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S. HRG. 113–830 

ACCESS TO JUSTICE: ENSURING EQUAL PAY WITH 

THE PAYCHECK FAIRNESS ACT 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

ON

EXAMINING S. 84, 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 

APRIL 1, 2014 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

TOM HARKIN, Iowa, Chairman 

BARBARA A. MIKULSKI, Maryland 

PATTY MURRAY, Washington 

BERNARD SANDERS (I), Vermont 

ROBERT P. CASEY, JR., Pennsylvania 

KAY R. HAGAN, North Carolina 

AL FRANKEN, Minnesota 

MICHAEL F. BENNET, Colorado 

SHELDON WHITEHOUSE, Rhode Island 

TAMMY BALDWIN, Wisconsin 

CHRISTOPHER S. MURPHY, Connecticut 

ELIZABETH WARREN, Massachusetts 

LAMAR ALEXANDER, Tennessee 

MICHAEL B. ENZI, Wyoming 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

RAND PAUL, Kentucky 

ORRIN G. HATCH, Utah 

PAT ROBERTS, Kansas 

LISA MURKOWSKI, Alaska 

MARK KIRK, Illinois 

TIM SCOTT, South Carolina 

DEREK MILLER, Staff Director 

LAUREN MCFERRAN, Deputy Staff Director and Chief Counsel 

DAVID P. CLEARY, Republican Staff Director 

(II) 

C O N T E N T S 

STATEMENTS 

TUESDAY, APRIL 1, 2014 

Page 

COMMITTEE MEMBERS

Mikulski, Hon. Barbara A., a U.S. Senator from the State of Maryland ............ 1 

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee, opening 

statement .............................................................................................................. 2 

Warren, Hon. Elizabeth, a U.S. Senator from the State of Massachusetts ........ 45 

Baldwin, Hon. Tammy, a U.S. Senator from the State of Wisconsin .................. 47 

Franken, Hon. Al, a U.S. Senator from the State of Minnesota .......................... 52 

WITNESSES

Eisenberg, Deborah Thompson, Associate Professor of Law, University of 

Maryland Francis King Carey School of Law, Baltimore, MD ......................... 5 

Prepared statement .......................................................................................... 6 

Young, ReShonda, Operations Manager, Alpha Express, Inc., Waterloo, IA ..... 19 

Prepared statement .......................................................................................... 20 

Sleeman, Kerri, Mechanical Engineer, Houghton, MI .......................................... 23 

Prepared statement .......................................................................................... 24 

Olson, Camille A., Partner, Seyfarth Shaw, Chicago, IL ..................................... 28 

Prepared statement .......................................................................................... 30 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc.: 

Letter: 

Camille A. Olson ........................................................................................ 56 

Response by Deborah Thompson Eisenberg to questions of: 

Senator Alexander ..................................................................................... 60 

Senator Franken ........................................................................................ 62 

Response of Camille A. Olson to questions of Senator Harkin, Senator 

Alexander, and Senator Mikulski ................................................................ 63 

(III) 

(1) 

ACCESS TO JUSTICE: ENSURING EQUAL PAY 

WITH THE PAYCHECK FAIRNESS ACT 

TUESDAY, APRIL 1, 2014 

U.S. SENATE, 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 3:14 p.m., in room 

SD–430, Dirksen Senate Office Building, Hon. Barbara Mikulski 

presiding. 

Present: Senators Mikulski, Murray, Casey, Franken, Baldwin, 

Murphy, Warren, and Alexander. 

OPENING STATEMENT OF SENATOR MIKULSKI

Senator MIKULSKI. Good afternoon, everybody. The Committee on 

Health, Education, Labor, and Pensions will come to order. Today, 

we are holding a hearing on the Paycheck Fairness bill. The topic 

of the hearing is Access to Justice: Ensuring Equal Pay with the 

Paycheck Fairness Act. We will hear from a distinguished group of 

visitors who will tell their stories and also, hopefully, will provide 

us with insights on what is the best way to proceed. 

For me, I want to make sure that women have a fair shot, a fair 

shot at equal pay for equal work. I want to finish the job we began 

with Lilly Ledbetter in which we kept the courthouse door open so 

that if you felt Equal Pay rights had been violated, you would have 

access to the courts without the arbitrary decisions of time limits. 

We find that the Equal Pay Act again is thwarted over the years 

through either retaliation for trying to find out what others are 

paid in your work place, or that they’re increasing loopholes, saying 

that it’s not identical or not comparable work. So we want to finish 

the job, end the retaliation, end paycheck secrecy, and also close 

the loopholes that prevent equal pay for equal or comparable work. 

In 1963, Lyndon Johnson wanted to pass three major civil rights 

bills, Equal Pay for Equal Work, the Civil Rights Act, and also the 

Voting Rights Act. He began with equal pay, because he thought 

it would be the easiest to pass and the easiest to enforce. And here 

we are now, 50 years later, in some ways fighting the same battles. 

So we hope that through this legislation, we will finally end paycheck secrecy, workplace retaliation if you try to find out or offer 

any kind of advocacy in your own behalf to get equal pay, and also 

to close those loopholes. Women are almost half of the workforce. 

In many instances, 40 percent are now the sole bread winners for 

families. 

2 

And many over the years, for many decades, have said, ‘‘Well, we 

don’t have to pay you as much because the guys are the bread winners.’’ Well, now, the women are the bread winners, and they’re 

tired of getting paid in crumbs. So this is what we’re trying to do 

here, to look at the legislation, and to look at the best way forward 

to continue that legislation. 

I know we’ve had a delayed time in starting this hearing because 

of the votes. So I’m going to ask unanimous consent that my full 

statement go into the record, and I’m going to turn to Senator Alexander, who offers such great insight on these issues, for any comments that he has. 

[The prepared statement of Senator Mikulski was not available 

at time of print.] 

Senator Alexander. 

OPENING STATEMENT OF SENATOR ALEXANDER

Senator ALEXANDER. Thank you, Madam Chairman. I appreciate 

that. I’m not going to take an excessive amount of time, but I do 

want to make my statement. 

I thank you for the hearing, but I think it ought to be on a different subject. I think it ought to be about more flexibility for working parents. This bill is about more litigation, more lawyers, higher 

income for trial lawyers, and more class action lawsuits whether 

you want them on your behalf or not. 

Let me tell a story to suggest why I believe instead we should 

be talking about more flexibility for working parents. Years ago, in 

my private life, I helped start a company with Bob Keeshan, Captain Kangaroo, and my wife and a couple of others that later 

merged with Bright Horizons and became the largest worksite 

daycare provider in the country. 

We recognized that probably the most important social phenomenon in our country over the last 30 or 40 years are the number of women working outside the home. And, typically, many of 

them had young children, and the idea was that we would help corporations provide worksite daycare centers that were safe and good 

for those moms, and dads as well, who worked with young children 

outside the home. 

We did a lot of surveys, and what we found out was that in many 

cases, more important than pay was flexibility in the workforce, 

that a mom or a dad with a young child who was working outside 

the home didn’t want to miss the school play, didn’t want to miss 

the football game, wanted to be available to deal with a sick child. 

I tell that story because I think instead of a law like the one proposed here, which would literally reduce the flexibility that employers have to provide men and women in the workplace with more 

flexibility to go to the football game or the school play, I think we 

need more flexibility, not a mandate. We need to enable employers 

to do that. 

Let me give you an example or two. Take a school where an employer might want to say, as we did in Tennessee 30 years ago, 

‘‘We’re going to pay teachers more for teaching well.’’ That’s a very 

subjective thing to do. Or we might be in a situation where we 

wanted to encourage girls to become more interested in matheVerDate Nov 24 2008 16:33 Jan 17, 2017 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\DOCS\22608.TXT DENISE
3 

matics. And to do that, we might like to hire an outstanding 

woman teacher of mathematics and science to be in the classroom. 

We might have to pay her more than we do a man, because she 

has so many other opportunities if she has those talents. Or, on the 

other hand, we might have a rough school where we need a man 

who is a strong role model for boys who cause a lot of trouble. 

Sometimes we might have to pay that man more than a woman. 

We might be in a situation in another worksite where a mom 

might say, ‘‘Well, I’ve got two kids. I’d rather have the day shift 

than the night shift.’’ And for exactly the same work, you might 

pay a man more for the night shift, or vice versa. Under current 

law, arguably, you could do many of those things. Under the proposed legislation, it would reduce the flexibility employers may provide in the workforce. 

So I would like to see a hearing—and I hope we’ll have plenty 

of opportunities, Madam Chairman, to amend this proposal, and 

then debate it here in the committee, and then go to the floor 

where I’ll have a number of amendments. I’ve noticed—and I hope 

you won’t mind my saying this—and I will give my Democratic 

friends credit for being very forthright about what they’re doing 

here. 

Here’s a big article in The New York Times a few days ago where 

Senator Schumer announces their 10-part political plan, including 

this bill, to try to recapture some political ground because of the 

disaster Obamacare has been. And they say, ‘‘Privately, White 

House officials’’—this is The New York Times—‘‘say they have no 

intention of searching for any grand bargain with Republicans on 

any of the issues.’’ The point isn’t to compromise. I give them credit 

for being straightforward. 

But my suggestion would be that the Democratic jobs agenda is 

more like a war on jobs. Obamacare is causing restaurant companies to reduce their number of employees. We had testimony right 

here on the minimum wage where the nonpartisan Congressional 

Budget Office said it will cost 500,000 jobs, and the Paycheck Fairness proposal, so-called, really reduces the flexibility that employers would have to help working parents go to the school play or 

have other opportunities to be with their children. 

So we have great differences of opinion here, and I’m looking forward to hearing the witnesses. I’m looking forward to offering a 

number of amendments when we mark the bill up. And when it 

comes to the floor, we’ll have a large number of amendments aimed 

at the goal of giving working parents more flexibility in the workplace so they can be better parents. 

Thank you, Madam Chairman. 

Senator MIKULSKI. Thank you, Senator Alexander, for your comments. First of all, I personally want to thank you for the very constructive role that you played in enabling us to pass the Child Care 

Development Block Grant. I remember earlier in our conversations, 

you had 64 issues that you raised with our staff, and by working 

through them, we were able to find a way to find that sensible center, and I think we passed a very excellent bill. So we look forward 

to your comments and your amendments on this. 

In terms of whether this committee should hold a hearing on 

workplace flexibility, I don’t chair the committee. I’m chairing this 

4 

particular hearing. But I think that we would request our chairman, Senator Harkin, to have just one on workplace flexibility. I 

think it is a compelling topic that needs to be addressed for families to be able to participate, whether you’re a two-parent household, or whether you’re a single-parent household headed by a man 

or a woman. 

The framework for the way we do work in our country now needs 

to be examined, and we need to work in partnerships with the private sector. This hearing is not an adversarial hearing toward the 

private sector. It is to say, though, we have a bill that passed in 

1963, the Equal Pay Act, and now we need to make sure that the 

impediments for enforcing the bill and people having the opportunity to have equal pay for equal work are removed. 

What I’m going to do now is turn to the witnesses, because we 

are running late. Then I’ll turn to my colleagues and ask that their 

opening statements be submitted in the record and that they can 

include them. 

So we want to turn first to—we’ll go right down the aisle. We 

want to turn to Professor Eisenberg. I’m going to introduce everybody now, and then you can all pick up. 

We welcome you, Professor Eisenberg. And it’s with great pride 

that I comment that you’re from the Francis King Carey School of 

Law in Maryland. You have extensive background in studying the 

impact of pay secrecy policies, have won that wage gap, and you’ve 

written extensively about the Pay Discrimination Act. We welcome 

you. 

Ms. ReShonda Young is an actual business owner, a real business owner. We know you took over your business from your dad. 

You found that in doing so, as you tried to grow the business, that 

the women were paid less, and there were old fashioned reasons for 

that. But now we’re in a new fashion, new fangled economy, and 

you took constructive steps, and we’ll be interested in how you did 

that and whether it affected the bottom line. 

We want to turn to Kerri Sleeman, herself a mechanical engineer 

who was a design supervisor and worked very hard in her company 

and, as I understand, received outstanding reviews. But when for 

a variety of reasons the company failed, and there was the bankruptcy hearing, she was startled to find that the very men she supervised made more than her. So we’d like to hear your story, Ms. 

Sleeman, and what you did to try to address that grievance, which 

we should learn. 

And then we want to also welcome Ms. Olson from the Chamber 

of Commerce. We know you have an extensive detailed policy. I 

kind of read through it this morning, but I will read it again. We 

want you to know you are most welcome at this hearing, and we’d 

like the insights from the Chamber on this bill and perhaps ideas 

on how to improve it. So we want you to know that you’re most cordially welcomed. 

Professor Eisenberg, why don’t you kick it off? We’ll go down the 

table, and Ms. Olson will be last person at the bat. Then we’ll move 

to questions. 

5 

STATEMENT OF PROFESSOR DEBORAH THOMPSON EISENBERG, ASSOCIATE PROFESSOR OF LAW, UNIVERSITY OF 

MARYLAND FRANCIS KING CAREY SCHOOL OF LAW, BALTIMORE, MD 

Ms. EISENBERG. Thank you, Chairwoman Mikulski and members 

of the committee. I am honored to testify in support of the Paycheck Fairness Act. As a scholar, I’ve studied the current failure 

of Federal law to provide an effective remedy for many women who 

have experienced pay discrimination. And as an employment lawyer and now mediator, I’ve witnessed the profound impact that pay 

discrimination can have. 

My written testimony explains why gender pay discrimination is 

still a serious problem, how it happens in the modern economy, and 

why the Paycheck Fairness Act is critical legislation that should be 

passed. I want to highlight three points. 

First, the Paycheck Fairness Act recognizes, in the words of 

Louis Brandeis, that sunshine is the best disinfectant. As we know 

from Lilly Ledbetter’s story, most unlawful pay discrimination is 

hidden from sight. This can allow unlawful pay disparities to snowball over time, undetected and undeterred. Many women do not 

know that drastic pay disparities exist between them and their 

male cohorts until they find out by accident. 

Many employees are afraid to compare notes or ask about the 

pay of their counterparts out of fear of getting fired. One study 

found that half of all American workers are either strictly forbidden or strongly discouraged from discussing their pay with coworkers. This is a problem, because studies show that if women are 

armed with better information about appropriate pay rates, gender 

pay disparities can be reduced or eliminated all together. 

The act lets in just a little bit of sunshine, while balancing confidentiality concerns. It prohibits retaliation against employees who 

simply ask about or discuss their wages in the workplace. It also 

facilitates better data collection and study about pay rates to better 

understand the causes of pay discrimination and to better assist 

employers with best practices. 

This is a balanced, proactive approach. The goal is to motivate 

employers to correct unlawful pay disparities before they turn into 

fodder for litigation. 

Second, the Paycheck Fairness Act will make the Equal Pay Act 

a more effective remedy against those who, 50 years later, still 

flout the law. The act amends the any-act-other-than-sex defense in 

the Equal Pay Act, which a minority of Federal courts have interpreted to be a gaping loophole, to an anything-under-the-sun defense, which has swallowed the Equal Pay for Equal Work rule. 

The act fixes that problem by adding the common sense fairness 

notion that a wage disparity between two employees who perform 

the same jobs should be based on a factor related to the business, 

the job, and the employees in those jobs. That standard is not only 

fair, but it’s smart business. This standard is already working well 

in a majority of Federal circuits and has been adopted by the 

EEOC. 

To be clear, the act does not get the government involved in wage 

setting at all. The act does not dictate to employers which factors 

should be used in setting pay. Employers have the sole discretion 

6 

to set pay, based on anything that matters for their business and 

those jobs, a limitless array of factors such as skills, qualifications, 

performance, seniority, extra responsibility, and the list goes on. 

Third, the act puts gender pay discrimination on equal footing 

with remedies for racial and national origin pay discrimination 

under section 1981 by permitting compensatory damages in appropriate cases and punitive damages for especially egregious and malicious violations. It also allows women who are affected by a widespread common discriminatory pay practice to join together in one 

representative action. 

These changes will promote voluntary compliance by employers 

and provide a more effective remedy against those that break the 

law. Opponents who suggest that strengthening the Equal Pay Act 

will somehow open the flood gates to frivolous claims and runaway 

jury verdicts do not understand the realities of equal pay litigation. 

These cases are extremely hard to win. 

As my research explains, employees are less likely to prevail on 

equal pay claims today than at any other time in the act’s history. 

Very few equal pay claims are filed in Federal court, and those that 

are filed are typically dismissed on summary judgment and never 

make it to a jury, often for reasons that have nothing to do with 

the merits of the pay disparity itself. 

Rest assured that the women of America do not want to sue their 

employers. They simply want to be paid fairly. The Paycheck Fairness Act will help to ensure that the promise of equal pay for equal 

work is not an empty one. 

Thank you, and I look forward to your questions. 

[The prepared statement of Ms. Eisenberg follows:] 

PREPARED STATEMENT OF DEBORAH THOMPSON EISENBERG

SUMMARY

The Paycheck Fairness Act is critical legislation that addresses several gaps in 

the Equal Pay Act. Federal equal pay laws have become an empty promise for many 

women who experience pay discrimination. This Act sets forth a balanced approach—with both proactive strategies and a more workable legal remedy—that will 

ensure ‘‘equal pay for equal work.’’ 

Most importantly, the Act amends the ‘‘any factor other than sex’’ defense—a gaping loophole which has swallowed the ‘‘equal pay for equal work’’ rule in some 

cases—with the common sense fairness notion that a wage disparity between two 

employees who perform the same jobs should be based on a bona fide factor related 

to the job or business. This standard is already used in a majority of Federal courts 

and has been adopted by the Equal Employment Opportunity Commission. Two 

Federal circuits have interpreted this defense as ‘‘anything under the sun,’’ even if 

unrelated to the job or business. The idea that differences in pay should relate to 

the job and business is not only a matter of basic fairness; it is simply smart business. The Act leaves it to the employer’s sole discretion which factors should be used 

to determine pay. 

Second, the Act recognizes, to paraphrase Justice Brandeis, that ‘‘sunshine is the 

best disinfectant.’’ Pay secrecy has allowed unlawful pay disparities between men 

and women performing the same jobs to flourish, undetected and undeterred. To address this problem, the Act prohibits employers from retaliating against employees 

who ask about or discuss wage information and facilitates the collection and study 

of pay data so we better understand the causes of pay discrimination. This reinforces that the law’s requirement of equal pay for equal work cannot be ignored simply because no one knows about unlawful pay disparities. It will motivate employers 

to correct unjustified pay disparities before they turn into fodder for litigation. The 

Act also creates an award for employers who demonstrate best practices and encourages negotiation training for women and girls. These provisions provide a balanced, 

proactive approach to combating wage discrimination. 

7 

Third, the Act addresses the difficulties that women have in remedying the multiple harms of pay discrimination by allowing compensatory and punitive damages 

in appropriate cases and permitting employees to join together in a class action to 

address systemic violations. These provisions will put gender pay discrimination on 

equal footing with Federal law regarding pay discrimination based on race under 

42 U.S.C. § 1981 and be a stronger deterrent against the subset of employers that 

flout the Nation’s equal pay laws. 

Chairwoman Mikulski and members of the Senate Committee on Health, Education, Labor and Pensions, I am honored to have the opportunity to testify before 

you in support of the Paycheck Fairness Act. This issue is important to me as a 

scholar who has studied the current failure of Federal law to provide a workable 

remedy for most women who experience pay discrimination in the modern economy; 

as a former employment litigator and now mediator who has witnessed first-hand 

the profound impact that compensation discrimination has on women, and the difficulties they have seeking a remedy for that harm; and as a proud mother of two 

daughters. 

The Paycheck Fairness Act is critical legislation that expresses our Nation’s commitment to equal pay for equal work and addresses several gaps in the Equal Pay 

Act. It should be passed for four main reasons: 

1. Most importantly, the Paycheck Fairness Act amends the ‘‘any factor other 

than sex’’ defense—a gaping loophole which has swallowed the ‘‘equal pay for equal 

work’’ rule in some jurisdictions—with the common sense fairness notion that a 

wage differential between two employees who perform the same jobs should be 

based on a bona fide factor related to the job or business. This standard is already 

working well in a majority of Federal circuit courts and has been adopted by the 

Equal Employment Opportunity Commission, but two Federal circuits have interpreted this defense to mean ‘‘anything under the sun,’’ even if unrelated to the job 

or business. The idea that differences in pay should bear some relation to the job 

and business should be an uncontroversial proposition. It is not only a matter of 

basic fairness (for all employees) and equal opportunity for women; it is simply 

smart business and good corporate governance for an employer to be more thoughtful about how its pay awards relate to the job and business. 

2. The Paycheck Fairness Act recognizes, in the words of Justice Brandeis, that 

‘‘sunshine is the best disinfectant’’ by prohibiting employers from retaliating against 

employees who simply ask about, discuss, or disclose wage information. As described 

below and in my scholarship, pay secrecy has allowed unlawful pay disparities between men and women performing the same jobs to flourish, undetected and 

undeterred. The Act also facilitates the collection and analysis of pay data so we 

better understand the causes of pay discrimination. It will reinforce that the law’s 

requirement of equal pay for equal work cannot be ignored simply because no one 

knows about unlawful pay disparities. And it will motivate employers to correct unjustified pay disparities before they turn into fodder for Federal litigation. This is 

a balanced, proactive approach. 

3. The Paycheck Fairness Act provides an incentive for voluntary compliance and 

the development of best practices by employers by establishing a National Award 

for Pay Equity in the Workplace, while empowering women and girls with negotiation training so they can better navigate the often difficult and risky process of salary negotiations. 

4. The Paycheck Fairness Act addresses the difficulties that women have in remedying the multiple harms of pay discrimination by providing compensatory and punitive damages and permitting them to join together in a class action to address systemic violations. These provisions will put gender pay discrimination on equal footing with Federal law regarding pay discrimination based on race under 42 U.S.C. 

§ 1981 and be a stronger deterrent against the subset of employers that flout the 

Nation’s equal pay laws. 

At the outset, I want to dispel some common myths about the Paycheck Fairness 

Act. 

Myth #1: This will open the floodgates to frivolous lawsuits by ‘‘jack-pot’’ 

trial lawyers 

Opponents who suggest that this legislation will somehow open the floodgates to 

frivolous EPA claims by ‘‘trial lawyers’’ do not understand (or are not being forthright) about the realities of equal pay litigation. In addition to being expensive and 

extremely difficult to win, pursuing an employment discrimination lawsuit can damage a plaintiff ’s mental and physical health and often results in career suicide. In 

addition, this area of the law is complicated and tends to be litigated on both the 

8 

employee and management sides by sophisticated attorneys who understand that 

most plaintiffs in Federal employment discrimination cases do not prevail, and that 

employers will win most cases at the summary judgment stage. 

Rest assured: most women do not want to sue their employers—they want the law 

to express a stronger commitment to equal pay for equal work so employers will 

have an incentive to pay them fairly without the need for litigation. Moreover, employee-side attorneys who handle employment discrimination cases tend to do this 

work out of a sense of a public interest mission as a ‘‘private attorney general,’’ enforcing our Nation’s equal opportunity laws. Filing ‘‘frivolous’’ cases will not keep 

the lights on in their law offices. The idea that attorneys would put their law licenses and reputations on the line by filing ‘‘frivolous’’ cases—and that our smart 

Federal judges would allow those ‘‘frivolous’’ cases to proceed to a jury, and then 

juries would award astronomical damages for unmeritorious claims—is a fantastical 

red herring. 

Myth #2: This Changes the ‘‘Equal Work’’ Standard into ‘‘Comparable 

Worth’’ 

Nothing in the Paycheck Fairness Act permits the concept of ‘‘comparable worth’’ 

to be used in the EPA. The prima facie standard of ‘‘equal work’’ remains. 

Myth #3: The Government Will Interfere in Pay Decisions 

Employers are already obligated under the Equal Pay Act and title VII to refrain 

from pay discrimination and ensure equal pay for substantially equal jobs. The 

problem is that pay secrecy and the lack of effective workable remedies has allowed 

unlawful pay discrimination to flourish undetected and unaddressed in some workplaces. The Paycheck Fairness Act reaffirms our commitment to equal pay for equal 

work by encouraging employers to give more attention to ensuring that their pay 

practices honor that promise—but it leaves pay decisions entirely up to the employer’s sole discretion. 

To be clear: this Act does not get the government involved in wage-setting at all. 

The Act does not dictate to employers which factors should be used in setting pay. 

It merely requires that pay decisions bear some relation to the job and business. 

This is not only about basic fairness for employees performing the same jobs and 

equal opportunity for women: it is simply smart business. As generally accepted in 

the executive compensation context, it is good corporate governance to relate pay to 

performance and the goals of the job and business. In addition to helping to reduce 

the gender pay gap, studies have also shown that employees who understand how 

pay is determined are more likely to be productive and loyal to their employers.1

As described below, in some industries there is an ‘‘anything goes’’ approach to 

wage setting—facilitated by pay secrecy—that has permitted wildly divergent and 

unfair pay rates between employees doing the same job. We can, and must, do better than that if ‘‘equal pay for equal work’’ is ever going to be a reality. 

The rest of my testimony explains how pay discrimination manifests itself in the 

modern economy, describes how existing equal pay laws have failed to provide an 

effective remedy for women who experience pay discrimination, and examines how 

the Paycheck Fairness Act will help to deter pay discrimination against women. 

1. STATUS OF WOMEN’S WAGES IN TODAY’S MARKET

Equal pay laws have undoubtedly increased women’s earning power and encouraged most employers to take pay equity seriously. Yet, the pay gap between men 

and women who perform substantially equal jobs remains widespread, persistent, 

and systemic in our economy. The rhetoric about the ‘‘gender pay gap’’ tends to be 

heated and polarizing but one thing is clear: study after study that has examined 

the pay gap has demonstrated that unexplained pay disparities between men and 

women performing substantially equal jobs remain even after controlling for socalled ‘‘choice’’ factors—such as education, years of work experience, age, hours 

worked, occupational field, and jobs held.2

I have written about how the gender pay gap is more complex—and in many job 

categories much worse—than the aggregate statistic that women who work fulltime, year round earn about 77 cents for every dollar earned by their male peers.3

The overall wage gap is only the tip of the iceberg. The problem is even more alarming when one examines data regarding men and women who have similar qualifications and perform similar jobs, especially women who try to climb the economic ladder and move into higher-paying jobs. 

Women at every wage level and in nearly every industry experience a wage gap. 

Consider these statistics: 

• Women in the 10 largest low-wage occupations are paid an average of about 10 

cents less than men in those occupations for full-time work.4

9 

• Although women generally are becoming better educated than men—earning 

more college and advanced degrees—women with higher education levels experience 

a greater pay gap than women who have less educational attainment.5

• Contrary to the notion that more education and experience will decrease the 

wage gap, the disparity increases for women who attain the highest levels of education and professional achievement, such as lawyers (female lawyers earn 74.9 percent as much as their male peers),6 physicians and surgeons (64.2 percent),7 securities and commodities brokers (64.5 percent),8 accountants and auditors (75.8 percent),9 and managers (72.4 percent).10

• A wage gap exists for men and women who have the same education and enter 

the same jobs at the start of their careers. For example, a recent study of starting 

salaries of graduates of medical residency programs in New York found that male 

physicians made on average $16,819 more than their female cohorts. The regression 

models in the study controlled for 10 variables that could potentially affect wage 

rates, including specialty choice, practice setting, work hours, geographic location, 

and other characteristics.11 According to the researchers, ‘‘We honestly tried everything we could to make it go away, but it wouldn’t.’’12

• The wage gap between men and women performing the same jobs starts small, 

but balloons throughout their careers. A regression analysis by the American Association of University Women found that, after controlling for choice factors that 

could affect pay, about one-quarter of the pay gap (5 percent) remained for recent 

college graduates—that is, men and women with exactly the same education entering the same job at the same time—but 10 years after graduation the unexplained 

pay gap grew to 12 percent.13

• Some say that the gender pay gap can be explained because men work more 

hours than women. But women who work the greatest number of hours experience 

a higher disparity.14

• The wage gap exists even in professions in which women have long dominated, 

such as education,15 nursing,16 social work,17 and clerical work.18

In sum, 50 years after the passage of the Equal Pay Act, pay discrimination is 

still a serious problem for too many women in America. Based on my research and 

experience, I believe there are several reasons this is still happening. 

First, it is my firm belief that most employers try to comply with the law and 

do not set out to intentionally discriminate against women. Nevertheless, there is 

no question that pay discrimination remains. In some cases, that discrimination is 

as blatant as it was during the 1960s, with some employers professing that men deserve to be paid more. For example, women who worked at Walmart reported that 

managers told them that male employees would always make more because ‘‘God 

made Adam first, so women would always be second to men’’ and ‘‘[y]ou don’t have 

the right equipment. . . . [Y]ou aren’t male, so you can’t expect to be paid the 

same.’’19 When one plaintiff asked her manager why a male co-worker in the same position was making $10,000 more per year, the manager told her to bring in her 

household budget so he could decide whether she deserved as much as the man.20

Examples of these sexist attitudes exist in other pay discrimination cases.21

Second, the stereotype that working mothers do not need to be paid as much, and 

that working fathers deserve more pay, sometimes creeps into the wage setting 

process, often unconsciously. Working mothers tend to experience a ‘‘motherhood 

penalty’’ in wages that cannot be explained by human capital or occupational factors.22 In one study, participants evaluated application materials for a pair of samegender, equally qualified job candidates who differed only on parental status.23 The 

study found that ‘‘mothers were judged as significantly less competent and committed than women without children.’’24 In addition, ‘‘[t]he recommended starting salary for mothers was $11,000 (7.4 percent) less than that offered to nonmothers, 

a significant difference.’’25 In contrast, fathers were offered significantly higher salaries than nonfathers.’’26

It is a fallacy today to think that mothers are not working to support their families. A recent study found that a huge majority of middle-income mothers work 40 

or more hours per week.27 About half of all mothers work full-time.28 Two-thirds 

of the 21.7 million working mothers are part of a dual-earner family, but one-third— 

or 7.5 million mothers—‘‘were the sole job-holders in their family, either because 

their spouse was unemployed or out of the labor force, or because they were heads 

of households.’’29 During the recession, ‘‘families where the mother was the only jobholder increased.30 As a recent congressional report concluded, ‘‘[m]ore than ever, 

families depend on mothers’ work.’’31

A third factor that lowers women’s wages is that compensation decisions in today’s economy tend to be wholly discretionary on the part of certain managers, without company guidance about how pay should be determined and work rewarded. 

The more discretionary and subjective the process for setting pay—which tends to 

10 

be the case for management and professional occupations—the greater the gender 

pay gap. I saw this in an equal pay case I litigated on behalf of a Chief Technology 

Officer at a technology startup. Her base salary was less than all of the men on 

the executive team, but the disparities in discretionary components were extreme: 

her bonuses were only about one half, and her stock options awards only about onequarter, of the awards given to all of the men on the executive team.32

A large body of social science research demonstrates that sex-stereotyping and unconscious cognitive biases influence pay decisions that are based on subjective, arbitrary, or discretionary assessments.33 In addition, studies show that significant gender differences in salaries will occur in ‘‘high ambiguity’’ industries—those in which 

employees are not well-informed about the appropriate amount to request during 

salary negotiations.34 A study of MBA students entering their first jobs found that 

women who entered industries in which salaries were more ambiguous ‘‘accepted 

salaries that were 10 percent lower on average than did the men.’’35 This is also 

reflected in wage statistics. Although a gender wage gap exists in nearly every occupation and industry, it tends to be the lowest for more standardized, low-wage jobs 

for which the compensation structures are well-defined and non-negotiable. 

