89–006 

116TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 116–18 

PAYCHECK FAIRNESS ACT 

MARCH 18, 2019.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. SCOTT of Virginia, from the Committee on Education and 

Labor, submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 7] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Education and Labor, to whom was referred 

the bill (H.R. 7) to amend the Fair Labor Standards Act of 1938 

to provide more effective remedies to victims of discrimination in 

the payment of wages on the basis of sex, and for other purposes, 

having considered the same, report favorably thereon with an 

amendment and recommend that the bill as amended do pass. 

CONTENTS 

Page 

Purpose ..................................................................................................................... 7 

Committee Action .................................................................................................... 9 

Summary .................................................................................................................. 15 

Committee Views ..................................................................................................... 17 

Section-by-Section Analysis .................................................................................... 43 

Explanation of Amendments ................................................................................... 47 

Application of Law to the Legislative Branch ....................................................... 47 

Unfunded Mandate Statement ............................................................................... 47 

Earmark Statement ................................................................................................. 47 

Roll Call Votes ......................................................................................................... 47 

Statement of Performance Goals and Objectives .................................................. 53 

Duplication of Federal Programs ............................................................................ 53 

Hearings ................................................................................................................... 53 

Statement of Oversight Findings and Recommendations of the Committee ...... 53 

New Budget Authority and CBO Cost Estimate ................................................... 53 

Committee Cost Estimate ....................................................................................... 56 

Changes in Existing Law Made by the Bill, as Reported ..................................... 57 

Minority Views ......................................................................................................... 77 


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The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

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

SEC. 2. FINDINGS. 

Congress finds the following: 

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

years. 

(2) Despite the enactment of the Equal Pay Act of 1963, many women continue to earn significantly lower pay than men for equal work. These pay disparities exist in both the private and governmental sectors. 

(3) In many instances, the pay disparities can only be due to continued intentional discrimination or the lingering effects of past discrimination. After controlling for educational attainment, occupation, industry, union status, race, 

ethnicity, and labor force experience roughly 40 percent of the pay gap remains 

unexplained. 

(4) The existence of such pay disparities— 

(A) depresses the wages of working families who rely on the wages of all 

members of the family to make ends meet; 

(B) undermines women’s retirement security, which is often based on 

earnings while in the workforce; 

(C) prevents women from realizing their full economic potential, particularly in terms of labor force participation and attachment; 

(D) has been spread and perpetuated, through commerce and the channels and instrumentalities of commerce, among the workers of the several 

States; 

(E) burdens commerce and the free flow of goods in commerce; 

(F) constitutes an unfair method of competition in commerce; 

(G) tends to cause labor disputes, as evidenced by the tens of thousands 

of charges filed with the Equal Employment Opportunity Commission 

against employers between 2010 and 2016; 

(H) interferes with the orderly and fair marketing of goods in commerce; 

and 

(I) in many instances, may deprive workers of equal protection on the 

basis of sex in violation of the 5th and 14th Amendments to the Constitution. 

(5)(A) Artificial barriers to the elimination of discrimination in the payment 

of wages on the basis of sex continue to exist decades after the enactment of 

the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) and the Civil 

Rights Act of 1964 (42 U.S.C. 2000a et seq.). 

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

Act of 1963 has not worked as Congress originally intended. Improvements and 

modifications to the law are necessary to ensure that the Act provides effective 

protection to those subject to pay discrimination on the basis of their sex. 

(C) Elimination of such barriers would have positive effects, including— 

(i) providing a solution to problems in the economy created by unfair pay 

disparities; 

(ii) substantially reducing the number of working women earning unfairly 

low wages, thereby reducing the dependence on public assistance; 

(iii) promoting stable families by enabling all family members to earn a 

fair rate of pay; 

(iv) remedying the effects of past discrimination on the basis of sex and 

ensuring that in the future workers are afforded equal protection on the 

basis of sex; and 

(v) ensuring equal protection pursuant to Congress’ power to enforce the 

5th and 14th Amendments to the Constitution. 

(6) The Department of Labor and the Equal Employment Opportunity Commission carry out functions to help ensure that women receive equal pay for 

equal work. 

(7) The Department of Labor is responsible for— 

(A) collecting and making publicly available information about women’s 

pay; 

(B) ensuring that companies receiving Federal contracts comply with 

anti-discrimination affirmative action requirements of Executive Order 

11246 (relating to equal employment opportunity); 

(C) disseminating information about women’s rights in the workplace; 


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(D) helping women who have been victims of pay discrimination obtain 

a remedy; and 

(E) investigating and prosecuting systemic gender based pay discrimination involving government contractors. 

(8) The Equal Employment Opportunity Commission is the primary enforcement agency for claims made under the Equal Pay Act of 1963, and issues regulations and guidance on appropriate interpretations of the law. 

(9) Vigorous implementation by the Department of Labor and the Equal Employment Opportunity Commission, increased information as a result of the 

amendments made by this Act, wage data, and more effective remedies, will ensure that women are better able to recognize and enforce their rights. 

(10) Certain employers have already made great strides in eradicating unfair 

pay disparities in the workplace and their achievements should be recognized. 

SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS. 

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

206(d)(1)) is amended— 

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

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

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

(3) by inserting at the end the following: 

‘‘(B) The bona fide factor defense described in subparagraph (A)(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; (iii) is consistent with business necessity; and (iv) accounts for 

the entire differential in compensation at issue. Such defense shall not apply where 

the employee demonstrates that an alternative employment practice exists that 

would serve the same business purpose without producing such differential and that 

the employer has refused to adopt such alternative practice. 

‘‘(C) For purposes of subparagraph (A), employees shall be deemed to work in the 

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

sentence shall not be construed as limiting broader applications of the term ‘establishment’ consistent with rules prescribed or guidance issued by the Equal Employment Opportunity Commission.’’. 

(b) NONRETALIATION PROVISION.—Section 15 of the Fair Labor Standards Act of 

1938 (29 U.S.C. 215) is amended— 

(1) in subsection (a)— 

(A) in paragraph (3), by striking ‘‘employee has filed’’ and all that follows 

and inserting ‘‘employee— 

‘‘(A) has made a charge or filed any complaint or instituted or caused to 

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

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

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

served or is planning to serve on an industry committee; or 

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

or another employee;’’; 

(B) in paragraph (5), by striking the period at the end and inserting ‘‘; 

or’’; and 

(C) by adding at the end the following: 

‘‘(6) to require an employee to sign a contract or waiver that would prohibit 

the employee from disclosing information about the employee’s wages.’’; and 

(2) by adding at the end the following: 

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

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

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

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

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

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

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

(c) ENHANCED PENALTIES.—Section 16(b) of the Fair Labor Standards Act of 1938 

(29 U.S.C. 216(b)) is amended— 

(1) by inserting after the first sentence the following: ‘‘Any employer who violates section 6(d) shall additionally be liable for such compensatory damages, 

or, where the employee demonstrates that the employer acted with malice or 


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reckless indifference, punitive damages as may be appropriate, except that the 

United States shall not be liable for punitive damages.’’; 

(2) in the sentence beginning ‘‘An action to’’, by striking ‘‘the preceding sentences’’ and inserting ‘‘any of the preceding sentences of this subsection’’; 

(3) in the sentence beginning ‘‘No employees shall’’, by striking ‘‘No employees’’ and inserting ‘‘Except with respect to class actions brought to enforce section 6(d), no employee’’; 

(4) by inserting after the sentence referred to in paragraph (3), the following: 

‘‘Notwithstanding any other provision of Federal law, any action brought to enforce section 6(d) may be maintained as a class action as provided by the Federal Rules of Civil Procedure.’’; and 

(5) in the sentence beginning ‘‘The court in’’— 

(A) by striking ‘‘in such action’’ and inserting ‘‘in any action brought to 

recover the liability prescribed in any of the preceding sentences of this 

subsection’’; and 

(B) by inserting before the period the following: ‘‘, including expert fees’’. 

(d) ACTION BY SECRETARY.—Section 16(c) of the Fair Labor Standards Act of 1938 

(29 U.S.C. 216(c)) is amended— 

(1) in the first sentence— 

(A) by inserting ‘‘or, in the case of a violation of section 6(d), additional 

compensatory or punitive damages, as described in subsection (b),’’ before 

‘‘and the agreement’’; and 

(B) by inserting before the period the following: ‘‘, or such compensatory 

or punitive damages, as appropriate’’; 

(2) in the second sentence, by inserting before the period the following: ‘‘and, 

in the case of a violation of section 6(d), additional compensatory or punitive 

damages, as described in subsection (b)’’; 

(3) in the third sentence, by striking ‘‘the first sentence’’ and inserting ‘‘the 

first or second sentence’’; and 

(4) in the sixth sentence— 

(A) by striking ‘‘commenced in the case’’ and inserting ‘‘commenced— 

‘‘(1) in the case’’; 

(B) by striking the period and inserting ‘‘; or’’; and 

(C) by adding at the end the following: 

‘‘(2) in the case of a class action brought to enforce section 6(d), on the date 

on which the individual becomes a party plaintiff to the class action.’’. 

SEC. 4. TRAINING. 

The Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs, subject to the availability of funds appropriated under 

section 11, shall provide training to Commission employees and affected individuals 

and entities on matters involving discrimination in the payment of wages. 

SEC. 5. NEGOTIATION SKILLS TRAINING. 

(a) PROGRAM AUTHORIZED.— 

(1) IN GENERAL.—The Secretary of Labor, after consultation with the Secretary of Education, is authorized to establish and carry out a grant program. 

(2) GRANTS.—In carrying out the program, the Secretary of Labor may make 

grants on a competitive basis to eligible entities to carry out negotiation skills 

training programs for the purposes of addressing pay disparities, including 

through outreach to women and girls. 

(3) ELIGIBLE ENTITIES.—To be eligible to receive a grant under this subsection, an entity shall be a public agency, such as a State, a local government 

in a metropolitan statistical area (as defined by the Office of Management and 

Budget), a State educational agency, or a local educational agency, a private 

nonprofit organization, or a community-based organization. 

(4) APPLICATION.—To be eligible to receive a grant under this subsection, an 

entity shall submit an application to the Secretary of Labor at such time, in 

such manner, and containing such information as the Secretary of Labor may 

require. 

(5) USE OF FUNDS.—An entity that receives a grant under this subsection 

shall use the funds made available through the grant to carry out an effective 

negotiation skills training program for the purposes described in paragraph (2). 

(b) INCORPORATING TRAINING INTO EXISTING PROGRAMS.—The Secretary of Labor 

and the Secretary of Education shall issue regulations or policy guidance that provides for integrating the negotiation skills training, to the extent practicable, into 

programs authorized under— 

(1) in the case of the Secretary of Education, the Elementary and Secondary 

Education Act of 1965 (20 U.S.C. 6301 et seq.), the Carl D. Perkins Career and 

Technical Education Act of 2006 (20 U.S.C. 2301 et seq.), the Higher Education 


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Act of 1965 (20 U.S.C. 1001 et seq.), and other programs carried out by the Department of Education that the Secretary of Education determines to be appropriate; and 

(2) in the case of the Secretary of Labor, the Workforce Innovation and Opportunity Act (29 U.S.C. 3101 et seq.), and other programs carried out by the Department of Labor that the Secretary of Labor determines to be appropriate. 

(c) REPORT.—Not later than 18 months after the date of enactment of this Act, 

and annually thereafter, the Secretary of Labor, in consultation with the Secretary 

of Education, shall prepare and submit to Congress a report describing the activities 

conducted under this section and evaluating the effectiveness of such activities in 

achieving the purposes of this section. 

SEC. 6. RESEARCH, EDUCATION, AND OUTREACH. 

Not later than 18 months after the date of enactment of this Act, and periodically 

thereafter, the Secretary of Labor shall conduct studies and provide information to 

employers, labor organizations, and the general public concerning the means available to eliminate pay disparities between men and women, including— 

(1) conducting and promoting research to develop the means to correct expeditiously the conditions leading to the pay disparities; 

(2) publishing and otherwise making available to employers, labor organizations, professional associations, educational institutions, the media, and the 

general public the findings resulting from studies and other materials, relating 

to eliminating the pay disparities; 

(3) sponsoring and assisting State, local, and community informational and 

educational programs; 

(4) providing information to employers, labor organizations, professional associations, and other interested persons on the means of eliminating the pay disparities; and 

(5) recognizing and promoting the achievements of employers, labor organizations, and professional associations that have worked to eliminate the pay disparities. 

SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN THE WORKPLACE. 

(a) IN GENERAL.—There is established the Secretary of Labor’s National Award 

for Pay Equity in the Workplace, which shall be awarded, on an annual basis, to 

an employer to encourage proactive efforts to comply with section 6(d) of the Fair 

Labor Standards Act of 1938 (29 U.S.C. 206(d)), as amended by this Act. 

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

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

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

for the application and presentation of the award. 

(c) BUSINESS.—In this section, the term ‘‘employer’’ includes— 

(1)(A) a corporation, including a nonprofit corporation; 

(B) a partnership; 

(C) a professional association; 

(D) a labor organization; and 

(E) a business entity similar to an entity described in any of subparagraphs 

(A) through (D); 

(2) an entity carrying out an education referral program, a training program, 

such as an apprenticeship or management training program, or a similar program; and 

(3) an entity carrying out a joint program, formed by a combination of any 

entities described in paragraph (1) or (2). 

SEC. 8. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION. 

Section 709 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–8) is amended by 

adding at the end the following: 

‘‘(f)(1) Not later than 18 months after the date of enactment of this subsection, 

the Commission shall issue regulations to provide for the collection from employers 

of compensation data and other employment-related data (including hiring, termination, and promotion data) disaggregated by the sex, race, and national origin of 

employees. 

‘‘(2) In carrying out paragraph (1), the Commission shall have as its primary consideration the most effective and efficient means for enhancing the enforcement of 

Federal laws prohibiting pay discrimination. For this purpose, the Commission shall 

consider factors including the imposition of burdens on employers, the frequency of 

required reports (including the size of employers required to prepare reports), approVerDate Sep 11 2014 08:24 Mar 19, 2019 Jkt 089006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6621 E:\HR\OC\HR018.XXX HR018

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priate protections for maintaining data confidentiality, and the most effective format 

to report such data.’’. 

SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND PAY EQUITY DATA COLLECTION. 

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

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

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

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

including pay grade methodology; 

(B) in considering evidence of possible compensation discrimination— 

(i) shall not limit its consideration to a small number of types of evidence; 

and 

(ii) shall not limit its evaluation of the evidence to a small number of 

methods of evaluating the evidence; and 

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

a compensation discrimination case; 

(2) for purposes of its investigative, compliance, and enforcement activities, 

shall define ‘‘similarly situated employees’’ in a way that is consistent with and 

not more stringent than the definition provided in item 1 of subsection A of section 10–III of the Equal Employment Opportunity Commission Compliance 

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

(3) shall implement a survey to collect compensation data and other employment-related data (including hiring, termination, and promotion data) and designate not less than half of all nonconstruction contractor establishments each 

year to prepare and file such survey, and shall review and utilize the responses 

to such survey to identify contractor establishments for further evaluation and 

for other enforcement purposes as appropriate. 

(c) DEPARTMENT OF LABOR DISTRIBUTION OF WAGE DISCRIMINATION INFORMATION.—The Secretary of Labor shall make readily available (in print, on the Department of Labor website, and through any other forum that the Department may use 

to distribute compensation discrimination information), accurate information on 

compensation discrimination, including statistics, explanations of employee rights, 

historical analyses of such discrimination, instructions for employers on compliance, 

and any other information that will assist the public in understanding and addressing such discrimination. 

SEC. 10. PROHIBITIONS RELATING TO PROSPECTIVE EMPLOYEES’ SALARY AND BENEFIT HISTORY. 

(a) IN GENERAL.—The Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) 

is amended by inserting after section 7 the following new section: 

‘‘SEC. 8. REQUIREMENTS AND PROHIBITIONS RELATING TO WAGE, SALARY, AND BENEFIT 

HISTORY. 

‘‘(a) IN GENERAL.—It shall be an unlawful practice for an employer to— 

‘‘(1) rely on the wage history of a prospective employee in considering the prospective employee for employment, including requiring that a prospective employee’s prior wages satisfy minimum or maximum criteria as a condition of 

being considered for employment; 

‘‘(2) rely on the wage history of a prospective employee in determining the 

wages for such prospective employee, except that an employer may rely on wage 

history if it is voluntarily provided by a prospective employee, after the employer makes an offer of employment with an offer of compensation to the prospective employee, to support a wage higher than the wage offered by the employer; 

‘‘(3) seek from a prospective employee or any current or former employer the 

wage history of the prospective employee, except that an employer may seek to 

confirm prior wage information only after an offer of employment with compensation has been made to the prospective employee and the prospective employee responds to the offer by providing prior wage information to support a 

wage higher than that offered by the employer; or 

‘‘(4) discharge or in any other manner retaliate against any employee or prospective employee because the employee or prospective employee— 

‘‘(A) opposed any act or practice made unlawful by this section; or 

‘‘(B) took an action for which discrimination is forbidden under section 

15(a)(3). 


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1 Remarks Upon Signing the Equal Pay Act, The American Presidency Project, https:// 

www.presidency.ucsb.edu/documents/remarks-upon-signing-the-equal-pay-act (last visited Mar. 

10, 2019). 2 Employment Status of the Civilian Population by Sex and Age, Bureau of Labor Statistics, 

https://www.bls.gov/news.release/empsit.t01.htm (last visited Mar. 10, 2019); see also Am. Express, The 2018 State of Women-Owned Businesses Report 3 (2018), https:// 

Continued 

‘‘(b) DEFINITION.—In this section, the term ‘wage history’ means the wages paid 

to the prospective employee by the prospective employee’s current employer or previous employer.’’. 

(b) PENALTIES.—Section 16 of such Act (29 U.S.C. 216) is amended by adding at 

the end the following new subsection: 

‘‘(f)(1) Any person who violates the provisions of section 8 shall— ‘‘(A) be subject to a civil penalty of $5,000 for a first offense, increased by an additional $1,000 for each subsequent offense, not to exceed $10,000; and 

‘‘(B) be liable to each employee or prospective employee who was the subject of the violation for special damages not to exceed $10,000 plus attorneys’ fees, 

and shall be subject to such injunctive relief as may be appropriate. 

‘‘(2) An action to recover the liability described in paragraph (1)(B) may be maintained against any employer (including a public agency) in any Federal or State 

court of competent jurisdiction by any one or more employees or prospective employees for and on behalf of— 

‘‘(A) the employees or prospective employees; and 

‘‘(B) other employees or prospective employees similarly situated.’’. 

