (6th Cir. 1987) (holding that it was improper to 

award punitive damages to employee alleging race discrimination without evidence that employer acted egregiously, willfully, or maliciously in failing to promote an plaintiff because of 

his race); Stephens v. South Atlantic Canners, Inc., 848 F.2d 484 (4th Cir. 1988) (holding that 

extraneous materials submitted to the jury relating to discharged employee’s infractions warranted reversal of punitive damages issued against his former employer in his discriminatory 

discharge case brought under 42 USCS § 1981 and Title VII.); Edward v. Jewish Hospital, 855 

F.2d 1345 (8th Cir. 1988) (Court denied reducing punitive damages award of $25,000 to reflect 

reduction in actual damages from $50,000 to $1 nominal damages because of lack of a general 

proportionality rule requiring nominal damages to invalidate punitive damages award.) 190The Court distinguished the need to address levels of discrimination in terms of appropriate amount for recovery, reasoning that a higher amount would remove monetary incentive 

to remedy minor violations, and would remove incentive from escalating minor discrimination 

into major discrimination. Lust v. Sealy, Inc., 383 F3d. 580 (7th Cir. 2004) 

merely a cost of doing business. Furthermore, empirical studies 

conducted by the US Department of Justice’s Bureau of Justice 

Statistics estimated that from 1991–92 and in the years 1996 and 

2001, punitive damages were awarded in less than one percent of 

all civil actions.184 Juries awarded punitive damages in only 5.7 

percent of tort and contract cases when the plaintiff prevailed at 

trial.185 The Department of Justice also studied awards made in 

the nation’s seventy-five largest counties in 2001 and found that 

out of seventy products liability cases, plaintiffs received punitive 

damages in only three cases. Out of three-hundred and eleven medical malpractice cases, plaintiffs received punitive damages in just 

fifteen cases.186

There is precedent for uncapped damages against employers who 

discriminate;187 damages awarded under Section 1981 for race or 

national origin discrimination are not subject to statutory limitations. 

Still, even in those cases, courts generally do not award unjustifiable or excessive damages and base relief based on sound factors, 

such as the willfulness or egregiousness of the violation 188 and the 

effectiveness of damages as a deterrent.189 Because decisions are 

made by each court on a case by case basis, courts are able to 

strike the needed balance between assessing penalties based upon 

particular facts and circumstances and assessing the severity of the 

discrimination.190


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191Testimony of Joseph Sellers at 14. 192See generally, Jones v. Western Geophysical Co., 761 F.2d 1158 (5th Cir. 1985) (Employer 

who has been found to have engaged in racial discrimination need not pay punitive damages 

to plaintiff if said employer is taking steps to eliminate discrimination, and if evidence against 

employer is, at times, ambiguous and does not necessarily lead to the conclusion that the employer behaved maliciously in practice of racial discrimination); Beauford v. Sisters of MercyProvince of Detroit, Inc., 816 F.2d 1104 (6th Cir. 1987) (holding that it was improper to award 

punitive damages to employee alleging race discrimination without evidence that employer acted 

egregiously, willfully, or maliciously in failing to promote an plaintiff because of his race); Stephens v. South Atlantic Canners, Inc., 848 F.2d 484 (4th Cir. 1988) (holding that extraneous 

materials submitted to the jury relating to discharged employee’s infractions warranted reversal 

of punitive damages issued against his former employer in his discriminatory discharge case 

brought under 42 USCS § 1981 and Title VII.); Edward v. Jewish Hospital, 855 F.2d 1345 (8th 

Cir. 1988) (Court denied reducing punitive damages award of $25,000 to reflect reduction in actual damages from $50,000 to $1 nominal damages because of lack of a general proportionality 

rule requiring nominal damages to invalidate punitive damages award.) 193Ledbetter supra note 65. 194 29 U.S.C. § 152(3) 195 29 U.S.C. § 157 196 Id. 197 29 U.S.C. 158(a)(1) provides that it is an unfair labor practice for an employer to interfere, 

retrain or coerce employees in the exercise of the rights guaranteed in section 157. 198See, Northeastern Land Services, Ltd. 352 NLRB No. 89 (June 27, 2008) ([Respondent’s] 

confidentiality provision is unlawful * * * the provision, by its clear terms, precludes employees 

from discussing compensation). See also, Dickens, Inc. and Wenqing Lin. 352 NLRB No. 84 (May 

30, 2008)([the employer] admitted * * * he instructed employees not to discuss their bonus with 

other, recently hired employees * * * such comments reasonably tend to coerce employees in 

the exercise of Section 7 rights). 199 29 U.S.C. § 215(a)(3) provides that it shall be unlawful for any person to discharge or in 

any other manner discriminate against any employee because such employee has filed any comContinued 

The Paycheck Fairness Act provides for uncapped damages and 

as such ‘‘redresses the deficiencies in the remedies available under 

the EPA [and] eliminates a shortcoming of the EPA that has long 

diminished in its value as a vehicle for addressing unlawful pay 

disparities.’’ 191 Longstanding judicial discretion under § 1981 directly addresses these concerns of frivolous and excessive claims for 

relief.192

e. Retaliation for discussing or disclosing salary information 

The EPA does not explicitly protect employees who discuss or 

disclose salary information. As previously noted, many employers 

discourage and may even have workplace policies against the sharing of salary information. This makes it extremely difficult to detect pay discrimination. For example, Lilly Ledbetter was paid less 

than her male co-workers for years but she did not realize it. A 

company policy prohibited her from discussing her pay with her coworkers. The only reason she discovered the pay discrimination 

when someone sent her an anonymous note.193

The National Labor Relations Act (NLRA) prohibits retaliation 

against employees 194 who share salary information for the purposes of union organizing. Section 7 protects the right of employees 

to join a union and ‘‘engage in * * * concerted activities for the 

purpose of collective bargaining or other mutual aid or protection 

***’’ 195 Concerted activity includes the right to discuss wages, 

hours and other terms and conditions of employment.196 It also 

bans blanket prohibitions on discussing wages.197 Even with the 

National Labor Relations Board’s recent turn to roll back worker 

protections, this basic rule has been upheld.198 However, supervisors are not protected under the NLRA and can be prevented and 

reprimanded for discussing and/or sharing salary information. 