The problem is that wages in the modern economy are more likely to be the product of a negotiation process, conducted under conditions of pay secrecy with little 

to no guiding company standards. Rather than the lock-step compensation plans of 

the industrial era, many job sectors today follow a ‘‘winner-take-all’’ and ‘‘anything 

goes’’ approach to setting pay. These trends have exacerbated internal pay inequities, resulting in wildly divergent salaries for individuals performing essentially the 

same jobs.36

These dynamics disproportionately disadvantage women’s pay. Negotiation experts explain that unconscious gender-stereotypes are more likely to skew results 

against women when compensation decisions are informal and unguided. Studies 

show, however, that if pay processes are more transparent and women have adequate information during the negotiation process, gender pay disparities may be reduced or eliminated altogether.37

2. CURRENT FEDERAL LAW FAILS TO PROVIDE AN EFFECTIVE REMEDY FOR PAY

DISCRIMINATION

My scholarship has analyzed how the Equal Pay Act (EPA), which the Paycheck 

Fairness Act amends, currently provides an empty promise for many women who 

experience pay discrimination. Although evaluation of equal pay claims is supposed 

to be fact-intensive,38 modern courts increasingly dismiss cases at the summary 

judgment stage rather than permitting the claims to proceed to a jury trial. In a 

study I conducted of all cases in which Federal district courts considered whether 

to grant summary judgment on an EPA claim over the last decade (from January 

1, 2000 to December 31, 2011), only about one-third survived summary judgment.39

In other words, the merits of equal pay claims rarely make it before juries and most 

women who file equal pay cases are stopped at the summary judgment ‘‘starting 

gate.’’ In addition, employees whose cases make it to an appellate level are less likely to prevail on equal pay claims today than at any other time since the EPA’s passage.40

There are several reasons for the EPA’s ineffectiveness in the modern economy: 

The Prima Facie Hurdle: The EPA requires that employees of opposite sexes 

at the same establishment receive equal pay for equal work. To state a claim under 

the EPA, plaintiffs must first meet a very strict ‘‘prima facie’’ threshold standard. 

A plaintiff must show that he or she performs substantially ‘‘equal work on jobs the 

performance of which requires equal skills, effort, and responsibility, and which are 

performed under similar working conditions.’’41 My research has explained that this 

prima facie standard has been interpreted by some courts so strictly that it leaves 

many women in the modern economy—especially those in non-standardized or 

upper-level jobs—outside of the EPA’s protection.42 The Paycheck Fairness Act does 

not change the substantially equal work standard and it is likely to continue to be 

a stumbling block for most plaintiffs in EPA cases. 

The ‘‘Anything Under the Sun’’ Defense: If a plaintiff survives the strict 

prima facie standard of showing ‘‘equal work,’’ the burden of persuasion shifts to 

the employer to prove that the pay disparity actually resulted from one of four affirmative defenses: ‘‘(i) a seniority system; (ii) a merit system; (iii) a system which 

measures earnings by quantity or quality of production; or (iv) a differential based 

on any other factor other than sex.’’43

Most employers in EPA cases rely on the catch-all ‘‘factor other than sex’’ defense 

and rarely invoke the first three.44 In a majority of circuits45 and under the EEOC’s 

interpretation,46 the employer is not permitted to rely on literally any other factor, 

11 

but only a factor that is job-related, adopted for a legitimate business reason, and 

not based on sex. As courts have explained, ‘‘[w]ithout a job-relatedness requirement, the factor-other-than-sex defense would provide a gaping loophole in the statute through which many pretexts for discrimination would be sanctioned.’’47 Unfortunately, in a minority of Federal circuit courts, that loophole exists.48

The Paycheck Fairness Act codifies the majority view that the ‘‘factor other than 

sex’’ defense does not mean ‘‘anything under the sun’’ other than an admission of 

sex discrimination. Rather, the factor must be related to the job in question and consistent with business necessity. This amendment is the most important provision of 

the Paycheck Fairness Act. It will encourage employers to develop more clearly defined compensation systems—guided by any considerations the employer wants—so 

long as they relate to the business and job. As one Federal judge commented: 

‘‘The Equal Pay Act concerns business practices. It would be nonsensical to 

sanction the use of a factor that rests on some consideration unrelated to the 

business.’’49

Some opponents contend that adopting the majority view will somehow threaten 

the free-market system and turn courts into ‘‘super-personnel officers.’’ That has not 

happened in the majority of circuits in which this standard has already been operating. In addition, the argument that employers must be able to use vague, ill-defined ‘‘market’’ excuses for pay discrimination among equal jobs is alarming to hear 

50 years after the passage of the Equal Pay Act. Indeed, the EPA was designed to 

alter the compensation market so that employers would not pay women less than 

men performing substantially equal jobs simply because that was what the ‘‘market’’ 

required or permitted, or because men asked for more pay than women did.50

Given the distinct market purpose of the EPA, early cases flatly rejected ‘‘market 

forces’’ defenses asserted by employers because they perpetuated the very discrimination that Congress sought to alleviate.51 Courts noted that the EPA aimed to cure 

imbalances in the compensation market based on gender. As the Supreme Court 

stated in Corning Glass Works v. Brennan: 

The whole purpose of the Act was to require that these depressed wages be 

raised, in part as a matter of simple justice to the employees themselves, but 

also as a matter of market economics, since Congress recognized as well that 

discrimination in wages on the basis of sex ‘‘constitutes an unfair method of 

competition.’’52

Since the EPA was passed, the ‘‘market’’ defense in some EPA cases has evolved 

into an escape hatch through which many pretexts for gender pay discrimination 

have been accepted. A common market defense in EPA cases relies on employees’ 

prior salaries.53 If a man earned more in a prior position with a different employer, 

and a woman earned less in a prior position with a different employer, they will 

be paid based on their prior salaries, regardless of whether they are now performing 

substantially equal jobs and have comparable qualifications. 

Market defenses also rely on negotiation outcomes: the male employee negotiated 

a higher salary, and the woman either failed to ask for more pay, or was prohibited 

from negotiating a higher rate.54 Negotiation defenses harm women. Studies have 

shown that employers react more favorably to men who negotiate salaries, and that 

women may be reluctant to ask for higher pay because they may be penalized for 

violating gender stereotypes and feel more social pressure to agree to employers’ 

wage offers.55 This is compounded by the problem of pay secrecy: employers enjoy 

a monopoly on pay information and women may not have access to the same networks that men do to determine potential pay ranges. 

Consider the following example from an equal pay case that I litigated. Like some 

companies, the employer had no formal job descriptions or compensation system, 

which allowed gender pay disparities between employees performing substantially 

equal jobs to flourish. The supervisors of each department had great discretion to 

negotiate and set individual salary amounts upon hiring, without guiding criteria. 

In one department, a female vice president was hired months earlier than two other 

male vice presidents. All three were hired to do essentially the same work. All had 

comparable qualifications for the job. The executive vice president who hired them 

admitted that the female vice president had equal if not better performance and was 

even appointed a ‘‘player-lead’’ to train her male colleagues—yet her pay was substantially lower than her male peers. When asked why he paid his female playerlead less than two men doing the same job, the supervisor defended the disparity 

based on the employees’ prior salaries and their wage negotiations with him.56

When asked why he failed to pay similarly qualified vice presidents equal pay for 

equal work, the supervisor responded: 

Because I didn’t need to. I mean at the end of the day it was, at the end of 

the day [sic]—first of all they, they didn’t need to see what each other’s salaries 

12 

were. They weren’t—it wasn’t like we post it on your name tag. So there was 

no demotivation. [The female vice president] was somewhat aware what the 

other people were making, so it was, you know, I didn’t want to demotivate her, 

but, you know, at the end of the day you’re paying people, you know, the market 

rate, you’re not necessarily paying them for a job. You know, you’re saying what’s 

it take?57

As seen in this example, the ‘‘market’’ on which the supervisor relied was nothing 

more than a haphazard situational accident, not a fair reflection of the job duties, 

skill sets, and performance of the employees. The employer paid the worst performer 

the highest salary simply because he asked for it. The female player-lead who 

trained her male peers received the lowest salary, simply because her salary at a 

previous employer was lower than that of her male counterparts. The law requires 

equal pay for equal work, but pay secrecy enables inequities based on the happenstance of prior salaries—not the skills, responsibility, and effort required for the 

job—to continue uncorrected. This perpetuates the very discrimination that Congress sought to prevent with the EPA. 

In other words, some employers’ vague assertions that the invisible hand of ‘‘the 

market’’ dictated wage rates tend to be mythical covers for paying women less than 

men to perform substantially equal jobs—for reasons that have nothing to do with 

actual market compensation data, the job, or the merits of the employees in those 

jobs. Just as Congress saw through employers’ assertions of ‘‘market forces’’ when 

the Equal Pay Act was passed, Congress should pass the Paycheck Fairness Act to 

once again confirm that abstract notions of ‘‘the market’’ do not trump the promise 

of equal pay.58

TITLE VII ALSO DOES NOT PROVIDE AN ADEQUATE REMEDY

Title VII is not a workable remedy for pay discrimination in most cases because 

of its intent requirement, which is virtually impossible to show in these cases.59

Proving a discrimination case of any kind is extremely difficult. As one Federal 

court noted: 

Employment discrimination and retaliation, except in the rarest cases, is difficult to prove. It is perhaps more difficult to prove such cases today than during the early evolution of Federal and State anti-discrimination and anti-retaliation laws. Today’s employers, even those with only a scintilla of sophistication, 

will neither admit discriminatory or retaliatory intent, nor leave a well-developed trail demonstrating it.60

Proving pay discrimination is especially challenging. First, unlike hiring and promotions, pay decisions are often made in secret,61 and psychological research has 

shown that decisionmakers typically undervalue employees if they are women rather than men.62 Scholars have shown how unconscious biases can lead to discrimination.63 When the decisionmaking processes surrounding pay are opaque and guided 

by subjective factors, unconscious biases are more likely to reduce women’s wages.64

Second, the employer has a monopoly on the information used to make the pay 

decision and should have the burden of proving the reasons for that decision. Employees are typically not privy to the decisionmaking process, and records of the reasons underlying pay decisions rarely exist unless the company has an established 

compensation system. It is therefore easier for an employer to craft post hoc excuses 

for pay disparities to mask discrimination.65 For these reasons, the burden-shifting 

structure of the EPA is more appropriate for pay discrimination claims. Indeed, 

some plaintiffs prevail on EPA claims but lose on title VII claims due to insufficient 

evidence of intent.66

In sum, the notion that women already have adequate, well-functioning tools to 

remedy pay discrimination is belied by the experience of women who have attempted—unsuccessfully—to vindicate the protections of title VII and the EPA. 

3. THE PAYCHECK FAIRNESS ACT BRINGS THE EQUAL PAY ACT INTO THE MODERN ERA

In addition to adopting the standard used by a majority of Federal circuits for the 

‘‘factor other than sex’’ defense, the Paycheck Fairness Act modernizes the Equal 

Pay Act in other important ways: 

a. Widening the ‘‘Same Establishment’’ for the Prima Facie Standard 

The Paycheck Fairness Act permits plaintiffs to use comparators who work for the 

same employer at a different physical location in the same county or similar political subdivision of a State at the prima facie stage. This adapts to the reality that 

more employers have decentralized structures. Note that this ‘‘same establishment’’ 

provision relates only to the showing of a prima facie comparator who performs 

equal work: it would not preclude an employer from defending a pay disparity at 

13 

the affirmative defense stage based on a job or business-related reason, such as the 

potential need to pay workers in an urban area of a county a higher wage. 

b. Compensating for Non-Economic Harms of Pay Discrimination and Deterring Malicious Conduct 

If an employee wins an EPA case, she may recover only the amount of the pay 

disparity (up to 2 years of back pay, or 3 years if a ‘‘willful’’ violation), plus an additional equal amount as liquidated damages. The harms of pay discrimination often 

extend beyond the actual dollar amount of the pay disparity. 

Work is an essential component of how we define ourselves in this country. It 

brings us a sense of purpose, dignity, and fulfillment. In many cases, women do not 

discover egregious pay disparities between themselves and male co-workers who 

perform substantially the same jobs until after many years or even decades of working hard for an employer. When that happens, women often feel betrayed and humiliated. For many women, it eviscerates their sense of identity and impacts their 

mental and physical health in dramatic ways. Yet, the EPA does not compensate 

for these very real harms. Such damages are available for victims of racial pay discrimination under 42 U.S.C. § 1981, and under title VII for employment discrimination, albeit at very low-capped damage levels. The Paycheck Fairness Act recognizes 

that women who experience pay discrimination should likewise have those damages 

available to them, where appropriate. 

In addition, for those cases in which employers act ‘‘with malice or reckless indifference,’’ the Paycheck Fairness Act permits punitive damages. This enhanced penalty is important for those cases in which proven violations are especially egregious 

and malicious. As in other employment discrimination cases, such awards are likely 

to be extremely rare. Nevertheless, their availability will express our strong commitment to equal pay for equal work and be a strong deterrent against future violations. 

c. Permitting Class Actions for Systemic Pay Discrimination 

Under current law, the EPA does not permit class actions.67 Instead, it follows 

the Fair Labor Standards Act collective action structure, which requires every individual plaintiff to affirmatively ‘‘opt-in’’ to the litigation by filing a signed consent 

form with the court.68 The benefit of this approach is that the preliminary certification standard for a collective action is more lenient than the standard for class 

certification.69 Plaintiffs only need to show that they are ‘‘similarly situated’’ and 

do not have to satisfy the more demanding prerequisites of Federal Rule of Civil 

Procedure 23. 

The major downside is that a collective action can be considerably more expensive 

to manage and litigate. For example, rather than having a representative group of 

plaintiffs answer discovery requests and appear for depositions, defense attorneys 

often demand answers to interrogatories for and depositions of every member of the 

collective action (and then they seek to dismiss the claims of those individual plaintiffs who do not respond). This significantly raises the costs of the litigation. 

In addition, the opt-in collective action procedure is intimidating for many employees at the initiation of litigation. Although the named plaintiffs may muster up the 

courage to take a stand on behalf of the collective group, other employees may fear 

retaliation or be reluctant to go on public record to challenge the employer in court. 

In this respect, employment class actions are very different from other types of class 

actions, such as those involving consumer or securities law. Whereas consumers or 

investors can simply purchase from another company or go without the product in 

question, many employees do not want to risk unemployment and may not be able 

to move to another employer if they lose their jobs. For many women, in particular, 

claiming pay discrimination or suing their employer can be damaging to their future 

job prospects. A class action procedure will help to protect those women who are 

similarly harmed by a common discriminatory pay policy or practice but fear that 

they will be fired if they go on public record against the employer. 

Permitting class actions—which are available for most other types of employment 

discrimination and have a more exacting standard for certification—would provide 

an important tool to address systemic pay discrimination by the same employer. 

d. Using ‘‘Sunshine as a Disinfectant’’ by Encouraging Better Wage Information 

Pay secrecy is common in American workplaces. Most workers have no idea how 

their pay is determined and do not know what their peers make. Many employers 

have strict pay confidentiality policies, the violation of which can lead to termination, even though such policies violate the National Labor Relations Act.70 Some 

women have been fired for asking about the salaries of their male counterparts.71

Many women do not discover gross pay disparities until they, for example, receive 

14 

anonymous letters on the eve of retirement,72review proxy statements,73 or are publicly ridiculed by co-workers who happen to see how low her paycheck is.74

The Paycheck Fairness Act recognizes that a litigation remedy alone—which is reactive, piecemeal, and difficult to achieve—will not fully address the problem of unequal pay for equal work, especially when most pay discrimination remains ‘‘hidden 

from sight.’’75 Greater transparency about pay practices is needed to encourage compliance without litigation. 

To that end, the Paycheck Fairness Act would prohibit employers from retaliating 

against employees because they simply discuss or inquire about wages in the workplace. The Act also instructs the Department of Labor to, 

‘‘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.’’ 

These anti-retaliation and data collection provisions provide a balanced, proactive 

approach to combating pay discrimination. My scholarship has explained how the 

compensation market we have now in this country is failing because it lacks one 

of the key ingredients to a well-functioning, efficient market: information.76 Better 

information and study about existing market pay rates will help women understand 

their potential value in the marketplace and provide an incentive for employers to 

address pay disparities among employees who perform similar jobs before they turn 

into fodder for litigation. Greater pay data analysis will help to sharpen our understanding of the causes of the gender wage gap and educate employers about best 

practices. The Act also provides for training that will empower women and girls 

with better tools to negotiate salaries and an employer pay equity award that will 

encourage the development of best practices. These programs will engage both employees and employers in the effort to reduce the gender pay gap. 

In conclusion, the Paycheck Fairness Act takes a balanced, commonsense approach to adjusting the Equal Pay Act to the realities of the modern workplace. 

Without the Paycheck Fairness Act, the Equal Pay Act will continue to be an 

‘‘empty shell’’ for many women who experience pay discrimination. As Congresswoman Dwyer stated in the original debates regarding the EPA in 1963: ‘‘I can assure you that women would not be inclined to welcome an empty shell of a bill— 

legislation with a title but with no substance. This would be a heartless deception, 

and Congress would only be fooling itself if it should follow such a course.’’77

Thank you for the opportunity to testify on this important legislation. 

REFERENCES

1. See Deborah Thompson Eisenberg, Money, Sex and Sunshine: A Market-Based 

Approach to Pay Discrimination, 43 ARIZ. ST. L.J. 951, 971–82 (2011). 

2. See, e.g., DANIEL H. WEINBERG, U.S. DEP’T OF COMMERCE, CENSUS 2000 SPECIAL

REPORTS, EVIDENCE FROM CENSUS 2000 ABOUT EARNINGS BY DETAILED OCCUPATION

FOR MEN AND WOMEN 21 (May 2004) (‘‘There is a substantial gap in median earnings between men and women that is unexplained, even after controlling for work 

experience . . . education, and occupation.’’); U.S. GEN. ACCT. OFFICE, GAO–04–35, WOMEN’S EARNINGS: WORK PATTERNS PARTIALLY EXPLAIN DIFFERENCE BETWEEN

MEN’S AND WOMEN’S EARNINGS 2 (2003) (concluding based on nationally representative longitudinal data set that women in 2000 earned only 80 percent of what men 

earned after accounting for education, occupation, hours worked, and time away 

from the workplace because of family responsibilities); STEPHEN J. ROSE & HEIDI I. 

HARTMANN, INST. FOR WOMEN’S POL’Y RES., STILL A MAN’S LABOR MARKET: THE

LONG-TERM EARNINGS GAP 9–10 (2004), available at http://www.iwpr.org/pdf/ 

C355.pdf (finding that differences in men’s and women’s labor force attachment do 

not explain the gap); Francine D. Blau & Lawrence M. Kahn, Gender Differences 

in Pay 10 (Nat’l Bureau of Econ. Research, Working Paper No. 7732, 2000) (finding 

unexplained residual of 10–15 percent of total wages, after controlling for other factors that may explain gender wage gap). 

3. See Deborah Thompson Eisenberg, Shattering the Equal Pay Act’s Glass Ceiling, 63 SMU L. REV. 17, 23–28 (2010) (‘‘Shattering’’); Money, Sex and Sunshine: A 

Market-Based Approach to Pay Discrimination, 43 ARIZ. ST. L.J. 951, 971–82 (2011) 

(‘‘Money, Sex and Sunshine’’); Wal-Mart v. Dukes: Lessons for the Legal Quest for 

Equal Pay, 46 N. ENG. L. REV. 229 (2012); Stopped at the Starting Gate: The Overuse of Summary Judgment in Equal Pay Cases, 57 N.Y. L. REV. 815 (2012/13) 

(‘‘Overuse of Summary Judgment’’). All of these articles are available at 

www.ssrn.com/author=1401276. 

4. JOAN ENTMACHER, KATHERINE GALLAGHER ROBBINS, & LAUREN FROLICH, NAT’L

WOMEN’S LAW CTR., WOMEN ARE 76 PERCENT OF WORKERS IN THE 10 LARGEST LOWWAGE JOBS AND SUFFER A 10-PERCENT WAGE GAP (Mar. 2014), available at http:// 

15 

www.nwlc.org/sites/default/files/pdfs/womenlarel76lpercentloflworkersl inlthel10llargestllow-wageljobslandlsufferlal10lpercentlwagelgap 

.pdf. 

5. BUREAU OF LABOR STATISTICS, U.S. DEP’T OF LABOR, HIGHLIGHTS OF WOMEN’S

EARNINGS IN 2009, at 8 tbl.1 (2010), available at http://www.bls.gov/cps/ 

cpswom2009.pdf [2009 HIGHLIGHTS]. Women who earn a bachelor’s degree and higher earn 73.1 percent as much as their male colleagues, whereas those with less than 

a high school diploma earn 76.4 percent, and those with a high school diploma, 75.7 

percent. 

6. Id. at 14 tbl.2. 

7. Id. at 16 tbl.2. 

8. Id. at 20 tbl.2. 

9. Id. at 12 tbl.2. 

10. Id. at 10 tbl.2. Within the ‘‘management occupations’’ category, the earnings 

gap was the largest for financial managers (66.6 percent) and the smallest for lodging managers (84.6 percent). Id. Chief executives also fall in the managers’ category, 

with female chief executives earning 74.5 percent as much as male chief executives. 

Id. 

11. Anthony T. LoSasso, et al., The $16,819 Pay Gap for Newly Trained Physicians: The Unexplained Trend of Men Earning More Than Women, 30 HEALTH AF- FAIRS 193 (2011). 

12. Id. at 201. 

13. JUDY GOLDBERG DEY & CATHERINE HILL, AAUW EDUCATIONAL FOUNDATION, BEHIND THE PAY GAP 10 (2007), available at http://www.aauw.org/learn/research/ 

upload/behindPayGap.pdf (‘‘If the pay gap is going to disappear naturally over 

time, we would expect that pay differences among full-time female and male workers after college would be small or nonexistent. . . . Yet 1 year after college, female 

graduates working full-time earn only about 80 percent as much as male graduates 

earn.’’). 

14. 2009 HIGHLIGHTS tbl.5, at 40. 

15. Id. at 13–14 tbl.2. 

16. Id. at 15–16. 

17. Id. at 13–14. 

18. Id. at 21–22. 

19. Plaintiffs’ Motion for Class Certification and Memorandum of Points and Authorities at 26, Dukes, 222 F.R.D. 137 (N.D. Cal.) (No. C–01–2252 MJJ) (providing 

examples of sex-based explanations for pay disparities by Walmart supervisors). 

20. Barriers to Justice and Accountability: How the Supreme Court’s Recent Rulings Will Affect Corporate Behavior: Hearing Before the S. Comm. on the Judiciary, 112th Cong. (June 29, 2011) (statement of Betty Dukes), available at http://judiciary.senate.gov/pdf/11–6–29%20Dukes%20Testimony.pdf. 

21. For example, Lilly Ledbetter’s supervisor told her that it was ‘‘a lot easier to 

downgrade you. . . . You’re just a little female and these big old guys, I mean, 

they’re going to beat up on me and push me around and cuss me.’’ Brief for the Petitioner at 4, Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (No. 05– 

1074), 2006 WL 2610990 at 6; see also Brinkley-Obu v. Hughes Training, Inc., 36 

F.3d 336, 340 (4th Cir. 1994) (employer told plaintiff to be an engineer or a 

‘‘mama’’). 

22. See Deborah J. Anderson et al., The Motherhood Wage Penalty Revisited: Experience, Heterogeneity, Work Effort, and Work-Schedule Flexibility, 56 INDUS. & LAB. 

REL. REV. 273, 273–76 (2003) (finding motherhood wage penalty of approximately 

5 percent for one child and 7 percent for two or more children); Michelle J. Budig 

& Paula England, The Wage Penalty for Motherhood, 66 AM. SOC. REV. 204, 219– 

20 (2001) (finding that interruptions from work, working part-time, and decreased 

seniority/experience collectively explain no more than about one-third of the motherhood penalty of approximately 7 percent per child). 

23. Shelley J. Correll et al., Getting a Job: Is There a Motherhood Penalty?, 112 

AM. J. SOC. 1297, 1297 (2007). 

24. Id. at 1316. 

25. Id. 

26. Id. at 1317. 

27. JOAN WILLIAMS, CTR. FOR WORKLIFE LAW & HEATHER BOUSHEY, CTR. FOR AM. 

PROGRESS, THE THREE FACES OF WORK-FAMILY CONFLICT 36 (2010), available at 

http://www.worklifelaw.org/pubs/ThreeFacesofWork-FamilyConflict.pdf. 

28. Id. at 1. 

29. Id. at 2. 

30. Id. at 3. 

31. Id. 

16 

32. I discuss this case in more detail in my scholarship. See Shattering, at 48 and 

Money, Sex, and Sunshine, at 992–93. 

33. See Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias 

Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995) (reviewing cognitive psychology scholarship regarding the nature of 

human inference and the roles played by cognition and motivation in decisionmaking). 

34. Hannah Riley Bowles & Kathleen L. McGinn, Gender in Job Negotiations: A 

Two-Level Game, 24 NEGOT. J. 393, 396 (2008); Hannah Riley Bowles, Linda Babcock & Kathleen McGinn, Constraints and Triggers: Situational Mechanics of Gender in Negotiation, 89 J. PERSONALITY & SOC. PSYCHOL. 951 (2005). 

35. Id. 

36. KATHERINE V.W. STONE, FROM WIDGETS TO DIGITS: EMPLOYMENT REGULATION

FOR THE CHANGING WORKPLACE 165 (2004). 

37. LINDA BABCOCK & SARA LASCHEVER, WOMEN DON’T ASK 65 (2003) 

(‘‘[K]nowledge of what the market will pay for their skills and time can help override women’s inaccurate sense of self-worth.’’). 

38. Brobst v. Columbus Servs. Int’l, 761 F.2d 148, 156 (3d Cir. 1985) (‘‘Given the 

fact intensive nature of the [Equal Pay Act] inquiry, summary judgment will often 

be inappropriate [in EPA cases].’’). 

39. Overuse of Summary Judgment in Equal Pay Cases, supra, at 821–24. 

40. In Shattering the Equal Pay Act’s Glass Ceiling, I conducted an empirical 

analysis of every reported case involving an Equal Pay Act claim at a Federal appellate circuit court from 1970 to 2009. I found that employees prevailed on equal pay 

claims only 35 percent of the time from 2000–09, a substantial decrease from previous decades: employees prevailed on appeal in 55 percent of EPA cases in the 

1990s, 52 percent in the 1980s, and 59 percent in the 1970s. 

41. 29 U.S.C. § 206(d)(1) (2006). 

42. See Shattering, supra. 

43. Id. 

44. Overuse of Summary Judgment, at 836. 

45. See Steger v. Gen. Elec. Co., 318 F.3d 1066, 1078–79 (11th Cir. 2003) (‘‘Because the evidence showed that the salary retention plan was justified by ‘special 

exigent circumstances connected with the business,’ and because there was no evidence which rebutted GE’s explanation, the district court did not err in submitting 

the matter to the jury or in denying Steger’s motion for judgment as a matter of 

law.’’ (quoting Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995)); Belfi v. Prendergast, 191 F.3d 129, 136 (2d Cir. 1999) (‘‘To successfully establish the [factorother-than-sex] defense, an employer must also demonstrate that it had a legitimate 

business reason for implementing the gender-neutral factor that brought about the 

wage differential.’’); Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 526 (2d Cir. 

1992) (‘‘[A]n employer bears the burden of proving that a bona fide business-related 

reason exists for using the gender-neutral factor that results in a wage differential 

in order to establish the factor-other-than-sex defense.’’); EEOC v. J.C. Penney Co., 

843 F.2d 249, 253 (6th Cir. 1992) (‘‘[The factor-other-than-sex] defense does not include literally any other factor, but a factor that, at a minimum, was adopted for 

a legitimate business reason.’’); Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1571 

(11th Cir. 1988) (‘‘[The factor-other-than-sex] exception applies when the disparity 

results from unique characteristics of the same job; from an individual’s experience, 

training, or ability; or from special exigent circumstances connected with the business.’’); Kouba v. Allstate Ins. Co., 691 F.2d 873, 876 (9th Cir. 1982) (‘‘The Equal 

Pay Act concerns business practices. It would be nonsensical to sanction the use of 

a factor that rests on some consideration unrelated to business. An employer thus 

cannot use a factor which causes a wage differential between male and female employees absent an acceptable business reason.’’). 

46. EEOC, Directives Transmittal No. 915.003, § 10.IV.F.2. & nn.65–66 (Dec. 5, 

2000), available at http://www.eeoc.gov/policy/docs/compensation.html#Nl65l 

(‘‘An employer . . . must show that the factor is related to job requirements or otherwise is beneficial to the employer’s business [and] the factor must be used reasonably 

in light of the employer’s stated business purpose as well as its other practices.’’). 

47. Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 525 (2d Cir. 1992), cert. 

denied, 506 U.S. 965 (1992). 

48. See Wernsing v. Dep’t of Human Servs., State of Ill., 427 F.3d 466, 470 (7th 

Cir. 2005) (discussing split between Seventh and Eighth circuits and those circuits 

that require an ‘acceptable business reason’). 

49. Kouba v. Allstate Ins. Co., 691 F.2d 873, 876 (9th Cir. 1982). 

50. See Money, Sex, and Sunshine, supra at 964–71 (describing market purpose 

of the EPA). 

17 

51. Brennan v. Victoria Bank & Trust Co., 493 F.2d 896, 902 (5th Cir. 1974) 

(‘‘[U]se of the ‘market force’ theory, i.e. a woman will work for less than a man, is 

not a valid consideration under the Act.’’); Brennan v. Prince William Hosp. Corp., 503 F.2d 282, 286 (4th Cir. 1974) (finding ‘‘the availability of women at lower wages 

than men’’ to be ‘‘precisely the criterion for setting wages that the Act prohibits’’); 

Brennan v. City Stores, Inc., 479 F.2d 235, 241 n.12 (5th Cir. 1973) (stating that 

there is ‘‘no excuse’’ for hiring female workers at a lower rate ‘‘simply because the 

market will bear it’’); Hodgson v. Brookhaven Gen. Hosp., 436 F.2d 719, 726 (5th 

Cir. 1970) (finding that an employer’s greater bargaining power with women ‘‘is not 

the kind of factor [other than sex] Congress had in mind’’ in enacting the EPA); 

Hodgson v. Corning Glass Works, 474 F.2d 226, 234 (2d Cir. 1973) (noting that Congress passed the EPA ‘‘[r]ecognizing the weaker bargaining position of many women 

and believing that discrimination in wage rates represented unfair employer exploitation of this source of cheap labor’’). 

52. 417 U.S. 188, 207 (1974) (quoting § 2(a)(5), 77 Stat. at 56) (emphasis added). 