SEC. 11. AUTHORIZATION OF APPROPRIATIONS. 

(a) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated 

such sums as may be necessary to carry out this Act. 

(b) PROHIBITION ON EARMARKS.—None of the funds appropriated pursuant to subsection (a) for purposes of the grant program in section 5 of this Act may be used 

for a congressional earmark as defined in clause 9(e) of rule XXI of the Rules of the 

House of Representatives. 

SEC. 12. SMALL BUSINESS ASSISTANCE. 

(a) EFFECTIVE DATE.—This Act and the amendments made by this Act shall take 

effect on the date that is 6 months after the date of enactment of this Act. 

(b) TECHNICAL ASSISTANCE MATERIALS.—The Secretary of Labor and the Commissioner of the Equal Employment Opportunity Commission shall jointly develop technical assistance material to assist small enterprises in complying with the requirements of this Act and the amendments made by this Act. 

(c) SMALL BUSINESSES.—A small enterprise shall be exempt from the provisions 

of this Act, and the amendments made by this Act, to the same extent that such 

enterprise is exempt from the requirements of the Fair Labor Standards Act of 1938 

(29 U.S.C. 201 et seq.) pursuant to clauses (i) and (ii) of section 3(s)(1)(A) of such 

Act (29 U.S.C. 203(s)(1)(A)). 

SEC. 13. RULE OF CONSTRUCTION. 

Nothing in this Act, or in any amendments made by this Act, shall affect the obligation of employers and employees to fully comply with all applicable immigration 

laws, including being subject to any penalties, fines, or other sanctions. 

SEC. 14. SEVERABILITY. 

If any provision of this Act, an amendment made by this Act, or the application 

of that provision or amendment to particular persons or circumstances is held invalid or found to be unconstitutional, the remainder of this Act, the amendments 

made by this Act, or the application of that provision to other persons or circumstances shall not be affected. 

PURPOSE

When President John F. Kennedy signed the Equal Pay Act of 

1963 (EPA) into law, he observed that the statute ‘‘adds to our laws 

another structure basic to democracy’’ and ‘‘affirms our determination that when women enter the labor force, they will find equality 

in their pay envelope.’’ 1 Fifty-six years later, women have made 

tremendous progress in the workplace. Women comprise almost 

half of this country’s workforce and own more than 11 million businesses.2 Despite these gains, women continue to be held back by 


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about.americanexpress.com/files/doc_library/file/2018-state-of-women-owned-businesses-report.pdf. 3 Am. Ass’n of Univ. Women, The Simple Truth about the Gender Pay Gap 1 (2018), https:// 

www.aauw.org/aauw_check/pdf_download/show_pdf.php?file=simple-truth-one-pager. 4 Nat’l Women’s Law Ctr., The Wage Gap: The Who, How, Why and What to Do 2 (2017), 

https://nwlc.org/wp-content/uploads/2016/09/The-Wage-Gap-The-Who-How-Why-and-What-to-Do2017.pdf. 5The Wage Gap Over Time: In Real Dollars, Women See a Counting Gap, National Committee 

on Pay Equity, https://www.pay-equity.org/info-time.html (last visited Mar. 10, 2019). 6Section 3(b)(2) of the amendment in the nature of a substitute provides that employees who 

have access to wage information of other employees as part of an essential job function are not 

protected if they disclose the wages to workers who do not otherwise have access to such information. Their wage disclosures are protected if: they reveal that information to an employee who 

also has access to that data, divulge their own wages, or disclose wages in response to or in 

furtherance of a government or internal employer investigation. 7 Based on the number of employees and federal contract activities, certain employers are required to file an EEO-1 report on an annual basis under the EEOC and the OFCCP regulations. 

wage discrimination. Because of loopholes in the law and weak 

sanctions for violations, the EPA is ineffective in combating unequal pay. Women working full time, year-round earn, on average, 

80 cents for every dollar earned by a White man.3 H.R. 7, the Paycheck Fairness Act (the Act), modernizes the EPA and brings the 

country one step closer to ensuring that women receive equal pay 

for equal work. 

The long-term impact of pay disparity on women’s lifetime earnings is substantial, costing a woman anywhere from $400,000 4 to 

$2 million 5 over the course of her career. H.R. 7 will strengthen 

the EPA to make it a more effective means to combat wage discrimination on the basis of gender. Specifically, the Act builds upon 

the EPA and closes loopholes that have enabled unscrupulous employers to evade liability under the law. The Act prohibits retaliation against workers who discuss or disclose salary information; 6

prohibits seeking or relying on pay history in considering an individual for prospective employment; expands the definition of ‘‘establishment’’ so that an employee can find a comparator at any 

workplace in the same county or political subsdivision; clarifies 

that an employer’s affirmative defense of any ‘‘factor other than 

sex’’ must be related to the job in question and consistent with 

business necessity; reforms the EPA’s collective action standard so 

that women with claims of unequal pay will automatically be part 

of a class action lawsuit unless they choose to ‘‘opt-out’’ of the case; 

equalizes damages for discrimination based on sex with damages 

for discrimination based on race and national origin; and authorizes the U.S. Department of Labor (Department of Labor) to award 

competitive grants to be used for salary negotiation education and 

training programs. The Act amends Title VII of the Civil Rights 

Act of 1964 (Title VII) to expand the Equal Employment Opportunity Commission’s (EEOC) authority to collect pay data from certain employers in addition to data already collected from employers 

on employment by race, gender, and national origin.7 This will help 

employers and the relevant enforcement agencies identify unknown 

gender-based pay discrimination. The Act also strengthens the role 

government will play in combating wage discrimination. The Act 

authorizes additional training for EEOC staff on recognizing and 

remedying wage discrimination; codifies the Bureau of Labor Statistics’ collection of data on female workers that compares them to 

their male counterparts as part of the Current Employment StatisVerDate Sep 11 2014 08:24 Mar 19, 2019 Jkt 089006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR018.XXX HR018

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tics survey; and requires the Department of Labor to collect employment and pay data from non-construction federal contractors. 

COMMITTEE ACTION

105TH CONGRESS

Senator Thomas Daschle (D–SD) first introduced S. 71, the Paycheck Fairness Act, on January 21, 1997. The bill had 23 cosponsors and was referred to the Senate Committee on Labor and 

Human Resources. Congresswoman Rosa DeLauro (D–CT–3) introduced H.R. 2023, the Paycheck Fairness Act, on June 24, 1997. The 

bill had 95 cosponsors and was referred to the House Committee 

on Education and the Workforce. H.R. 2023 was then referred to 

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

106TH CONGRESS

Senator Daschle introduced S. 74, the Paycheck Fairness Act, on 

January 19, 1999. The bill had 31 cosponsors and was referred to 

the Senate Committee on Health, Education, Labor, and Pensions. 

The Senate Committee on Health, Education, Labor, and Pensions 

held a hearing on gender-based wage discrimination on June 8, 

2000. The hearing, entitled ‘‘Examining the Bureau of Labor Statistics Report Which Provides a Full Picture of the Gender-Based Wage 

Gap, the Reasons for These Gaps and the Impact This Discrimination Has on Women and Families, and the Effectiveness of Current 

Laws and Proposed Legislative Solutions, and S. 74, to Amend the 

Fair Labor Standards Act of 1938 to Provide More Effective Remedies to Victims of Discrimination in the Payment of Wages on the 

Basis of Sex,’’ featured testimony from Dr. Katherine Abraham, 

Commissioner, Bureau of Labor Statistics; Dr. June O’Neill, Professor of Economics and Finance, Baruch College, Zicklin School of 

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

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

Janofsky & Walker, LLP; Judith Applebaum, Vice President and 

Director of Employment Opportunities, National Women’s Law 

Center; and Gail Shaffer, Chief Executive Officer, Business and 

Professional Women/USA. Testimony was submitted for the record 

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

Labor. 

Congresswoman DeLauro introduced H.R. 541, the Paycheck 

Fairness Act, on February 3, 1999. The bill had 122 cosponsors and 

was referred to the House Committee on Education and the Workforce. Once in committee, the bill was referred to the Subcommittees on Workforce Protections and Employer-Employee Relations. 

Congresswoman DeLauro introduced an updated version of the bill 

as H.R. 2397 on June 30, 1999, with 170 cosponsors (166 Democrats, 3 Republicans, and 1 Independent). The bill was referred 

only to the Subcommittee on Workforce Protections. 

No further action was taken on either bill. 

107TH CONGRESS

Senator Daschle introduced S. 77, the Paycheck Fairness Act, on 

January 22, 2001. The bill had 32 cosponsors and was referred to 


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the Senate Committee on Health, Education, Labor, and Pensions. 

Congresswoman DeLauro introduced H.R. 781, the Paycheck Fairness Act, on February 22, 2001. The bill had 196 cosponsors and 

was referred to the House Committee on Education and the Workforce. Once in committee, it was referred to the Subcommittees on 

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

108TH CONGRESS

Senator Daschle introduced S. 76, the Paycheck Fairness Act, on 

January 7, 2003. The bill had 20 cosponsors and was referred to 

the Senate Committee on Health, Education, Labor, and Pensions. 

Congresswoman DeLauro introduced H.R. 1688, the Paycheck Fairness Act, on April 9, 2003. The bill had 116 cosponsors and was referred to the House Committee on Education and the Workforce. 

The committee referred it to the Subcommittees on Workforce Protections and Employer-Employee Relations. No further action was 

taken on either bill. 

109TH CONGRESS

On April 19, 2005, Senator Hillary Rodham Clinton (D–NY) and 

Congresswoman DeLauro introduced the Paycheck Fairness Act, S. 

841 and H.R. 1687, respectively. S. 841 had 18 cosponsors and was 

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

Pensions. H.R. 1687 had 111 cosponsors and was referred to the 

House Committee on Education and the Workforce, where it was 

referred to the Subcommittees on Workforce Protections and Employer-Employee Relations. No further action was taken on either 

bill. 

110TH CONGRESS

On March 6, 2007, Senator Clinton and Congresswoman 

DeLauro introduced the Paycheck Fairness Act, S. 766 and H.R. 

1338, respectively. S. 766 had 24 cosponsors and was referred to 

the Senate Committee on Health, Education, Labor, and Pensions. 

H.R. 1338 had 230 cosponsors and was referred to the House Committee on Education and Labor, where it was referred to the Subcommittee on Workforce Protections. 

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

Education, Labor, and Pensions held a hearing entitled ‘‘Closing 

the Gap: Equal Pay for Women Workers.’’ The hearing examined 

enforcement of the EPA, the Fair Pay Act and the Paycheck Protection Act. At the hearing, the following people presented testimony: 

Evelyn Murphy, President, WAGE Project, Inc. and Resident Scholar of the Women’s Research Center at Brandeis University; Jocelyn 

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

and Director of Graduate Studies for the Department of Sociology 

at the University of North Carolina; and Barbara Brown, Attorney 

at Paul Hastings. 

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

and Labor held a hearing entitled ‘‘Strengthening the Middle Class: 

Ensuring Equal Pay for Women.’’ The hearing examined the scope 

and causes of gender-based wage disparity. Witnesses included 


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8Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 141–42 (N.D. Cal. 2004). 9The Paycheck Fairness Act: Hearing on H.R. 1338 Before H. Subcomm. on Workforce Prots. 

of the H. Comm. on Educ. and Labor, 110th Cong. (2007) (statement of Rep. Lynn Woolsey, 

Chairwoman, Subcomm. on Workforce Protections). 

Congresswoman DeLauro; Congresswoman Eleanor Holmes Norton 

(D–D.C.); Catherine Hill, Research Director for the American Association of University Women; Heather Boushey, Senior Economist 

at the Center for Economic and Policy Research; Dedra Farmer, 

Plaintiff in the Wal-Mart sex-discrimination class-action lawsuit; 8

and Diana Furchtgott-Roth, Director of the Center for Employment 

Policy at the Hudson Institute. 

On Wednesday, July 11, 2007, the House Education and Labor 

Subcommittee on Workforce Protections held a legislative hearing 

titled ‘‘H.R. 1338, The Paycheck Fairness Act.’’ The hearing focused 

on the wage disparity that exists from the moment men and 

women enter the workforce—a gap that only grows over time.9 Witnesses included Evelyn Murphy, President, WAGE Project, Inc. and 

Resident Scholar of the Women’s Research Center at Brandeis University; Joseph Sellers, Partner with the law firm of Cohen, 

Milstein, Hausfeld & Toll, PLLC; Marcia Greenberger, Co-President of the National Women’s Law Center; and Camille A. Olson, 

Partner at Seyfarth Shaw, LLP. 

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

Labor met for a full committee markup of H.R. 1338. The Committee adopted by voice vote an amendment in the nature of a substitute offered by Congressman George Miller (D–CA–7), Chairman, and ordered the bill, as amended, be favorably reported to the 

House of Representatives by a vote of 26–17. 

On July 31, 2008, the House debated and passed H.R. 1338 with 

a recorded vote of 247–178. 

111TH CONGRESS

On January 8, 2009, Senator Clinton introduced S. 182, the Paycheck Fairness Act. The bill had 42 cosponsors (41 Democrats and 

1 Independent). On March 11, 2010, the Committee on Health, 

Education, Labor, and Pensions held a hearing entitled ‘‘A Fair 

Share for All: Pay Equity in the New American Workplace.’’ Witnesses included Congresswoman DeLauro; Commissioner Stuart 

Ishimaru, Acting Chairman, Equal Opportunity Commission; 

Heather Boushey, Senior Economist, Center for American Progress; 

Deborah L. Brake, Professor of Law, University of Pittsburgh; 

Deborah L. Frett, Chief Executive Officer, Business and Professional Women’s Foundation; and Jane McFetridge, Partner, Jackson Lewis, LLP. 

On September 13, 2010, Senator Harry Reid (D–NV) re-introduced the Paycheck Fairness Act as S. 3772. On September 14, 

2010, the bill was placed on the Senate Legislative Calendar. On 

September 29, 2010, Senator Reid filed a motion to proceed to consideration; he withdrew the motion on the same day. On November 

17, 2010, Senator Reid filed a motion a motion to proceed; cloture 

on the motion to proceed on the bill was not invoked by a Yea-Nay 

vote of 58–41. No further action was taken on either Senate version 

of the Paycheck Fairness Act. On January 6, 2009, Congresswoman DeLauro introduced H.R. 

12, the Paycheck Fairness Act with 200 cosponsors. The bill was reVerDate Sep 11 2014 08:24 Mar 19, 2019 Jkt 089006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR018.XXX HR018

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ferred to the House Committee on Education and Labor, where it 

was referred to the Subcommittee on Workforce Protections. On 

January 9, 2009, the House of Representatives passed the Paycheck 

Fairness Act as a part of H.R. 11, the Lilly Ledbetter Fair Pay Act 

of 2009, with a recorded vote of 256–163. However, the Paycheck 

Fairness Act was not included in the final version of the Lilly 

Ledbetter Fair Pay Act of 2009, which was signed into law (Pub. 

L. No. 111–2) on January 29, 2009. 

112TH CONGRESS

On April 12, 2011, Senator Barbara Mikulski (D–MD) introduced 

S. 797, the Paycheck Fairness Act. The bill had 36 cosponsors (35 

Democrats and 1 Independent) and was referred to the Senate 

Committee on Health, Education, Labor, and Pensions. On May 22, 

2012, Senator Mikulski re-introduced the Paycheck Fairness Act as 

S. 3220 with 37 cosponsors (36 Democrats and 1 Independent). On 

June 5, 2012, Senator Reid filed a motion to proceed to consideration on S. 3220. Cloture was not invoked by Yea-Nay vote of 52– 

47. Senator Reid filed a motion to reconsider the vote, but the motion was withdrawn later that day. No further action was taken on 

any of the three bills. 

On April 13, 2011, Congresswoman DeLauro introduced H.R. 

1519, the Paycheck Fairness Act. It had 197 Democratic cosponsors 

and was referred to the House Committee on Education and the 

Workforce, where it was referred to the Subcommittee on Workforce Protections. 

113TH CONGRESS

On January 23, 2013, Senator Mikulski introduced S. 84, the 

Paycheck Fairness Act with 56 cosponsors (55 Democrats and 1 

Independent). The bill was referred to the Senate Committee on 

Health, Education, Labor, and Pensions. On April 1, 2014, the Senate Committee on Health, Education, Labor, and Pensions held a 

hearing entitled ‘‘Access to Justice: Ensuring Equal Pay with the 

Paycheck Fairness Act.’’ The hearing featured testimony from Professor Deborah Thompson Eisenberg, Associate Professor of Law, 

University of Maryland Francis King Carey School of Law; 

ReShonda Young, Operations Manager, Alpha Express, Inc.; Kerri 

Sleeman, Mechanical Engineer, Houton; and Camille A. Olson, 

Partner, Seyfarth Shaw, LLP. 

On April 1, 2014, Senator Mikulski re-introduced the Paycheck 

Fairness Act as S. 2199 with 42 cosponsors (41 Democrats and 1 

Independent). On April 7, Senator Reid filed a motion to proceed 

to consideration of the measure, but cloture was not invoked by a 

Yea-Nay vote of 53–44. On September 9, 2014, Senator Reid motioned to reconsider the vote, which was agreed to by voice vote on 

September 10, 2014. The same day, cloture on the motion to proceed to the measure was invoked in the Senate by a Yea-Nay vote 

of 73–25, and the measure was laid before the Senate. On September 15, 2014 the cloture motion failed by a Yea-Nay vote of 52– 

40. No further action was taken on any of the bills. 

On January 23, 2013, Congresswoman DeLauro introduced H.R. 

377, the Paycheck Fairness Act. It had 208 cosponsors (207 Democrats and 1 Republican). The bill was referred to the House Committee on Education and the Workforce. On April 11, 2013, ConVerDate Sep 11 2014 08:24 Mar 19, 2019 Jkt 089006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\HR018.XXX HR018

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gresswoman DeLauro filed a motion to discharge the Committee 

from consideration of H.R. 377. The discharge petition received 197 

signatures, fewer than the 218 signatures needed for further action. On April 23, 2013, the bill was referred to the Subcommittee 

on Workforce Protections. No further action was taken. 

114TH CONGRESS

On March 25, 2015, Senator Mikulski and Congresswoman 

DeLauro introduced the Paycheck Fairness Act, S. 862 and H.R. 

1619, respectively. S.862 had 44 cosponsors (43 Democrats and 1 

Independent) and was referred to the Senate Committee on Health, 

Education, Labor, and Pensions. H.R. 1619 had 193 cosponsors 

(192 Democrats and 1 Republican). The bill was referred to the 

House Committee on Education and the Workforce, where it was 

referred to the Subcommittee on Workforce Protections. No further 

action was taken on either bill. 