Under the FLSA, employers are prohibited from retaliating 

against employees who seek to assert their rights under the Act.199


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plaint or instituted or caused to be institute any proceeding under or related to this Act generally; for full classification, or has testified or is about to testify in any such proceeding or has 

served or is about to serve on an industry committee. 200 29 U.S.C. § 215(a)(3) 201 Id. 202 94 F.3d 1478 (1996) 203See also: Hagan v. Echostar, 529 F.3d 617 (2008) where the Court found that the plaintiff 

was not protected for participating in activities that ‘‘are neither adverse to the company nor 

supportive of adverse action to the company.’’ The Court stated that ‘‘in order to be protected 

must step out of role of representing the company by either filing or threatening to file an action 

adverse to the employer, by actively assisting other employees in asserting FLSA rights or by 

otherwise engaging in activities that reasonably could be perceived as directed toward the assertion of rights protected by the FLSA.’’ 204McKenzie, supra note 202. 205 2006 U.S.APP. LEXIS 28280. 206 Id. 

As such, this protection extends to a woman claiming an EPA violation who has filed, instituted, initiated or participated in any capacity in a proceeding under or related to [the Act].200 However, in 

some cases interpreting the anti-retaliatory provision 201 the courts 

have limited the protection afforded by anti-retaliation provisions, 

particularly when they find that an aggrieved worker has not 

stepped outside her role representing the employer. 

For example, in McKenzie v. Reinberg’s Inc,202 the plaintiff alleged that she was fired in violation of the FLSA’s anti-retaliation 

provision because she questioned whether her employer was in 

compliance with the overtime provisions of the FLSA. The plaintiff 

was a personnel director who, as part of her job, monitored compliance with state and federal wage and hour laws. After attending 

a training on the FLSA, she determined that her employer was 

likely in violation of law’s overtime provisions. She brought this to 

her employer’s attention and was fired as a result.203 The court 

held that because McKenzie merely articulated her concerns about 

the wage and hour violations with her employer: 

[she] did not engage in activity protected under 

§ 215(a)(3). To qualify for the protections the employee 

must step outside his or her role of representing the company and either file (or threaten to file) an action adverse 

to the employer, actively assist other employees in asserting FLSA rights, or otherwise engage in activity that reasonably could be perceived as directed towards the assertion of rights protected by the FLSA.204

The Sixth Circuit reached a similar—and misguided—conclusion 

in Crawford v. Metropolitan Government of Nashville,205 when it 

limited the reach of the Title VII anti-retaliation provision by finding that its protections did not extend to internal investigations. In 

that case, the plaintiff alleged she was fired because, in the midst 

of an internal investigation conducted by the employer she made 

statements to the in-house investigator about sexual harassment 

by another employee. The court in ruling against the plaintiff, misinterpreted the Title VII provision when it held that employer initiated investigations are not covered under the Act. 

Protecting employees who participate in employer initiated investigations does not ‘‘expand’’ the law (‘‘expanding the purview of the 

participation clause to cover such investigations would simultaneously discourage them.’’).206 As such, the decision in Crawford is 

contrary to the principle that ‘‘employee actions [should] receive the 

broadest protections from retaliation, protecting employees from 


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207 Joanna Grossman & Deborah Brake, The Supreme Court Agrees to Review a Sixth Circuit 

Ruling that Narrowly Construes Title VII’s Protections Against Retaliation, (Feb. 7, 2008) available at, http://writ.news.findlaw.com/lscripts/printer—friendly.pl?lpage=/commentary/ l20080207lbrake.html. 208Sacha Cohen, Shhh, They’re Talking Salary, USA Today (Dec. 20, 2002) (quoting Lee Miller, Co-author of A Women’s Guide to Successful Negotiating), Available at: http:// 

www.usatoday.com/lmoney/jobcenter/ljobhunt/salary/l2002-12-20-salary-ltalklx.htm. 209 Id. (Quoting Bob Lambert, managing partner at Christian & Timbers, Irvine, California). 210 ‘‘Essential job function’’ as used in the Americans with Disabilities Act, 42 U.S.C. 31211 

generally means ‘‘the fundamental job duties of the employment position. Factors to be weighed 

in this determining an essential function include: (1) the reason(s) the position exists; (2) the 

number of employees whose functions are similar; (3) the specialized nature of the job; and (4) 

the expertise needed to perform the required functions. 

adverse consequences even if their beliefs about discrimination 

turn out to be factually or legally incorrect, as long as the employees acted in good faith.’’ 207

A key component in eliminating the wage gap is protecting workers who discuss wages or participate in an EPA suit by ensuring 

that they can do so without fear of reprimand. Even when employers do not have explicit policies ‘‘legal or not, workers are expected 

to keep their lips sealed about their salaries. It’s the unwritten 

law.’’ 208 As one employer advised other employers ‘‘sit down with 

people, talk to them * * *. be clear: it’s not OK to talk salary at 

the office.’’ 209

H.R. 1338 protects the rights of employees to discuss and disclose 

wage information in the workplace and affirms the rights of workers to disclose this information as part of an employer or government investigation. Its provisions are intended to give robust protection to those employees who act to oppose violations of the Act, 

as well as to provide a shield of protection for the kinds of discussions that will allow employees to uncover unequal pay. However, 

the bill recognizes that employers may entrust some employees 

with access to wage information as part of an essential function 210

of their job. These confidential employees will not be protected for 

disclosing the wages to those who do not otherwise have access. 