53. See Jeanne M. Hamburg, Note, When Prior Pay Isn’t Equal Pay: A Proposed 

Standard for the Identification of ‘Factors Other than Sex’ Under the Equal Pay Act, 89 COLUM. L. REV. 1085, 1108 (1989) (urging greater scrutiny of prior salary defenses). 

54. See, e.g., Balmer v. HCA, Inc., 423 F.3d 606, 615 (6th Cir. 2005) (finding no 

EPA violation where male comparator negotiated higher salary and female employee 

was not permitted to negotiate starting salary); Reznick v. Associated Orthopedics 

& Sports Med., P.A., 104 F. App’x 387, 391–92 (5th Cir. 2004) (finding no EPA violation where a male surgeon negotiated higher compensation level in his initial employment contract than the plaintiff); Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 

1462 (7th Cir. 1994) (finding no EPA violation where a male comparator negotiated 

a higher salary); EEOC v. Home Depot U.S.A., Inc., No. 4:07CV0143, 2009 WL 

395835, at *10 (N.D. Ohio Feb. 17, 2009) (finding a valid factor other than sex 

where male employees were able to negotiate higher starting salaries than the 

plaintiff); Hardwick v. Blackwell Sanders Peper Martin, L.P., No. 25–859–CV–W– 

FJG, 2006 WL 2644997, at *3–4 (W.D. Mo. Sept. 14, 2006) (finding male comparator 

had negotiated a higher salary and the plaintiff did not negotiate). But see Mulhall v. Advance Sec., Inc., 19 F.3d 586, 596 (11th Cir. 1994) (rejecting the employer’s defense that wage disparities resulted from negotiations surrounding the purchases of 

comparators’ businesses); Glodek v. Jersey Shore State Bank, No. 4:07–CV–A–2237, 

2009 WL 2778286, at *9 (M.D. Pa. Aug. 28, 2009) (rejecting negotiation defense and 

stating ‘‘[t]hough salary demands are not entirely irrelevant, it would be inequitable 

to permit defendant to shelter itself from liability by stating that one individual received greater compensation than another simply because he or she requested it’’); 

Day v. Bethlehem Ctr. Sch. Dist., No. 07–159, 2008 WL 2036903, at *9 (W.D. Pa. 

May 9, 2008) (rejecting the school district’s defense at the summary judgment stage 

that male comparators negotiated salaries that were higher than the standard salary scale); Klaus v. Hilb, Rogal & Hamilton Co., 437 F. Supp. 2d 706, 723–24 (S.D. 

Ohio 2006) (denying summary judgment where the employer defended a $36,000 

wage disparity based on the male comparator’s negotiation of higher salary). 

55. LINDA BABCOCK & SARA LASCHEVER, WOMEN DON’T ASK (2003); Hannah Riley 

Bowles & Kathleen L. McGinn, Gender in Job Negotiations: A Two-Level Game, 24 

NEGOT. J. 393, 395 (2008); Deborah A. Small, et al., Who Goes to the Bargaining 

Table? The Influence of Gender and Framing on the Initiation of Negotiation, 93 J. 

PERSONALITY & SOC. PSYCHOL. 600 (2007); Lisa Barron, Ask and You Shall Receive?: 

Gender Differences in Negotiators’ Beliefs About Requests for a Higher Salary, 56 

HUM. RELATIONS 635 (2003); B. Gerhart & S. Rynes, Determinants and Consequences of Salary Negotiation by Male and Female MBA Graduates, 76 J. APPLIED

PSYCHOL. 256 (1991). 

56. Deposition Transcript at 32–5, 75–80 (Mar. 6, 2008) (on file with author). 

57. Id. at 79–80 (emphasis added). 

58. See Siler-Khodr v. Univ. of Tex. Health Sci. Ctr., 261 F.3d 542, 547 (5th Cir. 

2001) (stating that the market forces defense simply perpetuates discrimination). 

59. See Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 344 (4th Cir. 1994) 

(explaining the differences in the burdens of proof for title VII and the EPA). 

60. Parada v. Great Plains Int’l of Sioux City, Inc., 483 F. Supp. 2d 777, 791 (N.D. 

Iowa 2007). 

61. Tom Krattenmaker, Compensation: What’s the Big Secret?, HARV. MGMT. 

COMM. LETTER, Oct. 2002, at 3. 

62. See BABCOCK & LASCHEVER, WOMEN DON’T ASK: THE HIGH COST OF AVOIDING

NEGOTIATION—AND POSITIVE STRATEGIES FOR CHANGE 98–100 (2007) (reviewing 

studies that show that ‘‘people’s prejudices can powerfully influence the ways in 

which they respond to men and women without their realizing it’’); Claudia Goldin 

18 

& Cecilia Rowe, Orchestrating Impartiality: The Impact of ‘‘Blind’’ Auditions on Female Musicians, 90 AM. ECON. REV. 715, 716 (2000) (reporting that when auditions 

for an orchestra were conducted with the performers behind a screen, women were 

substantially more likely to advance out of the preliminary selection round). 

63. See, e.g., Barbara S. Flagg, Fashioning a Title VII Remedy for Transparently 

White Subjective Decisionmaking, 104 Yale L.J. 2009 (1995); Linda Hamilton 

Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995); David Benjamin Oppenheimer, Negligent Discrimination, 141 U. PA. L. REV. 899 (1993); Amy 

L. Wax, Discrimination as Accident, 74 IND. L.J. 1129 (1999). 

64. BABCOCK & LASCHEVER, at 119–20 (‘‘[W]omen fare better when an evaluation 

process is more structured, includes clearly understood benchmarks, and is less 

open to subjective judgments.’’ (citing S. FISKE & S.E. TAYLOR, SOCIAL COGNITION

(1984); M.E. Heilman, The Impact of Situational Factors on Personnel Decisions 

Concerning Women: Varying the Sex Composition of the Applicant Pool, 26 ORG. 

BEHAV. & HUMAN PERFORMANCE 386 (1980))). 

65. In some cases, there is evidence of gender-based comments or other discriminatory actions that can help to prove intent in title VII cases. For example, Lilly 

Ledbetter testified that her supervisor ‘‘threatened to give her poor evaluations if 

she did not succumb to his sexual advances.’’ Brief for the Petitioner, supra note 

8, at 5–6. When she questioned him about poor evaluations, he responded that it 

was ‘‘a lot easier to downgrade you. . . . You’re just a little female and these big 

old guys, I mean, they’re going to beat up on me and push me around and cuss me.’’ 

Id. at 6; see also Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 340 (4th Cir. 

1994) (employer told plaintiff to be an engineer or a ‘‘mama’’). 

66. See, e.g., Fallon v. Illinois, 882 F.2d 1206, 1217 (7th Cir. 1989) (‘‘It is possible 

that a plaintiff could fail to meet its burden of proving a title VII violation, and at 

the same time the employer could fail to carry its burden of proving an affirmative 

defense under the Equal Pay Act.’’); Brewster v. Barnes, 788 F.2d 985, 987 (4th Cir. 

1986) (holding defendant liable for pay discrimination under EPA, but not under 

title VII). 

67. 29 U.S.C. § 216(b) (2006). 

68. Id. (‘‘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.’’). 

69. See Cunningham v. Elec. Data Sys. Corp., 754 F. Supp. 2d 638, 643 (S.D.N.Y. 

2010) (internal quotations and citations omitted) (‘‘The similarly situated standard 

is far more lenient, and indeed, materially different, than the standard for granting 

class certification under Fed. R. Civ. P. 23.’’). 

70. See Rafael Gely, Pay Secrecy/Confidentiality Rules and the National Labor 

Relations Act, 6 U. PA. J. LAB. & EMP. L. 121, 122 n.2, 124–25 (2003). 

71. Crabtree v. Baptist Hosp. of Gadsden, Inc., No. 82–AR–1849–M, 1983 WL 

30400 (N.D. Ala. Dec. 7, 1983), aff ’d, 749 F.2d 1501 (11th Cir. 1985). 

72. Lilly Ledbetter received an anonymous letter informing her of pay disparities. 

See Katie Putnam, Note, On Lilly Ledbetter’s Liberty: Why Equal Pay for Equal 

Work Remains an Elusive Reality, 15 WM. & MARY J. WOMEN & L. 685, 689 (2009). 

73. Margaret Heffernan, the former CEO at CMGI, told this story: 

For years, I was the only woman CEO at CMBI. But it wasn’t until I read 

the company’s proxy statement that I realized that my salary was 50 percent 

of that of my male counterparts. I had the CEO title, but I was being paid as 

if I were a director.—BABCOCK & LASCHEVER, at 104. 

74. In one case, the plaintiff ‘‘accidentally left her pay stub in plain view, and 

some of her colleagues began laughing and making negative remarks about her 

pay.’’ Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 785 (7th Cir. 2007). 

75. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 649–50 (2007) (Ginsburg, J., dissenting) (citing Goodwin v. Gen. Motors Corp., 275 F.3d 1005, 1008–09 

(10th Cir. 2002) (‘‘[P]laintiff did not know what her colleagues earned until a printout listing of salaries appeared on her desk, 7 years after her starting salary was 

set lower than her co-workers’ salaries.’’); McMillan v. Mass. Soc’y for the Prevention 

of Cruelty to Animals, 140 F.3d 288, 296 (1st Cir. 1998) (‘‘[P]laintiff worked for employer for years before learning of salary disparity published in a newspaper.’’)). 

76. See Money, Sex and Sunshine: A Market-Based Approach to Pay Discrimination. 

77. 109 CONG. REC. 9200 (1963) (statement of Rep. Dwyer). 

Senator MIKULSKI. Ms. Young. 

19 

STATEMENT OF ReSHONDA YOUNG, OPERATIONS MANAGER, 

ALPHA EXPRESS, INC., WATERLOO, IA 

Ms. YOUNG. Chair Mikulski, Ranking Member Alexander, and 

members of the committee, I want to thank you for the opportunity 

to testify today and share a small business perspective on pay equity. 

My name is ReShonda Young, and I serve as operations manager 

and corporate vice president for two family businesses based in 

Waterloo, IA. Alpha Express is a transportation and delivery company that hauls parts—machine parts, farm equipment—all across 

the United States and into Canada, and Alpha Services is a contracting business that provides maintenance services to companies 

like John Deere. 

Our business is a true family business. My father started the 

company 25 years ago, and back then, it was just him and one 

partner. Now, we employ about 50 people. I’ve also just launched 

a new business of my own. It’s a gourmet popcorn shop called Popcorn Heaven in Waterloo, IA. We started in February and already 

have 10 employees. 

I worked in Iowa’s insurance sector for more than 10 years. But 

entrepreneurship is my passion. I guess you could say that small 

business just runs in my blood. I want to share with you the story 

of what happened when I joined my father in the family business 

8 years ago. When I started taking on H.R. responsibilities, I found 

an issue with our paychecks. Women were being paid less for the 

same work. 

We had a woman who had been with us for 16 years. She was 

the one who kept everything in order, yet she was only getting paid 

a little more than half of what male employees were making, even 

though she had a lot more responsibilities. I knew I had to do 

something. I believe people should be paid according to the job 

they’re doing and the value that they bring to the company, nothing less. 

I refused to allow women to be paid less than the value we bring 

to our company because of our gender. So I stuck my neck out. I 

called our accountant and raised the pay of our women workers 

without authorization. Now, I love my father. He’s an amazing 

man, and I’ve learned a lot from working with him these past 8 

years. I’m most grateful for that. But when I started working with 

him, he was 65 years old and had an old-school mentality about 

women in the workplace. 

In the end, my father came around to see things as I see them. 

He recognizes that the women on our team keep the business 

afloat, so equal pay for equal work is one of the commitments we 

make to our employees. I’m proud of this commitment, but offering 

equal pay for equal work isn’t just about doing the right thing. It 

has a positive impact on our business, too. It boosts our employees’ 

morale and their respect for the business. 

It also boosts retention. Cutting down on turnover saves our 

business money. It also saves us a lot of stress to know that we 

have a stable team that we can count on to get the job done. For 

these reasons, I know maintaining our commitment to equal pay is 

good business for Alpha Express. 

20 

In February, I launched my new business called Popcorn Heaven, 

and we offer more than 50 flavors of gourmet popcorn in a happy 

and upbeat environment. So far, the customer response has been 

great. You could say business is really popping. We’ve already got 

10 full-time and part-time employees, and I’m making the same 

commitment to decent pay and paying living wages and pay equity 

that we’ve made in my father’s business. 

I know the leading opponents of things like pay equity laws are 

often big corporations. But if a startup small business like mine 

can commit to equal pay and paying living wages and make it work 

for our business, then I believe that bigger companies can do the 

same. 

As a small business owner and manager, I support the Paycheck 

Fairness Act because it’s in line with my values. Because I’m committed to pay equity, I have nothing to fear from this legislation. 

If other businesses are truly committed to pay equity, they’ll have 

nothing to fear, either. I support it because it will be good for our 

local economy. Ensuring pay equity will put more money in women’s pockets to spend in Waterloo businesses, like taking their kids 

out to experience a little taste of Popcorn Heaven. 

And I support it because it will level the playing field of business 

competition. Small business owners don’t like being forced into a 

race to the bottom by big box stores and chains that can undercut 

us by underpaying their women workers. Making a national commitment to pay equity allows small businesses to pay our workers 

fair wages without fear of being undercut by low-road competitors. 

As a small business owner and manager, I urge your support for 

the Paycheck Fairness Act. Thank you. 

[The prepared statement of Ms. Young follows:] 

PREPARED STATEMENT OF RESHONDA YOUNG

SUMMARY

BACKGROUND

My name is ReShonda Young. I serve as operations manager and corporate vice 

president for two family businesses based in Waterloo, IA. Alpha Express is a transportation and delivery company that hauls parts all across the United States and 

into Canada. Alpha Services is a contracting business that provides maintenance 

services to companies like John Deere. We employ about 50 people. I’ve also just 

started a new business, a popcorn shop called Popcorn Heaven. We already have 10 

employees. 

PAYCHECK FAIRNESS AT ALPHA EXPRESS, INC

When I left corporate America and joined my dad in the family business 8 years 

ago, I found an issue with our paychecks. We had a woman who had been with us 

for 16 years. She was the one who kept everything in order. Yet, she was only getting paid a little more than half of what male employees were making, although she 

had a lot more responsibilities than the male employees. 

I knew I had to do something. So, I stuck my neck out: I called our accountant 

and raised the pay of our women workers. In the end my father came around to 

see things as I see them. Equal pay for equal work is one of the commitments we 

make to our employees. I’m proud of this commitment. 

But offering equal pay for equal work isn’t just about doing the right thing—it 

has a positive impact on our business, too. It boosts our employees’ morale and their 

respect for the business. It also boosts retention. Cutting down on turnover saves 

us money and it also saves us a lot of stress. 

21 

COMMITTING TO PAY EQUITY IN A SMALL BUSINESS START-UP

In February, I launched my new business. We offer more than 50 flavors of gourmet popcorn. We’ve already got 10 full-time and part-time employees. And I’m carrying forward the same commitments to decent wages and pay equity that we’ve 

made in my dad’s business. 

I know that the leading opponents of things like pay equity are often big corporations. But if we, as a startup small business, can commit to pay equity and make 

it work for our business, then I believe the bigger companies out there can, too. 

SMALL BUSINESS SUPPORT FOR THE PAYCHECK FAIRNESS ACT

As a small business owner and manager, I support the Paycheck Fairness Act because it’s in line with my values. I’m committed to pay equity so I have nothing 

to fear from the Paycheck Fairness Act. If other businesses are truly committed to 

pay equity, they’ll have nothing to fear, either. 

I support it because it will be good for our local economy. Ensuring pay equity 

for women workers will put more money in their pockets to spend in local businesses like mine and boost local economies. 

And I support it because it levels the playing field in terms of business competition. Making a national commitment to equal pay for equal work will allow small 

business owners to pay our workers fair wages without fear of being undercut by 

low-road competitors who underpay their women workers. 

As a small business owner and manager, I urge your support for the Paycheck 

Fairness Act. Thank you. 

Chair Mikulski, Ranking Member Alexander, and members of the committee, 

thank you for the opportunity to testify today and to share my perspective on pay 

equity issues and the Paycheck Fairness Act as a small business manager and 

owner. 

My name is ReShonda Young. I serve as operations manager and corporate vice 

president for two family businesses based in Waterloo, IA. Alpha Express is a transportation and delivery company that hauls parts all across the United States and 

into Canada. Alpha Services is a contracting business that provides maintenance 

services to companies like John Deere. 

Our business is a true family business. My father started the company 25 years 

ago. Back then, it was just him and one partner. Now we employ about 50 people. 

I’ve also recently started a new venture of my own, a popcorn shop called Popcorn 

Heaven in Waterloo. We started in February and already have 10 employees. 

I hold a degree in Business Management. I worked in Iowa’s insurance sector for 

more than 10 years, but entrepreneurship is my passion. I guess you could say 

small business runs in my blood. 

PAYCHECK FAIRNESS AT ALPHA EXPRESS, INC

I want to share with you the story of what happened when I left corporate America and joined my dad’s business 8 years ago. With the company starting to expand 

and evolve, I started taking on more H.R. responsibilities at Alpha Express. In the 

process, I found an issue with our paychecks. 

There was a discrepancy in what women employees in the business were being 

paid. We had a woman who had been with us for 16 years. She was the one who 

kept everything in order. Yet, she was only getting paid a little more than half of 

what male employees were making, although she had a lot more responsibilities 

than the male employees. 

I knew I had to do something. For my dad and me to be able to work together, 

and make his company into what he dreamed it could be, things had to change. 

I believe people should be paid according to the job they’re doing and the value 

they bring to a company—nothing less. I refuse to allow myself—or other women 

workers—to be paid less than the value we bring to our company because of our 

gender. 

So, I stuck my neck out: when my concerns weren’t immediately addressed, I 

called our accountant and raised the pay of our women workers . . . without authorization. There are some things you just do. If you get in trouble, you deal with 

it because it’s the right thing to do. 

Let me be clear, I love my dad. He is an amazing man and I’ve learned a lot from 

working with him these past 8 years. I am most grateful for that, but when I started working with him he was 65 years old and had an ‘‘old school’’ mentality about 

women in the workplace. 

22 

In the end, my father came around to see things as I see them. Equal pay for 

equal work is one of the commitments we make to our employees. My dad recognizes that the women on our team keep the business afloat. It wouldn’t survive 

without us. Our pay scales were adjusted and two-thirds of our female employees 

received pay raises to be in line with their male counterparts (the rest worked in 

areas with pre-set wages and pay raises). 

I’m proud of the decisions we’ve made in our business, and I’m committed to continuing to offer fair wages and equal pay for equal work. We think of our employees 

as family, and at the end of the day I have to be able to sleep at night. Knowing 

I’m doing right by them, I can. 

But offering equal pay for equal work isn’t just about doing the right thing—it 

has a positive impact on our business, too. 

Our commitment to pay equity boosts our employees’ morale and their respect for 

the business. It feels good for our women employees to know they’re taking home 

a fair paycheck. They’re happier to come in to work and be more productive. They’re 

willing to give more of themselves when they know the business is giving them a 

fair shake in return. 

Our commitment to pay equity also boosts employee retention. Turnover has 

major costs for businesses, both in terms of lost productivity and the up front costs 

of advertising, hiring, and training new employees. And, as someone who’s had to 

run the dispatch and pick up other responsibilities in times of transition, while continuing to carry out all my other regular job responsibilities, I know turnover takes 

a toll on small business owners and managers, too. We’re the last line of defense 

and the ones who have to pick up anything that isn’t getting done at the end of 

the day. Cutting down on turnover saves us money and it also saves us all that 

extra stress. 

For these reasons, I know offering equal pay for equal work is good business for 

Alpha Express. 

COMMITTING TO PAY EQUITY IN A SMALL BUSINESS START-UP

In February, I launched my new business, a popcorn shop called Popcorn Heaven 

in Waterloo. We offer more than 50 flavors of gourmet popcorn in a happy and upbeat environment. So far, the customer response has been great—you could say 

business is popping. We just did the Cedar Valley Baconfest this past weekend. 

One of my goals for starting this business was to offer job opportunities in downtown Waterloo, and we’ve already got 10 full-time and part-time employees. And I’m 

carrying forward the same commitments to decent wages and pay equity that we’ve 

made in my dad’s business. 

I know that the opponents of things like pay equity are often big corporations. 

But if we, as a startup small business, can commit to pay equity and make it work 

for our business, then I believe the bigger companies out there can, too. 

SMALL BUSINESS SUPPORT FOR THE PAYCHECK FAIRNESS ACT

As a small business owner and manager, I support the Paycheck Fairness Act. 

I support it because it’s in line with my values as a business owner. I’m committed to pay equity for my employees so I have nothing to fear from the Paycheck 

Fairness Act. If other businesses are truly committed to pay equity, they’ll have 

nothing to fear, either. 

I support it because it will be good for our local economy. Ensuring pay equity 

for women workers will put more money in their pockets to spend in local businesses—like taking their kids out to experience a little taste of heaven . . . Popcorn 

Heaven, that is. This will help businesses like mine and boost local economies. 

And I support it because it levels the playing field in terms of business competition, supporting responsible businesses that treat our employees fairly. Small business owners don’t like being forced into a race to the bottom by big box stores and 

chain operations that threaten to undercut us by underpaying their women workers. 

Making a national commitment to equal pay for equal work will allow small business owners to pay our workers fair wages without fear of being undercut by lowroad competitors. 

As a small business owner and manager, I urge your support for the Paycheck 

Fairness Act. Thank you. 

Senator MIKULSKI. Thank you very much for that excellent testimony. 

Ms. Sleeman. 

23 

STATEMENT OF KERRI SLEEMAN, MECHANICAL ENGINEER, 

HOUGHTON, MI 

Ms. SLEEMAN. Thank you, Senator Mikulski and everyone here 

today, for having us. 

In 1998, I began work at an engineering company in Michigan. 

When I was offered the position, they told me that the company did 

not negotiate salaries. I took the job and worked there for 5 years 

as a design supervisor. I managed several other workers, mostly 

males. I always received glowing reviews. 

My company, an automotive supplier, was forced into bankruptcy 

in 2003. Not only was I out of a job, but the employees of the company had to go through bankruptcy court to get our final paychecks 

and back vacation pay. I signed up to receive updates about the 

court’s list of claims and was stunned by what I found. All of the 

men I had been supervising while at the company were paid more 

than me. 

It was heartbreaking, it was embarrassing, it was infuriating, 

and it will affect me and my pay for the rest of my life. When I 

finally got my wits about me several months later, I asked my 

former supervisor about it. He said that the men I supervised were 

the bread winners for their wives and children, and that was probably taken into account. 

The company paid those men more than me, not because of their 

qualifications, not because of their experience, not because of their 

performance or their productivity, but because they were men and 

I was a woman. I was shocked and saddened. I never thought that 

this could happen to me. In my testimony, you’ll hear a little bit 

more about my rave performance reviews so that you can understand why this was so shocking. 

I didn’t know I was being discriminated against when I worked 

there. I was rebuffed in my attempt to negotiate. I received rave 

performance reviews. What more could I have done? You can’t fight 

back when you’re not privy to the rules, and you can’t negotiate 

your way around this kind of discrimination. 

What happened to me is happening across the country, and 

that’s why we need the Senate to pass the Paycheck Fairness Act. 

We’re more than 50 years past the passage of the Equal Pay Act 

of 1963 and still dealing with a sizable pay gap. This clearly points 

to the fact that the current law is not strong enough to get the job 

done. It’s well overdue for a makeover. Our economy has changed, 

family structures have changed, and working women have changed. 

It’s time for the pay gap to finally change as well. 

My co-workers and I didn’t talk about our wages, because we 

didn’t know what would happen if we did, and none of us could afford to get fired. The Paycheck Fairness Act would prohibit employers from retaliating against employees who share their salary information with co-workers or ask their employers about wage practices. I think this is very important. 

Workers, and especially women, need this protection. The American Association of University Women did research that drilled 

down beyond the infamous 77 percent stat. They found that women 

just 1 year out of college, working full-time, were paid on average 

just 82 percent of their male counterparts. 

24 

Even after controlling for factors commonly understood to affect 

earnings, the gap remains, even amongst those with the same 

major working in the same occupation. In fact, about one-third of 

the pay gap remains unexplained. This gap begins early in women’s careers and is even larger for mothers and women of color. 

I’ve lost more than $10,000 in pay and retirement benefits. 

That’s money lost directly to gender-based pay discrimination. 

What could I have done with this money? I might have lowered the 

refinancing on my house. I know I would have been able to pay the 

co-pay for my husband’s heart surgery out of savings rather than 

using a credit card. Or I might be able to help my parents and my 

in-laws as they start their journey into retirement. 

Given the landscape, women cannot close the pay gap by ourselves. We need policymakers to do their part in ensuring that the 

protections and technical assistance of the Paycheck Fairness Act 

are there to help both employees and employers work together toward a more equitable workplace. No one should have to go 

through what I’ve gone through, no one. For the women and the 

families that you represent, I urge you to pass the Paycheck Fairness Act without delay. 

Thank you. 

[The prepared statement of Ms. Sleeman follows:] 

PREPARED STATEMENT OF KERRI SLEEMAN

In 1998, I began work at an engineering company in Michigan. When I was offered the position, they told me the company didn’t negotiate salaries. I took the 

job, and worked there for 5 years as a design supervisor. I managed several other 

workers, almost all men, and always received glowing reviews. My company, an 

automotive parts supplier, was forced into bankruptcy in 2003. Not only was I out 

of a job, but the employees of my company had to go through bankruptcy court to 

get our final paycheck and back vacation pay. I signed up to receive updates about 

the court’s list of claims, and was stunned by what I found: all the men I’d supervised had been paid more than me. It was heartbreaking. It was embarrassing. It 

was infuriating. And it will affect me for the rest of my life. 

I asked my former supervisor about it, and he said that the men I supervised 

were the breadwinners for their wives and children, and that was probably taken 

into account. The company paid those men more than me not because of their qualifications, experience, performance, or productivity, but because they were men and 

I was a woman. Frankly, I don’t know how I stayed civil during that conversation. 

I didn’t know I was being discriminated against when I worked there. I was 

rebuffed in my attempt to negotiate. I received rave performance reviews. What 

more could I have done? You can’t fight back when you’re not privy to the rules, 

and you can’t negotiate your way around such discrimination. What happened to me 

is happening across the country, and it’s why we need the Senate to pass the Paycheck Fairness Act (S. 84). 

We’re more than 50 years past the passage of the Equal Pay Act of 1963, and 

still dealing with a sizable pay gap. This clearly points to the fact that current law 

is not strong enough to get the job done. It’s well overdue for a makeover—our economy has changed, family structures have changed, and working women have 

changed. It’s time for the pay gap to finally change as well. 

My co-workers and I didn’t talk about our wages because we didn’t know what 

would happen if we did, and none of us could afford to get fired. The Paycheck Fairness Act would prohibit employers from retaliating against employees who share 

their salary information with co-workers or ask their employers about wage practices. 

Workers, and especially women, need this protection. American Association of 

University Women research drilled down beyond the now infamous 77 percent stat. 

They found that women just 1 year out of college. working full-time, were paid on 

average just 82 percent of their male counterparts. Even after controlling for factors 

commonly understood to affect earnings, the gap remains—even amongst those with 

the same major working in the same occupation. In fact, about one-third of the pay 

25 

1 AAUW. (2012). Graduating to a Pay Gap. Retrieved January 25, 2013, from www.aauw.org/ 

GraduatetoaPavGap/upload/AAUWGraduatingtoaPayGapReport.pdf. 

gap remains unexplained.* This gap begins early in women’s careers, and is even 

larger for moms and women of color. 

I’ve lost more than $10,000 in pay and retirement benefits. That’s money lost directly to gender-based pay discrimination. What would I have done with this 

money? I could have lowered the refinancing on my house. I would have been able 

to pay the co-pay for my husband’s heart surgery out of savings instead of using 

a credit card, which resulted in interest fees and constant worry. 

Given the landscape, women cannot close the pay gap by ourselves. We need policymakers to do their part, ensuring that the protections and technical assistance 

of the Paycheck Fairness Act are there to help both employees and employers work 

together toward a more equitable workplace. 

No one should have to go through what I’ve gone through. No one. For the 

women and families you represent. I urge you to pass the Paycheck Fairness Act 

without delay. 

Chairman Harkin, Ranking Member Alexander, and members of the committee, 

thank you for this opportunity to speak about my experience with pay discrimination and how the Paycheck Fairness Act could have helped me. 

In 1998, I began work at a company in Michigan that designed, built, and installed laser welding assembly systems. When I was offered the position, I was told 

the company did not negotiate salaries. As someone put it to me then, ‘‘the offer 

is what it is.’’ I took the job, and I felt honored when they offered to provide me 

with benefits immediately. I saw it as a sign of how much they already valued me. 

I worked there for 5 years as a design supervisor. It was hard work, but I was 

good at it. I managed several other workers, almost all men, and I received glowing 

reviews. My supervisor told me again and again that, ‘‘If I could duplicate you, I’d 

be able to get rid of the rest of the staff.’’ I thought I’d be at that firm for many 

years to come. 

And then the auto industry ran into trouble. As a supplier to the auto industry, 

my company also faltered. My employer was forced into bankruptcy in 2003. 

As if suddenly being out of a job wasn’t hard enough, the employees of my company had to go through bankruptcy court in order to get our final paycheck and any 

back vacation pay we were owed. I wanted to keep track of what was happening, 

so I signed up for a mailing list to see the bankruptcy court’s list of claims. 

I recognized the names on the lists, but the numbers shocked me. People I’d supervised, people below me in our pecking order, were making claims for 2 weeks 

of pay that were much larger than mine. The people I’d supervised were reporting 

they’d made more money than I did. 

I honestly couldn’t believe it. I remember squinting, making sure I was looking 

at the right names and doing the math correctly. But there it was, black and white 

on the page: all the men I’d supervised had been paid more than I was. Even the 

one woman I occasionally supervised was paid less than some of these men, who 

were on the same level as she was. Men were just paid more. 

It was heartbreaking. It was embarrassing. It was infuriating. And it will affect 

me and my family for the rest of my life. 

I was so disappointed and angry with the company. These were people I’d known 

and worked with for years! Why would they discriminate against me? I’d worked 

hard for my mechanical engineering degree, just as hard as the guys in my classes, 

because I knew it was the way to a good career. I worked just as hard or harder 

than the men I worked with. But even being in a higher paying STEM field, and 

being a highly rated supervisor on top of that, couldn’t protect me from gender pay 

discrimination. 

Soon after I saw these numbers, I talked to my former supervisor—the one who 

used to tell me, ‘‘If I could duplicate you, I’d be able to get rid of the rest of the 

staff.’’ I asked him about the pay differences. Why was I being paid less than the 

men I’d supervised? 

He said that the people I supervised—lots of young men—were the sole breadwinners for their wives and children, and that fact was probably taken into account 

when their salaries were initially offered. That was his justification. The company 

paid higher salaries to men not based on qualifications or experience, not based on 

performance or productivity, but rather because I was a working woman with no 

children. The fathers were seen as more deserving of higher pay, even though I supervised them and sometimes took over their projects because they weren’t perVerDate Nov 24 2008 16:33 Jan 17, 2017 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6621 S:\DOCS\22608.TXT DENISE
26 

forming up to par. My work was devalued because I was not a male breadwinner. 