115TH CONGRESS

On April 4, 2017, Senator Murray and Congresswoman DeLauro 

and introduced the Paycheck Fairness Act, S. 819 and H.R. 1869, 

respectively. S. 819 had 48 cosponsors (47 Democrats and 1 Independent) and was referred to the Senate Committee on Health, 

Education, Labor, and Pensions. H.R. 1869 had 201 cosponsors 

(200 Democrats and 1 Republican) and was referred to the House 

Committee on Education and the Workforce. No further action was 

taken on either bill. 

116TH CONGRESS

On January 30, 2019, Senator Murray introduced, S. 270, the 

Paycheck Fairness Act, with 45 cosponsors. The bill was referred to 

the Senate Committee on Health, Education, Labor, and Pensions. 

On January 30, 2019, Congresswoman DeLauro introduced H.R. 

7, the Paycheck Fairness Act with 239 original co-sponsors (including 1 Republican). The bill was referred to the House Committee 

on Education and Labor. On Wednesday, February 13, 2019, the 

House Committee on Education and Labor held a joint legislative 

hearing in the Subcommittee on Workforce Protections and the 

Subcommittee on Civil Rights and Human Services (Joint Subcommittee Hearing) entitled ‘‘Paycheck Fairness Act (H.R. 7): Equal 

Pay for Equal Work.’’ The Committee heard testimony on how the 

weaknesses in the EPA have left the law ineffective in preventing 

gender-based wage discrimination. Witnesses included Congresswoman DeLauro; Congresswoman Holmes Norton; Congressman 

Beyer; Fatima Goss Graves, CEO and President of the National 

Women’s Law Center; Camille A. Olson, Partner at Seyfarth Shaw, 

LLP; Kristin Rowe-Finkbeiner, CEO of Moms Rising; and Jenny 

Yang, Partner at Working Ideal. 

On Tuesday, February 26, 2019, the House Committee on Education and Labor met for a full committee markup of H.R. 7, the 

Paycheck Fairness Act. The Committee adopted an amendment in 

the nature of a substitute (ANS) offered by Congressman Robert C. 

‘‘Bobby’’ Scott (D–VA–3), Chairman, and reported the bill favorably, 

as amended, to the House of Representatives by a vote of 27–19. 


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The ANS incorporates the provisions of H.R. 7 with the following 

modifications: 

• It makes a number of technical corrections throughout the bill 

to ensure that congressional intent is clear. 

• It updates Section 2, the findings section, to add evidence supporting the existence of the gender pay gap and evidence of the impact of the gender pay gap. 

• It amends Section 5 to authorize grants for a negotiation and 

skills training program that aims to address all pay disparities, including through outreach to women and girls, and to provide the 

U.S. Secretary of Labor (Secretary of Labor) 18 months, instead of 

one year, to report to Congress on the effectiveness of the training 

program. 

• It amends Section 6 to provide the Secretary of Labor 18 

months, instead of one year, to implement the bills’ research and 

education provisions, and it eliminates a requirement for the Secretary of Labor to conduct a national convening. 

• It amends Section 7 to clarify that the National Pay Equity 

award is issued on an annual basis to one employer. 

• It amends Section 11 to change the authorization of appropriations from $15 million to ‘‘such sums as are necessary’’ to carry out 

the Act. 

• It adds Section 14, a standard severability clause. 

The following amendments to the ANS were offered, but not 

adopted: 

• Congressman Bradley Byrne (R–AL–1) offered an amendment 

to amend the Fair Labor Standards Act of 1938 (FLSA) to limit 

‘‘reasonable’’ attorney’s fees in the event of a contingency fee case 

to no more than 15 percent of any judgment award to a plaintiff. 

The amendment failed by a vote of 21–25. 

• Congressman Rick Allen (R–GA–12) offered an amendment to 

direct the Secretary of Labor to study and report back to Congress 

no later than 90 days after enactment a study to determine the effect of amendments made under section 3 (bona fide factor defense, 

non-retaliation, enhanced penalties) on employers’ ability to recruit, hire, promote, and increase the pay of employees irrespective 

of gender. If the Secretary finds the amendments are likely to significantly hinder employers’ ability to recruit, hire, promote, and 

increase the pay of employees irrespective of gender, the amendments made by the section would not go into effect. The amendment failed by a vote of 20–25. 

• Congressman Byrne offered an amendment to strike language 

in the ANS that allows a defense to gender-based pay differences 

based on a ‘‘bona fide factor other than sex, such as education, 

training or experience’’ and replace it with ambiguous language allowing a defense to gender-based discrimination based on ‘‘a bona 

fide business-related reason other than sex.’’ Accompanying that 

change, the Byrne amendment would have stripped out conditions 

establishing when such bona fide factor defense would apply. The 

amendment failed by a vote of 19–26. 

• Congresswoman Virginia Foxx (R–NC–5), Ranking Member, offered an amendment to strike Section 8 relating to pay data collection by the EEOC. The amendment failed by a vote of 18–27. 


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10 29 U.S.C. § 255. 11 29 U.S.C. § 216; 29 U.S.C. § 260. 12 42 U.S.C. § 2000–e–5(e). 13 Jody Feder & Benjamin Collins, Cong. Research Serv., RL31867, Pay Equity: Legislative 

and Legal Developments 3 (2016) (stating that compensatory damages include such items as 

pain and suffering, medical expenses and emotional distress). 14 Id. (punitive damages may be recovered when the employer acted with malice or reckless 

indifference). 15 Id. 16 42 U.S.C. § 1981a. 17 Am. Ass’n of Univ. Women, The Simple Truth about the Gender Pay Gap 1 (2018), https:// 

www.aauw.org/aauw_check/pdf_download/show_pdf.php?file=simple-truth-one-pager. 

SUMMARY

Neither the EPA nor Title VII is sufficient in their current forms 

to achieve wage equality. The EPA prohibits gender-based wage 

discrimination between men and women in the same establishment 

who perform jobs that require substantially equal skill, effort, and 

responsibility under similar working conditions. Under the EPA, an 

aggrieved person has two years (or three years in a case of a willful 

violation) from the date of any instance of unequal pay to file a 

claim in court.10 Under the EPA, there is no requirement to seek 

any remedies through the EEOC first. A plaintiff does not bear the 

burden of proving that the employer intentionally committed wagebased gender discrimination, but employers have a very broad business necessity defense for ‘‘factors other than sex.’’ A plaintiff who 

successfully proves wage discrimination under the EPA can recover 

back pay, and the EPA also provides for liquidated damages in an 

amount equal to back pay, unless the employer can show that it 

acted in good faith and it had reasonable grounds to believe that 

its actions did not violate the EPA.11

Title VII also has limitations when it comes to closing the gender 

wage gap. Title VII prohibits discrimination based on race, color, 

national origin, religion, and sex. To bring a case of wage discrimination under Title VII, a plaintiff must prove intentional discrimination. Before bringing a case to court, a claimant must exhaust 

administrative remedies through the EEOC. Cases under Title VII 

must be filed with the EEOC within 180 days of the violation, or 

longer in states where there is a state fair employment practices 

law.12 Although a plaintiff bringing a gender-based wage discrimination claim is entitled to back pay, compensatory damages,13 and 

punitive damages,14 compensatory and punitive damages do have 

monetary caps. These caps apply only to gender-based discrimination, and they vary depending on the size of the employer,15 but 

under no circumstance can these damages exceed $300,000.16 However, wage discrimination claims based upon race and national origin are uncapped, creating a two-tiered system where pay discrimination based on race and national origin is considered more egregious than pay discrimination based on sex. This has been the case 

since enactment of the Civil Rights Act of 1991. 

Due to weaknesses in the EPA, the landmark legislation has not 

lived up to its original purpose. Women working full-time earned 

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

passed in 1963. The wage gap has narrowed somewhat since then, 

but it persists as a significant problem for American women. 

Today, women earn, on average, 80 cents for every dollar that a 

White man earns.17 The wage gap is even more substantial for 


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18 Id. 19 Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56-57. 

some groups of women. For every dollar paid to White, non-Hispanic men, Black women typically make only 61 cents, Latina 

women only 53 cents, and American Indian or Alaskan Native 

women only 58 cents.18 H.R. 7 is a critical step forward in the fight 

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

to cause labor disputes, thereby burdening, affecting, and obstructing commerce; and constitutes an unfair method of competition.’’ 19

Congress has a responsibility to modernize the EPA so that it can 

better achieve its intended purpose. 

Hundreds of organizations have expressed support for H.R. 7, including: 9to5; 9to5 California; 9to5 Colorado; 9to5 Georgia; 9to5 

Wisconsin; A Better Balance; ACCESS Women’s Health Justice; 

Advocacy and Training Center; AFL–CIO; PA AFL–CIO; African 

American Ministers In Action; American Association of University 

Women (along with 55 individual chapters); American Civil Liberties Union; American Federation of Government Employees; 

American Federation of State; County; and Municipal Employees; 

American Federation of Teachers; American Psychological Association; Americans for Democratic Action; Anti-Defamation League; 

Atlanta Women for Equality; Bend the Arc: Jewish Action; Bozeman Business & Professional Women; California Employment Lawyers Association; California Federation of Business & Professional 

Women; Caring Across Generations; Casa de Esperanza: National 

Latin@ Network for Healthy Families and Communities; Center for 

Advancement of Public Policy; Center for Law and Social Policy; 

Citizen Action of New York; Clearinghouse on Women’s Issues; Coalition of Labor Union Women (along with 22 individual chapters); 

Congregation of Our Lady of the Good Shepherd, US Provinces; 

Connecticut Women’s Education and Legal Fund; Disciples Women; 

Ecumenical Poverty Initiative; Equal Pay Today; Equal Rights Advocates; Friends of the Delaware County Women’s Commission; Futures Without Violence Gender Equality Law Center; Girls For 

Gender Equity; Girls Inc.; Grameen Development Society; Graphic 

Communications Conference/International Brotherhood of Teamsters Local 24M/9N; Greater New York Labor Religion Coalition; 

Hadassah, The Women’s Zionist Organization of America, Inc.; 

Holy Spirit Missionary Sisters—USA–JPIC; Hope’s Door; Indiana 

Institute for Working Families; Interfaith Worker Justice; International Alliance of Theatrical Stage Employees; International Association of Machinists and Aerospace Workers; International Association of Sheet Metal, Air, Rail and Transportation Workers Local 

20; International Brotherhood of Electrical Workers—3rd District; 

International Brotherhood of Electrical Workers 29; International 

Federation of Professional and Technical Engineers International 

Union, United Automobile, Aerospace & Agricultural Implement 

Workers of America; JALSA: Jewish Alliance for Law and Social 

Action; Jewish Women International; Justice for Migrant Women; 

Lambda Legal; The Leadership Conference on Civil and Human 

Rights; League of Women Voters of St. Lawrence County, NY; 

Legal Aid At Work; Main Street Alliance; Maine Women’s Lobby; 


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McCree Ndjatou, PLLC; Methodist Federation for Social Action; 

MomsRising; Mississippi Black Women’s Roundtable; NAACP; National Advocacy Center of the Sisters of the Good Shepherd; National Asian Pacific American Women’s Forum; National Association of Letter Carriers; National Association of Working Women; 

National Center for Transgender Equality; National Committee on 

Pay Equity; National Council of Jewish Women; National Domestic 

Workers Alliance; National Education Association; National Employment Law Project; National Employment Lawyers Association 

(along with 7 individual chapters); National Federation of Business 

and Professional Women Clubs; National LGBTQ Task Force Action Fund; National Organization for Women (along with 51 individual Chapters); National Partnership for Women & Families; National Resource Center on Domestic Violence; National Women’s 

Law Center; NC Women United; NETWORK Lobby for Catholic Social Justice; New York Paid Leave Coalition; New York State Coalition Against Domestic Violence; North Carolina Justice Center; 

Oxfam America; PathWays PA; People For the American Way; 

Planned Parenthood Pennsylvania Advocates; PowHer NY; Progressive Maryland; Public Citizen; Restaurant Opportunities Centers United; Service Employees International Union; SEIU Local 

668; Southwest Women’s Law Center; Texas Business Women Inc.; 

Transport Workers Union; U.S. Women and Cuba Collaboration; 

U.S. Women’s Chamber of Commerce; UltraViolet; Union for Reform Judaism; Unitarian Universalist Women’s Federation; UNITE 

HERE! Local 57; United Church of Christ Justice and Witness 

Ministries; United Mine Workers of America; United Mine Workers 

of America District Two; United Nations Association of the United 

States; United State of Women; United Steelworkers (USW); 

United Steelworkers, District 10; USW Local 1088; L.U. #1088 

USW; UN Women USNC Metro New York Chapter; Voter Participation Center; Westminster Presbyterian Church; Women Employed; WNY Women’s Foundation; Women of Reform Judaism; 

Women’s All Points Bulletin, WAPB; Women’s Voices; Women Vote 

Action Fund; WomenNC; Women’s Law Project; YWCA USA; Zonta 

Club of Greater Queens; and Zonta Club of Portland. 

COMMITTEE VIEWS

The Committee on Education and Labor is committed to protecting the rights of individuals in the workplace. Fifty-six years 

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

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

women’s earnings is substantial. Many women have been unable to 

utilize the protections afforded under the EPA because loopholes, 

court interpretations, and ineffective sanctions have made enforcement extremely difficult. H.R. 7 strengthens the EPA to more effectively combat wage discrimination. The Act builds upon Congress’ 

efforts 56 years ago when the EPA was enacted and is a necessary 

step forward to close the persistent wage gap between men and 

women. 


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20Support for ‘‘equal pay’’ dates back to World War I when the War Board enforced regulations requiring pay equity; see Elizabeth Wyman, The Current Framework of Sex/Gender Discrimination Law: The Unenforced Promise of Equal Pay Acts: A National Problem and Possible 

Solution from Maine, 55 Me. L. Rev. 23 (2004). 21 29 U.S.C. § 206(d). 22 H.R. Rep. No. 110-783 at 12 (2008) (internal citations and quotations omitted). 23 Id. (internal citations and quotations omitted). 24 Id. (internal citations and quotations omitted). 25 Id. (internal citations and quotations omitted). 26 Id. (internal citations and quotations omitted). 27 Id. at 12-13 (internal citations and quotations omitted). 28 H.R. Rep. No. 110-783 at 12 (2008) (internal citations and quotations omitted). 

HISTORY OF THE EQUAL PAY ACT

In 1963, Congress first addressed the issue of unequal pay 20

when it passed the EPA as an amendment to the FLSA.21 The purpose of the legislation was broadly remedial to eliminate once and 

for all gender-based discriminatory pay practices: 

The objective of the legislation is to ensure that those 

who perform tasks which are determined to be equal shall 

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

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

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

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

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

wages.22

The EPA enshrined ‘‘equal work for equal pay regardless of sex’’ 

alongside minimum wages, overtime pay, and the protection of 

child laborers as a fair labor standard in the FLSA.23 Other 

versions of equal pay legislation had been introduced prior to and 

during 1963, but because the Department of Labor had already developed ‘‘a now familiar system of regulations and procedures for 

investigation, administration, and enforcement,’’ Congress decided 

that a simple expansion of the FLSA to include pay equity was the 

‘‘most efficient and least difficult course of action.’’ 24 Upon introduction of the bill, Senator Patrick McNamara (D–MI) stated: 

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

equal pay legislation. And second, compliance should be 

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

provisions.25

Some legislators felt that the legislation did not go far enough 

but voted for it nonetheless because it was ‘‘a good start . . . in 

eliminating the unfairness of unequal pay.’’ 26

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

doing the same job under the same working conditions . . . receive 

equal pay.’’ 27 Congressman Rodney Frelinghuysen (R–NJ–11) 

elaborated on the standard: 

[T]he jobs in dispute must be the same in work content, 

effort, skill and responsibility requirements, and in working conditions . . . it is not intended to compare unrelated 

jobs or jobs that have been historically and normally considered by the industry to be different.28


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29 Id. at 13 (internal citations and quotations omitted). 30 Id. (internal citations and quotations omitted). 31 29 U.S.C. § 206(d)(1). 32 H.R. Rep. No. 110-783 at 13 (2008) (internal citations and quotations omitted). 33 Id. (internal citations and quotations omitted). 34 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241. 35 42 U.S.C. § 2000e et. seq. 36Lynn Ridgeway Zehrt, Twenty Years of Compromise: How the Cap on Damages in the Civil 

Rights Act of 1991 Codified Sex Discrimination, 25 Yale J.L. & Feminism 250, 249–50 (2013). 

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

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

in terms of ‘‘work content, effort, skill and responsibility requirements and in working conditions.’’ 29

In addition, the floor debate made clear that under the EPA, discrimination against one individual would be actionable, and a 

showing of a pattern and practice of discrimination would not be 

required. Senator McNamara stated: 

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

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

intent of the Senate that an employer will have violated 

this act if he discriminates against one employee, just as 

he will violate it if he discriminates against many.30

While the EPA was aimed at eradicating wage differentials based 

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

such, even though the female employee might show that the employer’s wages were unequal as compared to a man, the EPA does 

provide employers with affirmative defenses to justify the differences in pay if such differences are based on: (1) seniority systems; (2) merit systems; (3) methods that measure earnings by 

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

sex.’’ 31

While the ‘‘any factor other than sex’’ affirmative defense was 

broadly written, Congress intended that any proffered reason for a 

pay differential be a bona fide one. Also, the drafters made sure 

that the employer shouldered the burden of proving the legitimacy 

of its practice,32 making clear that these affirmative defenses were 

never intended to ‘‘shield employers who have a plan or system in 

place that is devised to evade the law.’’ 33

EPA, TITLE VII, AND SECTION 1981

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

Rights Act of 1964 34 into law. It was historic legislation prohibiting 

discrimination in employment, among other things, on the basis of 

race, color, religion, national origin, and sex.35 The EPA and Title 

VII, passed only one year apart, both prohibited sex discrimination 

in pay and provided overlapping coverage. 