However, they could (1) disclose their own wages; (2) disclose wage 

issues ‘‘up the chain’’ or ‘‘horizontally’’ if they become aware of potential pay discrimination regarding other employees; or (3) disclose wages in response to or in furtherance of an employer or government investigation or other proceeding under the Act. 

SECTION-BY-SECTION ANALYSIS

Section 1 is the short title. 

Section 2 contains the findings. 

Section 3(a) clarifies the ‘‘any factor other than sex’’ defense by 

requiring employers to provide non-gender reasons for the difference in wages based on a business justification. To successfully 

raise this affirmative defense an employer must demonstrate that 

the disparity is based on a bona fide factor other than sex, such 

as education, training, or experience, that is: (1) not based upon or 

derived from a sex-based differential; and (2) related to the position 

in question; and (3) consistent with business necessity. Such a defense shall not apply if the employee can then demonstrate that an 

alternative employment practice exists that would serve the same 

business purpose without producing the differential, and the employer refused to adopt the alternative. 


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Section 3(a) broadens where a female employee can look to find 

a male comparator. Employees shall be considered to work in the 

same establishment if the employees work at workplaces located in 

the same county or similar political subdivision of a state. In addition, the bill recognizes that establishment, consistent with rules or 

guidance offered by the EEOC, can be applied more broadly when, 

for example, there is a central decision making structure that 

makes the salary and hiring decisions for employees in multiple locations. 

Section 3(b) provides that this subsection applies to applicants 

for employment. 

Section 3(c) provides that employers are prohibited from retaliating against employees who share salary information with their 

co-workers. Employees are protected when they have disclosed, discussed, or inquired about the wages of another employee. In addition, employees are protected if they make a charge, file a complaint or participate in any way in a government initiated or employer initiated investigation, including but not limited to testifying, assisting or participating in anyway an investigation, proceeding, hearing or has served or plans to serve on an industry 

committee. 

Section 3(c) contains limiting language on when the anti-retaliation protections apply extend to employees with access to wage information of other employees as an essential function of their job. 

These employees such as payroll and human resource personnel 

would not be protected if they disclose that wage information to individuals who do not otherwise have access to this information. 

However, they would be protected if: (1) they were disclosing that 

wage information to someone who also has access to such information; (2) they were disclosing their own wages; or (3) the disclosure 

was in response to a complaint or charge or in furtherance of an 

investigation, proceeding, hearing or action under the EPA, including an internal employer investigation. 

Section 3(d) provides that compensatory and punitive damages 

are available in private EPA suits. In addition, class action lawsuits brought under the EPA shall proceed as opt-out class actions 

in conformity with the Federal Rules of Civil Procedure. 

Section 3(e) provides for compensatory and punitive damages and 

class actions in cases (for minimum wages and unpaid overtime 

compensation) brought by the Secretary of Labor on behalf of an 

employee. 

Section 4 requires the EEOC and the OFCCP (subject to the 

availability of funds) to provide training to EEOC employees on 

pay discrimination. 

Section 5(a) authorizes the Secretary of Labor (after consultation 

with the Secretary of Education) to establish and carry out a grant 

program to provide negotiation skills training programs for girls 

and women. The training would help girls and women strengthen 

their negotiation skills to obtain higher salaries and equal pay. 

Section 5(b) requires the Secretary to issue regulations or guidelines integrating negotiation skills training into existing education 

and work training programs. 

Section 5(c) mandates the Secretaries of Labor and Education to 

submit an annual report to Congress on the grant program. 


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Section 6 requires the Secretary of Labor to conduct studies and 

provide information to employers, labor organizations and the public on ways to eliminate pay disparities. This includes conducting 

and promoting research, publishing and otherwise making available findings from studies and other materials; sponsoring and assisting State and community informational and educational programs; providing information on the means of eliminating pay disparities; and recognizing and promoting achievements and convening a national summit. 

Section 7 establishes an annual award entitled the ‘‘Secretary of 

Labor’s National Award for Pay Equity in the Workplace’’ for businesses that demonstrate substantial effort in eliminating pay disparities. 

Section 8 requires the EEOC, within 18 months of enactment, to 

survey pay data already available, and based on the results of the 

survey, issue regulations to provide for the collection of pay information from employers identified by sex, race and national origin 

of employees. 

Section 9(a) requires the continued collection by the Commissioner of Labor Statistics of gender-based data in the Current Employment Statistics survey. 

Section 9(b) sets standards for the OFCCP in conducting systematic wage discrimination analyses and reinstates the Equal Opportunity Survey. 

Section 9(c) requires the Secretary of Labor to distribute (or 

make available) accurate information on wage discrimination. Section 10 authorizes the appropriation of $15 million to carry 

out the Act. 

EXPLANATION OF AMENDMENTS

The Amendment in the Nature of a Substitute is explained in the 

body of this report. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 203 of the Congressional Accountability Act (CAA) applies certain rights and protections of the Fair Labor Standards Act 

of 1938 (FLSA) to covered employees. These rights and protections 

include the Equal Pay Act protections against sex discrimination in 

wages paid to men and women. The House, Senate, and Instrumentalities of Congress all have slightly different regulations regarding 

the implementation of the FLSA. 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104–4) requires a statement of whether the 

provisions of the reported bill include unfunded mandates. 

EARMARK STATEMENT

H.R. 1338 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e) 

or 9(f) of rule XXI. 

ROLL CALL


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STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

body of this report. 

NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the House of Representatives and section 308(a) of the Congressional Budget Act of 1974 and with respect to requirements of 

3(c)(3) of rule XIII of the House of Representatives and section 402 

of the Congressional Budget Act of 1974, the Committee has received the following estimate for H.R. 1338 from the Director of the 

Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, July 25, 2008. 

Hon. GEORGE MILLER, 

Chairman, Committee on Education and Labor, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1338, the Paycheck Fairness Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Jessica Sherry. 

Sincerely, 

ROBERT A. SUNSHINE

(For Peter R. Orszag, Director). 

Enclosure. 

H.R. 1338—Paycheck Fairness Act 

H.R. 1338 would authorize the appropriation of $15 million to enhance enforcement of the equal pay requirement established in the 

Fair Labor Standards Act of 1938. Additionally, the bill would authorize grants to eligible public agencies to provide training to 

women and girls on negotiation skills. Finally, the bill would direct 

the Secretary of Labor to conduct research on the means available 

to eliminate gender-related pay disparities, and would direct the 

Commissioner of Labor Statistics to continue to collect data on female workers and pay equity between men and women. 

CBO estimates that implementing H.R. 1338 would cost $15 million over the 2009–2013 period, assuming appropriation of the authorized amounts. The costs of this legislation fall within budget 

function 500 (education, training, employment, and social services). 

Enacting the bill would not affect direct spending or revenues. 

Section 4 of the Unfunded Mandates Reform Act (UMRA) excludes from the application of that act any legislative provisions 

that establish or enforce any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, 

age, handicap, or disability. CBO has determined that section 3 of 

H.R. 1338 would fall within that exclusion because it would enforce 


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an existing prohibition of sex discrimination by pay. Therefore, 

CBO has not reviewed that section of the bill for mandates. 

The remaining provisions in the bill would impose no mandates 

on state, local, or tribal governments. Training programs authorized by the bill would benefit state, local, and tribal governments. 

Likewise, the remaining provisions of this bill contain no privatesector mandates as defined in UMRA. 

The CBO staff contact for this estimate is Jessica Sherry. This 

estimate was approved by Peter H. Fontaine, Assistant Director for 

Budget Analysis. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with Clause 3(c) of House rule XIII, the goal of 

H.R. 1338 is to protect employees from wage discrimination. 

CONSTITUTIONAL AUTHORITY STATEMENT

Under clause 3(d)(1) of rule XIII of the Rules of the House of 

Representatives, the Committee must include a statement citing 

the specific powers granted to Congress in the Constitution to 

enact the law proposed by H.R. 1338. The Committee believes that 

the amendments made by this bill are within Congress’ Constitutional authority under Article 1, Section 8, Clause 3 (the Commerce 

Clause), Amendment V (Due Process) and Section 1 of the Amendment XIV (the Equal Protection and Due Process Clauses). 

COMMITTEE ESTIMATE

Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison of the costs 

that would be incurred in carrying out H.R. 1338. However, clause 

3(d)(3)(B) of that rule provides that this requirement does not 

apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional 

Budget Act. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

FAIR LABOR STANDARDS ACT OF 1938 

* * * * * * * 

MINIMUM WAGES

SEC. 6. (a) * * * 

* * * * * * * 

(d)(1) øNo employer having¿ (A) No employer having employees 

subject to any provisions of this section shall discriminate, within 

any establishment in which such employees are employed, between 

employees on the basis of sex by paying wages to employees in 


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such establishment at a rate less than the rate at which he pays 

wages to employees of the opposite sex in such establishment for 

equal work on jobs the performance of which requires equal skill, 

effort, and responsibility, and which are performed under similar 

working conditions, except where such payment is made pursuant 

to (i) a seniority system; (ii) a merit system; (iii) a system which 

measures earnings by quantity or quality or production; or (iv) a 

differential based on øany other factor other than sex¿ a bona fide 

factor other than sex, such as education, training, or experience: 

Provided, That an employer who is paying a wage rate differential 

in violation of this subsection shall not, in order to comply with the 

provisions of this subsection, reduce the wage rate of any employee. 

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. 

(B) The bona fide factor defense described in subparagraph (A)(v) 

shall apply only if the employer demonstrates that such factor (i) is 

not based upon or derived from a sex-based differential in compensation; (ii) is job-related with respect to the position in question; 

and (iii) is consistent with business necessity. Such defense 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. 

(C) For purposes of subparagraph (A), employees shall be deemed 

to work in the same establishment if the employees work for the 

same employer at workplaces located in the same county or similar 

political subdivision of a State. The preceding sentence shall not be 

construed as limiting broader applications of the term ‘‘establishment’’ consistent with rules prescribed or guidance issued by the 

Equal Opportunity Employment Commission. 

* * * * * * * 

PROHIBITED ACTS

SEC. 15. (a) After the expiration of one hundred and twenty days 

from the date of enactment of this Act, it shall be unlawful for any 

person—

(1) * * * 

* * * * * * * 

(3) to discharge or in any other manner discriminate against 

any employee because such øemployee has filed any complaint 

or instituted or caused to be instituted any proceeding under 

or related to this Act, or has testified or is about to testify in 

any such proceeding, or has served or is about to serve on an 

industry committee;¿ employee—

(A) has made a charge or filed any complaint or instituted or caused to be instituted any investigation, proceeding, hearing, or action under or related to this Act, including an investigation conducted by the employer, or has 

testified or is planning to testify or has assisted or participated in any manner in any such investigation, proceeding, 

hearing or action or in an investigation conducted by the 

employer, or has served or is planning to serve on an industry Committee; or 


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(B) has inquired about, discussed or disclosed the wages 

of the employee or another employee. 