I was considered less worthy just because I was a woman. 

I really don’t know how I stayed civil during that conversation. At the time, I remember thinking that the worst part was not knowing if there was anything I could 

have done differently. They had told me they didn’t negotiate. I was an excellent 

employee with a winning track record. What more could I have done? You can’t 

stand up for yourself when you’re not privy to the rules, and you can’t negotiate 

your way around such discrimination. 

What happened to me is happening across the country—every day, every week, 

every month, every year—to millions of Americans, and it’s why we need the Senate 

to pass the Paycheck Fairness Act (S. 84). My co-workers and I didn’t talk about our 

wages because we didn’t know what would happen if we did, and none of us could 

afford to get fired. Because, you see, that’s exactly what can happen currently when 

people share their salary information against company rules: their employer can 

punish and even fire them. This stops people from sharing information with their 

co-workers, and allows discrimination to fester and grow. 

The Paycheck Fairness Act would prohibit employers from retaliating against employees who share their salary information with other co-workers. It doesn’t require 

employers to ‘‘post’’ anyone’s salary, like those workplace safety posters we all see 

in the lunch room. It just simply says employees can’t be punished when they disclose or discuss their wages, or ask their employer about wage practices. This seems 

reasonable and fair to me, especially because these proposed anti-retaliation protections don’t apply to employees with confidential access to wage information: human 

resource staffers privy to employees’ salaries may not disclose the wage information 

of other employees. 

Workers need this protection. Women especially need this protection. 

According to the most recent statistics from the U.S. Census Bureau, the median 

earnings for U.S. women working full-time, year-round were just 77 percent of 

men’s median earnings—a gap of 23 percent that has not budged for more than a 

decade. The gap is even larger for mothers and women of color.1

This gap begins early in women’s careers, and occurs in virtually every occupation. According to one study: 

Of the 534 occupations listed by the Bureau of Labor Statistics, women earn 

more than men in exactly seven professions. Together, these seven occupations 

account for about 1.5 million working women, or about 3 percent of the full-time 

female labor force. The remaining 97 percent of full-time working women work 

in occupations where they earn less than their male counterparts.2

Research by the American Association of University Women drilled beyond the 

now infamous 77 percent stat. They found that women only 1 year out of college, 

working full-time, were paid on average just 82 percent of what their male counterparts were paid. Eighty-two percent! Even after controlling for hours worked, occupation, college major, employment sector, and other factors associated with pay, this 

gap shrinks but does not disappear—even amongst those with the same major working in the same occupation. In fact, about one-third of the pay gap cannot be explained by these factors commonly understood to affect earnings.3

This disparity is felt all over the country. In my home State of Michigan, the 2013 

median earnings for men were $49,897 compared to women’s median earnings of 

$36,772. That’s an earnings ratio of just 74 percent.4 In essence, women in Michigan 

are potentially missing up to 26 percent of their pay. In my own congressional district, the first district of Michigan, the earnings ratio is 75 percent.5 I don’t know 

about you, but I don’t know anyone who would happily choose to forfeit any of their 

wages, let alone over a quarter of their paycheck. 

The wage gap has enormous consequences. Recent research6 has found that 4 in 

10 households with children include a mother who is either the sole or primary 

earner for her family. Pay equity is not just a matter of fairness, but the key to 

families making ends meet. 

Because of pay discrimination, I’ve lost more than $10,000 in pay and retirement 

benefits. Recently I was asked what I would have done with this money if I’d had 

it. Some of it would definitely have gone into my retirement savings, as I was having 15 percent of my paycheck automatically go into my retirement account at that 

time. That would have been a great boost to my retirement security. I also needed 

that money when I refinanced my mortgage, so I wouldn’t have had to refinance 

for as much. Finally, I think I would have used it for health care bills. If I’d had 

the money I lost because of gender discrimination, I would have been able to pay 

the co-pay for my husband’s heart surgery out of savings instead of having to use 

a credit card, thereby avoiding the interest fees and the constant worry. 

27 

I’d rightfully earned that money, my family and I needed that money, but I won’t 

ever get it back. That’s money lost directly to gender-based pay discrimination. Millions of American women continue to lose more money, every day, because they’re 

afraid to talk about wage practices and because the current law is not strong 

enough to inspire business compliance. It’s time for this to end. 

The Paycheck Fairness Act would improve current law, providing incentives for 

employers to more fully comply as well as enhanced Federal technical assistance 

and enforcement efforts. The bill updates the Equal Pay Act of 1963. We’re more 

than 50 years down the road and still dealing with a sizable pay gap, which clearly 

points to the fact that current law is not strong enough to get the job done. It’s well 

overdue for a makeover—our economy has changed, family structures have changed, 

and working women have changed. It’s time for the pay gap to finally change as 

well. The law needs to reflect the realities of the modem workplace. Most important 

to my own experience, the Paycheck Fairness Act would protect workers from retaliation for talking about their salary at work. Frankly, that’s not too much to ask. 

I’m here before you today to say this: we need the Paycheck Fairness Act. If the 

Paycheck Fairness Act had been the law, I would have talked about my salary without fear, and I likely would have known where I stood in comparison to the men 

I worked with and those I supervised. Instead, without the Paycheck Fairness Act, 

I wasn’t able to ask, and I made less. This disparity continues to have consequences, 

and it will continue to have ramifications when I receive a smaller Social Security 

check. 

Since I found out I was discriminated against, I’ve dedicated myself to fighting 

for pay equity. Working with the WAGE Project and American Association of University Women, I lead $tart $mart workshops on college campuses, teaching women 

students how to negotiate their salaries. I believe that negotiation is critical, and 

I’m glad that the Paycheck Fairness Act includes some funding for women’s negotiation programs. But we also need to remember that while helpful, simply urging 

women to negotiate is not a complete solution to the pay gap. Negotiations can backfire if a woman isn’t armed with the right information and confidence to make her 

case, and if laws are not strong enough to influence an employer to respond favorably to those negotiations. 

Part of why I support the Paycheck Fairness Act is because it requires everyone 

to do their part to close the gender pay gap, women included. Sure, we can learn 

to better negotiate, but what if a company refuses to negotiate like mine did? And 

don’t get me started on the outdated stereotypes about women’s roles that clearly 

impact women’s wages today. I still cannot believe that I was paid less than a man 

for doing the same job—actually even supervising some of them. Why? Because my 

boss thought my wages weren’t as important to my family. They were. Given the 

landscape, women cannot close the pay gap by ourselves. We need policymakers to 

do their part, ensuring that the protections and assistance of the Paycheck Fairness 

Act are there to help both employees and employers work together toward a more 

equitable workplace. 

No one should have to go through what I’ve gone through. No one. Working with 

AAUW, I have managed to turn my anger into action. My convictions have brought 

me here today. For the women and families you represent, I urge you to pass the 

Paycheck Fairness Act without delay. 

Thank you for this opportunity to testify, and I look forward to your questions. 

REFERENCES

1. U.S. Census. (September 2012). Income, Poverty, and Health Insurance Coverage in the United States: 2011. Retrieved January 22, 2014, from www.census.gov/ 

prod/2012pubs/p60–243.pdf. 

2. American Progress. (April; 9, 2013). The Gender Wage Gap Differs by Occupation. Retrieved March 28, 2014, from www.americanprogress.org/issues/labor/ 

news/2013/04/09/59698/the-gender-wage-gap-differs-by-occupation/. 

3. AAUW. (2012). Graduating to a Pay Gap. Retrieved January 25, 2013, from 

www.aauw.org/GraduatetoaPayGap/upload/ 

AAUWGraduaingtoapayGapReport.pdf. 

4. AAUW. (September 2013). The Gender Wage Gap: Michigan. Rerrieved March 

26, 2014, from www.aauw.org/files/2013/09/Michigan-Pay-Gap-2013.pdf. 

5. Ibid. 

6. The New York Times. (May 29, 2013). U.S. Women on the Rise as Family 

Breadwinner. Retrieved March 28, 2014, from www.nytimes.com/2013/05/30/business/economy/women-as-family-breadwinner-on-the-rise-study-says.html? lr=l&& 

gwh=FlBC78FA3C98CB6D3D9FE993F83F87AF&gwt=pay. 

Senator MIKULSKI. Ms. Olson. 

28 

STATEMENT OF CAMILLE A. OLSON, PARTNER, SEYFARTH 

SHAW, CHICAGO, IL 

Ms. OLSON. Thank you very much. 

Senator MIKULSKI. Ms. Olson, and to all the witnesses, I’m going 

to ask unanimous consent that your full statement be in the record. 

That’s not in any way to curtail what you’re saying here, but I 

know you had an extensive review. Many did, too. So by unanimous consent, all of those will be fully entered into the record. 

Please present your views here. 

Ms. OLSON. Thank you very much. Good afternoon, and thank 

you, Chair Mikulski, Ranking Member Alexander, and other members of the committee. 

My name is Camille Olson, and I am testifying on behalf of the 

U.S. Chamber of Commerce. I chair the Chamber’s Equal Employment Opportunity Policy Subcommittee, and I also chair my law 

firm’s National Complex Discrimination Litigation Practice Group. 

I’m testifying on behalf of the U.S. Chamber today. The Chamber 

strongly supports equal opportunities in employment and, specifically, equal pay for equal work. However, for all the reasons set 

forth in my written testimony, the Chamber strongly opposes the 

Paycheck Fairness Act because it doesn’t promote equal pay for 

equal work. 

If passed, the act would amend the Equal Pay Act significantly 

in the following substantive and procedural ways. One, it would 

impose harsher lottery type penalties of unlimited compensatory 

and punitive damages upon all employers regardless of size and 

without a showing of intentional sex discrimination, different than 

every other employment discrimination law in this country. It 

would effectively eliminate the factor-other-than-sex defense, and it 

would provide a more attorney friendly class action device, among 

other amendments. 

The act’s proponents contend that these changes are necessary to 

ensure equal pay for women. But nothing could be further from the 

truth, because existing laws already provide robust opportunities to 

challenge discriminatory pay practices as well as significant remedies to protect employees against gender-based pay discrimination 

under both the Equal Pay Act, title VII, and Executive Order 

11246. 

Today, the Equal Pay Act and title VII provide favorable and effective remedies for pay discrimination. Those include back pay, injunctive relief in the form of increased pay, liquidated or double 

damages, attorney’s fees, costs, prejudgment interest, and up to 

$300,000 in compensatory and punitive damages per employee. 

And if an employer is a government contractor, as many are, it 

may also face sanctions and other remedies if it discriminates in 

its pay practices. 

Today’s Federal court docket and EEOC charge and settlement 

statistics confirm that aggrieved victims are taking advantage of 

these multiple forms of redress currently available to remedy pay 

discrimination in both single plaintiff as well as class and collective 

actions across the country as well as by raising claims with both 

the EEOC and the OFCCP. Despite these protections, the act’s proponents propose drastic changes that would transform the Equal 

Pay Act beyond recognition, all upon an unsubstantiated premise 

29 

that any differences in wages between men and women are the result of employer discrimination. 

Most concerning to the Chamber are the following three issues. 

First, by expanding the Equal Pay Act remedies to include unlimited compensatory and punitive damages, the Paycheck Fairness 

Act ignores that it is a remedial, strict liability statute specifically 

designed to compensate employees for sex-based pay inequities 

without a showing of discriminatory employer intent. It runs contrary to the entire body of Federal anti-discrimination law that 

damages conceived and intended to punish and deter wrongdoing 

would now apply to claims of unintentional conduct prohibited by 

the Equal Pay Act. 

Second, the rewriting of the factor-other-than-sex defense is the 

most significant substantive change proposed by the Equal Pay 

Act. The change must be considered in tandem with the Equal Pay 

Act’s fundamental underpinning, balancing the requirement of 

equal pay for equal work against the mandate that the government 

cannot interfere with private companies’ valuations of a worker’s 

qualifications, the work performed, and the setting of pay rates. 

Currently, under the Equal Pay Act, an employer defends a claim 

by showing either a seniority or a merit system or a system measuring quality or quantity of work or a gender-neutral factor other 

than sex, including, for example, education, experience, special 

skills, expertise, and external market conditions, caused the difference. If the Paycheck Fairness Act becomes law, the employer 

would be required to prove, if there was a showing of any difference in pay, that it paid more because of a bona fide factor that 

was job-related and consistent with business necessity and that the 

established factor was not derived from a sex-based differential in 

compensation. 

Even then, the employer remains liable if a plaintiff can show an 

alternative employment practice that would serve the same business purpose. This is true even where the employer shows that the 

factor other than sex justifying the differential in pay is education, 

training, or experience. 

The business necessity standard developed by case law as a disparate impact defense and confirmed as such by the Civil Rights 

Act of 1991 is fundamentally incompatible with the Equal Pay Act, 

which the Supreme Court has noted is designed to address disparate treatment, not disparate impact claims. Applying business 

necessity to the Equal Pay Act, an employer is required to prove 

for every single wage decision that the ultimate business goal 

achieved by the higher pay is essential to the business and that the 

factor is essential to achievement of that ultimate business goal. 

What would be the practical impact of redefining the factorother-than-sex defense? Consider whether employers would still 

have the freedom to hire and retain the most qualified workforce. 

The act discourages employers from offering added compensation 

for qualifications beyond the minimum required by the job. Employers who are willing to match higher pay offered by a competitor 

risk liability unless they are able to prove that the outside competitor’s offer is not based upon or derived from a sex-based differential. 

30 

1 In July 2007, I testified before the House Subcommittee on Workforce Protections on 

H.R. 1338 (also entitled The Paycheck Fairness Act), available at http://www.gpo.gov/fdsys/ 

pkg/CHRG–110hhrg36467/html/CHRG–110hhrg36467.htm. 

Finally, if an employer’s financial ability to round up all employees’ wage rates qualifies as an alternative factor under the Paycheck Fairness Act, because it is neither overly costly nor so cost 

prohibitive it would threaten the survival of the business, then any 

pay differential under this act would likely automatically require 

a uniform raise in every single employee in the job, regardless of 

variations in qualifications, such as education, training, or experience. If this is the case, the factor-other-than-sex defense is illusory. It wipes out all pay differences based on qualifications. 

I see that I’m over my time. I also wanted to make a note that 

there are significant comments in my written statement with respect to the concern about revising the class action mechanism 

that’s in the Equal Pay Act. But I’ll just defer to those comments. 

In conclusion, I’ll just say that the Chamber believes that the 

Paycheck Fairness Act presents serious and dangerous ramifications that far outweigh any protection offered to victims of discrimination. The compounded effect of the act’s most problematic 

provisions will be to expose private enterprise to unprecedented invasion by the judiciary under threat of unlimited damages as well 

as subvert the carefully constructed frameworks of existing antidiscrimination law. 

For these reasons and the reasons contained in my written testimony, the Chamber has serious concerns with respect to the Paycheck Fairness Act. Thank you very much for the opportunity to 

share some of these concerns with you today. 

[The prepared statement of Ms. Olson follows:] 

PREPARED STATEMENT OF CAMILLE A. OLSON

The U.S. Chamber of Commerce is the world’s largest business federation, representing more than three million businesses and organizations of every size, sector, 

and region. 

More than 96 percent of the Chamber’s members are small businesses with 100 

or fewer employees, 70 percent of which have 10 or fewer employees. Yet, virtually 

all nation’s largest companies are also active members. We are particularly cognizant of the problems of smaller businesses, as well as issues facing the business 

community at large. 

Besides representing a cross-section of the American business community in terms 

of number of employees, the Chamber represents a wide management spectrum by 

type of business and location. Each major classification of American business—manufacturing, retailing, services, construction, wholesaling, and finance—is represented. Also, the Chamber has substantial membership in all 50 States. 

The Chamber’s international reach is substantial as well. It believes that global 

interdependence provides an opportunity, not a threat. In addition to the Chamber 

of Commerce’s 96 American Chambers of Commerce abroad, an increasing number 

of members are engaged in the export and import of both goods and services and 

have ongoing investment activities. The Chamber favors strengthened international 

competitiveness and opposes artificial U.S. and foreign barriers to international 

business. 

Positions on national issues are developed by a cross-section of Chamber members 

serving on committees, subcommittees, and task forces. More than 1,000 business 

people participate in this process. 

Good afternoon Mr. Chairman and members of the committee. On behalf of the 

U.S. Chamber of Commerce, I am pleased to testify on S. 84, the Paycheck Fairness 

Act (the ‘‘Act’’).1 I am Chairwoman of the Chamber’s equal employment opportunity 

policy subcommittee. The Chamber is the world’s largest business federation, repVerDate Nov 24 2008 16:33 Jan 17, 2017 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 S:\DOCS\22608.TXT DENISE
31 

2Seyfarth Shaw LLP is a global law firm of over 800 attorneys specializing in providing strategic, practical legal counsel to companies of all sizes. Nationwide, over 350 Seyfarth attorneys 

provide advice, counsel, and litigation defense representation in connection with discrimination 

and other labor and employment matters affecting employees in their workplaces. 3 I would like to acknowledge Seyfarth Shaw LLP attorneys Richard B. Lapp, Paul H. Kehoe, 

Kevin A. Fritz, and Lawrence Z. Lorber, as well as Jae S. Um for their invaluable assistance 

in the preparation of this testimony. 4 29 U.S.C. § 206(d)(1). 

5The proponents of the Act have not cited any evidence establishing that a wage gap is actually caused by employer discrimination. They essentially propose acceptance of the existence of 

the wage gap as presumptive proof. However, this unsubstantiated syllogism does not withstand 

scrutiny. As labor economists and feminist scholars have observed, any wage gap between men 

and women is attributable to a number of factors bearing no relationship whatsoever to alleged 

employer discrimination. See, e.g., BUREAU OF LABOR STATISTICS REPORT 1045, HIGHLIGHTS OF

WOMEN’S EARNINGS (2013); JOINT ECON. COMM., INVEST IN WOMEN, INVEST IN AMERICA (2010); 

and AN ANALYSIS OF REASONS FOR THE DISPARITY IN WAGES BETWEEN MEN AND WOMEN com- missioned by the U.S. Dep’t of Labor, Office of Employment Standards Administration, and prepared in conjunction with CONSAD Research Corp. (2009) (when accounting for factors such as: 

occupation, human capital development, work experience, career interruptions, industry, health 

insurance, fringe benefits, and overtime work, the 2009 Report found that the unexplained hourly wage differences were between 4.8 and 7.1 percent). 

The so-called gender wage gap ignores the complexity and documented factors that have been 

identified in social science research to explain the differences in wage rates between men and 

women, including the following differences: the availability of other non-economic benefits provided by the employer; an employees’ willingness and ability to negotiate pay; pay history; the 

number of hours worked; an employee’s willingness to work during certain shifts and in certain 

locations; certifications and training obtained by the employee; the amount and type of education achieved; prior experience; length of time in the workforce; length of service with the employer; time in a particular job; the frequency and duration of time spent outside the workforce; 

job performance; personal choices regarding other family or social obligations; occupational 

choice, self-selection for promotions and the attendant status and monetary awards; and other 

‘‘human capital’’ factors. Many of these factors are a function of personal choices employees 

make. Reliance on this figure as sufficient evidence of widespread employer discrimination in 

today’s workforce runs counter to every facet of the long-held standard of equal pay for equal 

work. 6 Revisions to the ‘‘factor other than sex’’ defense would render it a nullity, allowing judges 

and juries to second guess employers and the marketplace as to the relative worth of job qualifications in individual pay decisions. The Act, in effect, requires employers to implement a civil 

service philosophy with respect to all pay decisions, eliminating individual pay advancements 

unless an employer can prove its pay raise was a business necessity and it cannot be shown 

that a different economic decision could have been implemented that would not have caused a 

wage differential for female employees without the pertinent job qualifications. 7Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq, as amended by the Civil 

Rights Act of 1991, PL 102–166, 105 Stat. 1071. See 42 U.S.C. §§ 12117(a), 1981a(2) (‘‘Title VII’’). 

resenting more than three million businesses and organizations of every size, industry sector, and geographical region. 

I am also a partner with the law firm of Seyfarth Shaw LLP,2 where I chair the 

Labor and Employment Department’s Complex Discrimination Litigation Practice 

Group. In addition to my litigation practice, which has specialized in representing 

local and national companies in Federal court litigation involving claims of employment discrimination, I also represent employers in designing, reviewing, and evaluating their pay practices to ensure compliance with Federal and local equal employment opportunity laws. I have represented business and human resource organizations as amicus curiae in landmark employment cases, including Dukes v. Wal-Mart, 

and also teach Federal equal employment opportunity law topics at Loyola University Chicago School of Law. 

In today’s testimony3 I discuss the meaning and impact of the Act on the Equal 

Pay Act of 19634 (‘‘EPA’’). If enacted, the Act would amend the EPA significantly 

in substantive and procedural ways, all upon a fundamental yet unsubstantiated 

premise—namely, that throughout the United States of America, all unexplained 

wage disparities existing between men and women are necessarily the result of intentional discrimination by employers.5

On the unsupported assertion that women today earn 77 cents for every dollar 

a man earns as a result of intentional employer discrimination, the Act would impose harsher, ‘‘lottery-type’ penalties upon all employers, in effect eliminate the factor other than sex defense,6 and make available a more attorney-friendly class action device. The Act’s proponents contend that these changes are necessary to ensure equal pay for women. Nothing could be further from the truth because existing 

laws already provide robust protections and significant remedies to protect employees against gender-based pay discrimination (protections exist under both the EPA, 

Title VII of the Civil Rights Act of 1964 (‘‘Title VII’’)7 as well as Executive Order 

32 

8 Indeed, the Government’s experience with wage setting finds its genesis with the War Labor 

Board in World War II when the Board looked to determine market rates to apply to women 

then entering previously male-dominated jobs. 9 29 U.S.C. § 621 et seq. 10Title I of the Americans with Disabilities Act of 1990 (‘‘ADA’’), 42 U.S.C. § 12101, et seq. Like title VII, under the ADA, punitive and compensatory damages are only available where 

intentional disability discrimination is shown. See 42 U.S.C. §§ 12117(a), 1981a(2). Similarly, 

disparate impact claims under title VII do not subject an employer to punitive or compensatory 

damage claims. 11 42 U.S.C. §§ 1981 and 1983, respectively. 12 Under the Act, market forces would effectively be excluded from consideration when an employer sets an individual’s pay rates unless an employer is able to prove a negative—that the 

market rate used was not derived or influenced by a sex-based differential in pay. Under the 

Act, an employee’s request for higher pay to match a competitor’s offer could not be ‘‘matched’’ 

unless, first, the employer proved the competitor’s offer was not influenced by a sex-based differential (practically, a very difficult burden) and second, the employee’s increase was a business 

necessity (how does an employer prove that one employee’s retention is a business necessity?). 

11,246). Plaintiffs are taking advantage of the multiple forms of redress available 

to remedy pay discrimination through both the filing of discrimination charges as 

well as Federal and State court individual lawsuits and class actions. 

Instead, in practice, the Act would: (1) impose enormous burdens and risks on employers who base compensation decisions on factors other than sex such as training, 

experience and education, or reliance on the current market value placed on skills 

and experience and economic need, (2) devalue in the marketplace enhanced skills, 

training and experience (as well as other non-discriminatory factors for pay differences between employees), and (3) expand litigation opportunities for class action 

lawyers seeking millions of dollars from companies without ever having to prove 

that the companies intentionally discriminated against women. 

The proposed changes to the EPA are also contrary to its most fundamental 

underpinnings; the requirement of equal pay for equal work balanced against the 

mandate that government not interfere with private companies’ valuation of a worker’s qualifications, the work performed, and more specifically, the setting of compensation.8 The proposed changes are also inappropriate given the EPA’s distinguishing features, relative to other anti-discrimination legislation. Perhaps the most 

notable difference is the lack of any requirement that a prevailing EPA plaintiff 

prove intentional employer discrimination. This feature separates the EPA from 

title VII, the Age Discrimination in Employment Act,9 the Americans with Disabilities Act,10 as well as Section 1981 of the Civil Rights Act of 1866 and Section 1983 

of the Civil Rights Act of 1871.11 These statutes allow for the imposition of compensatory and punitive damages, but only upon a finding of intentional discrimination 

by the employer. In contrast, the EPA currently imposes liability on employers without any required showing that the employer intended to discriminate against the 

worker. 

Commentators and courts have often referred to this leniency in the EPA as rendering employers ‘‘strictly liable’’ for any pay disparity between women and men for 

substantially equal work unless the employer can show that the pay differential was 

due to: a seniority system, a merit system, a system measuring quality or quantity 

of work, or any other factor other than sex. The irrelevancy of an employer’s intent 

is a defining feature of the EPA, and must be remembered as the significant amendments to the EPA suggested by the Act are debated. By eliminating the factor other 

than sex defense, and replacing it with an unattainable standard of an affirmative 

employer showing that any individual wage difference was: (1) job-related and required by ‘‘business necessity’’ and (2) not ‘‘derived from a sex-based differential in 

compensation’’ the Act imports a business necessity ‘‘plus’’ standard for an employer 

to defend every individual pay decision even where no evidence of discrimination is 

required to be shown.12

And, if the Act becomes law, a plaintiff could erase an employer’s defense and 

leave it open to a jury award of unlimited punitive and compensatory damages in 

large mass actions on the basis of one employee’s complaint (without regard to the 

size of the employer). Under the Act, employer liability attaches every time a plaintiff ’s lawyer shows an employer could have implemented an alternative employment 

practice that would serve the same business purpose without producing a differential in pay between a male and female employee. This is true even where the employer shows that the factor other than sex justifying the differential in pay is education, training, or experience. The Act does not describe any examples of alternative employment practices that would suffice to defeat the employer’s burden. If 

a plaintiff countered an employer’s justification of education, training, or experience 

by suggesting that the employer had the financial ability to raise everyone’s pay in 

the same job—is that alternative an alternative employment practice that would deVerDate Nov 24 2008 16:33 Jan 17, 2017 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 S:\DOCS\22608.TXT DENISE
33 

13 In 1986, the EEOC issued detailed regulations entitled ‘‘EEOC’s Interpretations of the 

Equal Pay Act,’’ 29 CFR § 1620, as amended. In 2006, the EEOC issued regulations under the 

EPA, 29 CFR § 1621, as amended. Since Fiscal Year 2008, the EEOC has received between 919 

and 1,082 charges asserting violations of the Equal Pay Act annually, representing roughly 

1 percent of total charge filings. See EEOC CHARGE STATISTICS FY 1997 THROUGH FY 2013, 

available at http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm. 14 Exec. Order No. 11,246, Section 202(1), 30 Fed. Reg. 12,319 (Sept. 24, 1965), as amended 

by Exec. Order No. 11,375, 32 Fed. Reg. 14,303 (Oct. 17, 1967). 15 29 U.S.C. § 206(d). 16 29 U.S.C. § 206(d)(1); Fallon v. Illinois, 882 F.2d 1206, 1208 (7th Cir. 1989). 17 29 U.S.C. § 206(d)(1). 

feat the employer’s defense (in every case, so that the Act’s ‘‘factor other than sex’’ 

defense is in fact a complete illusion)? In effect, the Act suggests that the universal 

alternative will be to ‘‘round up’’ any wage distinction. No answer is found in the 

Act; yet, there is no question that this one issue will lead to considerable uncertainty and litigation. 

The Act’s elimination of the EPA’s defense of a factor other than sex with the imposition of a statutory framework previously reserved for application to an employer’s neutral policy decisions that have a disparate impact on minority employees 

(where employers are not liable for compensatory or punitive damages) is unworkable, ill-advised, and inappropriate as an analytical tool to judge an employer’s individualized wage decisions. 

For these reasons, and all of the reasons set forth below, the Chamber strongly 

opposes the Paycheck Fairness Act. We urge the committee to carefully consider the 

issues raised by the Chamber and proceed cautiously in considering the Act. 

CURRENT PROTECTIONS AGAINST SEX-BASED WAGE DISCRIMINATION

Overview 

Since 1963, it has been unlawful under the EPA for an employer to pay a female 

employee less than a male employee for equal work. Today, employees enjoy a substantial assortment of protections against wage discrimination. Since 1979, the EPA 

has been enforced by the Equal Employment Opportunity Commission.13 In addition 

to the protections against wage discrimination based on sex afforded by the EPA, 

sex discrimination in wages is also prohibited by title VII, many State antidiscrimination statutes, and, for employees of Federal contractors and subcontractors.14

Today, the EPA and title VII provide a woman who prevails on her wage discrimination claim a collection of favorable and effective remedies. Those combined remedies include: back pay; front pay; liquidated damages; attorneys’ fees; costs; affirmative injunctive relief in the nature of an increase in wages on a going forward 

basis; prejudgment interest; $300,000 in punitive and compensatory damages. If an 

employer is a government contractor, as many are, it may also face sanctions (including, for example, debarment, the cancellation, termination or suspension of any 

existing contract) and remedies (such as elimination of practices, seniority relief, 

monetary and equitable relief to identified class members, and accelerated training). 

These contractor remedies exceed those available to victims of intentional discrimination under title VII generally, the ADA, and the ADEA. 

Mechanics of the EPA and Title VII 

The EPA 

The EPA provides that no employer shall pay employees of one sex at a rate less 

than the rate at which the employer pays employees of the opposite sex for equal 

work.15 An employee may assert an EPA claim either by filing a charge of discrimination with EEOC or by proceeding directly to Federal court and filing a lawsuit 

there. 

To prevail under the EPA, an employee must make a prima facie showing of discrimination by presenting evidence that: (1) different wages were paid to employees 

of the opposite sex; (2) the employees performed equal work requiring equal skill, 

effort, and responsibility; and (3) the employees shared similar working conditions.16

If the employee makes that showing, she has established a presumption of discrimination. The burden of persuasion then shifts to the employer, who can only avoid 

liability by proving that the wage differential is pursuant to: (1) a seniority system; 

(2) a merit system; (3) a system which measures earnings by quantity or quality 

of production; or (4) any factor other than sex.17 Note, even if an employer meets 

this burden, a plaintiff prevails if able to show that the employer’s proffered reason 

is not bona fide, but is a pretext or excuse for paying higher wages to men for equal 

work. Critically, there is no requirement under the EPA for a plaintiff to prove any 

34 

18See 29 U.S.C. § 206(d)(1) (making clear only relevant inquiry is whether alleged disparity 

resulted from ‘‘any factor other than sex’’); Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 

1310–11 (10th Cir. 2006). 19 29 U.S.C. 201 et seq. 20 29 U.S.C. § 216(b). 21 42 U.S.C. § 2000e–2(a). See also 42 U.S.C. § 2000e–2(h). 22King v. Acosta Sales & Mktg., Inc., 678 F.3d 470, 474 (7th Cir. 2012) (reversing summary 

judgment for employer where it only articulated, rather than proved, that education and experience accounted for a pay differential between male and female managers); Vehar v. Cole Nat. 