Before the Civil Rights Act of 1991 amended Title VII, White 

women could only recover equitable relief for intentional sex discrimination.36 Although the Civil Rights Act of 1991 allowed 

women to recover compensatory and punitive damages for intentional sex discrimination, the damages were capped at a maximum 

award of $300,000 and were based upon the size of the employer 


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37 Id. at 250. 38 Id. at 301. 39 Id. at 271 n.162. 40 H.R. Rep. No. 110–783 at 14 n.28 (2008) (internal citations and quotations omitted). 41 29 U.S.C. § 255. 42Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 (2007). 43 42 U.S.C. § 2000–e–5(e). 44 EEOC Compliance Manual, No. 915.003 § 10–5 (Dec. 5, 2000), https://www.eeoc.gov/policy/ 

docs/compensation.html. 45 Id. 

rather than the amount of harm to the victim.37 During the two 

years of debate, Congress acknowledged that caps on damages for 

victims of sex discrimination created a two-tiered system where 

damages for sex discrimination were less than damages available 

for race and national origin discrimination. Congress considered 

and ultimately rejected uncapped damages in cases of sex discrimination as part of a compromise to avoid a presidential veto by 

President George H.W. Bush.38 The judgment made by Congress 

established a ‘‘disparate treatment of the law which seems to imply 

that some forms of discrimination are more tolerable than others.’’ 39

Eighteen years after Congress acknowledged that it was creating 

a two-tiered system of damages where discrimination based upon 

race and national origin is elevated over discrimination based on 

gender, distinct differences remain between the application of Title 

VII and the EPA in sex-based wage discrimination cases.40 Key differences are outlined below. 

Statute of Limitations/Exhaustion of Administrative Remedies. 

Under the EPA, an aggrieved person has two years (or three years 

in a case of a willful violation) from the date of any instance of unequal pay to file a claim in court.41 The Lilly Ledbetter Fair Pay 

Act of 2009 directly addressed the 180-day statute of limitation established in Ledbetter v. Goodyear Tire & Rubber Company, Inc., 

where the U.S. Supreme Court found that Lilly Ledbetter’s equal 

pay claim was time-barred due to it being filed more than 180 days 

after the initial act of discrimination.42 The Lilly Ledbetter Fair 

Pay Act of 2009 now enables workers to file Title VII pay discrimination claims 180 days from the last discriminatory paycheck as 

opposed to 180 days from when the discrimination first began.43

Burden of Proof. When alleging discrimination under the EPA, 

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

in the same establishment and doing substantially similar jobs are 

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

proving that the employer intentionally committed wage-based gender discrimination. Once the employee has made a showing of unequal pay, the burden of proof shifts to the employer to show that 

the pay inequity is not due to gender discrimination.44

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

the employer engaged in intentional discrimination against her, 

and she retains the burden of proving discrimination throughout 

the case. However, unlike an EPA complainant, a Title VII plaintiff 

is not required to demonstrate that she performed substantially 

similar (or equal) work as higher paid males, so long as she has 

other evidence of discrimination such as proof that a man worked 

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

she been a man.45


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46 29 U.S.C. § 216; 29 U.S.C. § 260. 47 H.R. Rep. No. 110–783 at 14 (2008) (internal citations and quotations omitted). 48 Id. (internal citations and quotations omitted) (punitive damages may be recovered when 

the employer acted with malice or reckless indifference). 49 Id. 50 Id. 51 Id. 52 42 U.S.C. § 1981(a). 53The Paycheck Fairness Act (H.R. 7): Equal Pay for Equal Work Before H. Subcomm. on Civil 

Rights and Human Servs. & H. Subcomm. on Workforce Prots. of the H. Comm. on Educ. and 

Labor, 116th Cong. (2019) (written testimony of Kristin Rowe-Finkbeiner, CEO/Executive Director of Moms Rising, at 3) [Hereinafter Rowe-Finkbeiner Testimony]. 

Damages. A plaintiff who successfully proves gender-based wage 

discrimination under the EPA can only recover backpay, and, unless the employer can show that it acted in good faith, an equal 

amount in liquidated damages.46 Conversely, under Title VII, a 

prevailing plaintiff for a gender-based wage claim is entitled to 

back pay, compensatory damages,47 and punitive damages 48 for intentional wage discrimination.49 However, as noted above, there 

are monetary caps on compensatory and punitive damages, which 

vary depending on the size of the employer rather than the extent 

of a victim’s injuries.50 However, in no event may these damages 

exceed $300,000.51

Section 1981. While Section 1981 of the Civil Rights Act of 1866 

(Section 1981) does not cover sex-based discrimination, it is worth 

comparing as well. Section 1981 forbids discrimination on the basis 

of race or national origin in the making and enforcement of contracts.52 Such contracts may be between employee and employer or 

between businesses. Plaintiffs in Section 1981 cases may recover 

compensatory and punitive damages, and like those claims under 

Title VII, the damages are not limited. Thus, under current law, 

an employee receiving unequal pay for equal work on the basis of 

race or national origin may recover punitive damages without an 

arbitrary statutory limit, but an employee receiving unequal pay on 

the basis of sex cannot. In this way, limitations on damage awards 

based on gender are considered by some to be another form of discrimination based upon sex. 

WOMEN CONTINUE TO EARN LESS THAN MEN

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

a reality. Kristin Rowe-Finkbeiner testified at the Joint Subcommittee Hearing about a woman named Valerie who discovered 

this firsthand: 

[She] discovered that the male co-worker who had been 

hired on the same day she was hired was being paid substantially more, even though they had the same job title 

and she had more duties and responsibilities. Valerie went 

directly to the owner to request an increase to match her 

co-worker’s wage. She was told because her co-worker was 

married and male, he ‘‘needed’’ a higher income than she 

did. Valerie pointed out that since he was married and his 

wife also worked outside the house, he actually had two incomes to cover his bills; while she was single and struggling to keep her head above water. Her boss was cordial 

but adamant that that was his policy, and she had no 

choice but to live with it.53


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54 Am. Ass’n of Univ. Women, The Simple Truth about the Gender Pay Gap 1 (2018), https:// 

www.aauw.org/aauw_check/pdf_download/show_pdf.php?file=simple-truth-one-pager. 55 Nat’l Women’s Law Ctr., The Wage Gap: The Who, How, Why and What to Do 2 (2017), 

https://nwlc.org/wp-content/uploads/2016/09/The-Wage-Gap-The-Who-How-Why-and-What-to-Do2017.pdf. 56 Id. 57 Jocelyn Fischer & Jeff Hayes, The Importance of Social Security in the Incomes of Older 

Americans: Differences by Gender, Age, Race/Ethnicity, and Marital Status 1–4 (2013), https:// 

iwpr.org/wp-content/uploads/wpallimport/files/iwpr-export/publications/D503-ImportanceofSS.pdf. 58 Id. 59 Nat’l Women’s Law Ctr., The Wage Gap: The Who, How, Why and What to Do 2 (2017), 

https://nwlc.org/wp-content/uploads/2016/09/The-Wage-Gap-The-Who-How-Why-and-What-to-Do2017.pdf; see also Jocelyn Fischer & Jeff Hayes, The Importance of Social Security in the Incomes of Older Americans: Differences by Gender, Age, Race/Ethnicity, and Marital Status 1– 

4 (2013), https://iwpr.org/wp-content/uploads/wpallimport/files/iwpr-export/publications/D503- 

ImportanceofSS.pdf (see figure 4). 60 Jessica Milli et al., The Impact of Equal Pay on Poverty and the Economy 2 (2017), https:// 

iwpr.org/wp-content/uploads/2017/04/C455.pdf. 61 Id. 62 Council of Economic Advisers, The Gender Pay Gap on the Anniversary of the Lilly 

Ledbetter Fair Pay Act 3 (2016), https://obamawhitehouse.archives.gov/sites/default/files/page/ 

files/20160128<cea<gender_pay_gap_issue_brief.pdf. 63Washington Center for Equitable Growth, Gender Wage Inequality: What We Know and 

How We Can Fix It 18 (2018), https://equitablegrowth.org/research-paper/gender-wage-inequality/. 64 Id. 65 Anthony P. Carnevale et al., Women Can’t Win 4 (2018), https:// 

1gyhoq479ufd3yna29x7ubjn-wpengine.netdna-ssl.com/wp-content/uploads/Women_9

6_BqcZjnrZ 66 Id.; see also Am. Ass’n of Univ. Women, The Simple Truth about the Gender Pay Gap 1 

(2018), https://www.aauw.org/aauw_check/pdf_download/show_pdf.php?file=The_Simple_Truth. 

As previously noted, a woman working full-time, year-round 

earns 80 cents for every dollar a White male makes.54 This gap can 

cause significant economic loss for a working woman over the 

course of her career. For example, a woman working full-time and 

year-round earning the median income for women would lose 

$403,440 in earnings over a 40-year career.55 To make up for this 

gap in lifetime earnings, this working woman would have to work 

ten years longer than her White male counterpart.56 The gender 

wage gap’s ultimate result is lower lifetime earnings for women, 

and as a result of these lower lifetime earnings, women’s retirement savings and social security benefits are greatly affected.57 In 

2011, women aged 65 and older received a total income of $22,069 

on average as compared to $41,134 for men.58 The average Social Security benefit is $14,044 for women as compared to $18,173 for 

men of the same age.59 Because of the gender wage gap, the economy as a whole suffers. For example, researchers estimate that in 

2016, the U.S. economy would have produced additional income of 

$512.6 billion if women received equal pay—an amount equivalent 

to 2.8 percent of the 2016 gross domestic product (GDP).60 In addition to boosting the economy, pay equity would cut the poverty rate 

for all working women by more than half, from 8 percent to 3.8 

percent.61

Research indicates that women experience a pay gap in nearly 

every line of work, regardless of education, experience, occupation, 

industry, and job title.62 In fact, 38 percent of the pay gap remains 

unexplained even when accounting for these variables.63 ‘‘Most researchers attribute this portion [of the wage gap] to factors such 

as discrimination and socially constructed gender norms . . .’’ 64

The wage gap remains even when controlling for educational attainment.65 Women with a bachelor’s degree earn roughly equivalent to men with an associate’s degree and earn 26 percent less 

than their male peers with a college degree.66 Even in fields where 

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67 Asaf Levanon et al., Occupational Feminization and Pay: Assessing Causal Dynamic Using 

1950–2000 U.S. Census Data, 88 Social Forces 865 (2009); see also Jasmine Tucker, Women Experience a Wage Gap in Nearly Every Occupation 2 (2018), https://nwlcciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2018/04/Wage-Gap-Fact-Sheet-Occupation.pdf. 68 Asaf Levanon, et al., Occupational Feminization and Pay: Assessing Causal Dynamic Using 

1950–2000 U.S. Census Data, 88 Social Forces 865 (2009). 69Sarah Jane Glynn, Breadwinning Mothers are Increasingly the U.S. Norm, Center for American Progress (Dec. 19, 2016, 11:59 AM), https://www.americanprogress.org/issues/women/reports/2016/12/19/295203/breadwinning-mothers-are-increasingly-the-u-s-norm/. 70 Id.; see also Rowe-Finkbeiner Testimony at 3. 71Michelle J. Budig & Paula England, The Wage Penalty for Motherhood, 66 American Sociological Review 204, 204–25 (2001). 72 Nat’l Women’s Law Ctr., Equal Pay for Mothers is Critical for Families 1 (2017), https:// 

nwlc.org/wp-content/uploads/2017/05/Motherhood-Wage-Gap.pdf; see also Michelle J. Budig & 

Melissa J. Hodges, Differences in Disadvantage: Variation in the Motherhood Penalty across 

White Women’s Earnings Distribution, 75 American Sociological Review 1, 1–24 (2010). 73 Nat’l Women’s Law Ctr., Equal Pay for Mothers is Critical for Families 2 (2017), https:// 

nwlc.org/wp-content/uploads/2017/05/Motherhood-Wage-Gap.pdf. 74 Institute for Women’s Policy Research, Basic Economic Security in the United States: How 

much Income Do Working Adults Need in Each State? 4 (2018), https://iwpr.org/wp-content/ 

uploads/2018/10/R590_National.pdf. 75 Id. 76 Jessica Milli et al., The Impact of Equal Pay on Poverty and the Economy 2 (2017), https:// 

iwpr.org/wp-content/uploads/2017/04/C455.pdf; see also Am. Ass’n of Univ. Women, The Simple 

Truth about the Gender Pay Gap 6 (2018), https://www.aauw.org/aauw_check/pdf_download/ 

show_pdf.php?file=The_Simple_Truth. 77 Jessica Milli et al., The Impact of Equal Pay on Poverty and the Economy 2 (2017), https:// 

iwpr.org/wp-content/uploads/2017/04/C455.pdf. 

ling for experience, skills, education, race, and region, a wage gap 

remains.67 Additionally, research demonstrates that when women 

move into a field of work in large numbers, wages decline.68

Wage inequality experienced by mothers threatens the stability 

of families across the United States. Mothers now represent a larger share of the breadwinners for their families than in previous 

years, and this ‘‘is the continuation of a long-running trend, as 

women’s earnings and economic contributions to their families continue to grow in importance.’’ 69 In 2015, 64.4 percent of mothers 

in the United States were either the sole family breadwinner (42 

percent) or the co-breadwinner (22.4 percent).70 Meanwhile, mothers do not see the wage bump seen by fathers and in fact, statistics 

show that mothers receive a 7 percent penalty per child.71 Mothers 

on average are paid less than fathers, with mothers receiving 71 

cents for every dollar a father earns, and low-wage working mothers see the biggest penalty of all groups in the workforce.72 The 

motherhood penalty is particularly staggering for Latina, African 

American, and American Indian/Alaskan Native mothers who are 

paid 46, 54, and 49 cents to the dollar, respectively, as compared 

to White non-Hispanic fathers.73 Households headed by working 

mothers are also more likely to be in poverty than their single father counterparts. Only about one in four households headed by 

single mothers in the United States are economically secure.74 Conversely, households headed by single fathers are nearly twice as 

likely to have incomes that provide economic security.75 Eliminating pay inequality would cut the poverty rate for working single 

mothers in nearly half, from 28.9 percent to 14.5 percent.76

The total increase in earnings by women through pay equity 

would be 16 times what the Federal Government and all state governments combined spent on Temporary Assistance to Needy Families (TANF) in Fiscal Year 2015.77 Additionally, approximately 25.8 

million children would benefit from the increased earnings of their 


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78 Id. 79The Paycheck Fairness Act (H.R. 7): Equal Pay for Equal Work Before H. Subcomm. on Civil 

Rights and Human Servs. & H. Subcomm. on Workforce Prots. of the H. Comm. on Educ. and 

Labor, 116th Cong. (2019) (written testimony of Fatima Goss Graves, President and CEO of National Women’s Law Center, at 7) [Hereinafter Goss Graves Testimony]. 80Ledbetter v. Goodyear Tire & Rubber Co. Inc., 127 S. Ct. 2162, 2179 (2007) (Ginsburg, J., 

dissenting). 81Goss Graves Testimony at 7. 82 Id. 83 Id. 84 Id. 85 Rowe-Finkbeiner Testimony at 2. 86 Id. 87The Paycheck Fairness Act (H.R. 7): Equal Pay for Equal Work Before H. Subcomm. on Civil 

Rights and Human Servs. & H. Subcomm. on Workforce Prots. of the H. Comm. on Educ. and 

Labor, 116th Cong. (2019) (written testimony of Jenny Yang, Partner at Working Ideal, at 2) 

[Hereinafter Yang Testimony]. 88 Id. 

mothers, and the number of children with working mothers living 

in poverty would drop from 5.6 million to 3.1 million.78

Pay discrimination is difficult to detect 

In today’s workplace, pay discrimination is often extremely difficult to detect. Discriminatory salary decisions are seldom obvious 

to employees because pay is often cloaked in secrecy.79 As Justice 

Ginsburg observed in Ledbetter v. Goodyear Tire & Rubber Company, Inc., ‘‘comparative pay information is often hidden from the 

employee’s view.’’ 80 This lack of transparency creates significant 

obstacles for employees to gather information that would indicate 

that they have experienced pay discrimination.81 Ultimately, this 

undermines an employee’s ability to challenge pay discrimination.82

Also, many employers have policies prohibiting salary discussions.83 About 60 percent of private sector employers have adopted 

specific rules prohibiting or strongly discouraging employees from 

discussing their wages with co-workers.84 Finally, for those employees who do know what their colleagues earn, they often lack information about the contributing factors that might influence pay levels, such as performance, education, or training. 

Disparate pay might not begin with a woman’s initial salary determination, but can readily develop with a decision to increase the 

pay of male colleagues. Women risk being looked over for promotions and raises, the impact of which compounds throughout 

their careers.85 ‘‘If your employer was paying you $5,000 less a 

year because you’re a woman, that’s a $50,000 loss over ten 

years.’’ 86

Discussions about wages are necessary to identify pay disparity 

because ‘‘without this knowledge, [women] are unable to report 

these problems to the EEOC.’’ 87 Once a lawsuit is filed, the discovery of wage data is available to help aggrieved employees develop their cases; however, in order learn more about employee salaries, women need to have some basis to file suit in the first place. 

Tens of thousands of pay discrimination charges were filed with the 

EEOC between 2010 and 2016, and the agency recovered over $85 

million in monetary relief for victims. However, in her testimony 

at the Joint Subcommittee Hearing, Jenny Yang characterized 

these resolutions as ‘‘just the tip of the iceberg.’’ 88


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89 Id. 90 H.R. Rep. No. 110–783 at 18 (2008) (internal citations and quotations omitted). 91 Id. at 18 n.76. 92 35 Years of Ensuring the Promise of Opportunity, EEOC, https://www.eeoc.gov/eeoc/history/ 

35th/pre1965/index.html (last visited Mar. 11, 2019). 

Lack of data on pay disparity 

Data about pay discrimination is an invaluable tool for enforcement agencies such as the EEOC and the Office of Federal Contract Compliance Programs (OFCCP). Experts agree that these 

agencies currently receive minimal information about gender-based 

disparities in pay at the establishment level.89

Bureau of Labor Statistics—Occupational Employment Statistics. 

For over forty years, the Bureau of Labor Statistics (BLS) had been 

collecting data on female workers and comparing them to their 

male counterparts. This data had formed the basis for its monthly 

report on the employment situation.90 In 2005, BLS stopped collecting this data, citing employer inconvenience.91 In response to 

this, Congress included in the Fiscal Year 2006, 2007, 2008, 2009, 

and 2010 Labor, Health and Human Services, Education, and Related Agencies appropriations bills that were enacted into law a 

provision requiring BLS to continue to collect data on women workers. However, beginning in Fiscal Year 2011 and continuing 

through Fiscal Year 2019, Congress did not include the requirement for BLS to collect data on women workers as part of the Current Employment Statistics (CES) survey. Recognizing the value of 

collecting these statistics, the Paycheck Fairness Act makes permanent a requirement for BLS to gather these statistics as part of the 

CES. 