* * * * * * * 

(c) Subsection (a)(3)(B) shall not apply to instances in which an 

employee who has access to the wage information of other employees 

as a part of such employee’s essential job functions discloses the 

wages of such other employees to individuals who do not otherwise 

have access to such information, unless such disclosure is in response to a complaint or charge or in furtherance of an investigation, proceeding, hearing, or action under section 6(d) or an investigation conducted by the employer. Nothing in this subsection shall 

be construed to limit the rights of an employee provided under any 

other provision of law. 

PENALTIES

SEC. 16. (a) * * * 

(b) Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or the unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Any employer who violates section 6(d) shall additionally be liable for such compensatory 

damages or punitive damages as may be appropriate, except that 

the United States shall not be liable for punitive damages. Any employer who violates the provisions of section 15(a)(3) of this Act 

shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 15(a)(3), including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated 

damages. An action to recover the liability prescribed in øeither of 

the preceding sentences¿ any of the preceding sentences of this subsection may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction 

by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. øNo employees¿ Except with respect to class actions brought to enforce section 6(d), no 

employee shall be a party plaintiff to any such action unless he 

gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. 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. The court øin such 

action¿ in any action brought to recover the liability prescribed in 

any of the preceding sentences of this subsection shall, in addition 

to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the 

action, including expert fees. The right provided by this subsection 

to bring an action by or on behalf of any employee, and the right 

of any employee to become a party plaintiff to any such action, 

shall terminate upon the filing of a complaint by the Secretary of 

Labor in an action under section 17 in which (1) restraint is sought 

of any further delay in the payment of unpaid minimum wages, or 

the amount of unpaid overtime compensation, as the case may be, 

owing to such employee under section 6 or section 7 of this act by 


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an employer liable therefor under the provisions of this subsection 

or (2) legal or equitable relief is sought as a result of alleged violations of section 15(a)(3). 

(c) The Secretary is authorized to supervise the payment of the 

unpaid minimum wages or the unpaid overtime compensation 

owing to any employee or employees under section 6 or 7 of this 

Act, or, in the case of a violation of section 6(d), additional compensatory or punitive damages, and the agreement of any employee to 

accept such payment shall upon payment in full constitute a waiver 

by such employee of any right he may have under subsection (b) 

of this section to such unpaid minimum wages or unpaid overtime 

compensation and an additional equal amount as liquidated damages, or such compensatory or punitive damages, as appropriate. 

The Secretary may bring an action in any court of competent jurisdiction to recover the amount of the unpaid minimum wages or 

overtime compensation and an equal amount as liquidated damages and, in the case of a violation of section 6(d), additional compensatory or punitive damages. The right provided by subsection (b) 

to bring an action by or on behalf of any employee to recover the 

liability specified in øthe first sentence¿ the first or second sentence 

of such subsection and of any employee to become a party plaintiff 

to any such action shall terminate upon the filing of a complaint 

by the Secretary in an action under this subsection in which a recovery is sought of unpaid minimum wages or unpaid overtime 

compensation under sections 6 and 7 or liquidated or other damages provided by this subsection owing to such employee by an employer liable under the provisions of subsection (b), unless such action is dismissed without prejudice on motion of the Secretary. Any 

sums thus recovered by the Secretary on behalf of an employee 

pursuant to this subsection shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to the 

employee or employees affected. Any such sums not paid to an employee because of inability to do so within a period of three years 

shall be covered into the Treasury of the United States as miscellaneous receipts. In determining when an action is commenced by the 

Secretary under this subsection for the purposes of the statutes of 

limitations provided in section 6(a) of the Portal-to-Portal Act of 

1947, it shall be considered to be øcommenced in the case¿ commenced—

(1) in the case of any individual claimant on the date when 

the complaint is filed if he is specifically named as a party 

plaintiff in the complaint, or if his name did not so appear, on 

the subsequent date on which his name is added as a party 

plantiff in such actionø.¿; or 

(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. 

* * * * * * * 

CIVIL RIGHTS ACT OF 1964 

* * * * * * * 


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TITLE VII—EQUAL EMPLOYMENT OPPORTUNITY 

* * * * * * * 

INVESTIGATIONS, INSPECTIONS, RECORDS, STATE AGENCIES

SEC. 709. (a) * * * 

* * * * * * * 

(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. 

* * * * * * * 


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1See 29 U.S.C. § 206(d). 2See 42 U.S.C. § 2000e et seq. 3 At markup on July 24, 2008, the bill was ordered reported favorably to the House on a partyline vote of 26–17, with all Republicans present voting against favorably reporting the measure.’’

MINORITY VIEWS 

INTRODUCTION

Committee Republicans are united in their support for the simple 

proposition that equal work should be rewarded with equal pay, irrespective of an employee’s sex. Indeed, that very principle has 

been the law of the land for decades. It is already—as it should 

be—against federal law to discriminate, in pay or other employment practices, on the basis of sex. To the extent that wage disparities exist and are a product of workplace discrimination, Committee Republicans are committed to eliminating them in order to 

ensure a fair, productive, and competitive workforce. 

In 1963, Congress enacted the Equal Pay Act (EPA) within the 

Fair Labor Standards Act.1 The EPA makes it illegal to pay different wages to employees of the opposite sex for equal work. One 

year later, Congress enacted comprehensive anti-discrimination 

civil rights protection based on race, color, national origin, religion, 

and sex under Title VII of the Civil Rights Act.2 Together, these 

laws protect against sex discrimination, and provide a range of 

remedies for victims. In short, the question is not whether sex discrimination in the workplace should be permitted. That question 

has been answered—Committee Republicans agree that such discrimination should not be tolerated: that is why it is a direct violation of not one but two federal laws. 