Group Inc., No. 06–4542, 2007 WL 3127913, at *7–8 (5th Cir. 2007) (reversing summary judgment for employer where the differences in experience between male and female computer programmers were not enough to support summary judgment); Boumehdi v. Plastag Holdings, LLC, 

489 F.3d 781, 794 (7th Cir. 2007) (reversing summary judgment for employer where a genuine 

issue of material fact existed regarding the justification—perceived performance and one additional year of seniority—for a $2 per hour pay differential between male and female press feeders); EEOC v. Health Management Group, No. 09–1762, 2011 WL 4376155, at *5–6 (N.D. Ohio 

Sept. 20, 2011) (denying employer’s motion for summary judgment where it argued that a pay 

differential between male and female franchise distributors was based on the male’s prior negodiscriminatory intent or animus on the part of the employer. That element is not 

present in the liability scheme under the EPA.18

The EPA is contained within the Fair Labor Standards Act (‘‘FLSA’’).19 Under the 

FLSA, a successful EPA plaintiff may recover back pay, front pay, prejudgment interest, and attorneys’ fees and costs. Where willfulness is shown, a plaintiff may 

also recover an additional amount of back pay as liquidated (‘‘double’’) damages, and 

the defendant may also be fined up to $10,000 and imprisoned for up to 6 months.20

Title VII 

Similarly, under title VII, it is ‘‘an unlawful employment practice for an employer 

. . . to discriminate against any individual with respect to [her] compensation . . . 

because of such individual’s . . . sex . . . .’’21 An employee may assert a claim for 

sex-based pay discrimination by filing a charge of discrimination with EEOC and 

then, upon receipt of her notice of right to sue (and regardless of whether EEOC 

finds ‘‘cause’’ for concluding that discrimination occurred), may file a lawsuit in Federal court. Further, an employee need not engage an attorney to participate in the 

EEOC processes, including investigation of their allegations of discrimination under 

the EPA and title VII, as well as conciliation and litigation of their claim in Federal 

court (if the EEOC determines to file suit on the employee’s behalf). 

To establish that similarly situated males were more favorably compensated, as 

is necessary to prevail in a disparate treatment pay claim under title VII, a plaintiff 

must either provide direct evidence of discrimination, or prove discrimination 

through the indirect method by providing evidence of a prima facie case of discrimination. Once she has done so, the employer must articulate a legitimate, non-discriminatory reason for the wage differential. At that juncture, the plaintiff has an 

opportunity to prove that the proffered reason is a pretext for unlawful employment 

discrimination. The plaintiff ’s burden is higher under title VII in connection with 

discrimination-based pay claims than under the EPA, where establishment of a disparity in pay for equal work obligates the employer to prove that the disparity is 

for a reason other than sex to avoid strict liability. 

Comparison of EPA and Title VII 

Both the EPA and title VII provide remedies for women who believe they have 

been subjected to sex discrimination in pay, and we have included examples below 

demonstrating that both serve as effective mechanisms for women to redress alleged 

claims of sex-based pay discrimination. From an employee’s perspective, the EPA is 

the more favorable and lenient of the two statutes with respect to both the ease of 

pursuing a claim against an employer and the relatively low standard for establishing liability. For example: 

• Under the EPA, an ‘‘employer’’ includes entities and individuals. An employer 

employing as few as two employees is included within its coverage (whereas title 

VII covers employers of 15 or more employees); • Establishment of the prima facie case of pay discrimination under the EPA entitles an employee to a legal presumption of discrimination, with the burden of production and persuasion moving to the employer. In contrast, under title VII, even 

where a plaintiff establishes a prima facie case of pay discrimination, she at all 

times retains the burden of persuasion as to discrimination. To avoid the imposition 

of liability, an employer must prove that the disparity was caused by one of four 

permissible reasons. As a result, under the EPA, plaintiffs are much more successful 

in defeating employer’s motions for summary judgment and having their claims 

heard by a jury;22

35 

tiating skills with physicians, where a question of fact existed regarding whether the hiring official knew of that skill). See also, Mickelson, 460 F.3d at 1311 (‘‘This is not to say that an employer may never be entitled to summary judgment on an EPA claim if the plaintiff establishes 

a prima facie case. But, because the employer’s burden in an EPA claim is one of ultimate persuasion, ‘in order to prevail at the summary judgment stage, the employer must prove at least 

one affirmative defense so clearly that no rational jury could find to the contrary’ ’’) (internal 

citation omitted). 23 Barbara Lindemann & Paul Grossman, EMPLOYMENT DISCRIMINATION LAW, Ch. 15 (3d ed. 

1996). 24Sara L. Zeigler, Litigating Equality: The Limits of the Equal Pay Act, 26 REV. PUB. PERS. 

ADMIN. 199, 204 (2006). 

• The EPA provides for strict liability, meaning that a plaintiff need not show discriminatory intent on the part of the employer to prevail, whereas a disparate treatment plaintiff under title VII must show the existence of discriminatory intent on 

the part of the employer to prevail; 

• There is a much longer, more generous limitations period (2 years for a general 

violation, 3 years for a violation found to be willful) under the EPA as opposed to 

at most 300 days for the filing of an administrative charge of discrimination with 

the EEOC under title VII (which is a prerequisite to suit in Federal court); and 

• Under the EPA there is no charge filing requirement with an administrative 

agency. 

The EPA also shares many of the advantages accorded to claimants under title 

VII, including: 

• Plaintiffs may recover attorneys’ fees and costs; 

• The EEOC may bring public suits to enforce the EPA, including seeking injunctive and other remedies; and 

• Plaintiffs may file a charge alleging a violation of the EPA and request the 

EEOC investigate the violation. 

In the aggregate, these overlapping non-discrimination statutes provide employees 

multiple avenues for pursuing claims of unequal pay for equal work. They also provide employees with multiple forms of redress with respect to alleged pay discrimination, including: a direct right to a jury trial on their own behalf in Federal court, 

the filing of a charge of discrimination with the EEOC, the right to have the EEOC 

pursue a claim on their behalf in Federal court, and the right to bring a collective 

action or class action on behalf of other similarly situated employees who choose to 

participate in an action under the EPA or title VII, respectively (on their own or 

by their attorney of choice). It is not uncommon for a worker suing to enforce his 

or her rights to equal pay under the EPA to also file a charge of discrimination with 

the Equal Employment Opportunity Commission, file a lawsuit in Federal or State 

court, and, if their employer is a Federal contractor, raise a claim under Executive 

Order 11,246 with the Office of Federal Contract Compliance Programs (or do all 

of the above). 

And, of course, notwithstanding the differences between the statutes, claimants 

may bring parallel claims under the EPA and title VII to ensure that they receive 

the fullest protection under the law. Indeed, they may recover under both statutes 

for the same period of time provided they do not receive a double or duplicative recovery for the same ‘‘wrong.’’ As such, a prevailing plaintiff may recover back pay, 

a front pay adjustment, compensatory damages, punitive damages, liquidated damages, and injunctive relief, among other relief. Put simply, women who believe that 

they suffer wage discrimination as a result of their sex have available to them Federal statutes that provide significant remedies.23

CONCERNS REGARDING PROPOSED CHANGES TO THE EQUAL PAY ACT

Inappropriate Expansion of EPA Remedies For Unintentional Wage Discrimination 

to Include Unlimited Compensatory and Punitive Damages 

Critics of the EPA in its current form have observed that it is not a ‘‘lottery.’’24

Indeed, it is not intended to be. Rather, its remedial provisions are intended to compensate employees for sex-based pay inequities, whether inadvertent (which is sufficient for the imposition of liability) or not. Awarding compensatory and punitive 

damages where no showing of intent is required would be inappropriate and contrary to the purposes behind the allowance for compensatory and punitive damages 

in cases of intentional discrimination. 

In passing the Civil Rights Act of 1991, Congress expanded the forms of relief 

available to an individual who is the victim of intentional discrimination under title 

VII so as to include compensatory and punitive damages. Prior to passage of that 

Act, 42 U.S.C. § 1981 ‘‘permitted the recovery of unlimited compensatory and puniVerDate Nov 24 2008 16:33 Jan 17, 2017 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 S:\DOCS\22608.TXT DENISE
36 

25Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 851 (2001). 26 101 CONG. REC. S. 1745 (daily ed. Aug. 2, 1990) (Statement of Cong. Schroeder). 27 Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432, (2001). 28 Id. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, (1974) (‘‘[Punitive damages] are 

not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence’’) and Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 54 (1991) (O’Connor, J., dissenting) (‘‘[P]unitive damages are specifically designed 

to exact punishment in excess of actual harm to make clear that the defendant’s misconduct 

was especially reprehensible’’). 29Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 514 (7th Cir. 1986). 30 Id. (internal citations omitted). 31 Id. (internal citations omitted). 32 109 Cong. Rec. 9198 (1963) (statement of Rep. Goodell, principal exponent of the Act). 

tive damages in cases of intentional race and ethnic discrimination, but no similar 

remedy existed in cases of intentional sex, religious, or disability discrimination.25

As then-Congresswoman Pat Schroeder from Colorado explained in her statement 

during the congressional floor debate from August 2, 1990 regarding punitive damages for Civil Rights Act: 

Mrs. SCHROEDER. Mr. Chairman, I want to answer some of the things that 

we have just heard. We are hearing here that there is something wrong with 

this bill because there are remedies . . . Let me tell Members one more thing 

about punitive damages. You do not get punitive damages unless there was intent. It is all equitable, unless there is intent. It seems to me in this country 

that if there is intent to discriminate, then we certainly should be out trying 

to assess some kind of punitive damages. Otherwise, someone just assigns it as 

a cost of doing business.26

As evidenced by the above, compensatory and punitive damages serve distinct and 

specific purposes. Compensatory damages are ‘‘intended to redress the concrete loss 

that the plaintiff has suffered by reason of the defendant’s wrongful conduct.’’27 Punitive damages are ‘‘intended to punish the defendant and to deter future wrongdoing.’’28 Under title VII, ‘‘[A] finding of liability does not of itself entitle a plaintiff 

to an award of punitive damages.’’29 ‘‘The purpose of awarding punitive damages is 

to ‘punish a wrongdoer for his outrageous conduct and to deter others from engaging 

in similar conduct.’ ’’).30 ‘‘Such an award must be supported by the record, and may 

not constitute merely a windfall for the plaintiff.’’31 It strains logic and flouts the 

entire body of Federal anti-discrimination law to suggest—or, as the Act would do, 

to mandate—that damages conceived and intended to punish and deter wrongful 

conduct should apply to claims of inadvertent, unintentional conduct that has the 

effect of violating the EPA. It is inconsistent to introduce a concept of malice or 

reckless indifference into a strict liability statute. 

In sum, it is inappropriate here to amend the EPA, a strict liability remedial statute that requires no showing of discriminatory intent, to facilitate the imposition of 

unlimited punitive and compensatory damages. It would serve no legitimate purpose, and it would serve the illegitimate purposes of both turning the EPA into a 

lottery for plaintiffs willing to roll the dice to capitalize on likely legitimate wage 

differentials and to unjustly enrich plaintiffs’ attorneys. 

De Facto Elimination of the ‘‘Factor Other Than Sex’’ Affirmative Defense 

Perhaps the most significant substantive revision to the EPA contained in the Act 

is found in its re-writing of the ‘‘factor other than sex’’ affirmative defense. If enacted, it would be extremely onerous, impracticable, and prohibitively expensive for 

an employer to defend against a claim that a wage differential existed on the basis 

of a factor other than sex. 

The EPA’s existing factor other than sex affirmative defense was explained by the 

EPA’s primary sponsor in the House of Representatives, Representative Charles E. 

Goodell, back in 1963, as follows: 

We want the private enterprise system, employer and employees and a union 

. . . to have a maximum degree of discretion in working out the evaluation of 

the employee’s work and how much he should be paid for it. . . . Yes, as long 

as it is not based on sex. That is the sole factor that we are inserting here as 

a restriction.32

Clearly, just as important to the EPA’s sponsors of the legislation as the goal of 

eliminating sex-based pay differentials was the bedrock of free enterprise. Given 

how critical that concept is to the EPA—and the fundamental importance of the factor other than sex affirmative defense in achieving it—it is clear that this Act would 

not actually ‘‘amend’’ the EPA. Instead, what the Paycheck Fairness Act seeks to 

37 

33See, e.g., Fallon v. State of Ill., 882 F.2d 1206, 1211–12 (7th Cir. 1989) (ruling that the district court prematurely rejected the State’s asserted affirmative defense that Veterans Service 

Officers’ requisite war-time veteran status was a factor other than sex justifying the pay differential). 34See, e.g., Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 525 (2d Cir. 1992); EEOC v. J.C. Penney Co., Inc., 843 F.2d 249, 253 (6th Cir. 1988); and Glenn v. Gen. Motors Corp., 841 

F.2d 1567, 1571 (11th Cir. 1988). 35See Smith v. City of Jackson, 544 U.S. 228, 239 n.11 (2005). Compare the Second, Third, 

Sixth, Ninth, and Eleventh Circuits’ application of a ‘‘legitimate business reason’’ standard to 

the Act’s ‘‘factor other than sex’’ with the Fourth, Seventh, and Eight Circuits’ application of 

a ‘‘gender neutral test’’ requiring the ‘‘factor other than sex’’ to be both facially gender neutral 

and uniformly applied. See, Kouba v. AllState Ins. Co., 691 F.2d 783, 876 (9th Cir. 1982) with 

Wernsing v. Dep’t of Human Servs., 427 F.3d 466, 468 (7th Cir. 2005) and Taylor v. White, 321 

F.3d 710 (8th Cir. 2003) (court noted its function is not to sit as a ‘‘super personnel department’’ 

and that inquiring into the reasonableness of an employer’s decision would narrow the exception 

beyond the plain language of the statute). Smith v. Leggett Wire Co., 220 F.3d 752, 763 (6th 

Cir. 2000) (‘‘[I]t is inappropriate for the judiciary to substitute its judgment for that of management.’’). See also Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir. 2006) (holding that 

courts do not ‘‘sit as super-personnel department with authority to review an employer’s business decision as to whether someone should be fired or disciplined because of a work-rule violation.’’). 36S. 84, 113th Cong. (2013–14). 

do is require employers to justify individualized pay decisions on a case-by-case 

basis based on vague, but clearly onerous, standards. 

Today, the ‘‘factor other than sex’’ affirmative defense forms the crux of the EPA. 

It provides that, where a wage differential exists, the employer has not engaged in 

sex discrimination under the EPA if the reason for the wage differential is a genderneutral factor other than sex.33 This affirmative defense enables employers to consider a wide range of permissible, i.e., non-discriminatory, factors in setting salaries. 

For example, employers may consider an applicant’s or employee’s education, experience, special skills, seniority, and expertise, as well as other external factors such 

as marketplace conditions, in setting salaries. Although some circuit courts have attempted to read a ‘‘business justification’’ or ‘‘business necessity’’ element into this 

affirmative defense,34 the U.S. Supreme Court, quite prudently, has never endorsed 

such a reading and has made clear that the affirmative defense means what it 

says—any factor other than sex.35

The Act would effectively eliminate the EPA’s factor other than sex defense. 

Under the Act, even if an employer proved an applicant’s job experience or education was the factor considered when paying a male applicant more than a female 

applicant, the employer faces liability if it cannot prove paying the male applicant 

a higher starting wage based on his greater job experience or education was a business necessity. 

In addition, an employer who determines to pay an applicant or an employee a 

higher wage based on market forces—i.e. matching a higher pay offer from a competitor—does so at considerable peril. Under the Act, payment of a wage rate as a 

result of a market condition is unacceptable unless an employer can prove all of the 

above plus that the market rate of its competitor is ‘‘not based upon or derived from 

a sex-based differential in compensation’’. How does a small employer demonstrate 

the absence of sex-based discrimination in its competitor’s setting of wages when 

faced with an imminent decision as to whether to match the pay rate or lose a valuable employee? The Act provides no guidance. 

And, finally, having passed each of the above hurdles for every individual wage 

decision, an employer remains liable for a violation of the Act, if a plaintiff responds 

to the job-related, business necessitated prior job experience, prior training, or education reason for the higher starting wage rate for the male applicant by 

‘‘demonstrat[ing] 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.’’36 If an employee demonstrates that an employer was not required to employ a worker with the most experience in the business, or has the financial ability to pay all employees in that 

position a higher starting wage rate, does the employee satisfy this burden and 

eliminate the employer’s defense? The Act provides no guidance. 

Having shown an employer could have adopted another employment practice instead of paying a male applicant a higher wage rate because of their greater experience, education or training, the Act seals the liability of the employer for unlimited 

compensatory and punitive damages for paying a male applicant a higher wage rate 

that was job-related, consistent with business necessity, and not the result of sex 

discrimination, because in retrospect, years later, a jury determined it could have 

chosen an alternative employment practice. 

38 

37For example, under this replacement for the factor other than sex affirmative defense, an 

employer who wishes to pay a higher wage to an employee who has 5 years more experience 

than another employee may not be able to do so because a court finds that the differential in 

experience could be overcome by in-house training over an extended period of time. That is a 

judgment that employers should have an ability to retain in order to have an effective, efficient 

workforce and in order to achieve their own specific business objectives and priorities. 38Sims-Fingers v. City of Indianapolis, 493 F.3d 768, 771 (7th Cir. 2007). 39See 42 U.S.C. § 2000e–2(k)(1)(A)(i)-(ii) which provides ‘‘a complaining party demonstrates 

that a respondent uses a particular employment practice that causes a disparate impact on the 

basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that 

the challenged practice is job-related for the position in question and consistent with business 

necessity or the complaining party makes the demonstration described in subparagraph (C) with 

respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.’’ Notably, the job-related and consistent with business necessity defense was left undefined in the Civil Rights Act of 1991. 40See 42 U.S.C. § 2000e–2(k)(1)(B)(i), which provides that ‘‘the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact . . .’’ 

If the Act were law, it would be imprudent and highly risky for an employer to 

ever reward applicants or employees in a job title for their individual educational, 

training, or experience,37 without providing that same reward to all employees in 

the job, regardless of their inferior business-related qualifications. Yet, what is the 

purpose of compensation? Is it to fairly compensate employees for work performed 

as well as to enable employers to attract the skills and experience necessary to promote the enterprise? The Act looks to the first concept (though it minimizes the importance of education, experience and training by saddling any wage payment differential based on these examples with other prerequisites before they can be used 

to justify a wage increase), but ignores the second. By placing an employer’s decision 

to value intangible skills and experience under a business necessity test, the Act 

motivates employers to lean toward compensation practices of an earlier industrial 

age where many jobs were fungible and skills and education were not regarded as 

valuable. These concepts have long since been rejected, but the Act will resurrect 

them as national policy. 

As such, the Act places judges and juries in the human resources offices of American businesses to determine whether sex-neutral factors were appropriate considerations—and appropriately considered in an employer’s wage-setting decisionmaking. 

As the Seventh Circuit Court of Appeals aptly observed with respect to questions 

of relative job valuation, 

‘‘Our society leaves such decisions to the market, to the forces of supply and 

demand, because there are no good answers to the normative question, or at 

least no good answers that are within the competence of judges to give.’’38

Application of A Disparate Impact Defense to EPA Disparate Treatment Claim is Inappropriate 

Section 3(a) of the Act would alter the ‘‘factor other than sex’’ affirmative defense 

by requiring employers to prove, in order to counter the presumption of wage discrimination, that the factor responsible for a wage differential is a bona fide factor 

other than sex, job-related, consistent with business necessity, and is not based 

upon or derived from a sex-based differential in compensation. 

The job-related and consistent with business necessity defense, however, is an offshoot of disparate impact law under title VII, intended to address the effects of an 

employer’s neutral policies that disproportionately impact a protected group.39 A 

helpful key to explaining the improper application of the business necessity standard to EPA defendants can be found in the supposition of discrimination uniquely 

afforded to the EPA plaintiff. To establish a prima facie case of disparate impact 

under title VII, a plaintiff must not only demonstrate that a disparity exists, but 

also identify a specific policy or practice and establish a causal relationship between 

the disparity and the policy or practice.40 It is in direct response to this challenged, 

specific, particular policy or practice identified by the title VII plaintiff that title VII 

defendants must demonstrate the business necessity of the specific practice. In contrast, EPA plaintiffs are already free from this requirement of specificity, as EPA 

claims directly challenge an employer’s pay practices based on the existence of a pay 

disparity alone. 

Courts have long held that these frameworks are not compatible. In Wernsing, the 

Seventh Circuit found that ‘‘[a]n analogy to disparate-impact litigation under title 

VII does not justify a ‘‘business reason’’ requirement under the Equal Pay Act, however, because the Equal Pay Act deals exclusively with disparate treatment. It does 

39 

41 427 F.3d 466, 469 (7th Cir. 2005). See also Smith v. City of Jackson, 544 U.S. at 239 n.11 

(2005) (noting in EPA, Congress intended to prohibit all disparate impact claims). 42 740 F. 2d 686 (9th Cir. 1984) (overruled on other grounds). See also Wards Cove Packing 

Company, Inc. v. Atonio, 490 U.S. 642, 655–58 (1989). 43The Act’s business necessity test takes standards of rigor designed to measure and justify 

the impact of a specific policy to bar certain groups from access to employment and impose the 

same standards on individualized compensation decisions. As such, the Act improperly thrusts 

onto the judiciary an untold number of fact-finding exercises with respect to whether certain 

qualifications result in incremental performance gains that justify the challenged pay differential. For example, if a law degree is not necessary to the performance of duties and responsibilities of a policy analyst, title VII will provide appropriate protection if it is used as an inappropriate barrier to employment. However, application of the Act would place members of this legislative body at risk for unlimited damages for paying a higher salary to a male analyst with a 

law degree as well as a Master of Public Policy degree in comparison with a female analyst 

without a law degree. In response, the hypothetical defendant would bear the burden of showing 

that the second degree is indeed a bona fide factor that justifies added compensation, and would 

face the risk of a judicial body determining otherwise, or determining that, even if so, there was 

another employment decision that could have been made that would lead to a lesser pay differential between the two policy analysts (i.e., paying both the same pay regardless of the fact 

one had different qualifications). However, the Act invites such disputes into courtrooms, forcing 

the judiciary to weigh the merits of the economic judgments of employers. 

not have a disparate impact component.’’41 As the Ninth Circuit explained in 

Spaulding v. University of Washington: 

The [disparate impact] model was developed as a form of pretext analysis to 

handle specific employment practices not obviously job-related . . . As the court 

in Pouncy v. Prudential Insurance Co. of America, 668 F.2d 795, 800 (5th Cir. 

1982) (Pouncy), made clear: ‘‘[t]he discriminatory impact model of proof . . . is 

not, however, the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company’s employment practices.’’ The [Plaintiff-Appellant] unconvincingly cites cases for the proposition that ‘‘the disparate 

impact analysis has been applied to wage discrimination cases.’’ They do not involve wide-ranging allegations challenging general wage policies but rather 

challenges to specific employer practices.42

Attaching a disparate impact framework onto a disparate treatment claim is fundamentally illogical, because it removes the intermediary step of identifying the 

practice or policy, whose application allegedly serves as the basis for the assertion 

of employer discrimination. In other words, EPA claims challenge pay practices directly rather than identifying a policy that results in the pay disparity, because 

under the EPA, discrimination is presumed to exist once a disparity is shown. 

It is important to note that the plain text of Act proposes to apply the ‘‘bona fide’’ 

determination to factors including education, training, or experience. And where 

such tests have been permitted by courts in pay discrimination cases under title VII, 

the question has always pertained to a limited threshold test: whether the non-discriminatory factor is truly necessary and inseparably intertwined with the performance of duties and responsibilities of a job. In other words, title VII applies the business necessity test to questions that result in a binary answer: either a factor is 

necessary to job performance or it is not. For instance, the Griggs court found that 

a high school diploma was not necessary to job performance; and it is from this business necessity showing that courts infer whether defendants are able to produce explanations that are ‘‘bona fide’’ factors, rather than merely a pretext for discrimination that would exclude certain groups. In that sense, the business necessity test 

as established by the Griggs court and applied to title VII claims since then upholds 

the equality of opportunity explicitly protected by the Civil Rights Act and implicitly 

promised by the principles that have guided this country since its founding. 

In contrast, the Act would now apply standards of job-relatedness and business 

necessity to questions that require economic valuations of an unlimited number of 

factors. The Act essentially invites employees and employers to dispute in court 

whether certain qualifications, including education, training, or experience, are justifications for disparities in compensation. In that sense, the Act represents an unprecedented intrusion of government into the independent business decisions of private enterprises by eroding the fundamental purpose of compensation;43 in reality, 

compensation functions not only as a means to remunerate employees for work performed, but also to enable employers to attract the skills and experience likely to 

promote the competitiveness of the enterprise. In contrast to its usage in title VII 

and ADA claims, the business necessity test as applied by the amended EPA would 

sacrifice the autonomy of private enterprise because the statute uniquely presumes 

discrimination merely on the basis of unequal outcomes. 

40 

44See e.g., Rhodes v. Cracker Barrel Old Country Store, Inc., 213 F.R.D. 619, 671 (N.D. Ga. 

2003). 45See Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001) (at the notice 

stage, the court makes a decision using a fairly lenient standard that typically results in ‘‘conditional certification’’ of a collective or representative action); Grayson v. K-Mart Corp., 79 F.3d 

1086 (11th Cir. 1996); Garza v. Chicago Transit Auth., No. 00 C 0438, 2001 U.S. Dist. LEXIS 

6132, at *5 (N.D. Ill. 2001) (citing Woods v. New York Life Ins. Co., 686 F.2d 578 (7th Cir. 

1982)). 46Portal-to-Portal Pay Act, 29 U.S.C. § 256(b); Allen v. Atl. Richfield Co., 724 F.2d 1131, 1134 

(5th Cir. 1984). 47See, e.g., Jarvaise v. Rand Corp., No. 96–2680 (RWR), 2002 U.S. Dist. LEXIS 6096, at *5 

(D.C.C. Feb. 19, 2002) (class certification granted under EPA and title VII to all female employees in exempt positions who did not make compensation decisions); Garner v. G.D. Searle 

Pharm. & Co., 802 F. Supp. 418, 422–24 (M.D. Ala. 1991) (EPA collective action motion granted 

on behalf of female medical sales representatives). 

The EPA’s Collective Action Mechanism in Section 216(b) Should Not be Amended 

to Incorporate Fed. R. Civ. P. 23 

Section 3(c)(4) of the Act allows an action brought to enforce section 6(d) to be 

maintained as a class action under the Federal Rules of Civil Procedure. Like multiplaintiff actions under the FLSA and the ADEA, EPA actions brought by women on 

behalf of themselves and others similarly situated under the collective action mechanism of section 216(b) require interested parties to file with the court a consent that 

they wish to ‘‘opt-in’’ to the case before becoming part of the action, including before 

becoming affirmatively bound by any adverse rulings against the employees’ interests adjudicated in the case. FLSA, ADEA, and EPA collective actions, as they are 

known under section 216(b), provide employees with a generally more lenient standard with respect to a plaintiff ’s initial showing of being similarly situated to fellow 

employees than that required under Federal Rule of Civil Procedure 23(a), which 

is applicable to class actions sought under title VII, and proposed by the proponents 

of the Paycheck Fairness Act as the applicable new class action mechanism to apply 

to EPA claims. The Chamber submits that the Act’s proponents have not articulated 

a compelling reason for any change in the current collective action mechanism available to plaintiffs under the EPA. 

Under Rule 23, to bring a class action a plaintiff must first meet all of the ‘‘strict 

requirements’’ of Rule 23(a) and at least one of the alternative requirements of Rule 

23(b). Under Rule 23(a) a plaintiff must show: the class is too numerous to join all 

members; there exist common questions of law or fact; the claims or defenses of representative parties are typical of those of the class members; and the representative 

parties will fairly and adequately represent the class. Once these requirements are 

satisfied, a plaintiff must also satisfy one of the subsections of Rule 23(b). Rule 23(b) 

requires that a plaintiff show either: that prosecution of individual actions would 

result in inconsistent holdings or that adjudications would be dispositive of the interests of those not named in the lawsuit, that the party opposing the class has 

acted on grounds applicable to the entire class making relief appropriate for the 

class as a whole, or that questions of law or fact common to the members of the 

class predominate over questions affecting only the individual members of the class 

and that certification is superior to other available methods for fairness and efficiency purposes. When conducting the required analysis under Rule 23, courts must 

perform a ‘‘rigorous analysis’’ of plaintiff ’s ability to meet each of Rule 23’s requirements.44

Conversely, under section 216(b), while some courts use the Rule 23 approach to 

the extent those elements do not conflict with section 216 (such as numerosity, commonality, typicality and adequacy of representation), many courts use a less stringent standard, requiring plaintiff to show only that she is similarly situated to other 

employees.45 The similarly situated requirement is met through allegations and evidence of class wide discrimination. Courts generally apply a lenient standard to conditional certification of an EPA claim. A person is considered a member of a collective action under section 216(b) and is bound by and will benefit from any court 

judgment upon merely filing a written consent with the court and affirmatively ‘‘opting into’’ the suit. This requirement was added to collective actions under section 

216(b) to ensure that a defendant would not be surprised by their testimony or evidence at trial.46

Courts regularly face and grant requests to certify both Federal Rule of Civil Procedure 23(a) class actions alleging wage disparity based on sex, as well as Rule 

216(b) collective actions under the EPA.47 When faced by facts presenting a close 

call as to whether a purported class of workers is similarly situated under the EPA’s 

section 216(b) and title VII’s Rule 23 mechanisms, and otherwise appropriate for 

mass action treatment, it is generally the EPA collective claim that survives opposiVerDate Nov 24 2008 16:33 Jan 17, 2017 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 S:\DOCS\22608.TXT DENISE
41 

48See, e.g., Rochlin v. Cincinnati Insurance Co., No. IP 00–1898-C H/K, 2003 U.S. Dist. LEXIS 

13759, at *49–51, 64 (S.D. Ind. July 8, 2003) (Rule 23 class certification of sex discrimination 

in pay claim denied, but section 16(b) collection action claim allowed to proceed as a class action 

as the standard is more lenient under the EPA). 49The stated objectives of the EO Survey were ‘‘(1) To improve the deployment of scarce Federal Government resources toward contractors most likely to be out of compliance; (2) To increase agency efficiency by building on the tiered-review process already accomplished by 

OFCCP’s regulatory reform efforts thereby allowing better resource allocation; and (3) To increase compliance with equal opportunity requirements by improving contractor self-awareness 

and encourage self-evaluations.’’ Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors, 65 Fed. Reg. 68,039 (Nov. 13, 2000). 50 Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors, 

71 Fed. Reg. 53,033 (Sept. 8, 2006). 51 Id. 52 Id. 53 Id. 54 Id. 55See PANEL ON MEASURING AND COLLECTING PAY INFORMATION FROM U.S. EMPLOYERS BY

GENDER, RACE, AND NATIONAL ORIGIN ET AL., COLLECTING COMPENSATION DATA FROM EMPLOYERS, (National Academies Press 2013). 

56 Id. at 2. 57 Id. 58 Id. 

tion to a motion to certify a class alleging sex discrimination in pay.48 The reason 

is clear—section 216(b) contains a more lenient standard for a plaintiff who is attempting to bring a claim on behalf of herself and other similarly-situated women 

for unequal pay. Specifically, it is viewed by many courts as encompassing a more 

liberal standard for conditional certification relative to Rule 23. For all of these reasons, the Chamber submits that this collective action mechanism should not be 

amended to conform to Rule 23 requirements as proposed by the Paycheck Fairness 

Act. 