Equal Employment Opportunity Commission. The EEOC was created by the Civil Rights Act of 1964 and was given litigation enforcement authority in 1972.92 The EEOC has collected employment data categorized by race/ethnicity, gender, and job category 

through the Employer Information Report EEO–1 (EEO–1) from 

employers since 1966. The EEOC has also collected and maintained 

sensitive employer information gathered through its investigations 

since it opened its doors in 1965. Title VII requires that the EEOC 

keep this information confidential and imposes criminal sanctions 

on EEOC employees who unlawfully disclose confidential information. 

In 2016, the Obama Administration expanded the data collection 

requirements for the EEO–1 to include, in addition to employment 

data, wage data disaggregated by race/ethnicity, gender, and job 

category. Collecting pay data can expose trends in the hiring, payment, and promotion of employees; the sex-segregation of jobs; and 

the inequity of salaries, benefits, or bonuses. Data may show that 

employees of the opposite sex are not paid comparably for the same 

job, or for different jobs that require similar skills, education, and 

experience. Some businesses may not be aware of the discriminatory practices until the data is collected and analyzed. Once these 

issues are brought to light, businesses can create interventions 

aimed at correcting or eliminating the problem before it even 

starts. 


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93What You Should Know: Statement of Acting Chair Victoria A. Lipnic about OMB Decision 

on EEO–1 Pay Data Collection, https://www.eeoc.gov/eeoc/newsroom/wysk/eeo1-pay-data.cfm 

(last visited Mar. 11, 2019). 94 Id. (A stay was placed on the pay data collection aspects of the EEO–1 form that was revised on September 29, 2016. The original date to submit the EEO–1 data using the old form 

was ‘‘the previously set filing date of March 2018.’’ It has continuously been extended and has 

recently been postponed until ‘‘early March 2019.’’). 95 Nat’l Women’s Law Ctr. v. OMB, No. 17–cv–2458, 2019 U.S. Dist. LEXIS 33828, at *59– 

61 (D.D.C. Mar. 4, 2019) (Here, the stay of the revised EEO–1 pay data collection form issued 

by the Trump administration was vacated. Further legal action is indeterminate at this time, 

underscoring the need for the legal certainty H.R. 7 provides.). 96 Janet Nguyen, The U.S. Government is Becoming More Dependent on Contract Workers, 

Marketplace (January 17, 2019, 2:17 PM), https://www.marketplace.org/2019/01/17/business/risefederal-contractors. 97 H.R. Rep. No. 110–783 at 18 (2008) (internal citations and quotations omitted). 98 Id. at 19 (internal citations and quotations omitted). 99 Id. (internal citations and quotations omitted). 100 Id. (internal citations and quotations omitted). 101 Id. (internal citations and quotations omitted). 

The Trump Administration indefinitely stayed the expanded pay 

data collection reporting requirements.93 Additionally, the Trump 

Administration has delayed 94 the regular collection of the EEO–1 

data.95 The Paycheck Fairness Act requires the Department of 

Labor and the EEOC to collect data on compensation and other employment-related data by race, nationality, and sex in order to enhance the ability of both agencies to detect violations and improve 

enforcement of the EPA. 

Office of Federal Contract Compliance Programs. The OFCCP is 

unique in that it is required by law to affirmatively conduct reviews to ensure that contractors with federal contracts are in compliance with equal employment measures, including Executive 

Order 11246, which prohibits discrimination in employment on the 

basis of race, color, religion, national origin, and gender. An estimated 4.1 million individuals work for an employer who contracts 

with the federal government.96

Equal Opportunity Survey. The Equal Opportunity (EO) Survey 

was developed over three administrations to ensure nondiscrimination in federal contractor employment. It was intended to track employment data and to improve the enforcement of anti-discrimination requirements, including gender-based wage discrimination, on 

federal contractors.97 Prior to the EO Survey, the OFCCP conducted targeted compliance reviews. Because of limited resources, 

the OFCCP only reviewed approximately four percent of contractors each year.98

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

more effective in detecting and remedying wage discrimination and 

encouraging self-awareness and self-evaluation among contractors 

as a means of increasing compliance.99 It was developed to query 

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

compensation of full-time employees, all aggregated by job group, 

race, and gender.100

The first survey was sent out in 2000 during the last year of the 

Clinton Administration, but the Bush Administration that followed 

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

not follow up on those surveys that were not returned.101

In 2003 and 2004, the Bush Administration sent out fewer and 

fewer surveys, and in 2005 it failed to send out any at all. In January 2006, the OFCCP proposed eliminating the EO Survey altoVerDate Sep 11 2014 08:24 Mar 19, 2019 Jkt 089006 PO 00000 Frm 00026 Fmt 6659 Sfmt 6602 E:\HR\OC\HR018.XXX HR018

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102 Id. (internal citations and quotations omitted). 103Memorandum on Advancing Pay Equality through Compensation Data Collection, 2014 

Daily Comp. Pres. Doc. 20751 (Apr. 11, 2014). 104 Neomi Rao, EEO–1 Form; Review Stay, 1–2 (2017), https://www.reginfo.gov/public/jsp/Utilities/Review_and_Stay_Memo_for_EEOC.pdf. 105 EEOC to Collect Summary Pay Data, EEOC, https://www.eeoc.gov/eeoc/newsroom/release/ 

9-29-16.cfm (last visited Mar. 11, 2019). 

gether.102 The Obama Administration recognized that the gender 

pay gap continued to exist despite the prohibitions against genderbased pay discrimination. In May 2014, President Barack Obama 

issued a Memorandum instructing the Secretary of Labor to establish regulations requiring federal contractors and subcontractors to 

submit summary data on employee compensation, including data 

by sex and race.103 However, this important data is still not being 

collected due to actions taken by the Trump Administration.104 As 

Jenny Yang testified at the Joint Subcommittee Hearing: 

During my tenure as Chair, the EEOC moved forward in 

September 2016 to collect summary pay data from employers with 100 or more employees to more effectively combat 

pay discrimination.105 The data collection would have required these employers to provide confidential annual reports to the EEOC about employee pay, broken down by 

job category, sex, race, and ethnicity. Because the data 

would be disaggregated by sex, race, and ethnicity, the information would help to address the intersectional nature 

of pay discrimination for women of color. The data would 

help to address discrimination in the form of occupational 

segregation in lower paying jobs. Collecting this information would be a significant step forward in addressing pay 

discrimination. 

The collection of employer pay data would support and 

enhance voluntary compliance by motivating employers to 

strengthen their systems and practices to collect and review compensation data. Many organizations still do not 

regularly collect and analyze pay data by demographics for 

potential disparities and have inconsistent or non-existent 

formal reviews. Because employers would need to compile 

and file this report, many more employers would establish 

a regular practice of reviewing their pay data by demographics at least at a summary level every year. Formalized and institutionalized pay data reporting would encourage employers to identify and address pay equity on 

their own—increasing the positive impact of reporting requirements. The EEOC also would publish aggregate pay 

information to enable employers to evaluate their pay data 

against industry benchmarks, consistent with its longstanding practice of reporting aggregate workforce demographic data. 

Through extensive consultation with stakeholders, the 

EEOC sought to minimize the burden on employers by 

building on existing annual reporting requirements. The 

pay data collection enhances the existing Employer Information Report, also known as the EEO–1 report, to include 

pay information along with the workforce demographic information that has been collected for over fifty years. The 

EEOC and the Department of Labor have long used the 


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106 Neomi Rao, EEO–1 Form; Review Stay, 1–2 (2017), https://www.reginfo.gov/public/jsp/Utilities/Review_and_Stay_Memo_for_EEOC.pdf. 107 Yang Testimony at 12. 108 H.R. Rep. No. 110–783 at 19 (internal citations and quotations omitted). 109Shankar Vedantam, Salary, Gender and the Social Cost of Haggling, Washington Post 

(July 30, 2007), http://www.washingtonpost.com/wp-dyn/content/article/2007/07/29/ 

AR2007072900827.html. 110Dina W. Pradel et al., When Gender Changes the Negotiation, Harvard Business School 

(Feb. 13, 2006), https://hbswk.hbs.edu/item/when-gender-changes-the-negotiation. 

EEO–1 workforce demographic data to identify trends, inform investigations, and focus resources. To report pay information, employers would provide data electronically, 

drawing from their existing human resources databases 

without incurring significant burden. 

Despite this extensive process with two opportunities for 

public comment, the Trump Administration, after consulting with business groups, announced a ‘‘review and immediate stay’’ of the EEO–1 pay data collection in August 

2017.106 The Paycheck Fairness Act would address the critical need for better pay data by codifying a requirement for 

employers to report pay data, which would provide the 

EEOC with a powerful tool to better focus its resources to 

combat pay discrimination.107

Standards in Conducting Systematic Wage Discrimination Analysis. As a way of measuring whether employers were engaged in 

gender-based wage discrimination, the Clinton Administration developed a methodology to be used in the OFCCP’s compliance reviews. The OFCCP asked employers to provide data on its pay levels (or pay grades), and then using the data, compare wages based 

on race, ethnicity, and gender. If there were any pay disparities, 

the OFCCP requested employers to correct them. 

Generally, employers were not supportive of this analysis, arguing that differences in wages between men and women did not necessarily prove that they were engaging in gender-based discrimination. As a result, the Bush Administration published a formal guidance document that expressly prohibited the OFCCP from using a 

‘‘pay grade’’ analysis in conducting its compliance reviews. Under 

this guidance, the OFCCP is required to conduct time-consuming 

analyses, including the gathering of anecdotal evidence before determining that a contractor is engaged in wage discrimination.108

The Paycheck Fairness Act allows the use of ‘‘pay grade’’ analysis 

in conjunction with other tools the OFCCP can use in determining 

if non-construction contractors for federal contracts are engaged in 

gender based wage discrimination. 

Women Are Less Likely to Negotiate 

High numbers of women fail to negotiate for higher salaries and 

promotions.109 Although lack of negotiation is a contributing factor 

to the wage gap, it does not justify gender-based pay discrimination. Researchers have discovered several reasons women fail to negotiate for themselves in the workplace. Women often do not promote their own interests, choosing instead to focus on others believing that employers will recognize and reward them for good work. 

Women tend to be more successful when negotiating for others— 

negotiating 18 percent greater salaries for others than they negotiate for themselves.110


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111 Yang Testimony at 6. 112Goss Graves Testimony at 6. 113 Nat’l Women’s Law Ctr., Asking for Salary History Perpetuates Pay Discrimination from 

Job to Job 2 (2018), https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2018/12/ 

Asking-for-Salary-History-Perpetuates-Discrimination-1.pdf. 114 EEOC Compliance Manual, No. 915.003 § 10–IV.F.2.g (Dec. 5, 2000), https://www.eeoc.gov/ 

policy/docs/compensation.html. 115 Rowe-Finkbeiner Testimony at 6. 

The hesitation of women to negotiate for themselves is not unreasonable. ‘‘Employers tend to penalize women who initiate negotiations for higher compensation more than they do men, as women 

are often judged more harshly for seeking higher pay than 

men.’’ 111 Even when women do negotiate, they often ask for less 

than their male counterparts.112 H.R. 7 authorizes the Secretary of 

Labor to award competitive grants to eligible entities to provide negotiation skills training programs for the purposes of addressing 

pay disparities, including through outreach to women and girls. 

Reliance on salary history perpetuates historic discrimination 

Asking job applicants their prior salary history has long been a 

routine part of the hiring process. However, the practice of utilizing 

prior salary, or pay history, in the hiring process perpetuates gender and racial wage gaps in the workplace. Salary history is not 

an objective factor because it assumes that prior salaries were fairly established in the first place.113 Using salary histories, which 

may have been tainted by bias or impacted by gender-based wage 

discrimination, whether intentional or not, means that discriminatory pay follows workers wherever they go. As the EEOC’s Compliance Manual states, ‘‘[p]rior salary cannot, by itself, justify a compensation disparity. This is because prior salaries of job candidates 

can reflect sex-based compensation discrimination.’’ 114

Ms. Rowe-Finkbeiner exemplified this perpetuation of wage discrimination during her testimony at the Joint Subcommittee Hearing when relaying the story of a woman named Julia: 

Julia’s employer used her salary history as an excuse to 

reduce her pay. Julia was offered a job at $65,000 per year 

but when her offer letter arrived, she was offered just 

$55,000. It was for the same job, but not at the same salary. Julia was told the reason was her salary history. She 

decided to take the job anyway. In time, she asked a male 

colleague about his salary and learned he was being paid 

$62,000 for the same job. When Julia asked about the disparity, she was told her male colleague was fresh out of 

college and that’s what they decided to start him at. So he 

benefited from having no experience and no salary history, 

while her seven years of relevant experience was used 

against her. Salaries at her next two jobs were premised 

on her salary there, so the harm compounded over time. 

She’s lost tens of thousands of dollars to this discrimination, as have millions of other women in similar situations.115

Businesses often decide what to pay new hires based in-part, or 

in whole, on how much they earned from a previous job. This practice, however, may unduly exclude otherwise qualified individuals 

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116Goss Graves Testimony at 11. 117 Id. at 13. 118 A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 496 (1945); 29 C.F.R. § 1620.9(a). 119Goss Graves Testimony at 13. 120 Juliene James, The Equal Pay Act in the Courts: A De-Facto White-Collar Exemption, 79 

N.Y.U. L. Rev. 1873 (2004). 121Georgen-Saad v. Texas Mut. Ins. Co., 195 F. Supp. 2d 853 (W.D. Tex. 2002). 

ployers are limiting their talent pools when they rely on salary history. When salary history information was taken out of the equation, the employers studied ended up widening the pool of workers 

under consideration and interviewing and ultimately hiring individuals who had made less money in the past.’’ 116 Relying on a 

prospective employee’s skills and abilities rather than prior pay ensures that employers reduce past discrimination in the hiring and 

pay decision process. 

THE EQUAL PAY ACT MUST BE STRENGTHENED TO EFFECTIVELY

ERADICATE PAY DISPARITY

The Paycheck Fairness Act strengthens the EPA as a tool to 

achieve pay parity by addressing the shortcomings described below. 

Establishment 

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

of proof in establishing a case for gender-based wage discrimination. To make out a prima facie case, a plaintiff must not only show 

that a pay disparity exists between employees of the same ‘‘establishment,’’ but she must also identify specific employees of the opposite sex holding equal positions who are paid higher wages.117

The courts have strictly defined the term ‘‘same establishment’’ to 

mean ‘‘a distinct physical place of business.’’ 118 ‘‘This can be an obstacle for an employee who seeks to compare her job to a male employee who does the same work in a different physical location for 

the same employer in the same town.’’ 119

The establishment requirement limits the ability of women to 

prevail in EPA claims since many women might not have a true 

comparator in their physical workplace. Today’s employers are 

much different than they were fifty-six years ago when the EPA 

was first enacted. Some employers may have multiple facilities at 

which the same jobs are performed. However, other locations may 

have only one person in a certain position (e.g., manager or supervisor), and employers have successfully asserted that women in 

higher-level positions have unique job duties and therefore have no 

comparator in the same establishment.120

Georgen-Saad v. Texas Mutual Insurance Company illustrates 

the obstacle the establishment requirement creates for executive 

and professional women.121 In that case, the complainant was a 

senior vice-president of finance who was being paid less than the 

other senior-vice presidents in the company. The court rejected 

Georgen-Saad’s claim that any of the positions required ‘‘equal 

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

According to Defendant, there are no male comparators 

working in a position requiring equal skill, effort, and responsibility under similar working conditions. The Court 

agrees. The sealed exhibits filed with Defendant’s Motion 

for Summary Judgment include job descriptions for the 


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122Georgen-Saad v. Texas Mut. Ins. Co., 195 F. Supp. 2d 853 (W.D. Tex. 2002). 123 29 C.F.R. § 1620.9(a)-(b). 124Grumbine v. United States, 586 F. Supp. 1144 (D.D.C. 1984). 125 Id. 126 Id. at 1148. 127 Vickers v. Int’l Baking Co., No. 398CV1864D, 2000 U.S. Dist. LEXIS 17995 (N.D. Tex. Dec. 

7, 2000). 

Senior Vice Presidents of Investments, Insurance Services, 

Underwriting Services, Underwriting and Policy Holder 

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

Branch Operations/Marketing. 

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

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

President of Finance position cannot be taken seriously. 

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

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

Pay Act can be accomplished due to the fact that these 

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

practical realities of hiring and compensating high-level 

executives deal a fatal blow to Equal Pay Act claims.122

In 1986, the EEOC issued regulations interpreting the definition 

of ‘‘establishment’’ under the EPA.123 The regulation provides in 

part that an establishment can encompass more than a single 

physical establishment when the employer has a central administrative unit charged with making salary and employee decisions. 

Courts have interpreted ‘‘establishment’’ to apply to different locations. In Grumbine v. United States,124 the Court held that for 

purposes of the EPA, ‘‘the ‘establishment’ was the Civil Service in 

its entirety and that a woman could not be paid less than a man 

merely because she worked in a different location.’’ 125 The plaintiff 

in Grumbine was a Regional Counsel of Customs Service working 

in Baltimore, Maryland and was the only female among the nine 

Regional Counsels. The counsels were spread out among nine regions; however, the eight males were paid more than the one female counsel. Consequently, the plaintiff raised a claim of pay discrimination under the EPA. The government argued that the Regional Counsels each worked in different ‘‘establishments’’ for purposes of the EPA. The court rejected this defense and found, ‘‘[i]t 

would hardly make sense to permit an employer to rely on [the] geographic ‘establishment’ concept in defense of an equal pay practice 

when that employer has itself adopted a uniform, non-geographic 

pay policy, and system.’’ 126

In 2000, a Texas court 127 held that a female district sales manager in the Dallas/Fort Worth facility could compare herself to 

other district sales managers in the state of Texas for purposes of 

the plaintiff’s EPA claim. The plaintiff in the case had no comparator in her physical establishment. As a result, the court reasoned that limiting her comparators to a single physical establishment ‘‘would effectively permit a large employer with national operations to exempt its managerial staff (each of whom is in charge 


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128 Id. at * 15. 129Marshall v. Dallas Indep. Sch. Dist., 605 F.2d 191, 194 (5th Cir. 1979). 130 Brennan v. Goose Creek Consol. Indep. Sch. Dist., 519 F.2d 53 (5th Cir. 1975). 131Meeks v. Computer Ass’n Int’l, 15 F.3d 1013, 1017 (courts presume that multiple offices 

are not a single establishment unless unusual circumstances are demonstrated); see also 

Kassman v. KPMG LLP, No. 11 Civ. 3743, 2018 U.S. Dist. LEXIS 203561, at *81 (S.D.N.Y. Nov. 