It is against this backdrop that Committee Republicans reject 

H.R. 1388, the so-called ‘‘Paycheck Fairness Act.’’ Simply put, H.R. 

1338 does little to protect the wages and paychecks of American 

workers, and far more to line the pockets of the plaintiffs’ trial-lawyer bar. The bill radically expands liability and damages under the 

Equal Pay Act, while dramatically limiting the ability of employers 

to defend claims of discrimination based on pay disparities that 

arise from wholly lawful and legitimate business purposes. For 

these reasons, and as set forth more fully below, Committee Republicans are united in their opposition to H.R. 1338.3

THE FLAWED ‘‘WAGE GAP’’ THEORY

Equal pay advocates claim that despite federal law prohibiting 

discrimination in pay on the basis of gender, female workers are 

still paid considerably less than male workers, and thus a ‘‘wage 

gap’’ exists. Advocates commonly support this claim with reference 

to the most recent census data available, which indicated that in 

2005, the average median income for women was $31,858, roughly 


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4See U.S. Census Bureau, Current Population Survey, 2006 Annual Social & Economic Supplement, PINC–05. 5See http://www.pay-equity.org/info—Q&A.html. 

6 A copy of the complete report is available at http://www.gao.gov/new.items/d0435.pdf. 

77 percent of the median income for men, which was $41,386.4 The 

Majority argues that this flawed theory makes enactment of H.R. 

1338 necessary. Committee Republicans reject that argument. 

Pay equity advocates argue that the root cause of pay inequity 

is the fact that ‘‘many women and people of color are still segregated into a few low-paying occupations. More than half of all 

women workers hold sales, clerical and service jobs. Studies show 

that the more an occupation is dominated by women or people of 

color, the less it pays. * * * In other words, certain jobs pay less 

because they are held by women and people of color.’’ 5 Supporters 

thus appear to argue that differences in wages between men and 

women (or minorities) are not caused by intentional discrimination, 

or the fact that these workers are paid less because of the nature 

of the jobs they hold, but rather because certain jobs are held predominantly by women or minorities, employers systematically 

undervalue the job and thus ‘‘underpay’’ these workers. 

The logic of this assertion is readily discredited. Critics of the 

wage gap theory note that the ‘‘77 percent’’ figure most frequently 

cited as evidence of wage discrimination derived by comparing the 

2005 full-time (defined as working 35 hours per week or more) median annual earnings of women with men, as compiled by the Census Bureau. If the comparison is men and women who work 40 

hours weekly, this data shows women’s earnings at 88 percent of 

men’s. Moreover, these statistics do not necessarily take into account education, job title, responsibility, regional labor markets, 

work experience, occupation, and time in the work force. Critics of 

the ‘‘wage gap’’ theory note that when economic studies include 

these major determinants of income, rather than simple averages 

of all men and women’s salaries, the pay gap shrinks considerably. 

GAO has reached similar conclusions.. In October 2003, GAO released a report entitled ‘‘Women’s Earnings: Work Patterns Partially Explain Difference between Men’s and Women’s Earnings.’’6

GAO’s report found that a number of factors are critical to resolving the issue of whether a ‘‘pay gap’’ exists, and notably explained 

that the agency could not conclude that the ‘‘wage gap’’ was simply 

a function of wage or sex discrimination. As GAO summarized (emphasis added): 

Of the many factors that account for differences in earnings between men and women, our model indicated that 

work patterns are key. Specifically, women have fewer 

years of work experience, work fewer hours per year, are 

less likely to work a full-time schedule, and leave the labor 

force for longer periods of time than men. Other factors that 

account for earnings differences include industry, occupation, race, marital status, and job tenure. When we account 

for differences between male and female work patterns as 

well as other key factors, women earned, on average, 80 

percent of what men earned in 2000. While the difference 

fluctuated in each year we studied, there was a small but 


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7During Committee consideration of the bill, an Amendment in the Nature of a Substitute 

was offered by Chairman Miller and adopted by voice vote. Except where otherwise noted, the 

discussion contained in these Views reflects the provisions of H.R. 1388 as amended. 

statistically significant decline in the earnings difference 

over the time period. 

Even after accounting for key factors that affect earnings, our model could not explain all of the difference in 

earnings between men and women. Due to inherent limitations in the survey data and in statistical analysis, we cannot determine whether this remaining difference is due to 

discrimination or other factors that may affect earnings. 

For example, some experts said that some women trade off 

career advancement or higher earnings for a job that offers 

flexibility to manage work and family responsibilities. 

In conclusion, while we were able to account for much of 

the difference in earnings between men and women, we 

were not able to explain the remaining earnings difference. 

It is difficult to evaluate this remaining portion without a 

full understanding of what contributes to this difference. 

Specifically, an earnings difference that results from individuals’ decisions about how to manage work and family 

responsibilities may not necessarily indicate a problem unless these decisions are not freely made. On the other hand, 

an earnings difference may result from discrimination in 

the workplace or subtler discrimination about what types 

of career or job choices women can make. Nonetheless, it 

is difficult, and in some cases, may be impossible, to precisely measure and quantify individual decisions and possible discrimination. Because these factors are not readily 

measurable, interpreting any remaining earnings difference 

is problematic. 

Given the flaws in its advocates’ logic, and the absolute lack of 

definitive evidence that a ‘‘wage gap’’ counsels enactment of sweeping reforms to the Equal Pay Act and other federal laws, Committee Republicans question the premise upon which H.R. 1338 is 

founded. 