Other Concerns 

In addition to the concerns discussed above, the Act raises other serious concerns. 

Some of those concerns are noted below: 

Reinstatement of The EO Survey 

Section 9(b)(3) of the Act reinstates the EO Survey, originally adopted in late 2000 

for the primary purpose of effectively targeting OFCCP compliance review resources 

pursuant to Executive Order 11246,49 However, the EO Survey was a flawed tool 

as it failed to accurately target contractors whose pay practices were either compliant or noncompliant. Indeed, in April 2000, Bendick and Eagan Economic Consultants Inc. reported serious concerns to the OFCCP regarding the results of the pilot 

program and recommended that the survey be validated before implementation.50

The OFCCP failed to conduct the recommended study.51 In 2002, OFCCP contracted 

with Abt Associates to evaluate the reliability and usefulness of the EO Survey.52

Abt determined that the EO Survey’s predictive power was only slightly better than 

chance, with a false positive rate (identifying compliant contractors as non-compliant) of 93 percent and a high rate of classifying true discriminators as non-discriminators.53 Based on the EO Survey’s limited reliability, the Department of Labor rescinded the EO Survey in 2006.54

Data Collection Requirements and Regulations 

In 2010, the EEOC requested that the National Academy of Sciences convene a 

panel to review methods for measuring and collecting pay information by gender, 

race and national origin.55 The panel concluded that collecting earnings data would 

be a significant undertaking for the EEOC and a potential increased burden for employers.56 The panel also found that the EEOC had ‘‘no clearly articulated plan of 

how the data on wages could be used in the conduct of enforcement responsibilities 

of the relevant agencies.’’57 In addition, the panel determined that existing studies 

of the cost effectiveness of an instrument for collecting wage data and the resulting 

burden [were] inadequate to assess any new program.’’58 Given the real budgetary 

and personnel constraints facing the EEOC and the current backlog of pending investigations, simply adding a requirement to adopt regulations and collect data is 

unwise. The EEOC simply does not have the personnel or the expertise in analyzing 

this data. 

OFCCP Program Initiatives 

Under the innocuous title ‘‘Reinstatement of Pay Equity Programs and Pay Equity 

Data Collection,’’ Section 9 of the Act instructs the Director of the OFCCP to ensure 

42 

59 A full discussion of these issues is beyond the scope of this testimony. Extensive comment 

by the Chamber on related issues is available on the Chamber’s Web site at: www.uschamber .com. 60See Maitland v. Univ. of Minn. 155 F.3d. 1013, 1016–18 (8th Cir. 1998) (reversing district 

court’s grant of summary judgment to employer on reverse discrimination claim and ruling that 

‘‘the fact that the affirmative action salary plan was implemented pursuant to a consent decree 

does not bolster the District Court’s conclusion at the summary judgment stage of this case and 

that there was a manifest imbalance in faculty salaries.’’); see also Rudebusch v. Hughes, 313 

F.3d 506, 515–16 (9th Cir. 2002) (reverse discrimination case based on allegedly insufficient 

multiple regression analysis, ultimately resulted in a ruling requiring the employer to pay male 

faculty members $1.4 million); Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 676–77 

(4th Cir. 1996) (reverse discrimination claim based on inadequate multiple regression analysis). 

that OFCCP employees, among other things, use a full range of investigatory tools 

and not to require a multiple regression analysis or anecdotal evidence in a compensation discrimination case. In 2006, the OFCCP adopted two enforcement guidance documents, commonly known as the ‘‘Compensation Standards’’ and ‘‘Voluntary 

Guidelines.’’ Among other items, the Compensation Standards only compared ‘‘similarly situated individuals,’’ required OFCCP to use multiple regression analysis, and 

required that statistical showings be supported with anecdotal evidence of discrimination. Effective February 29, 2013, the OFCCP rescinded these common sense 

guidelines. 

Two provisions are worth particular note: the provisions relating to the agency’s 

analysis of systematic compensation discrimination and the provisions targeted toward surveying the Federal contractor community.59

Section 9 of the Act appears to be designed to statutorily mandate that the 

OFCCP refrain from requiring the adoption of multiple regression analysis or anecdotal evidence for a compensation discrimination case, among other things. Notwithstanding that the OFCCP recently rescinded the above-noted 2006 Compensation 

Standards and Voluntary Guidelines, the Chamber opposes the utilization of pay 

grade analysis as a method for proving that systemic compensation discrimination 

exists for one very simple reason: it doesn’t work. Assuming individuals in the same 

pay ‘‘band’’ are similarly situated is simply too crude a statistical tool. Multiple regression analysis, on the other hand, is the widely accepted method by which plaintiffs and defendants make their case. Robust statistical tools like this are necessary 

to analyze the many factors that determine compensation and determine whether 

pay differentials are due to discrimination or some other factor. Statistical techniques will result in the OFCCP alleging discrimination more frequently, without 

adequate proof, forcing employers to unnecessarily incur legal costs and wasting 

OFCCP’s resources. One perverse result of making such a change will be that employers will choose to settle with OFCCP based on such an inadequate statistical 

analysis would open themselves up to charges of reverse discrimination under title 

VII or State law.60

Section 9(b)(3) appears to statutorily mandate the OFCCP equal opportunity survey. It should be noted that the OFCCP’s survey, which was intended to help identify Federal contractors that should be audited by the OFCCP, was substantively 

flawed, failed to serve as a useful enforcement tool of the agency, and placed a significant, unnecessary burden on contractors. Years ago, a neutral study of the survey was conducted by Abt Associates as part of the OFCCP’s review of the survey. 

That study conclusively demonstrated that the survey provided no useful data and 

was extremely burdensome (with a conservative estimate that the study cost contractors approximately $6 million per year). Imposing this burden, which has been 

proven to do nothing to help identify or eradicate discrimination, on the Federal contractor community cannot be justified. 

Permitted Inquiries About Wages 

Section 3(c) of the Act appears to provide an unprecedented broad right to employees under the EPA. Employees would have the right to ‘‘inquire about wages of the 

employee or another employee . . .’’ without fear of any adverse action by an employer. The new right does not appear to be narrowed in any way by relevancy to 

the employee’s pay or by confidentiality concerns of an employer. This language goes 

far beyond any rights enjoyed by non-unionized and unionized employees under the 

National Labor Relations Act (‘‘NLRA’’). 

For example, under the NLRA, non-unionized employees have the right to discuss 

their own wages with other employees, but do not otherwise have the right to obtain 

written documentation about the wages of any other employees. Although unionized 

employees, as part of an employer’s duty to bargain in good faith, have the right 

to inquire about wage information for bargaining purposes, this right is not without 

boundaries and not without safeguards. In International Business Machines Corp. 

43 

61 265 NLRB 638 (1982). 62 29 CFR § 1620.9(a). 

and Hudson, the National Labor Relations Board (‘‘NLRB’’) held that employees 

could discuss their own wages with each other, but could not access or distribute 

company-compiled information as the company had a valid business justification for 

its rule against distribution of wage data compiled and classified as confidential.61

Instead, the NLRB explained that the employer had a valid business justification 

for discharging an employee who disclosed wage information in violation of the company’s rule. In contrast, here, the Paycheck Fairness Act provides an open door for 

an employee’s inquiries in the wages of all employees, without any balancing of an 

employer’s need for confidentiality and other legitimate concerns. 

New Definition of ‘‘Establishment’’ 

Section 3(a) of the Act appears to redefine and expand the definition of equal 

work, by amending the EPA to allow an employee to raise a claim of denial of equal 

pay for equal work if the inequality between men and women pay exists between 

men and women who work at different physical places of business within the company. Currently, in keeping with the EPA’s prohibition against denying employees 

equal pay for equal work because of their sex, the EPA requires an employee to 

compare their wages earned against other employees within the physical place of 

business in which they work. According to the Regulations issued by EEOC to construe the EPA, ‘‘establishment’’ ‘‘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.’’62 We urge the committee to consider the difficulty and impropriety of comparing jobs across locations and geographical regions 

in determining whether equal pay is being paid for equal work, and reject the unworkable proposal contained within the Act. 

CONCLUSION

In conclusion, the Chamber has serious concerns with the Paycheck Fairness Act. 

Mr. Chairman and members of the committee, we thank you for the opportunity to 

share some of those concerns with you today. Please do not hesitate to contact me 

or the Chamber’s Labor, Immigration, and Employee Benefits Division, if we can be 

of further assistance in this matter. 

Senator MIKULSKI. That was all excellent testimony and very 

content rich, each one, with either these compelling personal stories and the information. The way we’re going to proceed here is 

in the order of arrival. Often, in the old days, the seniority people— 

we’re going to make equal attendance here or something. 

I note that the very first person to come was Senator Alexander. 

Ordinarily, I would go first, but I was one of the latest arrivals. I 

will be the last person. I’ll be the wrap-up questioner. I’m going to 

turn to Senator Alexander. Then it’s Senators Warren, Baldwin, 

and Casey. 

Murray, Franken, and Murphy have left but will come back. 

Should they not come back, their full statements will go into the 

record, and any questions they might have for the record will be 

in. 

Senator Alexander, if there are any members of your side of the 

aisle that wish to submit statements or questions, we would also 

welcome those for the record as well. So I will turn to you now, sir. 

Senator ALEXANDER. Thank you, Madam Chairman. I want to 

say what is obvious. I appreciate the firm and the fair way that the 

Senator from Maryland chairs a hearing, and I enjoyed working 

with her on the Child Care Block Grant last week. Those watching 

might notice the ideological differences that are here. I would say 

that the HELP Committee produces more legislation than anybody 

else, despite that, because we know how to work together to get a 

result when we can do that. 

44 

We’re hoping that the Appropriations Committee beats us this 

year when Chairman Mikulski passes all 12 appropriations bills on 

the Senate floor, which I want to help her do. So that’s what we’re 

looking forward to. 

Ms. Olson, you did a good job of pointing out that for 50 years, 

Equal Pay for Equal Work has been the law. Actually, there’s been 

two laws. The one that we’re not touching is Title VII of the Civil 

Rights Act. And there are lots of different ways that a person who 

feels aggrieved may go forward with a lawsuit, damages that can 

be collected, back pay that can be collected. In the case of Title VII 

of the Civil Rights Act, you can go to EEOC, and they may do your 

legal work for you. 

So it’s the law, and you can sue, and you can go both to the Federal agency and to the courts. So that’s already in the law. You 

made a strong point of something that I was talking about, which 

is what the proposed change here does to flexibility for employees 

in the workplace. 

For example, let’s say you have a dry cleaner with six people, 

and there are three night shifts and 3 day shifts. There’s a manager and six people, and three night shifts and 3 day shifts, or 

three later shifts and three earlier shifts. And three of the employees have young children, and they say, ‘‘We’d like the flexibility of 

more time off or more flexibility in our schedule.’’ Could you pay 

some men different than some women based upon a flexible work 

schedule in the new regime set up by the so-called Paycheck Fairness Act? 

Ms. OLSON. An employer who does so risks, under the Paycheck 

Fairness Act, unlimited compensatory and punitive damages if 

they’re not able to show it was a business necessity. 

Senator ALEXANDER. He’d have to show the cleaner couldn’t operate well unless he did that. 

Ms. OLSON. That it would have been—you’re exactly right, Senator. 

Senator ALEXANDER. And then assuming he could do that under 

this law, then the other side, whoever is doing the suing, could 

come in and say, ‘‘Well, but I can think of a way that you could 

have done it.’’ That’s the alternative employment plan. Is that correct? 

Ms. OLSON. Right. And the other way is, ‘‘You could have just 

raised all of our pay by a dollar,’’ unless to do so, you would go 

bankrupt. 

Senator ALEXANDER. Well, let me go to a school. I assume this 

would apply to schools. Is that right? 

Ms. OLSON. Yes. 

Senator ALEXANDER. Let’s say a principal wanted to inspire girls 

to go into math and science, and in order to attract outstanding female teachers, he had to pay them more than the men. Could he 

do that? 

Ms. OLSON. Under this act, the answer is no. Both males and females can raise a claim under the Equal Pay Act. And, again, any 

difference that is paid that is different than the minimum amount 

that you paid someone else of another sex, you’ve got to be able to 

justify by business necessity. And you’ve got to be able to show, 

45 

even if it was a business necessity, that you didn’t have the ability 

to pay everybody the higher rate. 

Senator ALEXANDER. Is the employer in a school situation the 

school district, or is it the principal of a particular school? 

Ms. OLSON. The employer is generally the school district. 

Senator ALEXANDER. So what if there was a school in a rough 

section of town and a school in an upscale section of town, and you 

wanted to pay men in the rough section of town a higher wage and 

women teachers less in the upscale section of town? Would that be 

a business necessity under the new rule? Would that be difficult to 

do? 

Ms. OLSON. The way this new act would roll out is before an employer determined to pay extra for that particular reason, that difference in the job, the employer would be required to prove that it 

was a business necessity, that they couldn’t otherwise get individuals at the lower rate of pay. 

Senator ALEXANDER. My time is about up. I think you’ve made 

an excellent point of pointing out how existing law makes it clear 

that if an employer pays a female less than a male counterpart and 

a male less than a female for the same work, that’s against the 

Federal law, and there are plenty of opportunities to redress that, 

and that this would expand litigation. But please make any comment you could about the effect this might have on the ability of 

an employer to be more flexible in recognizing different circumstances among employees. 

Ms. OLSON. What this really does is it eliminates an employer’s 

consideration of the marketplace. It eliminates an employer’s consideration of different qualifications between individuals in the 

same job. 

For example, if a female applicant meets the minimum qualifications for an applicant, but a male applicant actually meets the minimum qualifications but let’s just say has 2 years more experience 

and 2 years more training, to pay that male employee more—and 

if that male applicant says, ‘‘I won’t take the job unless I’m paid 

an extra 50 cents. That’s what I’m paid an hour more at my current job—the employer would have to show that that was a business necessity to employ that individual, and that, in fact, their 

valuation of the value of those enhanced qualifications that are described of that new applicant are such that they were appropriate 

under the law. 

And even if so, again, a plaintiff could erase the defense and hold 

the employer liable under the Paycheck Fairness Act if the plaintiff 

can show that you had the money to increase others, even though 

they didn’t have the same qualifications, to that same rate of pay 

in the job. 

Senator ALEXANDER. Thank you, Madam Chairman. 

Senator MIKULSKI. Senator Warren. 

STATEMENT OF SENATOR WARREN

Senator WARREN. Thank you, Madam Chair, and thank you for 

holding this hearing. I can’t believe we’re debating equal pay for 

equal work in 2014. I just really can’t believe this. Women still only 

earn 77 cents for every dollar a man earns, and some women can 

be fired for asking the guy across the hall how much money he 

46 

makes. So what I’d like to ask about today is a little bit more about 

the defense that employers have under the current law and what’s 

proposed under Paycheck Fairness. 

So if I could, could I start with you, Professor Eisenberg? Could 

you just talk a little bit more about the current law and how some 

employers are using the factor-other-than-sex defense under today’s 

law? 

Ms. EISENBERG. Certainly. That’s a great question. You know, 

the current law allows—I just want you to keep in mind that the 

first threshold that plaintiffs need to prove is that the jobs in question are equal in terms of skill, responsibility, and effort. And then 

the burden shifts to the employer to disprove discriminatory intent 

by showing the actual reason for the pay disparity. 

So one of those—the catch-all factor other than sex, as currently 

interpreted by a majority of courts, is still in a majority of courts 

supposed to be job and business related. So this proposal in the 

Paycheck Fairness Act is codifying that majority view. 

Senator WARREN. So in a majority of courts, there’s no change at 

all in the law in that fundamental sense—— 

Ms. EISENBERG. That’s right. 

Senator WARREN [continuing]. Other than a woman can now ask, 

and she will be protected and can’t be fired for asking what the 

guys make. 

Ms. EISENBERG. That’s right. 

Senator WARREN. But, please, there’ll be some change in some 

courts. 

Ms. EISENBERG. There’ll be some—two Federal circuits, the Seventh Circuit and the Eighth Circuit Court of Appeals, have interpreted the factor other than sex to really mean anything under the 

sun, even if it doesn’t relate to the qualifications of the two employees in that job or to a business-related reason. 

Let me give you two examples. One common factor other than 

sex that is accepted by some courts but rejected by others is the 

happenstance of prior salaries. So if a woman and a man are coming to the exact same job, and a woman is coming from a prior employer where her salary happened to be lower, but she is equally 

as qualified, and a man is coming from a different job where his 

salary happened to be higher, they will be paid based on their prior 

salaries rather than their comparable qualifications and the fact 

that they’re doing comparable work. 

Senator WARREN. So if she had been discriminated against in the 

past, that can now be a defense for discriminating against her in 

the present and in the future. 

Ms. EISENBERG. Absolutely. It perpetuates the very discrimination that the Equal Pay Act was supposed to address. And the 

other thing that I’ve seen in some cases—and, again, there’s a split 

among courts—is this so-called market forces argument. In some 

cases, if the employer is able to show actual market compensation 

data on which the employer relied, then that is accepted by courts. 

Some courts, however, have accepted sort of vague and illusory 

defenses that this is required by the market. And upon closer examination of actual market data, the men are being paid above 

market rates, and the women are being paid below market rates. 

I’ve had that in cases that I’ve litigated. 

47 

The other thing as far as the market forces defense is that sometimes it’s sort of just a subjective value judgment, sort of a subjective hunch on the part of a supervisor. It’s not really any sort of 

objective market data that they’re referring to. 

Senator WARREN. So just so I’m sure that I understand this, kind 

of the basic things we talk about, about differences in how employees get paid, like seniority, merit, the quality of your work, a different job description where you have perhaps more flexible hours 

in your job than someone else does—would those under Paycheck 

Fairness be legitimate grounds for paying someone differently? 

Ms. EISENBERG. Absolutely. And even in the majority of circuits 

that have already adopted the job-related and business-related 

standard that the Paycheck Fairness Act codifies, those defenses 

are allowed, and they’ve been accepted. So this does not change 

that at all. 

Senator WARREN. Thank you very much. I just want to remember 

that women earn less than men in nearly every occupation, and 

that today, in 99.6 percent of all occupations, men are earning 

more than women. That’s not an accident. That’s discrimination, 

and women are tired of it. What this bill does is gives us a chance 

to fight back. 

Thank you, Dr. Eisenberg. 

Senator MIKULSKI. Senator Baldwin. 

STATEMENT OF SENATOR BALDWIN

Senator BALDWIN. Thank you. I want to pick up where Senator 

Warren just left off. When I graduated from college, I had the opportunity to work on a study of the issue of comparable worth, 

somewhat distinguishable from equal pay for equal work, where 

you look at comparable—is there comparable pay for comparable 

work. And why would one undertake such an inquiry? 

We don’t always have pay inequities that exist from people working side by side. I’ve often walked into a private sector setting 

where, say, I’ve taken a tour, and one part of the facility has a female dominated workforce doing similar things, maybe 80 percent 

or 90 percent female, and then there might be another part of the 

job where it’s 50–50 in the workforce, and then you might see another part of the operation where it’s predominantly males engaged. 

The State of Wisconsin in the mid-1980s decided to sort of ask 

the question in State government service: How do so-called pink 

collar jobs compare to others. And they started doing, I think, 

stealing from the private sector, as Ms. Olson was talking about, 

a valuation of the range that certain occupations ought to pay 

based on not the future incumbent in that position, but things like 

degree of academic preparation required for the job and the skill 

set required and how many people you supervise, if any at all, and 

the consequence of making a mistake or an error. You know, does 

somebody die when you make a mistake? Does somebody get 

harmed? Is somebody denied justice? And what are the consequences of certain mistakes? 

And what they found in studying female-dominated positions 

versus male-dominated positions is that there was an unexplained 

pay gap. It was just—you compare all of that data collected, and 

48 

there was just this element that wasn’t explained by anything except the gender of the predominant incumbents in these positions. 

It’s proven a really difficult issue to rid our society of that. I can’t 

remember the exact quote, but I think Margaret Mead was talking 

about that half a century ago in a very different place in the world, 

how we value work done by men versus by women. 

So I’m really pleased, Madam Chairwoman, that we’re pursuing 

this, that we will be fighting to pass this legislation. And I guess 

I do have a question about the warning we hear often from those 

who oppose this legislation that it may open the doors for a flood 

of litigation. I think my own State provides a bit of an example. 

Professor Eisenberg, I don’t know if you have state-by-state reviews, et cetera, but we had an equal pay law, more like a paycheck protection act, and it was recently repealed, regrettably, in 

the State. Our Governor led a repeal effort, and it was repealed in 

2012. I thought it was a real step backward. 

But they repealed it. And, in part, the debate surrounded the potential flood of litigation. It had been in effect for some years, and 

there was just no record to suggest that. Professor Eisenberg, could 

you respond to that set of arguments? 

Ms. EISENBERG. That’s a great question. I’m proud to say my own 

home State of Maryland has an Equal Pay Act, and I should say 

that there’s no catch-all factor-other-than-sex defense. It’s very 

strict, actually. Seniority, merit, ability, skill—an enumerated list, 

and also has a class action procedural availability, and very few 

cases are ever filed, even under the Maryland Equal Pay Act. 

I think something to keep in mind is that it is very difficult to 

come forward and sue an employer. It could be career suicide. It 

takes an enormous psychological toll. So what this act really does 

is give women some more leverage about their rights so that, hopefully, they can take that to the employer and advocate for themselves and nip it in the bud. 

I’ve also done a study of every Equal Pay Act case in the Federal 

district courts from 2000 to 2011 that made it to a summary judgment decision in the court. I found that there were only 50 cases, 

about 50 cases per year, on average, for each of those 11 years. 

That’s an average of one per State. So there already is not a lot 

of Equal Pay Act litigation out there. 

I don’t see that this is going to open the flood gates. Perhaps 

more cases will make it past summary judgments. There is an 

enormous problem right now in the Federal courts with summary 

judgment and the real impact that summary judgment has that’s 

sort of stopping cases at the starting gate. They don’t make it to 

juries. 

About half of Equal Pay Act cases are dismissed based on the 

prima facie standard, the equal work standard, and of those cases 

that remain, the remaining half have been dismissed on summary 

judgment based on the factor-other-than-sex defense. So only about 

one-third are sort of sneaking past and actually making it to a 

merits decision in front of a jury. 

Senator BALDWIN. Thank you. 

Senator MIKULSKI. Excellent questions. 

Professor Eisenberg, I have a question for you, and then I’ll have 

some for the others. There are those who say we really don’t need 

49 

this bill. What we need is better enforcement of the existing legislation. There are those who say, ‘‘Who wants to discriminate? That’s 

just not America. That’s just not fair.’’ So they say we already have 

the Equal Pay Act, we already have title VI, and we just need to 

enforce those laws better. 

What do you think about that from the perspective of a law professor who has really studied this? 

Ms. EISENBERG. I’ve spent a lot of time reviewing sort of the 

State of women’s wages in the modern economy. What is so alarming to me is that if you dig deeper, beyond sort of the aggregate 

pay gap statistic, it becomes even more alarming when you compare occupation to occupation. So women in every occupational category experience a wage gap. Although women are becoming better 

educated, the gap widens as they get more education. 

The myth that the aggregate wage gap is because more women 

work part-time isn’t true, because the aggregate statistic only includes full-time, year-round workers, not part-time workers. And, 

in fact, part-time women earn more than their part-time counterparts, because more men in the part-time sector tend to be younger 

and at the beginning of their careers. The statistics also show that 

if women work harder, the gap doesn’t go away. The wage gap—— 

Senator MIKULSKI. What does that have to—I appreciate that 

data. What I asked—— 

Ms. EISENBERG. Is discrimination real? 

Senator MIKULSKI. No, I didn’t ask if discrimination is real. I 

asked do we need this law, or do we need to simply enforce—not 

simply—enforce the Equal Pay Act or title VII and really fully fund 

the EEOC, which, by the way, was hit by sequester, was hit by 

slam-down shut-down. They have a tremendous backlog in their 

cases. So is the law necessary when we have these two other laws 

on the books? 

Ms. EISENBERG. I would agree with you that the EEOC is underresourced and under-staffed, so that would be a big help. We do 

need the Paycheck Fairness Act, and what is so important about 

this law is that it deals with some of the deficiencies in the current 

remedy. It allows for a fuller remedy for all of the multiple harms 

of pay discrimination. 

Right now, for employers, it’s sort of a cost of doing business. If 

the wage disparity is discovered, then they pay the amount of the 

wage and maybe liquidated damages under the Equal Pay Act. So 

this will give a fuller remedy, which is very important. My research 

has shown that the Equal Pay Act is not working very well, that 

most women who exercise their rights under this law are not able 

to get a remedy. 

As far as title VII, title VII is a very difficult law for pay discrimination because of its requirement of intent, intentional discrimination. And I should say that the myth that the Equal Pay 

Act does not involve intent is actually not true. It’s just that the 

intent is examined at the affirmative defense stage. And the employer bears that burden, because the employer has a monopoly on 

the information about how these wages were set. 

Senator MIKULSKI. A monopoly on the information. 

Ms. EISENBERG. Exactly. 

Senator MIKULSKI. Thank you very much. 

50 

I’d like to turn to Ms. Young. It sounds like you had a wonderful 

father and a pretty terrific mother for you to have such a verve and 

vitality and this sense of entrepreneurship. This is what makes 

America great, initiative, enterprise, and so on. We come from a 

family of small businesses, too. My father started a small grocery 

store. So I can appreciate, you know, fathers saying, ‘‘Up and at 

‘em, girl,’’ you know. 

But let’s talk about the real world. You have small businesses 

that I know have to operate close to the margin. One of the things 

we say is, you know, ‘‘Senators, get real. Understand the real world 

and the market.’’ So here’s my question, Ms. Young. When you 

stepped in and, as you say, you took that bold action when your 

dad was running the show. 

Ms. YOUNG. Right. 

Senator MIKULSKI. Was this negative in terms of the bottom 

line? In other words, what was the impact? Most people would say 

if they did what you did, your father would want a walk in the 

woodshed or the equivalent, and the second would be that it would 

really pull down the earnings. 

So what happened when you did that? You talked about the dynamics with your dad. Let’s talk about the dynamics of the business. 

Ms. YOUNG. Sure. When I did that, it truly did increase the morale of the women who were working there. The turnover for our 

women workers is next to none. It did not affect our bottom line, 

and the companies are still profitable. There was no negative effect 

of me doing that. 

Senator MIKULSKI. So that’s pretty significant. 

Ms. YOUNG. Right. 

Senator MIKULSKI. That’s a very interesting point. 

Ms. Olson, I’d like to turn to you and your very content-rich presentation. But my question is: Is the Chamber opposed to the bill 

totally? Or if the bill was amended and so on, the Chamber would 

consider passing it? Do you have suggestions for amendments or 

kind of—where are you? 

Ms. OLSON. Thank you very much for your question. 

Senator MIKULSKI. Are you a flat no? Or are you a let’s see what 

we can really do here? 

Ms. OLSON. Thank you very much for your question, Senator Mikulski. The answer to—— 

Senator MIKULSKI. And that’s not in any way a negative question. 

Ms. OLSON. I understand. The answer to it is the Chamber is 

very much opposed to the three significant concerns that were 

raised today. And I want to make a point, if I may, because I think 

this one is very important. 

With respect to the issue of the revision to the factor other than 

sex, the Paycheck Fairness Act does not track the majority of circuits that have described the factor other than sex as the articulation of a legitimate business reason. That is a far different standard than the standard that has been proposed in this act. 

To your question, the answer is there is no question that the 

Chamber would welcome the opportunity to work with yourself and 

51 

Senator Alexander with respect to the issues that we’re discussing 

today. 

Senator MIKULSKI. Very good. My time is up. 

Senator Alexander, do you have any other questions? Does anybody else have any? 

Senator ALEXANDER. I could ask just one. 

Senator MIKULSKI. Sure. 

Senator ALEXANDER. It seems to me that this is—and I thank all 

of the witnesses for coming. I spent a lot of time in Waterloo several years ago, and it’s a lovely town in Iowa. 

The law already is equal pay for equal work. That’s the law, and 

there are already remedies for it. This bill seems to me, Ms. Olson, 

to be more of a proposal, as was said, about a different remedy, and 

in the view of those who support it, a more effective remedy. But 

it’s about, in effect, more litigation, more opportunities for lawyers 

to represent people who feel they’re aggrieved and have a chance 

to assert their claims. 

Let’s take an example, and let me understand exactly how—the 

laws that now exist apply to every business, right? As long as 

you’ve got two employees, and one is a man and one is a woman, 

you’re covered by this. Is that right? 

Ms. OLSON. Correct. 

Senator ALEXANDER. And there’s strict liability, which means you 

don’t have to prove intent. All you have to prove is the fact that 

the woman made more than the man for the same work or vice 

versa, and you’ve got a—— 

Ms. OLSON. A prima facie case. 

Senator ALEXANDER [continuing]. A violation of the law. 

Ms. OLSON. Correct. 

Senator ALEXANDER. And the way it is today, you can have a defense, which has been variously described here, but it gives the employer some room to present a justification for that. Under the proposed change, take me through exactly what would have to happen 

with a specific example of a man and a women. And let’s take an 

example of where the man is being paid less than the woman in 

this case, because this law is not just about women. It’s about men 

and women. 

Ms. OLSON. Correct. An employer would have to prove—it has 

the burden of proof under the law whenever there’s a difference in 

pay—that the woman was being paid more because of a factor 

other than sex, such as a qualification, an advanced degree, let’s 

say, or more experience, and not just that that was the reason, but 

that using that reason was a business necessity, which is a very 

high standard. Courts have described business necessity as the employer being required to hire that particular employee to perform 

the job with those requirements to be able to sustain it. 

Once an employer is able to sustain that, if it is a business necessity to pay the woman an additional dollar, let’s say, because of her 

higher qualifications, the man could still prevail in the case if the 

man was able to show that it wouldn’t be impossible for that business, that the business would survive, and it wouldn’t be cost prohibitive to raise his pay as well, even though he would admit he 

didn’t have that same qualification. 

52 

Senator ALEXANDER. Do you believe that the provision in the proposed Paycheck Fairness Act to allow for unlimited compensatory 

and punitive damages for claims and to allow class actions to be 

brought on behalf of an employee, whether the employee knows it 

or not, giving the employee an opportunity to opt out—do you believe that those proposed changes would increase litigation significantly? 

Ms. OLSON. There’s no question it would increase litigation, and 

not only increase it, but prolong it, because there’s an open-ended 

high top in terms of what the value of that claim is. You can’t 

value it anymore based on what the economic damages are, or a 

limit on compensatory or punitive—like under title VII. It’s limitless. 

I think that there’s no question that the issue of moving from the 

collective action to the Rule 23 context, which would be different 

than every other class case that’s brought under the Fair Labor 

Standards Act, which the Equal Pay Act is part of, would do one 

thing. It would make it harder, necessarily, to necessarily certify 

a claim, but it would allow plaintiff ’s class action lawyers to have 

much bigger claims, because it’s not the people who are sending in 

their written consent, saying, ‘‘Yes, I want to join that claim.’’ It’s 

everybody’s in unless you tell me otherwise. That’s a very, very big 

difference in terms of the size of the class actions and the cost of 

the litigation. 