30, 2018) (denying class status of plaintiff and holding that ‘‘[p]ay and promotion decisions were 

not sufficiently ‘centralized’ to amount to ‘unusual circumstances’ warranting a finding that the 

many offices and practice areas represented in the 1,100-member proposed collective qualify as 

a single ‘establishment’ under the EPA’’). 132 820 Ill. Comp. Stat. 112/10 (2003) (‘‘Nothing in this Act may be construed to require an 

employer to pay, to any employee at a workplace in a particular county, wages that are equal 

to the wages paid by that employer at a workplace in another county to employees in jobs the 

performance of which requires equal skill, effort, and responsibility, and which are performed 

under similar working conditions.’’). 133 29 U.S.C. § 206(d)(1); see also Yang Testimony at 4. 134See Fallon v. Illinois, 882 F.2d 1206 (7th Cir. 1989). 135 Corning Glass Works v. Brennan, 417 U.S. 188 (1974); see also Yang Testimony at 4. 

of a single facility) from the reach of the EPA.’’ 128 The Fifth Circuit 

held that a school district in Dallas with 182 schools was a single 

establishment for purposes of an EPA claim129 as were 13 elementary schools operated by a single school district near Houston.130

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

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

corporation or a multi-site employer.131 Under these circumstances, 

the courts have recognized that accountability flows from the decision-making structure. The single-location establishment interpretation is an unworkable standard in today’s workplace and threatens to eliminate a large number of women from the EPA’s protections. 

Recognizing that the single-site ‘‘establishment’’ definition is 

linked to an outdated employer-employee system and that it has 

limited women’s ability to assert an EPA claim, H.R. 7 expands a 

worker’s opportunity to find a true comparator. Under the Act, a 

woman can look to a similarly situated male co-worker anywhere 

in the same county or similar political subdivision of a state. Workplaces in the same county operate under the same cost of living 

and labor market conditions. County-wide comparisons are already 

the law in Illinois under the state’s Equal Pay Act.132 However, 

consistent with EEOC rules and guidance, including 29 C.F.R. 

1620.9, the Act does not restrict courts from applying establishment more broadly than the county. 

ANY FACTOR OTHER THAN SEX

Under the EPA, employers can affirmatively defend and justify 

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

production; or (4) ‘‘any factor other than sex.’’133 Historically, courts 

interpret the ‘‘any factor other than sex’’ criteria so broadly that it 

embraces an almost limitless number of factors, so long as they do 

not involve sex.134 Employers have been able to prevail in EPA 

cases by asserting a range of ‘‘other than sex’’ factors. 

Many courts have found that the ‘‘factors other than sex’’ need 

not be business-related or even related to the particular position in 

question.135 Moreover, there is no consensus among the circuit 

courts as to whether a factor other than sex under the EPA needs 

to be business related, and the Supreme Court has failed to resolve 

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136 Randolph Cent. Sch. Dist. v. Aldrich, 506 U.S. 965 (1992). 137 Id. 138 Yang Testimony at 6. 139 Corning Glass Works v. Brennan, 417 U.S. 188 (1974). 140 Boriss v. Addison Farmers Ins. Co., No. 91 C 3144, 1993 U.S. Dist. LEXIS 10331 (N.D. 

Ill. July 27, 1993). 141 Id. at 23. 142 Id. (citing Covington v. S. Ill. Univ., 816 F.2d 317, 321-22 (1987)); see also Fallon v. Illinois, 882 F.2d 1206 (7th Cir. 1989). 

tral School District v. Aldrich136 with three justices dissenting and 

acknowledging the conflict among the circuits.137

In addition, under the ‘‘factors other than sex’’ defense, employers found to participate in gender-based wage discrimination are 

able to successfully raise factors such as market forces and prior 

salaries (even if they are based on a discriminatory wage) as defenses that, in themselves, undermine the goals of the EPA. In her 

testimony at the Joint Subcommittee Hearing, Jenny Yang explained to the Committee that ‘‘[c]onsideration of market forces 

shifts focus from the central question of whether an employer is 

providing equal pay for equal work. Bias can taint pay decisions 

when the employer assesses an artificially higher or nebulous ‘market value’ to male candidates.’’138

Courts continue to permit employers to defend equal pay claims 

based on market forces or differences in prior experience and qualifications despite Supreme Court precedent to the contrary. In 1974, 

the Supreme Court rejected the argument that employers should be 

permitted to pay women less than men on the basis of market 

forces. In Corning Glass Works v. Brennan, the Court recognized 

that the pay differential arose simply because men would not work 

at the low rates paid to women inspectors, and it reflected a job 

market in which Corning could pay women less than men for the 

same work.139

If we are serious about eradicating the gender-based wage gap 

between women and men performing equal work, the EPA’s affirmative defense of ‘‘any factor other than sex’’ must be clarified to require that the factor be job-related, not derived or based upon a 

sex-based differential, and consistent with business necessity. A review of court cases reveals loopholes that the Paycheck Fairness 

Act will close. 

Job-Relatedness. In Boriss v. Addison Farmers Insurance Company,140 the plaintiff brought an EPA claim alleging that in the ten 

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

less than her male colleagues while performing substantially equal 

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

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

other than sex, including more underwriting experience and college 

education, even though a college degree was not a prerequisite for 

the position. 

The court found that the employer successfully met its burden; 

the difference in pay was due to a ‘‘factor other than sex.’’ The 

court noted that the higher salaries of the male employees were 

based on the pay they received at their prior employment.141 The 

court relied on a very broad interpretation of the ‘‘factor other than 

sex’’ and that the factor need not be related to the ‘‘requirements 

of the particular position in question, nor that it be a ‘business-related’ reason.’’142 All that needs to be evaluated is ‘‘whether the 


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143 Boriss v. Addison Farmers Ins. Co., No. 91 C 3144, 1993 U.S. Dist. LEXIS 10331 at *27 

(N.D. Ill. July 27, 1993). 144 Id. 145 Id. 146Warren v. Solo Cup Co., 516 F.3d 627 (7th Cir. 2008); see Lauderdale v. Ill. Dep’t of Human 

Servs., 210 F. Supp. 3d 1012, 1019 (C.D. Ill. 2016) (‘‘[T]he EPA’s fourth affirmative defense is 

a broad catch-all exception that embraces an almost limitless number of factors, as long as they 

do not involve sex.’’); see also Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1462 (7th Cir. 1994). 147 Corning Glass Works v. Brennan, 417 U.S. 188 (1974). 148 Id. at 233. 149See Brokaw v. Weiser Sec. Servs., Inc., 780 F. Supp. 2d 1233, 1252 (S.D. Ala. 2011). 150 Merillat v. Metal Spinners, Inc., 470 F.3d 685 (7th Cir. 2006). 151 Id. 152 Id. 153 Id. 

factor is discriminatorily applied or if it causes a discriminatory effect.’’143

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

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

job.144 Even though these situations may result in female employees being paid less, the court stated that none of these situations 

violate the EPA.145

In Warren v. Solo Company,146 the court reaffirmed its position 

that the defendant need not show that a ‘‘factor other than sex’’ is 

related to the requirements of the particular position or a ‘‘business-related’’ decision when it found that unequal pay is justified 

because the male employee had a college degree and two masters 

degrees, despite the fact that the degrees were unrelated to the 

jobs they were both performing. 

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

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

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

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

‘‘factor other than sex’’ to evade liability.147 The court in Corning 

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

for the same work that men performed ‘‘took advantage of the market and was illegal under the EPA.’’ 148

Despite clear direction from the Supreme Court, lower courts 

have accepted market forces as a defense to a pay disparity.149 In 

Merillat v. Metal Spinners, Incorporated,150 the plaintiff, who was 

with the company for nearly 20 years, was promoted to a senior 

buyer position in the materials department. Around that time, the 

employer created a new position entitled ‘‘Vice President of Procurement and Materials Management.’’ 151 While the duties of both 

jobs were similar, the new position also included managing materials department employees (including the plaintiff). The job was 

offered to a male with a starting salary of $62,500.152 At that time, 

the plaintiff earned $49,800, and she helped to train the new employee for his position.153

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

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

and market forces. The employer alleged that the male hired to fill 

the new position was paid more, in part because of education and 

experience, but also because his salary represented the market rate 

for the position in question. The court agreed and held that the pay 


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154Merillat v. Metal Spinners, Inc., 470 F.3d 685, 698 (7th Cir. 2006). 155 Id. at 697. 156 Hodgson v. Robert Hall Clothes, Inc., 473 F.2d 589 (3d Cir. 1973). 157 Id. (In addition, women were not allowed to apply to work in the men’s department in this 

case.). 158 Id. at 596. 159Drury v. Waterfront Media, Inc., 05 Civ. 10646 (JSR), 2007 U.S. Dist. LEXIS 18435 

(S.D.N.Y. Mar. 8, 2007). 160 Id. 161 Id. 162Drury v. Waterfront Media, Inc., 05 Civ. 10646 (JSR), 2007 U.S. Dist. LEXIS 18435 

(S.D.N.Y. Mar. 8, 2007). 

disparity was due to factors other than sex, including education, 

experience, and ‘‘the market forces at the time of [his] hire.’’ 154 The 

court noted that it previously ‘‘held that an employer may take into 

account market forces when determining the salary of an employee,’’ 155 although cautioning in a footnote against employers 

taking advantage of market forces to justify discrimination. 

Similarly, the Third Circuit, in the case of Hodgson v. Robert 

Hall Clothes,156 found that the employer was justified in paying 

the female workers less than the male workers because the ‘‘economic benefits to the employer justified a wage differential even 

where the men and women were performing the same task.’’ 157 In 

Hodgson, the court compared the higher wages of male salespeople 

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

being paid to female salespeople working in the ladies’ department. 

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

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

department even though the products sold by the women were of 

lesser quality and cost less than the goods sold in the men’s department. It concluded, ‘‘[w]ithout a more definite indication from Congress, it would not seem wise to impose the economic burden of 

higher compensation on employers. It could serve to weaken their 

competitive position.’’ 158

Some courts hold that it is acceptable for an employer to pay 

male employees more than similarly situated female employees 

based on the higher prior salaries enjoyed by the male workers. In 

addition, employers can successfully justify paying a male employer 

more if the higher salary is a business tactic to lure or retain an 

employee. 

In Drury v. Waterfront Media, Incorporated, 159 the plaintiff was 

hired as the Director of Project Management—responsible for organizing and managing all corporate projects—at a salary of $85,000 

with an annual bonus of $15,000 and $25,000 in stock options (in 

her previous position, she had earned $85,000).160 Over a year 

later she was promoted to Vice-President of Production and Operations with a salary of $95,000 and a bonus potential of $20,000.161

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

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

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

pay claim. In asserting its affirmative defense, the employer 

claimed that it was forced to pay the male vice-president more, not 

based on any sex-based wage differential but in order to lure him 

away from his prior employer. The court agreed and held that ‘‘salary matching and experience-based compensation are reasonable, 

gender-neutral business tactics, and therefore qualify as a ‘‘factor 

other than sex.’’ 162


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163Glunt v. GES Exposition Servs., 123 F. Supp. 2d 847 (D. Md. 2000). 164 Id. at 859. 165 Id. 166 Id. 167 Horner v. Mary Inst., 613 F.2d 706 (8th Cir. 1980). 168 Engelmann v. Nat’l Broad. Co., 94 Civ. 5616 (MBM), 1996 U.S. Dist. LEXIS 1865 (S.D.N.Y. 

Feb. 22, 1996). 169Sobol v. Kidder, Peabody & Co., 49 F. Supp. 2d 208, 220 (S.D.N.Y. 1999). 170 Id. 171 Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982). 172Wernsing v. Dep’t of Human Servs., 427 F.3d 466 (7th Cir. 2005); see also Lauderdale v. Ill. Dep’t of Human Servs., 210 F. Supp. 3d 1012, 1018 (C.D. Ill. 2016) (finding that, ‘‘it is not 

the [c]ourt’s role to determine an appropriate standard for what is an ‘acceptable’ business practice . . . [t]he statute asks whether the employer has a reason other than sex—not whether it 

has a ‘good’ reason.’’). 

The same conclusion was reached in Glunt v. GES Exposition 

Services,163 where the plaintiff brought a claim that her employer 

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

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

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

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

Glunt less than her similarly situated male co-workers. 

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

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

over competing offers has been recognized as a valid factor other 

than sex justifying a wage disparity.’’ 164 Furthermore, ‘‘prior salary 

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

the higher salary of a male coming in from the outside.’’ 165 In 

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

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

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

justify the higher wage.’’ 166

Several other court decisions have similarly upheld such pay disparities. In Horner v. Mary Institute,167 the Eighth Circuit allowed 

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

from the outside more pay because such payment was necessary to 

secure him for the position. In Engelmann v. NBC,168 the court 

found that ‘‘salary matching’’ was a valid defense to pay disparity. 

In Sobol v. Kidder, Peabody & Company,169 the court held that a 

pay disparity is permissible when an employer paid males more as 

a ‘‘premium to attract and hire talented new bankers.’’ 170

Finally, in Kouba v. Allstate Insurance Company,171 and 

Wernsing v. Department of Human Services,172 the courts allowed 

the employer to use prior salaries as a justifiable ‘‘factor other than 

sex.’’ In Kouba, the Ninth Circuit found that the employer had 

shown that the prior salary at issue corresponded roughly to ‘‘the 

employee’s ability . . . and predict[ed] a new employee’s performance as a sales agent,’’ while in Wernsing, the Seventh Circuit 

upheld the policy of the Illinois Department of Human Services 

that based its salary levels on prior earnings. 

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

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

and women without requiring further evidence of the nature of that 

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


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173 H.R. Rep. No. 110–783, at 28 (2008) (internal citations and quotations omitted). 174 Corning Glass Works v. Brennan, 417 U.S. 188 (1974). 175Griggs v. Duke Power, 515 F.2d 86 (4th Cir. 1975). 176 H.R. Rep. No. 110–783 at 12 (2008) (internal citations and quotations omitted). 177Griggs v. Duke Power, 401 U.S. 424 (1971). 178 Id. at 431. 179See Earl M. Maltz, The Legacy of Griggs v. Duke Power Co.: A Case Study in the Impact 

of a Modernist Statutory Precedent, 1994 Utah L. Rev. 1353, 1371–72 (1994). 180Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). 

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

consistently lower than men’s, thereby demonstrating that the 

lower salary offered to a woman at hiring did not piggy-back on a 

sex-based differential. In some cases, ‘‘[m]arket forces may be a legitimate basis for determining pay, market forces tainted with sex 

discrimination are not.’’ 173 The broadly remedial purpose of the 

EPA is undermined where a seemingly gender-neutral excuse for 

unequal pay between similarly situated employees of the opposite 

sex is based on or derived from a sex-based differential. 

While the EPA affords employers opportunities to defend their 

practices, as previously explained, the ‘‘factor other than sex’’ defense under the EPA has been interpreted by the courts so broadly 

that nearly any explanation for a wage differential is acceptable.174

This is one of the main loopholes found in the EPA that has perpetuated the gender-wage gap, and which the Paycheck Fairness Act 

resolves. 

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

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

(i.e., a disparate impact case), an employer must assert that the 

practice is consistent with business necessity. Like a disparate impact case under Title VII, cases brought under the EPA do not require a showing of intent. So, just as a practice (which includes the 

payment of wages) that may be ‘‘fair in form but discriminatory in 

operation’’ 175 is prohibited under Title VII, the same is true with 

regard to the EPA. 

Both Title VII and the EPA afford the employer opportunities to 

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

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

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

ineffective.176

The business necessity defense originated in the case of Griggs 

v. Duke Power Company,177 decided in 1975. In that case, the Supreme Court determined that an employment practice that resulted 

in the exclusion of Black employees from certain jobs could only be 

justified in the case of ‘‘business necessity.’’ 178 However, because 

the Court also introduced the concept of ‘‘job relatedness,’’ and it 

appeared to use the two concepts interchangeably, there was some 

confusion over the years as what the correct standard should be.179

This culminated in the case of Wards Cove Packing Company, Incorporated, et al. v. Antonio et al.,180 where the Court abandoned 

the concept of business necessity altogether: 

[T]he dispositive issue is whether a challenged practice 

serves, in a significant way the legitimate employment 

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

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181Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989). 182 Civil Rights Act of 1991, Pub. L. No. 102–166, § 2, 105 Stat. 1071. 183Lanning v. SEPTA, 308 F.3d 286 (3d. Cir. 2002); see also United States v. Delaware, Civ. 

A. No. 01–020–KAJ, 2004 U.S. Dist. LEXIS 4560 (D. Del. March 22, 2004). 184 Yang Testimony at 8. 185 H.R. Rep. No. 110–783 at 12 (2008) (internal citations and quotations omitted). 186 Class-action lawsuits filed under the EPA are called collective actions because plaintiffs 

must ‘‘opt-in’’ in order to participate. 187 Yang Testimony at 13. 188 42 U.S.C. § 2000e–2(n). 189Goss Graves Testimony at 14. 190 29 U.S.C. § 260. 

tification for his use of the challenged practice. A mere insubstantial justification will not suffice . . . [a]t the same 

time, though, there is no requirement that the challenged 

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

business.181

Congress responded with the passage of the Civil Rights Act of 

1991, which overturned Wards Cove Packing and enshrined the 

business necessity defense into law in Title VII cases of disparate 

impact.182 Subsequent cases applying the business necessity standard illustrate that the more rigorous showing an employer must 

make to justify disparate treatment furthers the remedial purposes 

of Title VII.183

The Paycheck Fairness Act strengthens the EPA by insisting that 

the ‘‘factor other than sex’’ defense be limited to a legitimate business purpose.184 Requiring an employer to show that a job is consistent with business necessity applies a term that is already specifically defined in civil rights law and thereby provides workers 

and employers with a known legal standard for assessing pay disparities.185

Class actions 

The EPA requires plaintiffs to affirmatively ‘‘opt-in’’ to a collective action.186 This is contrary to other employment discrimination 

laws, which allow women with a pay discrimination claim within 

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

Rule 23 of the Federal Rules of Civil Procedure.187 Title VII, for example, provides for claimants to ‘‘opt-out’’ of multi-party claims.188

The current EPA rule excludes women who may not be aware 

they have a claim and also excludes women who may even be 

aware they have a claim but are afraid that they will be retaliated 

against in the workplace if they affirmatively opt-in. H.R. 7 puts 

claimants under the EPA in the same position as other victims of 

discrimination who automatically become part of a class-action unless they affirmatively opt-out of the class.189

Damages 

Damages under the EPA are limited to backpay and liquidated 

damages in the form of double back pay. No compensatory or punitive damages are available under the EPA, and liquidated damages 

may only be recovered if the employer fails to demonstrate good 

faith and reasonable grounds for believing it complied with the 

law.190 By contrast, claims for discrimination based on race and national origin under Title VII permit successful complainants to recover compensatory and punitive damages, except that damages for 

gender based discrimination under Title VII are capped and cannot 


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191 42 U.S.C. § 1981a (Section 1981 of the Civil Rights Act of 1866, forbids discrimination on 

the basis of race or national origin in the making and enforcement of contracts. Plaintiffs in 

Section 1981 cases may recover compensatory and punitive damages. However, unlike gender 

discrimination claims under Title VII, damages sought pursuant to Section 1981 are not limited.). 192 Vanessa Ruggles, The Ineffectiveness of Capped Damages in Cases of Employment Discrimination: Solutions Toward Deterrence, 6 Conn. Pub. Interest L.J. 143, 147 (2006); see also Kemezy 

v. Peters, 79 F.3d 33, 34 (7th Cir. 1996) (noting that ‘‘deterrence is a purpose of punishment, 

rather than, as the formulation implies, a parallel purpose, along with punishment itself, for 

imposing the specific form of punishment that is punitive damages.’’). 193Goss Graves Testimony at 15. 194 Id. 195 Brady v. Wal-Mart Stores, Inc., CV 03–3843 (JO), 2005 U.S. Dist. LEXIS 12151 ( E.D.N.Y. 