SUBSTANTIVE CONCERNS WITH H.R. 1388

Aside from questions as to its necessity, Committee Republicans 

oppose H.R. 1338 for numerous policy reasons. Among the bill’s 

most objectionable provisions are those described below.7

H.R. 1338 radically expands remedies 

Perhaps most troubling, H.R. 1338 would expand remedies under 

the Equal Pay Act to provide for unlimited punitive and compensatory damages to a successful plaintiff, even where there was absolutely no showing that any pay disparity were the effect of intentional ‘‘discrimination.’’ In doing so, H.R. 1338 would place claims 

of discrimination in wages on the basis of sex in a more favorable 

position than similar claims of pay discrimination under Title VII 

or the Americans with Disabilities Act, which properly provide for 

limited compensatory and punitive damages. Indeed, taken in concert with the remedies available under Title VII, remedies for 


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claims of pay discrimination under H.R. 1388 would be greater 

than those available under any of our Nation’s current civil rights 

law schemes. This radical expansion of remedies, particularly 

where they may be assessed without showing any discriminatory 

intent, is reason enough to oppose this legislation. 

H.R. 1338 dramatically limits legitimate and lawful employer defenses 

At the same time that it exponentially expands available remedies, H.R. 1338 dramatically scales back an employer’s ability to 

defend itself from claims of ‘‘pay discrimination’’ where disparities 

arise from wholly lawful business decisions. For example, as reported to the House, H.R. 1338 significantly limits the ability of 

employers to justify differences in pay on the basis of different 

work locations (as has been the case throughout the 45–year history of the EPA). Rather, under the bill as reported, an employee 

can compare his or her pay to any other coworker in the same 

county or political subdivision (or perhaps more broadly, given the 

bill’s provision allowing for the Equal Employment Opportunity 

Commission to define ‘‘work establishment’’ even more broadly) in 

an attempt to prove ‘‘pay discrimination.’’ The practical elimination 

of a legitimate defense available to employers under current law 

simply fails to recognize economic reality and our market-based 

economy. 

Equally pernicious, H.R. 1388 strictly limits an employer’s ability 

to defend pay differentials which are accounted for by reasons 

wholly unrelated to an employee’s sex. Under current law, an employer can defend itself from a claim of pay discrimination by propounding evidence and convincing a trier of fact that the differential is based not on sex, but on another factor. H.R. 1388 would 

dramatically curtail the scope of that defense, and require that an 

employer convince a judge or jury that its reasons were ‘‘bona fide’’

and ‘‘job related’’ or required by ‘‘business necessity’’—essentially, 

putting courts in charge of determining what is ‘‘fair’’ pay. Even 

more egregious, even if an employer persuades the factfinder, an 

employee is still entitled to argue that there are other ways to address this business need. In short, H.R. 1388 would take core management decisions out of the hands of employers, and place them 

squarely in the realm of judges, juries, and trial lawyers. This brazen attack on market economies must be rejected. 

H.R. 1338 eliminates employers’ ability to protect the confidentiality 

of wage and salary data 

H.R. 1338 attempts to further undermine the ability of employers 

to manage their businesses by adopting broad new ‘‘anti-retaliation’’ provisions relating to discussions of pay or compensation, extending protection far beyond the scope of protection already provided to employees under federal law. Indeed, H.R. 1338 would effectively eliminate the ability of an employer to maintain any policy protecting the privacy and confidentiality of its payroll and 

wage information, even for supervisory and managerial employees, 

long considered to be part of the legitimate management of a business. These provisions of the bill will only increase the burden on 


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8 Committee Republicans do applaud the removal of one provision from the text of H.R. 1338 

as introduced, namely, those provisions within the bill which would have sought to furtively insert the long-discredited theory of ‘‘comparable worth’’ in federal wage law. Section 7 of the introduced bill would have required the Secretary of Labor to establish formal guidelines to enable 

employers to evaluate jobs using supposedly ‘‘objective’’ criteria such as educational requirements, skill requirements, independence, working conditions, and responsibility, including decision-making responsibility and de facto supervisory responsibility, but irrespective of market 

factors or prevailing wage rates. Employers would have been encouraged to follow the guidelines 

in order to eliminate ‘‘unfair pay disparities between occupations traditionally dominated by men or women’’ and ‘‘ensure that women are paid fairly in comparison to men.’’ Although nominally ‘‘voluntary,’’ these guidelines were plainly the first step down a slippery slope of ‘‘comparable worth’’ theory. It is not difficult to imagine these guidelines used as evidence to foist 

liability on employers who did not ‘‘voluntarily’’ meet the Department’s idea of ‘‘worth,’’ or to 

show favor or disfavor in government grants, contracting, and the like. They were properly removed from H.R. 1338; Committee Republicans urge that these provisions not be raised again 

during consideration of this bill. 

the ability of businesses—particularly small businesses—to grow 

and run their companies, and should be defeated. 

H.R. 1338 will lead to more frivolous class action lawsuits 

Finally, perhaps nowhere is this bill’s true intent—to generate 

more lawsuits and to line the pockets of trial lawyers—made more 

evident as in its provisions expanding class action lawsuits. Currently, under the Fair Labor Standards Act, plaintiffs may sue on 

behalf of themselves and those similarly situated, and pursue a collective action. To ensure that these suits are brought on the basis 

of merit—and by those who wish to pursue them—employees must 

‘‘opt in’’ to these collective suits. H.R. 1388 would reverse that presumption and eliminate those safeguards, instead deeming all potential class members to be joined to a suit, and placing the affirmative burden on these plaintiffs—who may not even know of the 

suit’s existence—to opt out of a claim. These provisions are plainly 

designed to ensure that plaintiffs’ lawyers get the ‘‘most bang for 

their buck’’ in bringing and pursuing class-action lawsuits, far 

more than protecting the paychecks of American workers, and 

should be rejected. 