Senator ALEXANDER. Thank you very much. 

Thank you, Madam Chairman. 

Senator MIKULSKI. Senator Franken. 

STATEMENT OF SENATOR FRANKEN

Senator FRANKEN. First of all, I’d like to apologize to everyone. 

I had some other pressing stuff, and I’m sorry that I missed this, 

because it’s very important to me. I think it’s just fundamental 

that people should be paid the same for the same work, and that’s 

based on race and religion and national origin and gender. I just 

think that’s a fundamental right. So I’m a co-sponsor, an original 

co-sponsor, of this act. 

I’m sorry I haven’t been here for this whole hearing, and I’ll read 

the transcript afterwards. But the Ranking Member, who I respect 

enormously, talked about this undermining flexibility in the workforce or in the workplace. I don’t understand that, and maybe I 

should just later ask the Ranking Member. 

But it seems to me that you can—dads want to go to soccer 

games, and moms want to go to soccer games. Dads want to be able 

to have their kid in a daycare center at the school. I think that’s 

a wonderful business you did with Captain Kangaroo. I tried to 

team up with Mr. Green Jeans, but he wouldn’t do it. 

[Laughter.] 

Professor Eisenberg, would this affect flexibility in the workplace, this law? 

Ms. EISENBERG. Based on my reading, I don’t think that it would. 

Remember, the catch-all factor other than sex is still there, but it 

has to be related to the job and the business. So that leaves the 

field wide open, in my opinion, that employers can still base comVerDate Nov 24 2008 16:33 Jan 17, 2017 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6601 S:\DOCS\22608.TXT DENISE
53 

pensation and give flexibility in their workforce in a way that matters most for their particular business. 

Senator FRANKEN. I’m not sure what questions have been asked 

and not been asked. So I’m going to go to one that probably no one 

asked, because I saw something, Ms. Olson, in your testimony. You 

state that—this is a quote from your testimony— 

‘‘If enacted, the act would amend the EPA significantly in 

substantive and procedural ways, all upon a fundamental yet 

unsubstantiated premise, namely, that throughout the United 

States of America, all unexplained wage disparities existing between men and women are necessarily the result of intentional 

discrimination by employers.’’ 

Basically, what you’re saying is that the fundamental premise of 

this is that all unexplained wage disparities are necessarily the result of intentional discrimination by employers, that that’s the 

premise of this. Could you expand on that a little? 

Ms. OLSON. Yes. There’s been a lot of discussion by proponents 

of this bill that there is a significant wage gap. At footnote 5 of my 

testimony, I include a discussion of various economists. I’m not an 

economist. I’m here as a lawyer today—but many economists that 

describe that when you take into account personal choices and the 

number of different considerations that are all detailed in that footnote, many economists, and many government studies show that 

the wage gap decreases to between somewhere around 4.9 percent 

to somewhere up to 7.9 percent—some studies say 12 percent. It 

depends. 

There are a lot of studies. Some of them track the same person. 

Some of them don’t. Some look at median wages without taking a 

look at—I’m going to just give you one example—lawyers. Lawyer’s 

aren’t going to make—someone who graduates from law school, 5 

years out, in that category, isn’t going to make the same amount 

as somebody else. 

A big factor is going to be: Do I work for a private law firm? Do 

I work for a public interest group? Do I work in a public setting 

in terms of a public governmental institution? Do I work inside a 

company? But none of those factors are being considered. The point 

of my testimony that I submitted that you referenced is that to the 

extent there is a wage gap, there has been no evidence that that 

wage gap is the result of employer discrimination. 

Senator FRANKEN. But there still exists a gap, even when you 

control for every other factor. But here’s the thing. When I read 

Professor Eisenberg’s testimony, it seemed quite at odds with what 

I read from your testimony. Did you read Professor Eisenberg’s testimony? 

Ms. OLSON. I did, Senator Franken. 

Senator FRANKEN. So were you struck by what I was struck by? 

Ms. OLSON. I was struck by it, but—— 

Senator FRANKEN. I just would like to ask her about it since I’m 

running out of time. 

Ms. OLSON. Sure. 

Senator FRANKEN. Can I ask just this one question of Professor 

Eisenberg? 

Senator MIKULSKI. You can wrap up with it. 

54 

Senator FRANKEN. In your testimony, you state that it is your 

firm belief that, ‘‘firm belief that most employers try to comply with 

the law and do not set out to intentionally discriminate against 

women.’’ That seems to be very at odds with Ms. Olson. Could you 

comment on her comment and explain the difference in viewpoints? 

Ms. EISENBERG. Right. I think most employers do try to do the 

right thing. But there’s no question that there are some outdated 

attitudes in some workplaces. And one need only hear the stories 

here today to show that, and many other women have come before 

this committee to share that. 

Just to give you an example, managers at Walmart told women 

that men would always make more because God made Adam first, 

and so women would always be second to men. And one manager 

said, ‘‘Bring in your household budget so I can see if you deserve 

to be paid as much as men.’’ So there’s this real bias in some workplaces that—— 

Senator FRANKEN. That almost makes Ms. Olson’s point. That 

sounds pretty intentional. 

Ms. EISENBERG. Yes. And then the second part is sort of—so 

there is still intentional discrimination is the point. But there’s also 

unconscious biases, especially against working mothers, that seep 

into the wage setting process. So some of those stereotypes are a 

real problem as well. 

Senator FRANKEN. OK. I apologize for going over, Madam Chair. 

Senator MIKULSKI. It was a good exchange. 

We want to thank all of our witnesses. 

And, Ms. Sleeman, we want to thank you for telling your personal story. I didn’t ask you a question because it was complete in 

and of itself. 

I ask unanimous consent that a letter from a constituent of mine, 

Latoya Weaver, who suffered discrimination as well, be entered 

into the record. 

[The information referred to follows:] 

MARCH 31, 2014. 

Senator BARBARA MIKULSKI, 

503 Hart Senate Office Building, 

Washington, DC 20510. 

DEAR SENATOR MIKULSKI: My name is LaToya Weaver. I grew up and still live 

in Great Mills, MD. I currently work in guest services at a hotel. But back in 2012 

I had to file a discrimination complaint against my former employer, Extended Stay 

Hotels, because they had paid me less than two male employees who held the same 

job as me. 

I started working full-time as a Guest Services Representative at Extended Stay 

Hotels in Lexington Park, MD in July 2007. Most weeks I worked 40 hours. When 

I started there I was only paid $8.00 per hour, even though I had already gained 

more than 2 year’s worth of hotel guest services experience at a Best Western. I 

worked at Extended Stay until May 2012. At that point my pay had increased to 

$8.88, because every year I would ask for an annual raise and the hotel would give 

me a raise of 10 or 15 cents at a time. 

In the spring of 2012 I had an offer for a customer service job at a doctor’s office 

that would pay more than I was making at Extended Stay. I therefore asked for 

a raise to $9.50 per hour. However, my manager turned me down because she said 

that the hotel was undergoing construction. I decided to take this other job. 

While I was working at Extended Stay the employees were told that we were not 

supposed to discuss our pay with each other. However, shortly before I left the hotel 

I saw some papers that my manager had left sitting out that showed that two men 

who had recently been hired as Guest Services Representatives were each making 

55 

$10.00 per hour. I was very upset to discover this, and so I decided to file a pay 

discrimination complaint with the Equal Employment Opportunity Commission. 

After the EEOC investigated, it came out that a number of other women working 

as Guest Services Representatives for the hotel were also being paid less than these 

two men. The EEOC filed a lawsuit against Extended Stay Hotels for the discrimination that we all had experienced. The hotel eventually agreed to settle the lawsuit 

and compensate us for the years of paying us less. 

Being paid fairly for all those years would have made a huge difference to me and 

my family. I am a single parent to three children, and all three of them were in 

day care at that time. Even though I had a subsidy to help me with paying for a 

day care center, I still had to spend $100 per week out of my own pocket. Paying 

that cost along with the rest of my bills was a huge challenge. And in order to finally get work that would pay me more, I had to travel to a job 45 minutes from 

my house. 

I was fortunate enough to finally get a remedy for the discrimination that I experienced. But I am concerned about all the other women who will continue to face 

unfair treatment in the future because our laws are not strong enough and do not 

prevent employers from discriminating. 

Sincerely, 

LATOYA WEAVER, 

Great Mills, MD. 

Senator MIKULSKI. The record will be open for 10 days for additional statements. But, also, members are allowed to ask followup 

questions and submit them for the record. 

This has been a very excellent hearing. I like the fact that it was 

about real work, not just about fireworks at a hearing. I think 

we’ve all learned a lot by listening to each other. We need to continue the discussion and move the legislation forward. 

This concludes the hearing. 

[Additional Material follows.] 

56 

1The fact that the Chamber has not commented on other parts of the testimony presented 

at the hearing on April 1, 2014 should not be viewed as an indication that it agrees with the 

other testimony. 

ADDITIONAL MATERIAL 

SEYFARTH SHAW LLP, 

CHICAGO, IL 60603, 

April 7, 2014. 

Hon. TOM HARKIN, Chairman, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

731 Hart Senate Office Building, 

Washington, DC 20510. 

Hon. LAMAR ALEXANDER, Ranking Member, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

455 Dirksen Senate Office Building, 

Washington, DC 20510. 

Hon. BARBARA ANN MIKULSKI, Member, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

503 Hart Senate Office Building, 

Washington, DC 20510. 

Re: Supplemental Testimony Submitted for April 1, 2014 Senate HELP Committee 

Hearing: ‘‘Access to Justice: Ensuring Equal Pay with the Paycheck Fairness 

Act’’ 

DEAR CHAIRMAN HARKIN, SENATOR ALEXANDER AND SENATOR MIKULSKI: This supplemental testimony is presented on behalf of the U.S. Chamber of Commerce by 

Camille A. Olson. It is provided to the Senate Committee on Health, Education, 

Labor, and Pensions regarding S. 84, the Paycheck Fairness Act (‘‘PFA’’), pursuant 

to the statements made on the record by Hearing Chair, Senator Mikulski at the 

hearing entitled ‘‘Access to Justice: Ensuring Equal Pay with the Paycheck Fairness 

Act’’ on April 1, 2014. This supplemental testimony responds to two specific issues 

addressed by another witness in response to specific questions by Senators during 

the April 1, 2014 hearing.1

Issue #1. Does the PFA Change the Equal Pay Act’s (‘‘EPA’’) factor other than sex 

defense as it is currently interpreted by a majority of courts in the United States? 

Hearing Testimony: No; it is the same test. 

Supplemental Testimony: Yes; the test under the PFA is materially different 

from the test most often used by courts to interpret the factor ‘‘other than sex’’ defense under the Equal Pay Act. In fact, no court in the United States has adopted 

the language of the PFA as current law under the Equal Pay Act. 

A. HEARING TESTIMONY

Senator WARREN: ‘‘Professor Eisenberg, and could you just talk a little bit more 

about the current law and how employers are using the factor other than sex defense under today’s law.’’ [1:30:04–1:30:17] 

Witness EISENBERG: ‘‘Certainly, that’s a great question. . . . the catchall factor 

other than sex, as currently interpreted by a majority of courts, is still in a majority 

of courts supposed to be job and business-related. So this proposal in the Paycheck 

Fairness Act is codifying that majority view.’’ [1:30:17–1:31:13] 

Senator WARREN: ‘‘So in a majority of courts, there’s no change in the law, in that 

fundamental sense.’’ [1:31:13–1:31:15] 

Witness EISENBERG: ‘‘That’s right.’’ [1:31:15]. 

B. SUPPLEMENTAL TESTIMONY BY CHAMBER OF COMMERCE

The PFA rewrites the Equal Pay Act’s factor other than sex defense. PFA is a 

radical departure from the current interpretations of the Equal Pay Act in all courts 

in the United States. 

First, no circuit court has interpreted the EPA to mean an employer must prove 

that the factor other than sex is: job-related and consistent with business necessity; 

57 

2The Thirteenth Circuit Court of Appeals—the Federal Circuit—does not have jurisdiction 

over EPA claims, and thus is not included in this analysis. 3 Brinkley v. Harbour Recreation Club, 180 F.3d 598, 613 (4th Cir. 1999); King v. Acosta Sales 

& Mktg., Inc., 678 F.3d 470, 474 (7th Cir. 2012); Taylor v. White, 321 F.3d 710, 718 (8th Cir. 

2003). 4 Belfi v. Prendergast, 191 F.3d 129, 136 (2d Cir. 1999). 5 Hodgson v. Robert Hall Clothes, Inc., 473 F.2d 589, 596 (3d Cir. 1973). 6 E.E.O.C. v. J.C. Penney Co., Inc. 843 F.2d 249, 253 (6th Cir. 1988) (citations omitted). 

Second, no circuit court has interpreted the factor other than sex defense to require an employer to prove the factor other than sex was not based upon or derived 

from a sex-based differential in compensation; and 

Third, no circuit court has ever held that an employee prevails under the EPA 

if the employee shows 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.’’ 

Yet, all of the above requirements are contained in the PFA in proposed section 

206(d)(1)(B), as set forth below: 

The bona fide factor defense described in subparagraph (A)(iv) 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. 

Five of twelve regional circuit courts of appeals2 have held that the ‘‘factor other 

than sex’’ defense must be business-related: the Second, Third, Sixth, Ninth and 

Eleventh Circuits. Three circuit courts have held that the factor other than sex 

must be sex-neutral and uniformly applied.3 Four circuit courts have not defined the 

factor other than sex defense in the EPA. Thus, less than half of the circuit courts 

have ruled that a factor other than sex must be a business-related factor. 

The business-related factor other than sex test used by five circuit courts is, contrary to the Hearing’s testimony, significantly different than the new language contained in the PFA. 

The Second Circuit Court of Appeals explains that, 

‘‘. . . to successfully establish the ‘factor other than sex’ defense, an employer 

must also demonstrate that it had a legitimate business reason for implementing the gender-neutral factor that brought about the wage differential.’’4

Applying the current EPA’s ‘‘factor other than sex’’ test, the Third Circuit explained: ‘‘the district court was correct to hold in this case that economic benefits 

to an employer can justify a wage differential;’’ because the differential was based 

on a legitimate business reason.5

The Sixth Circuit rejects the PFA’s requirement that the employer show its factor 

other than sex does not perpetuate historic sex discrimination, explaining that such 

a requirement creates ‘‘an impossibly high standard.’’ Indeed, contrary to the PFA, 

the Sixth Circuit described the factor other than sex defense as: 

Conversely, the [lower] court refused to place an impossibly high standard on 

the employer by requiring it to show that the factor used does not ‘‘perpetuate[] 

historic sex discrimination.’’ The court required instead that the employer show 

only that the factor was adopted for a legitimate business reason and used reasonably in light of the employer’s stated purpose. 

* * * 

We now hold that the legitimate business reason standard is the appropriate 

benchmark against which to measure the ‘‘factor other than sex’’ defense.6

Contrary to the PFA, the Ninth Circuit Court of Appeals defined the factor other 

than sex as follows: 

An employer thus cannot use a factor which causes a wage differential between male and female employees absent an acceptable business reason. 

* * * 

The Equal Pay Act entrusts employers, not judges, with making the often uncertain decisions of how to accomplish business objectives. 

* * * 

58 

7 Kouba v. AllState Ins. Co., 691 F.2d 873, 876–77 (9th Cir. 1982). 8Steger v. General Electric Company, 318 F.3d 1066, 1078 (11th Cir. 2003) (citations omitted). 9Further, damages applicable if an employer is unable to prove job-related and consistent 

with business necessity under a title VII disparate impact claim are limited to back pay, interest, attorneys’ fees and costs. Failure to prove job-related and consistent with business necessity 

under title VII does not entitle a plaintiff to any punitive or compensatory damages. Whereas, 

under PFA, a Plaintiff who has not proven discriminatory intent is entitled to unlimited compensatory and punitive damages, in addition to the already available remedies under the EPA 

of back pay, interest, attorneys’ fees and costs and liquidated (or double) damages. The PFA’s 

factor other than sex limitations and damages provisions are internally inconsistent and incongruous with the principles underlying other Federal employment discrimination laws as well as 

the EPA, and for the reasons stated above, inappropriate to graft onto EPA claims. To make 

A pragmatic standard, which protects against abuse yet accommodates employer discretion, is that the employer must use the factor reasonably in light 

of the employer’s stated purpose as well as its other practices.7

Contrary to the PFA, the Eleventh Circuit Court of Appeals defined the factor 

other than sex as follows: 

The burden to prove these affirmative defenses is heavy and must demonstrate that ‘‘the factor of sex provided no basis for the wage differential.’’ Further, the employer must show that none of the decisionmakers, whether in middle or upper management, were influenced by gender bias. [citation omitted] Although an employer may not rely on a ‘‘general practice’’ as a factor ‘‘other than 

sex,’’ it may consider factors such as the ‘‘unique characteristics of the same job; 

. . . an individual’s experience, training or ability; or . . . special exigent circumstances connected with the business.’’8

Strikingly, none of the five Circuit Courts of Appeals relied upon for the ‘‘majority’’ view by proponents of the PFA at the Hearing require an employer to show the 

factor was job-related and consistent with business necessity, nor do those courts 

require that the employer prove the negative contention—that the factor was not 

based upon or derived from a sex-based differential in compensation. Similarly none 

of the other circuit courts allow the employer’s factor other than sex defense to be 

erased by a showing that an alternative employment practice exists that would 

serve the same business purpose without producing a pay differential between employees. As such, an analysis of circuit court decisions does not support the Hearing 

testimony that in a majority of courts the PFA would not change the Equal Pay Act. 

By introducing the concepts of a job-related and consistent with business necessity 

requirement into the EPA’s factor other than sex defense, the PFA is importing title 

VII disparate impact law applicable to validating neutral general practices into the 

EPA which deals with an employer proving that an individual pay difference between employees was based on a factor other than sex. But the EPA is concerned 

with disparate treatment, not disparate impact, thus it is not appropriate to impose 

upon an employer a disparate impact burden to disprove an EPA disparate treatment claim. In practice, the job-related and consistent with business necessity burden is placed on an employer when a plaintiff brings a disparate impact claim under 

title VII, only after a plaintiff has shown that a general qualification standard or 

test disparately impacts a minority group. In litigation, only after a plaintiff satisfies this specific burden of proof is an employer required to justify the general practice causing the group disparity by proving the group practice is job-related and consistent with business necessity. Both prerequisites to invoking the job-related and 

consistent with business necessity standard in disparate impact title VII litigation 

are missing in EPA litigation. Hence requiring an employer prove a decision was 

job-related and consistent with business necessity is inappropriate under the EPA. 

In title VII disparate impact litigation, EEOC and Plaintiffs’ trial attorneys argue 

that the employer, at the time the test was implemented was required to validate 

the test as an important indicator of job performance usually through a formal validation study conducted by an expert in the field. 

Both practically and analytically, this disparate impact showing cannot be done 

with respect to an individualized employee pay decision every time a pay decision 

is made (i.e., engage an expert to perform a study or otherwise prove it is a business 

necessity to pay Employee A 20 cents an hour more than Employee B because of 

Employee A’s greater experience, training, or education). In disparate impact analysis it is not applied that way (instead it is applied to a general practice, not every 

application of the practice). In fact, the Supreme Court has noted that disparate impact analysis is incompatible with disparate treatment claims under the Equal Pay 

Act. See Smith v. City of Jackson, 544 U.S. 228, 239 n.11 (2005). The statutory language of title VII also explicitly rejects application of the business necessity defense 

to a disparate treatment claim under title VII (42 USC 2000e–2(k)(2)).9

59 

clear, the type of disparate treatment analysis used under the EPA is not the same as that 

under title VII. 10See Uniform Employee Selection Guidelines Interpretation and Clarification, http:// 

uniformguidelines.com/questionandanswers.html, at Question 50. 11 Am. Fed’n of State, Cnty., & Mun. Employees, AFL–CIO (AFSCME) v. State of Wash., 770 

F.2d 1401, 1407 (9th Cir. 1985) (quoting the Circuit Court’s opinion written by U.S. Supreme 

Court Justice Anthony Kennedy). See also, UAW v. State of Michigan, 886 F.2d 766, 768–69 (6th 

Cir. 1989). 12Roberts v. Segal Co., 125 F. Supp. 2d 545, 551 (D.D.C. 2000) (mere failure to rectify market 

wage disparities in the workplace is not actionable); Burns v. Republic Say. Bank, 25 F. Supp. 

2d 809, 824 (N.D. Ohio 1998) (‘‘[d]iscriminatory intent may not be inferred from the employer’s 

failure to depart from free-market parameters or failure to rectify traditional wage disparities.’’); 

Am. Fed’n of State, Cnty. & Mun. Employees, AFL–CIO (AFSCME) v. Cnty. of Nassau, 799 F. 

Supp. 1370, 1414 (E.D.N.Y. 1992) (holding that reliance on the market system does not give rise 

to title VII liability). 

Applying the PFA’s version of the ‘‘job-related and consistent with business necessity’’ test to the EPA, an employer would be required to prove for each wage decision 

that the ultimate business goal achieved by the higher pay is significantly correlated 

with the job’s requirements and bears a demonstrable relationship to the successful 

performance of the job. In addition, an employer would be required to prove that 

a pay differential was justified at the time that the decision was made.10 A highly 

onerous and unrealistic burden to apply to everyday individual pay determinations 

for all employees is something never before required by any court under the Equal 

Pay Act. For these reasons and the reasons provided by the Chamber in its submitted written and verbal testimony, the Chamber opposes the proposed modifications to the factor other than sex defense in the Equal Pay Act proposed by PFA. 

Issue #2. Should employees and employers be allowed to negotiate pay and should 

an employer be allowed to consider the market’s price for an employee’s wage in setting wages? 

Hearing Testimony: No, because setting pay based in part on negotiations 

harms women who do not fare as well as men in pay negotiations and because the 

free market may be affected by discrimination at other employers. 

Supplemental Testimony: Yes, employees and employers should be allowed to 

negotiate pay and take into consideration the free market’s forces in connection with 

the setting of pay without requiring an employer prove that the market rates set 

by other employers were not tainted by sex discrimination. 

A. HEARING TESTIMONY

Witness EISENBERG: Professor Eisenberg supported the language of the PFA 

which includes modifying the factor other than sex defense to require an employer 

prove that the wage paid was ‘‘not based upon or derived from a sex-based differential in compensation.’’ The Witness generally criticized all employer’s use of prior 

salaries of employees and market data ‘‘as not really any sort of objective market 

data they’re referring to’’ and ‘‘the happenstance of prior salaries’’ when men and 

women come from different employers into a new workplace as inappropriate theorizing the different salaries from different employers ‘‘absolutely . . . perpetuates 

the very discrimination the Equal Pay Act was supposed to address’’. [1:32:36–l 

:33:39} 

B. SUPPLEMENTAL TESTIMONY BY CHAMBER OF COMMERCE

‘‘Neither law nor logic deems the free market system a suspect enterprise.’’11

In the United States, prices of goods and services are based on the fundamental 

economic principles of supply and demand. Highly competent, qualified and talented 

employees—whether male or female—are in greater demand, yet smaller supply, 

which creates competition for their services. Under the PFA, an employer would not 

be able to match a competing offer to retain an employee when other employees of 

the opposite sex in the job category would make less, unless the employer could 

prove that the competing offer of a competitor was without sex bias—an impossible 

task. In effect, the PFA creates a presumption of market discrimination by requiring 

an employer to show that the competing offer or market price is not ‘‘based upon 

or derived from’’ historic discrimination without any showing by the plaintiff that 

there is, in fact, any such discrimination. Instead, in effect, the PFA ultimately requires employers to ignore the realities of the marketplace and an employee’s expectations regarding pay based on their prior wage rates. 

Many circuit courts have noted that neither title VII nor the EPA are substitutes 

for the free market, which historically determines labor rates.12 Circuit courts have 

60 

also noted that there is no reason to believe that judges or juries are well-equipped 

to resolve intelligently the issues of the value of an employee’s qualifications to the 

enterprise. The Ninth Circuit Court of Appeals, for example, has noted that Federal 

discrimination laws were not intended to prevent employers from competing in the 

labor market. 

An employer must be allowed to pay the wages necessary for it to compete in the 

marketplace for the best qualified applicants. Employees must be allowed to live up 

to their potential, and earn compensation based on their qualifications and value. 

Ignoring market competition in a labor market would also erode an employer’s ability to develop and implement effective retention policies. 

In conclusion, the Chamber’s position is that PFA’s definition of factor other than 

sex is substantially different from the definition applied to factor other than sex by 

circuit courts throughout the United States and is inappropriate. Instead of an 

‘‘Anything Under the Sun’’ criticism of the current legislative scheme, the PFA factor other than sex defense is a ‘‘Nothing Under The Sun’’ defense, hurting both valued employees and employers. Mr. Chairman and members of the committee, thank 

you for the opportunity to provide this supplemental testimony. Please do not hesitate to contact me or the Chamber’s Labor, Immigration, and Employee Benefits Division if we can be of further assistance in this matter. 

Respectfully submitted, 

CAMILLE A. OLSON, Chair, 

U.S. Chamber of Commerce, 

Equal Employment Opportunity Subcommittee. 

RESPONSE BY DEBORAH THOMPSON EISENBERG TO QUESTIONS

OF SENATOR ALEXANDER AND SENATOR FRANKEN

SENATOR ALEXANDER

Last week, the President attempted to recognize equal pay issues by announcing 

a new Executive order that prohibits Federal contractors from retaliating against 

employees who discuss wages with other employees. The President also directed the 

Department of Labor to collect employee compensation data based on race and sex 

from Federal contractors. According to the White House, these actions were taken 

to ‘‘ensure equal pay for equal work.’’ Despite this, the American Enterprise Institute (AEI) recently found the median salary in 2013 for female White House staffers 

was $65,000, compared to $73,729 for male staffers—or a 12 percent pay gap. 

Question 1. Assuming that White House staff are covered by the Equal Pay Act 

if it were passed, would the White House be subject to a lawsuit for paying male 

staffers more than female staffers, based on the data AEI presented—yes or no? 

Please provide a detailed explanation of your answer. 

Answer 1. The Equal Pay Act was passed in 1963 and the Federal Government 

is not exempt from its provisions. To determine whether a claim under the Equal 

Pay Act exists, a plaintiff must identify a comparator of the opposite sex who performs work that is substantially equal in terms of skills, responsibility, and effort, 

and performed under similar working conditions, and that they are paid different 

amounts. The AEI data does not specify comparators performing substantially equal 

work so it is not possible to make any conclusions about whether a prima facie claim 

under the Equal Pay Act exists. It is doubtful, however, because generalized pay disparities among an entire workforce or category of workers, standing alone, are not 

actionable under the Equal Pay Act (and would not be actionable under the Paycheck Fairness Act if it were passed). 

Question 2. On April 7, the President’s press secretary, Jay Carney defended the 

White House’s pay gap by saying ‘‘[the pay gap] was better than the national average.’’ You state in your written testimony that, ‘‘It is simply smart business and 

good corporate governance for an employer to be more thoughtful about how its pay 

awards relate to the job and business.’’ 

Based on your statement, was the White House being thoughtful in its defense 

of its own pay gap? If the Paycheck Fairness Act became law, could an employer 

successfully argue their pay gap between male and female employees were ‘‘better 

than the national average’’ as a defense to avoid liability? 

Answer 2. This question misunderstands the requirements of stating a claim 

under the Equal Pay Act. One cannot sue an employer based solely on an acrossthe-board ‘‘pay gap’’ among all male and female employees. A plaintiff must identify 

a specific comparator of the opposite sex who is performing substantially equal work 

in terms of skills, responsibility, and effort, under similar working conditions. 

61 

1See, e.g., Stopka v. Alliance of Am. Insurers, 141 F.3d 681 (7th Cir. 1998) (finding that a 

female executive was not part of the ‘‘core business’’ like her male comparators); Goodrich v. Int’l Bhd. of Elec. Workers, 815 F.2d 1519 (D.C. Cir. 1987) (finding that male union contract 

analysts performed tasks that were ‘‘significant and essential to the operations and mission’’ of 

the union). 2See, e.g., Wheatley v. Wicomico County, 390 F.3d 328 (4th Cir. 2004) (holding that male and 

female department heads of different agencies could not be compared under Equal Pay Act); 

Berg v. Norand Corp. 169 F.3d 1140 (8th Cir. 1999) (holding female department manager did not perform equal work as all other male department managers, who earned on average $6,000 

to $8,000 more); Sprague v. Thorn Ams., Inc., 129 F.3d 1355 (10th Cir. 1997) (holding assistant 

manager jobs not equal and could not be compared under Equal Pay Act); Ratts v. Bus. Sys. 

Inc., 686 F. Supp. 546 (D.S.C. 1987) (female vice president could not be compared to four other 

male vice presidents). 

Claims that fail to identify specific comparators of the opposite sex performing equal 

work and being paid unequal amounts are not viable, even if the Paycheck Fairness 

Act passed. Hypothetically speaking, however, if there was a prima facie showing 

that men and women performed substantially equal jobs as defined under the Equal 

Pay Act (which is not the case with the AEI’s generalized aggregate data), the employer would have to show that unequal pay for equal work was caused by one of 

the four affirmative defenses delineated in the law: (i) a seniority system, (ii) a 

merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) any factor other than sex. This analysis focuses on the characteristics of the employee who are being compared and the actual reasons for the differing 

pay. It does not examine how an employer’s generalized gender pay gap compares 

to that of other employers because such generalized pay disparities are not actionable under the Equal Pay Act or the Paycheck Fairness Act. 

Question 3. Further, Mr. Carney contributed the White House’s pay gap to the 

possibility that the lowest paid positions are filled with more women than men. A 

day later Mr. Carney clarified, ‘‘that women are recruited for more junior positions 

so that they’re put in the pipelines for senior positions in the future.’’ Under the 

Paycheck Fairness Act, is this a legitimate argument in explaining the White 

House’s pay gap? 

Answer 3. Again, ‘‘pay gaps’’ generally speaking are not violations of the Equal 

Pay Act or the Paycheck Fairness Act. In the scenario presented, any claim under 

the Equal Pay Act (even if amended by the Paycheck Fairness Act) would not satisfy 

the demanding prima facie threshold of showing specific employees of the opposite 

sex who are performing substantially equal jobs in terms of skills, responsibility, 

and effort, under similar working conditions, with more pay. Hypothetically speaking, however, if such a claim survived a motion to dismiss or motion for summary 

judgment by the employer (which is highly unlikely based on my research of Equal 

Pay Act case law), the employer would prevail if it showed that women were paid 

less because of differences in the jobs held between the male and female employees 

being compared. 

In other words, paying women who work in junior positions less than men who 

are working in senior positions is not unlawful under the Equal Pay Act or the Paycheck Fairness Act. In fact, many employers have prevailed in Equal Pay Act cases 

by showing that plaintiffs were working in lower level or less significant positions 

than their comparators,1 or that employees who had the same job title nevertheless 

had different levels of responsibility or job duties and could not be compared.2 Many 

other examples of similar equal pay cases are cited in my scholarship. See Shattering the Equal Pay Act’s Glass Ceiling, 63 SMU L. REV. 17, 39–41 (2010). 