June 21, 2005). 196 Id. 197 Id. at *10. 198 Id. 

exceed $300,000.191 Caps under EPA and Title VII have created a 

two-tiered system that prioritizes remedies for wage discrimination 

based upon race and national origin over gender-based wage discrimination. The lack of punitive or compensatory damages, as well 

as caps on damages, does little to further the actual purpose of punitive damages, which is to punish the defendant and deter future 

misconduct by the defendant and others similarly situated.192

‘‘These limitations on remedies not only deprive women subjected 

to wage discrimination of full relief—they also substantially limit 

the deterrent effect of the Equal Pay Act.’’ 193 Fatima Goss Graves, 

testifying at the Joint Subcommittee Hearing, explained: 

Limited remedies and damages caps mean that employers can refrain from addressing, or even examining, pay 

disparities in their workforces without fear of substantial 

penalties for this failure. Arbitrary limits on damages also 

encourage employers to frame the discrimination faced by 

women of color as only sex-based, and therefore subject to 

limitations—ignoring the complex nature of the discrimination employees have suffered.194

The Paycheck Fairness Act provides for uncapped damages under 

the EPA so that damages for discrimination based upon sex are 

consistent with damages for discrimination based upon race and 

national origin. 

The injustice of capped damages is illustrated in Brady v. WalMart Stores, Incorporated.195 In this case, the plaintiff Patrick 

Brady brought a suit against Wal-Mart and the store manager, alleging violations of the Americans with Disabilities Act of 1990 

(ADA) and the New York Human Rights Law. In his suit, Brady, 

who has cerebral palsy, claimed Wal-Mart subjected him to adverse 

work conditions and a hostile work environment based on his disability. The jury agreed with Brady and awarded him a settlement 

for back pay and emotional pain and suffering, as well as a $5 million award in punitive damages. Unfortunately, the ADA’s remedies are capped, and the judge was required to reduce the award 

to $300,000.196 In his opinion, Judge Orenstein stated that his ruling ‘‘respects the law, but it does not achieve a just result,’’ 197 especially for one of the biggest companies in America.198

Punitive damages, especially uncapped punitive damages, are 

necessary to deter unscrupulous businesses from harming workers 


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199Michael L. Rustad, In Defense of Punitive Damages in Products Liability: Testing Tort 

Anecdotes with Empirical Data, 78 Iowa L. Rev. 1, 12 (1992). 200 42 U.S.C. § 1981. 201See Beauford v. Sisters of Mercy-Province of Detroit, Inc., 816 F.2d 1104 (6th Cir. 1987) 

(finding that it is improper to award punitive damages in the absence of evidence of egregious 

conduct, willfulness, or malice on the part of the employer). 202See Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004) (finding that the employer’s discriminatory act was minor and quickly remedied; reducing the punitive award amount; reasoning 

that a higher penalty would remove the monetary incentive to remedy minor violations). 203 Id. 204See Jones v. W. Geophysical Co., 761 F.2d 1158 (5th Cir. 1985) (finding that an employer 

engaged in racial discrimination need not pay punitive damages to plaintiff if said employer is 

taking steps to eliminate discrimination, and if evidence against employer is, at times, ambiguous and does not necessarily lead to the conclusion that the employer behaved maliciously in 

practice of racial discrimination). 205Ledbetter v. Goodyear Tire & Rubber Co. Inc., 127 S. Ct. 2162 (2007). 206 Id. 207See Institute for Women’s Policy Research, Pay Secrecy and Wage Discrimination 1 (2014), 

https://iwpr.org/wp-content/uploads/wpallimport/files/iwpr-export/publications/Q016%20(1).pdf. 

and consumers to gain a competitive advantage.199 Often, without 

punitive damages, a business may treat its labor violations as 

merely a cost of doing business. 

There is precedent for uncapped damages against employers who 

discriminate;200 damages awarded under Section 1981 for race or 

national origin discrimination are not subject to statutory limitations. 

Still, even in those cases, courts generally do not award unjustifiable or excessive damages and instead base relief upon sound factors, such as the willfulness or egregiousness of the violation 201

and the effectiveness of damages as a deterrent.202 Because decisions are made by each court on a case by case basis, courts can 

strike the needed balance between assessing damages based upon 

particular facts and circumstances and assessing the severity of the 

discrimination.203 The Paycheck Fairness Act provides for uncapped 

damages in order to strengthen the EPA as a vehicle for addressing 

unlawful pay disparities. Longstanding judicial discretion under 

Section 1981 directly addresses and alleviates concerns about frivolous and excessive claims for relief.204

Retaliation for discussing or disclosing salary information 

The EPA does not explicitly protect employees who discuss or 

disclose salary information. As previously noted, many employers 

discourage and may even have workplace policies against sharing 

salary information among coworkers. This makes it extremely difficult to detect pay discrimination. For example, in Ledbetter v. 

Goodyear Tire,205 the plaintiff didn’t discover that she was paid 

less than her male co-workers for years; company policy had prohibited her from discussing her pay with her co-workers. The only 

reason she discovered the pay discrimination was because someone 

sent her an anonymous note.206

As Fatima Goss-Graves testified at the Joint Subcommittee 

Hearing: 

[A]ccording to the most recent data available, about 60 

percent of workers in the private sector nationally are either forbidden or strongly discouraged from discussing 

their pay with their colleagues.207 As a result, employees 

face significant obstacles in gathering the information that 

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208Goss Graves Testimony at 6. 209 29 U.S.C. § 215(a)(3). 210 Id. 211McKenzie v. Renberg’s Inc., 94 F.3d 1478 (10th Cir. 1996). 212 Id.; see also Hagan v. Echostar, 529 F.3d 617 (2008) (finding that the plaintiff was not protected from termination after participating in activities that were ‘‘neither adverse to the company nor supportive of adverse action to the company.’’). 213McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1487 (10th Cir. 1996). 214 H.R. Rep. No. 110–783, at 34–35 (2008). 215 Id. 

crimination. Punitive pay secrecy policies and practices 

allow this form of discrimination not only to persist, but to 

become institutionalized.208

Employers are prohibited from retaliating against employees who 

seek to assert their rights under the FLSA. This protection extends 

to women claiming an EPA violation who have filed, instituted, initiated, or participated in any capacity in a proceeding under or related to the FLSA.209 However, in some cases interpreting the antiretaliatory provision,210 courts have limited the protection afforded 

by the anti-retaliation provision, particularly denying protection 

when they find that an aggrieved worker has not stepped outside 

her role representing the employer. 

For example, in McKenzie v. Reinberg’s Incorporated,211 the 

plaintiff alleged that she was fired in violation of the FLSA’s antiretaliation provision because she questioned whether her employer 

complied with the overtime provisions of the FLSA. The plaintiff 

was a personnel director who, as part of her job, monitored compliance with state and federal wage and hour laws. After attending 

a training on the FLSA, she determined that her employer was 

likely in violation of the law’s overtime provisions. She brought this 

to her employer’s attention and was fired as a result.212 The court 

held that because McKenzie merely articulated her concerns about 

the wage and hour violations with her employer: 

[She] did not engage in activity protected under 

215(a)(3). To qualify for the protections, the employee must 

step outside his or her role of representing the company 

and either file (or threaten to file) an action adverse to the 

employer, actively assist other employees in asserting 

FLSA rights, or otherwise, engage in activity that reasonably could be perceived as directed towards the assertion 

of rights protected by the FLSA.213

A key component in eliminating the wage gap is protecting workers who discuss wages or participate in an EPA suit by ensuring 

that they can do so without fear of reprimand. Even when employers do not have explicit policies ‘‘legal or not, workers are expected 

to keep their lips sealed about their salaries. It’s the unwritten 

law.’’ 214 As one employer advised other employers, ‘‘sit down with 

people, talk to them . . . be clear: it’s not OK to talk salary at the 

office.’’ 215

H.R. 7 protects the rights of employees to discuss and disclose 

wage information with each other in the workplace and affirms the 

rights of workers to disclose this information as part of an employer or government investigation. Its provisions are intended to 

give robust protection to those employees who act to oppose violations of the EPA, as well as to provide a shield of protection for 

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216 H.R. 7, 116th Cong. § 10(a) (2019). 

equal pay. However, the Act recognizes that employers may entrust 

some employees with access to wage information as part of an essential function of their job. These confidential employees will not 

be protected for disclosing information about wages to those who do 

not otherwise have access to the information. However, they could: 

(1) disclose their own wages; (2) disclose wage issues ‘‘up the chain’’ 

or ‘‘horizontally’’ if they become aware of potential pay discrimination regarding other employees; or (3) disclose wages in response 

to or in furtherance of an employer or government investigation or 

other proceeding under H.R. 7. 

Prior salary history 

H.R. 7 provides: 

It shall be an unlawful practice for an employer to (1) 

rely on the wage history of a prospective employee in considering the prospective employee for employment, including requiring that a prospective employee’s prior wages 

satisfy minimum or maximum criteria as a condition of 

being considered for employment; (2) rely on the wage history of a prospective employee in determining the wages 

for such prospective employee, except that an employer 

may rely on wage history if it is voluntarily provided by 

a prospective employee, after the employer makes an offer 

of employment with an offer of compensation to the prospective employee, to support a wage higher than the wage 

offered by the employer; (3) seek from a prospective employee or any current or former employer the wage history 

of the prospective employee, except that an employer may 

seek to confirm prior wage information only after an offer 

of employment with compensation has been made to the 

prospective employee and the prospective employee responds to the offer by providing prior wage information to 

support a wage higher than that offered by the employer.216

With this provision, the Paycheck Fairness Act prevents employers from seeking or relying on a prospective employee’s wage or salary history that has been sought from the prospective employee or 

their former employer. The employer can only rely on the prospective employee’s prior wage if it is voluntarily provided by the prospective employee after the employer has made an offer of employment. The employer may seek a prospective (or current) employee’s 

wage history to confirm prior wage information after the employer 

has made an employment offer. The Act does not provide for a complete ban on the usage of an individual’s salary history. 

H.R. 7’s requirements are similar to other anti-discrimination 

statutes like the ADA and the Genetic Information Nondiscrimination Act (GINA), which have been valuable tools in fighting against 

other forms of discrimination. The ADA prohibits employers from 

asking job applicants disability-related questions and forbids employers from relying on disability status in making employment decisions. Similarly, GINA prohibits employers from relying on genetic history when making an employment decision, and it also reVerDate Sep 11 2014 08:24 Mar 19, 2019 Jkt 089006 PO 00000 Frm 00042 Fmt 6659 Sfmt 6602 E:\HR\OC\HR018.XXX HR018

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217See Facts about the Genetic Information Nondiscrimination Act, EEOC, https:// 

www.eeoc.gov/eeoc/publications/fs-gina.cfm (last visited Mar. 11, 2019). 218The Paycheck Fairness Act (H.R. 7): Equal Pay for Equal Work Before H. Subcomm. on 

Civil Rights and Human Servs. & H. Subcomm. on Workforce Prots. of the H. Comm. on Educ. 

and Labor, 116th Cong. (2019) (written testimony of Camille A. Olson, Partner at Seyfarth Shaw 

LLP, at 11). 

stricts employers’ and employment agencies’ ability to ‘‘request, require, or purchase genetic information’’ regarding applicants and 

employees or their family members.217 Notwithstanding the minority witness’ testimony at the February 13, 2019, hearing,218 it 

should be noted that the provisions in the Paycheck Fairness Act 

are analogous to the pre-employment inquiry restrictions in GINA 

and the ADA. In all three cases, the restrictions on pre-employment inquiries are necessary to advance the government’s compelling interest in eliminating unlawful discrimination. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

This section states that the title of the bill is the Paycheck Fairness Act (the Act). 

Section 2. Findings 

This section states that despite the enactment of the EPA, gender based-pay disparity still exists and some of the disparity is due 

to gender-based pay discrimination. Such disparity depresses 

wages of working families, undermines women’s retirement security, negatively impacts commerce and the free flow of goods in 

commerce, and may deprive workers of equal protection on the 

basis of sex in violation of the 5th and 14th Amendments to the 

U.S. Constitution. 

Decades after enactment of the FLSA and the Civil Rights Act 

of 1964, barriers to the elimination of sex-based wage discrimination still exist. The EPA has not worked as Congress originally intended, and modifications to the EPA are necessary to ensure protections to those who are subject to gender-based wage discrimination. Elimination of such barriers would solve problems in the economy created by such wage disparity, reduce dependence on public 

assistance, promote stable families, remedy the effects of past discrimination, and ensure equal protection under the 5th and 14th 

Amendments. 

The Department of Labor and the EEOC have important and 

unique responsibilities to help ensure that women receive equal 

pay for equal work. With a stronger commitment by these entities, 

increased information as a result of the Amendments this Act 

makes to the EPA, wage data, and more effective remedies, women 

will be better able to recognize and enforce their rights. 

Section 3. Enhanced enforcement of equal pay requirements 

Bona Fide Factor Defense and Modification of Same Establishment Requirement. The Act amends the EPA by defining the statute’s ‘‘any factor other than sex’’ employer affirmative defense as 

requiring employers to provide non-gender, business reasons for 

the difference in wages. The amended language lays out the requirement that to successfully raise this affirmative defense, an 

employer must demonstrate that the wage disparity is based on a 


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bona fide factor other than sex, such as education, training, or experience. The differential must be: (1) not based upon or derived 

from a sex-based differential in compensation; (2) related to the position in question; (3) consistent with business necessity; and (4) 

fully accounted for in the compensation at issue. Such defense shall 

not apply if the employee can then demonstrate that her employer 

has an alternative employment practice that would serve the same 

business purpose without producing the pay differential, and the 

employer refused to adopt the alternative practice. 

The Act broadens the definition of ‘‘establishment’’ used to compare compensation with the compensation of an employee of the opposite gender who performs substantially equal work. Under the 

Act, an establishment now includes workplaces located in the same 

county or similar political subdivision of a state. In addition, the 

Act allows broader applications of the term ‘‘establishment’’ as long 

as they are consistent with EEOC. 

Nonretaliation Provision. The Act protects employees from retaliation for seeking redress, inquiring about an employer’s wage 

practices, or disclosing their own wages to coworkers. The Act provides that employers are prohibited from retaliating against employees who have made a charge, filed any complaint, or instituted 

any investigation, proceeding, hearing, or action under the EPA. 

Employers are also prohibited from requiring an employee to sign 

a contract or waiver that would prohibit the employee from disclosing their wages. Employees are protected from retaliation for 

initiating an employer investigation, or for testifying or participating in any sort of investigation, proceeding, hearing, or action. 

Employees are also protected from inquiries and discussions about 

each other’s wages. 

The Act does not provide anti-retaliation protections to employees with access to wage information of other employees as an essential function of their job if they disclose that wage information 

to individuals who do not otherwise have access to this information. However, they would be protected if they were disclosing that 

wage information to someone who also has access to such information, or the disclosure was in response to a complaint or charge or 

in furtherance of an investigation, proceeding, hearing, or action 

under the EPA, including an internal employer investigation. 

Enhanced Penalties. The Act provides that uncapped compensatory and punitive damages are available in private EPA suits 

and suits brought by the Secretary of Labor. The Act provides that 

class action lawsuits brought under the EPA shall proceed as optout class actions in conformity with the Federal Rules of Civil Procedure, rather than the current law requiring plaintiffs to opt-in. 

Section 4. Training 

This section requires the EEOC and the OFCCP to provide training to EEOC employees and affected individuals on pay discrimination. 

Section 5. Negotiation skills training 

Program Authorization. The Act authorizes the Secretary of 

Labor (after consultation with the U.S. Secretary of Education) to 

establish and carry out a grant program to provide negotiation 

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cluding through outreach to women and girls. Eligible entities 

apply to the Secretary of Labor to obtain grants. Eligible entities 

include states, local governments, state or local educational agencies, private nonprofit organizations, or community-based organizations. 

Incorporating Training into Existing Programs. The Act requires 

the Secretary of Labor to issue regulation or policy guidance on 

how it will, to the extent practicable, integrate negotiation skills 

training into existing education and work training programs, including those authorized under the Elementary and Secondary 

Education Act, the Carl D. Perkins Career and Technical Education 

Act, the Higher Education Act, and the Workforce Innovation and 

Opportunity Act. 

Report. The Act mandates the Secretary of Labor, in consultation 

with the U.S. Secretary of Education, to submit an annual report 

to Congress on the grant program. 

Section 6. Research, education, and outreach 

The Act requires the Secretary of Labor to conduct studies and 

provide information to employers, labor organizations, and the public on ways to eliminate pay disparities. This includes conducting 

and promoting research, publishing and making available findings 

from studies and other materials; sponsoring and assisting state 

and community informational and educational programs; providing 

information on the means of eliminating pay disparities; and recognizing and promoting achievements. 

Section 7. Establishment of the National Award for Pay Equity in 

the Workplace 

The Act establishes an annual award entitled the ‘‘Secretary of 

Labor’s National Award for Pay Equity in the Workplace’’ for an 

employer that demonstrates substantial effort in eliminating pay 

disparities by complying with the EPA. The Secretary of Labor will 

set the criteria for the award. Eligible employers include corporations (including nonprofit corporations); partnerships; professional 

associations; labor organizations; and entities carrying out educational referral programs or training programs. 