The above represent but a few of the most egregious policy flaws 

in H.R. 1388.8 There are numerous others, ranging from the ill-conceived resurrection of flawed statistical models (one of which results in a 93 percent false positive) to the creation of new ‘‘negotiation skills’’ training programs for girls and women which, at best, 

have yet to be shown necessary, and at worst smack of paternalism. Whether singly or taken as a whole, the provisions of H.R. 

1388 should be rejected. 

REPUBLICAN AMENDMENTS

Recognizing the fundamental failures of policy contained in H.R. 

1338, Committee Republicans did offer a number of amendments 

during markup to highlight Republican priorities and solutions for 

working women and men. 

During Committee markup of H.R. 1388, Representative Cathy 

McMorris Rodgers offered an amendment truly aimed at improving 

the lives and working conditions of American workers, especially 

women. The McMorris Rodgers amendment would have allowed 

private sector workers to have the same choice as their public sector counterparts—the option of choosing paid time off in lieu of 

cash overtime wages. The amendment was identical to the text of 


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H.R. 6025, the Family-Friendly Workplace Act, introduced earlier 

this year by Representative McMorris Rodgers. 

The McMorris Rodgers Amendment recognized that many working women, particularly those in lower-wage occupations, find it 

difficult to balance work and family responsibilities, a situation 

made worse by the fact that employers are often unable to accommodate employee requests for flexible work schedules because of 

the 1938 Fair Labor Standards Act. 

Current law prohibits private sector employers from offering employees the choice of opting for paid time off as compensation for 

working overtime hours (often called ‘‘comp time’’). Comp time is 

not a new idea; public sector employers and employees have long 

enjoyed this flexibility. The McMorris Rodgers Amendment would 

have allowed private sector employers the option of offering their 

employees the choice of paid time off in lieu of cash for overtime, 

if—and only if—the employee prefers comp time instead of overtime pay (importantly, an employee would always have been entitled to opt for overtime cash wages). Notwithstanding that it would 

improve the working conditions of millions of Americans, the 

McMorris Rodgers Amendment was ruled non-germane, and denied 

a vote. 

To demonstrate just how far afield the Majority has gone with 

this legislation, Representative Tom Price (R–GA) offered two common-sense amendments during the Committee’s consideration of 

H.R. 1388. The first would simply have delayed the implementation 

of the Equal Pay Act amendments contained in the bill until the 

Secretary of Labor examined and reported to Congress (within 90 

days) on the bill’s effect on employers’ ability to hire and retain 

workers, irrespective of gender. Were the Secretary to determine 

that the expansion of the Equal Pay Act contained in H.R. 1338 

significantly hindered recruitment and hiring, those provisions 

would not have become effective. The Price Amendment would simply have allowed Congress to know the facts before imposing draconian legislative penalties and threatening jobs and economic livelihood; Democrats unanimously rejected this common-sense approach on a party-line vote. 

The second amendment offered by Representative Price underscored the true beneficiaries of this bill—the trial lawyers’ lobby. 

Under the Fair Labor Standards Act (and unchanged by H.R. 

1338), a successful plaintiff may recover a ‘‘reasonable’’ attorney’s 

fee. Representative Price’s amendment would simply have provided 

that in no instance would an attorney’s fee in excess of two thousand dollars per hour be considered ‘‘reasonable.’’ Democrats unanimously rejected the simple proposition that no trial lawyer can 

‘‘reasonably’’ be paid a fee of more than two thousand dollars per 

hour. 

Republicans offered a final amendment, reflecting their belief 

that the time and energy of Congress should be devoted to efforts 

to truly improve the lives of working Americans. Notably absent 

from H.R. 1338, is a critical element when it comes to wage disparities and the impact of such disparities on working families: the 

high price of energy. For that reason, Representative Howard P. 

‘‘Buck’’ McKeon, the Committee’s Senior Republican, offered an 

amendment that would have acknowledged that rising energy 


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costs—which have been shown to disproportionately impact lowerincome workers—can exacerbate existing wage disparities. 

The McKeon Amendment would have required a study by the 

Bureau of Labor Statistics on the impact of gas prices on wage disparities, to examine how high gas prices might further erode women’s earning and purchasing power. Finally, the McKeon Amendment expressed the sense of Congress that our nation should be 

taking steps to become energy independent, which would be in our 

best interest for both national and economic security. Committee 

Republicans firmly believe that comprehensive energy reforms, including the expansion of environmentally-safe energy production at 

home, will help bring down gas prices and ease the burden on 

working families. 

Although a Sense of Congress is nonbinding, it expresses congressional priorities. At markup, Democrats made clear that their 

priority is doing everything in their power to avoid providing real 

energy solutions for American families. In this Congress, the Majority has categorically refused to take up legislation that would 

allow for increases in the production of American-made energy. 

That refusal was once more underscored at markup, where a vote 

on the McKeon Amendment was blocked by parliamentary procedure, and rejected on a party-line vote. Indeed, it appears clear 

that Congressional Democrats appear unwilling to even admit that 

high gas prices are a problem for working families. 

CONCLUSION

H.R. 1338 represents fundamentally-flawed policy, and at bottom 

does nothing to ensure ‘‘paycheck fairness.’’ Rather, it is one more 

effort by the Majority to bestow a token on a favored constituency—trial lawyers—without reason, substance, or a demonstrated 

need. For these reasons, and all of those set forth about, we oppose 

enactment of H.R. 1338 as reported from the Committee on Education and Labor. 

BUCK MCKEON. 

PETE HOEKSTRA. 

JOE WILSON. 

JOHN KLINE. 

CATHY MCMORRIS RODGERS. 

KENNY MARCHANT. 

THOMAS PRICE. 

C. W. BOUSTANY, JR. 

VIRGINIA FOXX. 

DAVID DAVIS. 

TIM WALBERG. 

Æ 


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