Question 4. The White House has consistently cited the statistic that a woman earns an average of $.77 for every $1 a man earns. The White House’s Web site 

has also said that ‘‘there is good evidence that discrimination contributes to the persistent pay disparity between men and women.’’ Do you agree with that statement? 

If so, is the White House’s pay disparity a signal that the Obama administration 

discriminates against female staffers? 

Answer 4. I agree that there is evidence that intentional discrimination contributes to the persistent pay gap between men and women performing similar work, 

even after controlling for so-called ‘‘choice’’ factors such as occupational category, job 

position, skills, responsibility, performance, geographical location, etc. As I have explained in my research, I think that there are other factors that have contributed 

to pay differentials among employees who are performing substantially equal jobs 

and have comparable qualifications, experience, and performance, including pay secrecy combined with ambiguous or wholly subjective pay practices that tend to disadvantage women (see my answer to Senator Franken’s second question above and 

my written testimony). 

62 

Equal Pay Act cases are extremely fact-intensive. Whether a particular employer’s 

overall pay disparity among its entire workforce signals facially unlawful discrimination against women under Federal law will depend upon whether there are male 

comparators who perform substantially equal jobs in terms of skills, responsibility, 

and effort and receive more pay. This question does not provide any facts of pay 

differentials between specific employees performing equal jobs that would suggest 

unlawful discrimination under the Equal Pay Act. 

SENATOR FRANKEN

Question 1. In your testimony, you highlight the importance of addressing the pay 

gap for working mothers, their families, and their children. As you note in your testimony, half of all mothers work full-time and more and more families are relying 

on two earners. At the same time, more and more women are attaining college and 

advanced degrees. Yet the pay gap has persisted. Why hasn’t more education been 

enough to close the wage gap? 

Answer 1. That is a good question. In my scholarship, I explore how women who 

earn higher levels of education and professional status tend to experience a larger 

pay gap than women who work in more standardized, lower-wage jobs. I think there 

are several factors that contribute to the problem. First, many women experience 

a ‘‘motherhood penalty’’ in their wages, with working mothers likely to receive lower 

pay and working fathers likely to receive higher wages. Second, compensation for 

employees in upper-level and professional jobs is more likely to be set through ambiguous and wholly subjective processes that tend to disadvantage women’s pay. Pay 

disparities tend to be the greatest for discretionary elements of pay, such as bonuses 

and stock options, which comprise larger portions of compensation for women in 

some higher-level and professional occupations. Based on my research and experience, the more subjective, informal, and unguided the compensation-setting process—which might be the case for many women with higher levels of education—the 

more likely there will be unjustified pay disparities between men and women who 

are performing substantially equal jobs. My answer to your next question elaborates 

on why that might be happening. 

Question 2. In her testimony, Ms. Olson stated that, 

‘‘If enacted, the Act would amend the EPA significantly in substantive and 

procedural ways, all upon a fundamental yet unsubstantiated premise—namely, 

that throughout the United States of America, all unexplained wage disparities 

existing between men and women are necessarily the result of intentional discrimination by employers.’’ 

However, in your testimony, you state that it is your ‘‘firm belief that most employers try to comply with the law and do not set out to intentionally discriminate 

against women.’’ Can you comment on the argument that the Paycheck Fairness Act 

is based on an erroneous premise that most pay discrimination is intentional on the 

part of employers? 

Answer 2. It is shocking that some cases still involve blatant sexist attitudes that 

men deserve more pay as the family ‘‘breadwinners,’’ or that mothers should not be 

working. But there are other complex dynamics that can cause pay discrimination 

even among otherwise fair-minded employers. 

First, my scholarship has explored how unequal pay for equal work happens in 

the modern economy because of pay secrecy combined with compensation practices 

that are overly subjective or arbitrary. Pay may be based on the happenstance of 

prior salaries at previous employers, rather than the qualifications and performance 

of employees in the new job. It’s more typical today for compensation for some jobs 

to result from a negotiation process that tends to result in lower pay for women. 

There are complex cognitive, psychological, and social factors at play that can place 

women in Catch–22 situations when it comes to negotiating their salaries. Women 

are negotiating in the larger context of societal norms and expectations about gender roles. Sometimes women are prevented from negotiating at all (as Kerri 

Sleeman testified happened to her and as women in other equal pay cases report). 

Other times, if women negotiate, or negotiate too ‘‘hard,’’ they may violate the notion that women should be ‘‘friendly and agreeable,’’ which can penalize them in the 

workplace. Studies have shown that women who have identical qualifications and 

negotiate just as skillfully as men will sometimes wind up with lower starting salaries. 

Second, the more ambiguous and ill-defined pay processes are, the more likely 

women’s pay will be lower because of unconscious biases that can infect pay decisions even in the absence of what we might consider ‘‘intentional’’ discrimination. 

Working fathers tend to be rewarded with more pay, and working mothers tend to 

63 

1For purposes of the answers provided to the four Supplemental Questions, the undersigned 

assumes, as the questions request, that the White House is covered by the Equal Pay Act (as 

amended by the Paycheck Fairness Act, if passed). 

earn less because of deeply ingrained, subconscious stereotypes that wives perform 

‘‘extra’’ work and their husbands are the family ‘‘breadwinners,’’ or that working 

mothers will have more ‘‘work-life’’ conflict and not be as committed to working 

hard, even when that is not true. 

To top it all off, as we know from the stories of Lilly Ledbetter, Kerri Sleeman 

and many others, pay secrecy makes most gender pay discrimination hidden from 

sight. Pay disparities may start small and snowball over time, undetected and 

undeterred. 

I think the Paycheck Fairness Act starts to address some of these dynamics that 

can cause unequal pay for equal work even in the absence of intentional sex-based 

animus by: (1) allowing employees to discuss wages and compare notes about what 

employees in similar positions are paid without retaliation; (2) requiring that the 

‘‘any factor other than sex’’ defense under the Equal Pay Act relate to business and 

job-related factors (rather than, for example, the happenstance of salaries at previous employers or vague claims about ‘‘market forces’’); (3) providing negotiation 

training to help address the Catch–22 in which women sometimes find themselves 

when they negotiate pay; and (4) requiring reporting of wage data by sex so that 

employers will be more aware of, and hopefully motivated to correct, unjustified pay 

disparities before they turn into a lawsuit. 

SEYFARTH SHAW LLP, 

CHICAGO, IL 60603, 

April 29, 2014. 

Hon. TOM HARKIN, Chairman, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

731 Hart Senate Office Building, 

Washington, DC 20510. 

Hon. LAMAR ALEXANDER, Ranking Member, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

455 Dirksen Senate Office Building, 

Washington, DC 20510. 

Hon. BARBARA ANN MIKULSKI, Member, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

503 Hart Senate Office Building, 

Washington, DC 20510. 

Re: Response to Supplemental Questions for April 1, 2014 Senate HELP Committee 

Hearing: ‘‘Access to Justice: Ensuring Equal Pay with the Paycheck Fairness 

Act’’ 

DEAR CHAIRMAN HARKIN, SENATOR ALEXANDER AND SENATOR MIKULSKI: This Response provides answers to Supplemental Questions provided to the undersigned following the April 1, 2014 Hearing, and is presented on behalf of the United States 

Chamber of Commerce by Camille A. Olson. It is provided to the Senate Committee 

on Health, Education, Labor, and Pensions regarding S. 84, the Paycheck Fairness 

Act (‘‘PFA’’), in conjunction with the hearing entitled ‘‘Access to Justice: Ensuring 

Equal Pay with the Paycheck Fairness Act’’ on April 1, 2014. This response provides 

answers to four questions, as set forth below. 

Question 1. Assuming that White House staff are covered by the Equal Pay Act 

(as amended by the Paycheck Fairness Act if it were passed), would the White 

House be subject to a lawsuit for paying male staffers more than female staffers, 

based on the data AEI presented—yes or no?1 Please provide a detailed explanation 

of your answer. 

Answer 1. No. The AEI median pay statistic by gender compares the pay of all 

White House female staffers with male staffers regardless of their job. Because the 

White House’s ‘‘88 cents gender pay gap’’ does not compare the pay rates of employees performing equal work requiring equal skill, effort, and responsibility, under 

64 

2President Obama has repeatedly referenced a 77 cents median pay statistic as evidence of 

sex discrimination by employers. Those references include, but are not limited to his: June 4, 

2011 remarks on equal pay for equal work, February 18, 2013 State of the Union Address, January 28, 2014 State of the Union Address and April 8, 2014 remarks on equal pay for equal work. 

Meanwhile, as noted infra, at page 8, Betsey Stevenson, a Member of the White House Council 

of Economic Advisers, recently admitted that the 77 cents figure is misleading, stating that, 

‘‘There are a lot of things that go into that 77 cents figure, there are a lot of things that contribute and no one’s trying to say that it’s all about discrimination.’’ 3See Press Release, White House Press Secretary Jay Carney, Daily Press Briefing (Apr. 7, 

2014), http://www.whitehouse.govi-the-press-office/2014/04/07/daily-press-briefing-press-secretary-jay-carney-040714. 

similar working conditions (‘‘equal work’’), it is irrelevant to a plaintiff ’s Equal Pay 

Act (‘‘EPA’’) claim (even if amended by the PFA). Under the EPA and PFA, the only 

relevant wage comparisons are between employees performing equal work. This is 

true even though, overall, the median wage statistics show that the White House 

pays male staffers more than female staffers. 

However, as explained below, the White House is subject to a lawsuit for paying 

female White House staffers in the positions of Calligrapher, Associate Counsel and 

Deputy Director of Scheduling less than male staffers in those positions, if the male 

and female employees in a position perform equal work. No amendment to the EPA 

is necessary for these female White House staffers to bring this lawsuit under the 

EPA. 

AEI ANALYSIS OF MEDIAN DATA DOES NOT SUPPORT AN EPA OR PFA CLAIM

AGAINST THE WHITE HOUSE

Relying on salary data made public by the White House in its 2013 Annual Report 

to Congress, the American Enterprise Institute (‘‘AEI’’) data described an 11.5 percent ‘‘gender pay gap’’ in favor of male White House staffers based on a comparison 

of median salary with female White House staffers. According to AEI, female White 

House staffers’ median salary is $65,000; whereas male White House staffers’ median salary is $73,729. The median female salary figure is 88.16 percent of the median male salary figure. The median is described as follows: without any consideration of job responsibilities performed, qualifications, seniority, or hours worked, 

one-half of female White House staffers are paid a salary exceeding $65,000, and 

one-half of male White House staffers are paid a salary exceeding $73,729. 

AEI’s data—describing differences in the median salary of White House staff, depending on their sex—is not relevant to a claim of pay discrimination, under either 

the EPA or the EPA as amended by the PFA (‘‘PFA’’). Under both the EPA and the 

PFA, a plaintiff must show unequal wages were paid to employees of the opposite 

sex who performed equal work. Because the White House’s ‘‘gender pay gap’’ does 

not compare the pay rates of employees performing equal work, it is irrelevant to 

a plaintiff ’s EPA claim. It is impossible to tell from this specific statistic alone— 

median salary—whether employees performing the same work are paid equally. Nor 

is there any information that informs the AEI data as to whether any wage differences amongst employees who are performing the same work are the result of 

factors other than sex such as seniority, experience, education or merit. As a result, 

based on the AEI analysis of median data alone, the White House would not be subject to a lawsuit under the EPA. 

The White House has repeatedly referenced a 77 cent median pay statistic as evidence of sex discrimination by employers in the United States.2 Inconsistently, responding to AEI’s analysis showing the White House’s own ‘‘gender pay gap,’’ White 

House Press Secretary Jay Carney admitted the median wage statistic was not evidence of sex discrimination, explaining that a comparison of median pay rates for 

employees by gender without regard to their jobs and other relevant factors is not 

evidence of pay discrimination for any employee. Specifically, Mr. Carney stated: 

And here at the White House equal pay legislation deems that there should 

be equal pay for equal work, and that’s what we have—men and women in 

equivalent roles here earn equivalent salaries . . . I think that those studies 

[comparing median wages by gender, including, AEI], look at the aggregate of 

everyone on staff, and that includes from the most junior levels to the most senior. . . . [W]omen who do the same work as men have to be paid the same, 

there is no question that that is happening here at the White House at every 

level.3

In short, discussions of a raw median wage gap by gender—whether 77 cents in 

general census data referenced repeatedly by the White House and proponents of 

65 

4The 77 cents statistic was referenced at the April 1, 2014 Senate HELP Committee Hearing 

on Equal Pay during Senator Warren’s testimony (1:29:44). Additionally, Witness Eisenberg referenced the statistic in her written testimony at p. 6. 

the PFA4—or 88 cents in White House AEI data—does not inform the conversation 

of whether private or public employers are paying women unequal wages for equal 

work. 

A DETAILED ANALYSIS OF AEI’S WHITE HOUSE DATA BY JOB CLASSIFICATION SHOWS FEMALE STAFF IN CERTAIN POSITIONS HAVE A PRIMA FACIE CASE OF SEX DISCRIMINATION UNDER THE EPA

Female White House staff in the positions of Calligrapher, Associate Counsel and 

Deputy Director of Scheduling earn less than males performing work in their same 

job classification. As a result, if they perform equal work as their male counterparts, 

these White House staffers would meet their prima facie burden under the current 

EPA, and the White House would be subject to lawsuits under the current EPA for 

paying them lower wages than males in the same job classification. 

Under the EPA and PFA, an appropriate review of the available data requires 

comparison of salaries by sex within jobs requiring equal work. Although detailed 

information relating to job responsibilities and qualifications is not available, relying 

on the White House’s job classifications leads to the following examples where the 

White House is subject to EPA claims for wage discrimination—under the current 

EPA (as well as the EPA as amended by the PFA). 

• The White House employs 2 individuals in the position of ‘‘Calligrapher’’—a 

male whose annual salary is $94,372 and a female whose salary is $85,953. Assuming the Calligraphers perform equal work, the White House is subject to a lawsuit 

by the female White House Calligrapher being paid 8.9 percent less than her male 

counterpart. 

• The White House employs 2 individuals in the position of ‘‘Associate Counsel’’— 

a male whose annual salary is $134,999 and a female whose salary is $112,000. Assuming the Associate Counsels perform equal work, the White House is subject to 

a lawsuit by the female White House Associate Counsel being paid 17 percent less 

than her male counterpart. 

• The White House employs 3 individuals in the position of ‘‘Deputy Director of 

Scheduling’’—two males, both paid a salary of $68,000 and a female whose salary 

is $60,000. Assuming the Deputy Directors of Scheduling perform equal work, the 

White House is subject to a lawsuit by the female Deputy Director of Scheduling 

being paid 11.8 percent less than her male counterparts. 

Whether any of these female White House staffers will be successful in their 

claims of unequal pay for equal work depends on whether the White House can satisfy the very different burdens under the EPA and PFA, as described below. What 

is clear is that the female White House staffers have a prima facie case of sex discrimination today, under the EPA, if they perform equal work to those male staffers 

in the positions of Calligrapher, Associate Counsel or Deputy Director of Scheduling. 

Question 2. On April 7, the President’s Press Secretary, Jay Carney, defended the 

White House’s pay gap by saying ‘‘it [the pay gap] was better than the national average.’’ Deborah Thompson Eisenberg stated in her written testimony that, ‘‘it is 

simply smart business and good corporate governance for an employer to be more 

thoughtful about how its pay awards relate to the job and business.’’ 

Based on Ms. Eisenberg’s statement, was the White House being thoughtful in its 

defense of its own pay gap? If the Paycheck Fairness Act became law, could an employer successfully argue their pay gap between male and female employees were 

‘‘better than the national average’’ as a defense to avoid liability? 

Answer 2. No. Under the current EPA and the PFA, a favorable comparison to 

the ‘‘national average’’ is not a legitimate employer defense to a prima facie case 

of sex discrimination in the White House’s pay practices. 

Assuming we are discussing equal work as defined by the EPA, a pay disparity 

may not be defended by asserting ‘‘it’s better than the national average.’’ Under the 

EPA, once equal work and unequal pay are established, the burden shifts to the employer to show the disparity is owing to (a) a seniority system, (b) a merit system, 

(c) a system based on quantity or quality of production, or (d) a factor other than 

sex. 

A meaningful evaluation of the thoughtfulness of the White House’s defense of its 

own pay gap also necessitates a discussion on what constitutes thoughtfulness in 

compensation practices. Certainly, thoughtful consideration of how pay awards reVerDate Nov 24 2008 16:33 Jan 17, 2017 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6621 S:\DOCS\22608.TXT DENISE
66 

5White House, 2013 Annual Report to Congress on White House Staff (Jun. 28, 2013). 

6See Office of Personnel Management, 2011 Pay Tables for Executive and Senior Level Employees (2011), http://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2011/executive-senior-level/. 7Such a scenario would be analogous to the fact pattern in Taylor v. White, 321 F.3d 710 (8th 

Cir. 2003), where the Eighth Circuit found that such a retention policy qualified as a factor 

other than sex, after undertaking careful examination of the facts, noting that ‘‘a case-by-case 

analysis of reliance on prior salary or salary retention policies with careful attention to alleged 

gender-based practices preserves the business freedoms Congress intended to protect when it 

adopted the ‘‘factor other than sex’’ affirmative defense. 8 And, finally, even if the White House satisfied all of these defenses, it remains liable under 

the PFA for sex discrimination if the female Associate Counsel shows that the White House 

could have utilized another employment practice to minimize the pay disparity—i.e., increased 

her pay rate. 

late to the job and the business is a component of ‘‘smart business and good corporate governance.’’ 

Yet, the PFA is far more likely to hinder, rather than promote, smart business 

and good corporate governance. Imposing narrow limitations on compensation decisions impedes employers’ ability to exercise business judgment in formulating and 

executing human resource strategy. Such edicts are premised upon outdated and 

simplistic models of the relevant factors encompassed by compensation decisions, 

harkening back to earlier social and economic structures where a greater proportion 

of the job market was comprised of unskilled laborers. Today’s business environments are becoming increasingly complex as we face continuing globalization of 

business and technology-driven transformations to our labor markets, and in turn, 

a greater emphasis on knowledge workers and information flow. In short, a myopic, 

isolated approach to analysis of each disparate job is inconsistent with the demands 

of our changing workplaces. 

Contemplating a hypothetical defense to an EPA claim based on the pay disparity 

in the White House Associate Counsel position, and a comparison of current law to 

the proposed PFA, sheds light on the faulty mechanics of the PFA, particularly in 

its proposed amendments to the factor other than sex defense. Public salary data 

indicates that the male Associate Counsel is a detailee, rather than an employee of 

the White House,5 and that immediately before his current position of Associate 

Counsel, he was employed as an Assistant Deputy Attorney General in the Department of Justice (with an accompanying Senior Executive Service Level, and salary 

range between $119,554 and $179,700).6 Thus, it appears the male White House Associate Counsel was detailed from the Department of Justice on a temporary or detail White House assignment (and is being paid based on his DOJ salary). Under 

the EPA, the factor other than sex defense allow employers the freedom to institute 

a salary retention policy of maintaining employees’ current salaries upon temporary 

changes of assignment. If the 17 percent pay disparity in favor of the male Associate 

Counsel did indeed arise from the detailee’s regular (or former) rate of pay in his 

standing position with the Department of Justice, the White House could advance 

a ‘‘factor other than defense’’ under the EPA.7

Whereas, if the PFA was enacted, even if the White House could prove that a retention policy concerning salaries of detailees caused the pay disparity, the White 

House would not meet its burden with respect to an affirmative defense to the wage 

disparity if it stopped there. If the pay disparity arose from a higher salary paid 

to the male detailee in his standing position by the Department of Justice—a factor 

independent of the detail assignment—the White House would most likely fail to 

make a showing of ‘‘job-relatedness with respect to the position in question.’’ Whether the White House could advance a theory of business necessity centered on its 

need to detail this specific male to the Associate Counsel position is also doubtful. 

As to the required showing that the disparity is not based upon or derived from a 

sex-based differential in compensation, it is also doubtful that the White House 

would be inclined to attempt, or even could undertake, an investigation into the salary history of the male detailee and what factors controlled his compensation in positions before the detail—another requirement under the PFA for the White House 

to justify the wage disparity.8

Question 3. Further, Mr. Carney attributed the White House’s pay gap to the possibility that the lowest paid positions are filled with more women than men. A day 

later Mr. Carney clarified, ‘‘that women are recruited for more junior positions so 

that they’re put in the pipelines for senior positions in the future.’’ Under the Paycheck Fairness Act, is this a legitimate argument in explaining the White House’s 

pay gap? 

67 

9 Joanna Barsh and Lareina Yee, Unlocking the Full Potential of Women at Work, McKinsey 

& Company for The Wall Street Journal (Apr 30, 2012). Retrieved from http://www.mckinsey 

.com/careers/women/∼/media/Reports/Women/2012%20WSJ%20Women%20in%20the%20 

Economy%20white%20paper%20FINAL.ashx. 

Answer 3. For the reasons set forth in response to Question 1, the ‘‘88 cent pay 

gap’’ is irrelevant to an EPA or PFA claim. Thus, to answer this question, it must 

be put into the framework of the EPA and PFA, as set forth below. 

The White House’s defense is, in essence, that the median pay of female White 

House staffers is less than the median pay of male White House staffers due to diversity efforts at the White House that favor hiring women into entry level positions 

that pay less. In other words, this is the factor other than sex that explains the disparity. 

Under the EPA, assuming an 88-cent pay gap between men and women performing equal work at the White House, Mr. Carney’s explanation may be a legitimate reason other than sex that explains why the 88-cent pay gap between men and 

women exists in certain circumstances. If the White House hired women into a job 

classification that met the minimum qualifications, but who had less qualifications 

than men hired into the job classification, lesser qualifications would be a legitimate 

reason for paying the women in the job classification less than men in the job classification. 

Under the PFA, assuming an 88-cent pay gap between men and women performing equal work at the White House that occurred as a result of hiring women 

to fill positions who met the minimum qualifications, but who had less qualifications 

than men hired into the same job, Mr. Carney’s explanation would not satisfy an 

employer’s burden of proving the reason was job-related or consistent with business 

necessity. For example, Mr. Carney’s articulated reason was not related to the specific job at issue, but an articulated goal of increasing gender diversity in other 

higher level jobs at the White House. And, Mr. Carney has not shown that the hiring of men with qualifications above the minimum was a ‘‘business necessity,’’ nor 

that paying them a higher rate of pay for those higher qualifications was necessary. 

Mr. Carney’s explanation does not satisfy this burden. 

In addition, if a female staffer shows 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’’ Mr. Carney’s 

proffered reasons would not shield the White House from PFA liability. Here, for 

example, if a female staffer shows that the White House could have paid the same 

higher salary to all staffers in a job classification who met the minimum qualifications even though they did not have the superior classifications of male staffers 

within the job classification, Mr. Carney’s articulated reason would not shield the 

White House from PFA liability. 

Taken at face value, Mr. Carney’s explanation of the wage gap in the White 

House is a plausible explanation for why the 12-cent pay gap might exist despite 

the absence of gender discrimination. Indeed, many private sector companies have 

adopted gender-balance objectives similar to that offered by Mr. Carney’s explanation. A 2012 white paper by McKinsey & Company, prepared for the Wall Street 

Journal, validates the funnel approach described by Mr. Carney as a valid path to 

success in advancement of female employees to senior positions within the organization.9 Unfortunately, the diversity goals of the White House articulated by Mr. Carney are not, in and of themselves, a legitimate employer defense to a claim under 

the PFA. 

Question 4. The White House has consistently cited the statistic that a woman 

earns an average of $.77 for every $1 a man earns. The White House’s Web site 

has also said that ‘‘there is good evidence that discrimination contributes to the persistent pay disparity between men and women.’’ Do you agree with that statement? 

If so, is the White House’s pay disparity a signal that the Obama administration 

discriminates against female staffers? 

Answer 4. The answers to all three subparts of Question #4 is No. 

First, the median statistics cited do not show that women earn $.77 for every $1 

a man earns for equal work. 

Second, there is no evidence that employment discrimination caused pay disparities between men and women that are present in national median wage statistics 

data. 

Third, as explained in response to Question #1 above, the White House’s median 

pay disparity between female and male White House staffers of ‘‘88-cents to a dollar’’ is irrelevant to the question of whether men and women are paid equally for 

equal work, as White House representative Carney was forced to admit when the 

68 

10 Ashe Schow, White House: The ’77 Cents’ Wage Gap Figure Isn’t Accurate, But They’ll Use 

It Anyway, Washington Examiner (Apr. 7, 2014), http://washingtonexaminer.com/white-housethe-77-cents-wage-gap-figure-isnt-accurate-but-theyll-use-it-anyway/article/2546914. 

White House’s compensation practices were analyzed through the same median statistic. The national median pay statistic of ‘‘88-cents to a dollar’’ is as irrelevant to 

a claim under the EPA and PFA as is the White House median pay statistic of ‘‘77- 

cents to a dollar’’ figure is to a claim under the EPA and PFA. 

The ‘‘77-cents to a dollar’’ statistic is irrelevant to the question of whether a 

woman makes the same wage as a man for equal work. Serious scholarly studies 

have discarded reliance on the median wage gap as a meaningful barometer for 

women’s economic prospects for almost two decades. Academic studies have long 

found much stronger correlations in factors including, but not limited to, individual 

choices relating to education, occupation, childbearing, childcare, and human capital 

variables including quantity, quality, and substance of education and experience. 

These correlations also support the continuing narrowing of the adjusted wage gap 

as women reap continued benefits from increased access to education and other jobrelated training. More recently, some have cited gender disparities, both in willingness to engage in negotiation and overall effectiveness in negotiation, as factors that 

contribute toward the continued existence of the wage gap. 

Instead, both the ‘‘77-cents to a dollar’’ and the ‘‘88-cents to a dollar in the White 

House’’ gaps are median ratios. The nationwide figure represents the median from 

wages earned by all full-time, year-round female workers and compares it to the median from wages earned by all full-time, year-round male workers. The raw wage 

gap does not consider: quantity of work performed, such as hours worked; nature 

of work performed, such as occupation, sector, industry, and attendant market factors; quality of work performed, such as output, results delivered, or other performance metrics; human capital factors like training, education and experience; or other 

factors including union status and attendant protections. Like the 77-cent figure, 

the 12-cent gap in the White House is a median ratio, and is not a meaningful indicator of discrimination in the White House recruitment or compensation practices. 

The mere existence of a pay disparity along gender lines in a workforce that is heterogeneous in job responsibilities as well as qualifications, experience, and performance cannot support a credible presumption of discrimination. 

Neither the White House nor the proponents of the PFA have ever produced any 

empirical evidence that ‘‘discrimination contributes to the persistent pay disparity 

between men and women.’’ The idea that the persistence of an aggregated showing 

of disparity—which only indicates unequal outcomes between men and women in an 

incredibly complex and interrelated environment of numerous self-interested actors—is derived from employer discrimination is unsupported in scientific literature. 

Decades of social science research have produced varying estimates of the wage gap 

and advanced a number of differing interpretations as to the cause of any wage gap. 

In the entire body of academic literature on the wage gap, two clear themes emerge 

on which almost all scholars agree: (1) numerous, interrelated factors contribute to 

the persistence of wage disparities, and (2) precise accounting and portioning of the 

present wage gap to various causal factors present a very difficult challenge. In 

other words, the ‘‘good evidence’’ cited by the White House is nothing more than a 

product of inductive reasoning, and the unsupported hypothesis that in the absence 

of other explanations, discrimination must be the cause. 

Despite its prominence in the national discourse, the raw wage gap contributes 

very little to the exploration of the employment opportunities currently available to 

women or the endeavor to support their increased participation and advancement 

in the workplace. The current administration’s Council of Economic Advisors’ member, Betsey Stevenson, recently admitted the ‘‘77 cents to a dollar’’ statistic often 

quoted by proponents of the PFA does not represent differences in pay between men 

and women for equal work and apologized for any earlier comments that may have 

been misleading: 

If I said 77 cents was equal pay for equal work, then I completely misspoke, so let me just apologize and say that I certainly wouldn’t have 

meant to say that . . . Seventy-seven cents captures the annual earnings of 

full-time, full-year women divided by the annual earnings of full-time, full-year 

men. There are a lot of things that go into that 77-cents figure, there 

are a lot of things that contribute and no one’s trying to say that it’s 

all about discrimination, but I don’t think there’s a better figure.10 (emphasis 

added) 

69 

11See, e.g., Francine Blau and Lawrence Kahn, National Bureau of Economic Research, Gender Differences in Pay (June 2000) (attributing a majority of the wage gap to differences in 

human capital variables, industry, occupation, and union status based on a 1997 study); Howard 

J. Wall, The Regional Economist, The Gender Gap and Wage Discrimination: Illusion or Reality 

(Oct. 2000) (finding a 6.2-cent unexplained wage difference after controlling for human capital 

variables, differences in industry, occupation, and union status); Diana Furchtgott-Roth & Christine Stolba, Women’s Figures: An illustrated Guide to the Economic Progress of Women in America (Aei Pr; 2 Sub edition 1999) (finding that of childless workers aged 27 to 33, women’s median 

hourly earnings were 98 percent of men’s median hourly earnings, before adjusting for differences in human capital and other variables, which would presumably further narrow the 2- 

cent gap) 12 Richard A. Epstein, Forbidden Ground: The Case Against Employment Discrimination Laws 

(First Harv. U. Press, 1995) (arguing that even in the presence of discrimination, market forces 

pressure discriminating employers to hire from ‘‘the disfavored pool’’). 

Ms. Stevenson’s remarks make crystal clear that the raw wage gap of ‘‘77 cents’’ 

fails to meet the standards of pay discrimination as it has been always defined: 

equal pay for equal work. 

Serious scholarly studies have discarded reliance on the median wage gap as a 

meaningful barometer for women’s economic prospects for almost two decades.11

Academic studies have long found much stronger correlations in factors including 

but not limited to individual choices relating to education, occupation, childbearing, 

childcare, and human capital variables including quantity, quality, and substance 

of education and experience. These correlations also support the continuing narrowing of the adjusted wage gap as women reap continued benefits from increased 

access to education and other job-related training. 

Misapplication of statistics like the 77-cent figure distorts the economic realities 

facing the labor force and serves to impede both private-sector and public-sector endeavors to promote advancement of equal opportunities. Such statistics do not warrant a presumption of rampant discrimination, nor do they imply that existing legal 

remedies and protections are not working, particularly when paired with an overreliance on the judicial system as a panacea for real or imagined social ills. Scholars 

of law and economics have warned against ‘‘economic social consequences that are 

generated by the antidiscrimination laws.’’12 In particular, laws that impose controls 

on labor pricing may bring greater capacity for unintended consequences in contrast 

to statutes governing access to employment. 

For the same reason that the existence of a 12-cent gap fails to prove discrimination by the White House, the 23-cent gap in our national labor force does not provide sufficient evidence to presume either a widespread infection of discrimination 

by employers or the obsolescence of the anti-discrimination statutes in effect today. 

Respectfully submitted, 

CAMILLE A. OLSON, Chair, 

U.S. CHAMBER OF COMMERCE, 

EQUAL EMPLOYMENT OPPORTUNITY SUBCOMMITTEE. 

[Whereupon, at 4:29 p.m., the hearing was adjourned.] 

Æ