Section 8. Collection of pay information by the Equal Employment 

Opportunity Commission 

This section requires the EEOC, within 18 months of enactment, 

to issue regulations to provide for the collection of compensation 

data, including hiring, termination, and promotion data, and other 

employment-related data from employers. This information will be 

disaggregated by the sex, race and national origin of employees. In 

collecting this data, the EEOC will consider the most effective and 

least burdensome means for enforcing the federal laws prohibiting 

pay discrimination, including the consideration of employer burden. 

Section 9. Reinstatement of pay equity programs and pay equity 

data collection 

Bureau of Labor Statistics. This section requires the continued 

collection by the Commissioner of Labor Statistics of gender-based 

data in the Current Employment Statistics survey. 


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Office of Federal Contract Compliance Programs. This section 

sets standards for the OFCCP in addressing systematic wage discrimination. It requires the OFCCP to use the full range of investigatory tools, including pay grade methodology, in considering evidence of possible compensation discrimination. It does not require 

the OFCCP to use multiple regression analysis or anecdotal evidence for these cases. It instructs the OFCCP to define similarly 

situated employees in a way that is consistent with the EEOC 

Compliance Manual and to consider only factors that were used in 

making compensation decisions in its enforcement activities. It directs the OFCCP to implement a yearly survey to collect compensation and other employment-related data. Finally, it directs the Secretary of Labor to distribute information and statistics to the public 

on wage discrimination. 

Section 10. Prohibitions relating to prospective employees’ salary 

and benefit history 

This section makes it unlawful for employers to use wage history 

to decide whether to hire a prospective employee. Employers are 

prohibited from relying on or seeking a prospective employee’s 

wage history to determine their wages. The employer can only rely 

on the prospective employee’s prior wage if the employee voluntarily provides it after the employer makes an employment offer. 

Similarly, the employer may only seek a prospective employee’s 

wage history to confirm prior wage information. The employer can 

obtain this information only after an employment offer (with compensation) has been made, and the employee responded by volunteering the prior wage information. An employer may not retaliate 

against an employee or prospective employee who has filed a complaint regarding the use of the salary history. Employers who violate this provision are subject to civil penalties. 

Section 11. Authorization of appropriations 

This section authorizes such sums as may be necessary to carry 

out the Act. 

Section 12. Small business assistance 

Effective Date. This section states that the Act and amendments 

made by the Act will take effect six months after the date of enactment. 

Small Business. This section also requires the Secretary of Labor 

and the EEOC to jointly develop technical assistance materials to 

assist small businesses in complying with the Act. It further clarifies that to the extent small businesses are exempt from the FLSA, 

they will also be exempt from the Act. 

Section 13. Rule of construction 

This section states that nothing in the Act will affect the obligation of employers and employees to fully comply with all applicable 

immigration laws. 

Section 14. Severability 

This section adds a standard severability clause. 


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EXPLANATION OF AMENDMENTS

The Amendment in the Nature of a Substitute is explained in the 

descriptive portions of this report. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Pursuant to section 102(b)(3) of the Congressional Accountability 

Act, Pub. L. No. 104–1, H.R. 7, as amended, applies to terms and 

conditions of employment within the legislative branch by amending the EPA and the FLSA. 

UNFUNDED MANDATE STATEMENT

Pursuant to Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, Pub. L. No. 104–4) the Committee 

adopts as its own the estimate of and statement regarding federal 

mandates in H.R. 7, as amended, prepared by the Director of the 

Congressional Budget Office. 

EARMARK STATEMENT

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 7 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as described 

in clauses 9(e), 9(f), and 9(g) of rule XXI. 

ROLL CALL VOTES

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the following 

roll call votes occurred during the Committee’s consideration of 

H.R. 7: 


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STATEMENT OF PERFORMANCE GOALS AND OBJECTIVES

Pursuant to clause (3)(c) of rule XIII of the Rules of the House 

of Representatives, H.R. 7 would strengthen current law in an effort to close the gender pay gap and provide more effective remedies to victims of discrimination in the payment of wages on the 

basis of gender. 

DUPLICATION OF FEDERAL PROGRAMS

Pursuant to clause 3(c)(5) of rule XIII of the Rules of the House 

of Representatives, the Committee states that no provision of H.R. 

7 establishes or reauthorizes a program of the Federal Government 

known to be duplicative of another federal program, a program that 

was included in any report from the Government Accountability Office to Congress pursuant to section 21 of Public Law 111–139, or 

a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

HEARINGS

Pursuant to section 103(i) of H. Res. 6 for the 116th Congress, 

the Committee held a legislative hearing entitled ‘‘Paycheck Fairness Act (H.R. 7): Equal Pay for Equal Work,’’ which was used to 

consider H.R. 7. The Committee heard testimony on: wage discrimination on the basis of gender; how weaknesses in current law have 

made it difficult to prevent gender-based wage discrimination; and 

remedies that would provide more effective relief to victims of discrimination on the basis of gender. The Committee heard testimony 

from: Congresswoman DeLauro; Congresswoman Holmes Norton; 

Congressman Beyer; Fatima Goss Graves, CEO and President of 

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

Seyfarth Shaw, LLP; Kristin Rowe-Finkbeiner, CEO of Moms Rising; and Jenny Yang, former EEOC Chair and Partner of Working 

Ideal. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

descriptive portions of this report. 

NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

Pursuant to clause 3(c)(2) of rule XIII of the Rules of the House 

of Representatives and section 308(a) of the Congressional Budget 

Act of 1974, and pursuant to clause 3(c)(3) of rule XIII of the Rules 

of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the Committee has received the following estimate for H.R. 7 from the Director of the Congressional 

Budget Office: 


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U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, March 12, 2019. 

Hon. ROBERT C. ‘‘BOBBY’’ SCOTT, 

Chairman, Committee on Education and Labor, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 7, the Paycheck Fairness 

Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Meredith Decker. 

Sincerely, 

KEITH HALL, 

Director. 

Enclosure. 

Bill summary: H.R. 7 would revise the equal pay provisions of 

the Fair Labor Standards Act and increase civil penalties for their 

violation. That law prohibits wage discrimination by employers on 

the basis of sex. Specifically, H.R. 7 would restrict the use of the 

bona fide factor defense to wage discrimination claims, enhance 

nonretaliation prohibitions, and prohibit contracts that disallow 

employees from disclosing their wages. Additionally, the bill would 

increase civil penalties for violations of wage discrimination proviVerDate Sep 11 2014 08:24 Mar 19, 2019 Jkt 089006 PO 00000 Frm 00054 Fmt 6659 Sfmt 6602 E:\HR\OC\HR018.XXX HR018

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sions. Finally, the bill would authorize the appropriation of whatever amounts are necessary for the Department of Labor (DOL) 

and the Equal Employment Opportunity Commission (EEOC) to 

conduct various activities to address wage discrimination. 

Estimated Federal cost: The estimated budgetary effects of H.R. 

7 are detailed in Table 1. The costs of the legislation fall within 

budget functions 500 (education, training, employment, and social 

services) and 750 (administration of justice). 

TABLE 1—ESTIMATED INCREASES IN SPENDING SUBJECT TO APPROPRIATION UNDER H.R. 7 

By fiscal year, millions of dollars— 

2019 2020 2021 2022 2023 2024 2019–2024 

Department of Labor: 

Estimated Authorization ............................. 0 10 10 10 10 10 50 

Estimated Outlays ...................................... 0 8 8 9 9 10 44 

Equal Employment Opportunity Commission: 

Estimated Authorization ............................. 0 5 5 5 5 5 25 

Estimated Outlays ...................................... 0 4 5 5 5 5 24 

Total Changes: 

Estimated Authorization .................... 0 15 15 15 15 15 75 

Estimated Outlays ............................. 0 12 13 14 14 15 68 

Enacting the bill also would increase revenues by an insignificant amount over the 2019–2029 period. 

Basis of estimate: CBO assumes that the bill will be enacted 

early in 2020 and that the estimated amounts will be appropriated 

for each fiscal year. Estimated outlays are based on historical patterns for existing and similar activities. CBO estimates that under 

H.R. 7, DOL and the EEOC would need appropriations of $75 million over the 2019–2024 period, and that those appropriations 

would result in outlays of $68 million over the same period. 

H.R. 7 would authorize DOL to undertake several activities related to wage discrimination. Based on similar programs within the 

Women’s Bureau in DOL, programs in the Office of Federal Contract Compliance, and information from the department CBO estimates that implementing the following measures would result in 

outlays of $44 million over the 2019–2024 period, assuming appropriation of estimated amounts. Those activities include: 

• Surveying and collecting certain employment-related data 

from federal contractors ($15 million), 

• Making competitive grants to state, local, and community organizations to provide women and girls with training in negotiation skills ($11 million), 

• Conducting research, publishing educational materials, and 

sponsoring educational programs about wage discrimination 

($8 million), 

• Training affected individuals and providing technical assistance to help small businesses comply with the act ($6 million); 

and 

• Establishing an annual National Award for Pay Equity in 

the Workplace ($4 million). 

H.R. 7 also would direct the EEOC to provide training on wage 

discrimination issues and assist small businesses in complying 

with the bill’s requirements. CBO estimates those efforts would 

cost $5 million a year over the 2019–2024 period. 

Pay-As-You-Go considerations: The Statutory Pay-As-You-Go Act 

of 2010 establishes budget-reporting and enforcement procedures 


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for legislation affecting direct spending or revenues. CBO estimates 

that enacting H.R. 7 would increase federal revenues from the collection of new civil penalties. However, we estimate that such collections would be insignificant because of the small number of 

cases that the EEOC would likely resolve and because of the high 

degree of uncertainty about how employers would behave under the 

bill. 

Increase in long-term direct spending and deficits: None 

Mandates: CBO has not reviewed section 3 of H.R. 7 for intergovernmental or private-sector mandates. Section 4 of the Unfunded 

Mandates Reform Act (UMRA) excludes from the application of 

that act any legislative provisions that would establish or enforce 

statutory rights prohibiting discrimination. CBO has determined 

that the exclusion applies because section 3 would enforce protections against discrimination on the basis of sex. 

Other provisions in H.R. 7 would impose intergovernmental and 

private-sector mandates as defined in UMRA by restricting employers’ use of wage, salary, and benefit history. Specifically, under section 10 public and private employers could not: 

• Rely on wage history in considering a person for employment, 

• Rely on wage history in determining wages for a prospective 

employee, 

• Seek the wage history of any prospective employee before an 

offer of employment is made, and 

• Retaliate against employees who exercise their right to protections under section 10. 

Those restrictions would not require covered employers to take 

any action and would not impose any direct cost. Therefore, CBO 

estimates that the cost of complying with the bill’s mandates would 

fall below the annual thresholds established in UMRA for intergovernmental and private-sector mandates ($82 million and $164 million in 2019, respectively, adjusted annually for inflation). 

The bill also would require the EEOC to issue regulations requiring large employers to report compensation data. That provision 

would not impose a mandate on large employers because such information already must be reported. CBO does not consider that 

provisions that codify existing regulatory practice are mandates because those regulations already carry the force of law. 

Estimate prepared by: Federal costs: Department of Labor—Meredith Decker, Equal Employment Opportunity Commission—Mark 

Grabowicz; Revenues: Bayard Meiser; Mandates: Andrew Laughlin. 

Estimate reviewed by: Sheila Dacey, Chief, Income Security and 

Education; Susan Willie, Chief, Mandates Unit; H. Samuel 

Papenfuss, Deputy Assistant Director for Budget Analysis; Theresa 

Gullo, Assistant Director for Budget Analysis. 

COMMITTEE COST ESTIMATE

Clause 3(d)(1) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison of the costs 

that would be incurred in carrying out H.R. 7. However, clause 

3(d)(2)(B) of that rule provides that this requirement does not 

apply when the committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the ConVerDate Sep 11 2014 08:24 Mar 19, 2019 Jkt 089006 PO 00000 Frm 00056 Fmt 6659 Sfmt 6602 E:\HR\OC\HR018.XXX HR018

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gressional Budget Office under section 402 of the Congressional 

Budget Act. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

H.R. 7, as reported, are shown as follows: 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

and existing law in which no change is proposed is shown in 

roman): 

FAIR LABOR STANDARDS ACT OF 1938 

* * * * * * * 

MINIMUM WAGES

SEC. 6. (a) Every employer shall pay to each of his employees 

who in any workweek is engaged in commerce or in the production 

of goods for commerce, or is employed in an enterprise engaged in 

commerce or in the production of goods for commerce, wages at the 

following rates: 

(1) except as otherwise provided in this section, not less 

than— 

(A) $5.85 an hour, beginning on the 60th day after the 

date of enactment of the Fair Minimum Wage Act of 2007; (B) $6.55 an hour, beginning 12 months after that 60th 

day; and (C) $7.25 an hour, beginning 24 months after that 60th 

day; 

(2) if such employee is a home worker in Puerto Rico or the 

Virgin Islands, not less than the minimum piece rate prescribed by regulation or order; or, if no such minimum piece 

rate is in effect, any piece rate adopted by such employer 

which shall yield, to the proportion or class of employees prescribed by regulation or order, not less than the applicable 

minimum hourly wage rate. Such minimum piece rates or employer piece rates shall be commensurate with, and shall be 

paid in lieu of, the minimum hourly wage rate applicable 

under the provisions of this section. The Secretary of Labor, or 

his authorized representative, shall have power to make such 

regulations or orders as are necessary or appropriate to carry 

out any of the provisions of this paragraph, including the 

power without limiting the generality of the foregoing, to define any operation or occupation which is performed by such 

home work employees in Puerto Rico or the Virgin Islands; to 

establish minimum piece rates for any operation or occupation 

so defined; to prescribe the method and procedure for 

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tion or class of employees who shall receive not less than the 

minimum hourly wage rate; to define the term ‘‘home worker’’; 

and to prescribe the conditions under which employers, agents, 

contractors, and subcontractors shall cause goods to be produced by home workers; 

(3) if such employee is employed as a seaman on an American vessel, not less than the rate which will provide to the employee, for the period covered by the wage payment, wages 

equal to compensation at the hourly rate prescribed by paragraph (1) of this subsection for all hours during such period 

when he was actually on duty (including periods aboard ship 

when the employee was on watch or was, at the direction of 

a superior officer, performing work or standing by, but not including off-duty periods which are provided pursuant to the 

employment agreement); or 

(4) if such employee is employed in agriculture, not less than 

the minimum wage rate in effect under paragraph (1) after December 31, 1977. 

(b) Every employer shall pay to each of his employees (other than 

an employee to whom subsection (a)(5) applies) who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in 

the production of goods for commerce, and who in such workweek 

is brought within the purview of this section by the amendments 

made to this Act by the Fair Labor Standards Amendments of 

1966, title IX of the Education Amendments of 1972, or the Fair 

Labor Standards Amendments of 1974, wages at the following rate: 

Effective after December 31, 1977, not less than the minimum 

wage rate in effect under subsection (a)(1). 

(d)(1) øNo employer having¿ (A) No employer having employees 

subject to any provisions of this section shall discriminate, within 

any establishment in which such employees are employed, between 

employees on the basis of sex by paying wages to employees in 

such establishment at a rate less than the rate at which he pays 

wages to employees of the opposite sex in such establishment for 

equal work on jobs the performance of which requires equal skill, 

effort, and responsibility, and which are performed under similar 

working conditions, except where such payment is made pursuant 

to (i) a seniority system; (ii) a merit system; (iii) a system which 

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

differential based on øany other factor other than sex¿ a bona fide 

factor other than sex, such as education, training, or experience : 

Provided, That an employer who is paying a wage rate differential 

in violation of this subsection shall not, in order to comply with the 

provisions of this subsection, reduce the wage rate of any employee. 

(B) 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; 

(iii) is consistent with business necessity; and (iv) accounts for the 

entire differential in compensation at issue. 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. 


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(C) For purposes of subparagraph (A), employees shall be deemed 

to work in the same establishment if the employees work for the 

same employer at workplaces located in the same county or similar 

political subdivision of a State. The preceding sentence shall not be 

construed as limiting broader applications of the term ‘‘establishment’’ consistent with rules prescribed or guidance issued by the 

Equal Employment Opportunity Commission. 

(2) No labor organization, or its agents, representing employees 

of an employer having employees subject to any provisions of this 

section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1) of this 

subsection. 

(3) For purposes of administration and enforcement, any 

amounts owing to any employees which have been withheld in violation of this subsection shall be deemed to be unpaid minimum 

wages or unpaid overtime-compensation under this Act. 

(4) As used in this subsection, the term ‘‘labor organization’’ 

means any organization of any kind, or any agency or employee 

representation committee or plan, in which employees participate 

and which exists for the purpose, in whole or in part, of dealing 

with employers concerning grievances, labor disputes, wages, rates 

of pay, hours of employment, or conditions of work. 

(e)(1) Notwithstanding the provisions of section 13 of this Act (except subsections (a)(1) and (f) thereof), every employer providing 

any contract services (other than linen supply services) under a 

contract with the United States or any subcontract thereunder 

shall pay to each of his employees whose rate of pay is not governed by the Service Contract Act of 1965 (41 U.S.C. 351–357) or 

to whom subsection (a)(1) of this section is not applicable, wages 

at rates not less than the rates provided for in subsection (b) of this 

section. 

(2) Notwithstanding the provisions of section 13 of this Act (except subsections (a)(1) and (f) thereof) and the provisions of the 

Service Contract Act of 1965, every employer in an establishment 

providing linen supply services to the United States under a contract with the United States or any subcontract thereunder shall 

pay to each of his employees in such establishment wages at rates 

not less than those prescribed in subsection (b), except that if more 

than 50 per centum of the gross annual dollar volume of sales 

made or business done by such establishment is derived from providing such linen supply services under any such contracts or subcontracts, such employer shall pay to each of his employees in such 

establishment wages at rates not less than those prescribed in subsection (a)(1) of this section. 

(f) Any employee— 

(1) who in any workweek is employed in domestic service in 

a household shall be paid wages at a rate not less than the 

wage rate in effect under section 6(b) unless such employee’s 

compensation for such service would not because of section 

209(a)(6) of the Social Security Act constitute wages for the 

purpose of title II of such Act, or 

(2) who in any workweek— 

(A) is employed in domestic service in one or more 

households, and 


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(B) is so employed for more than 8 hours in the aggregate, 

shall be paid wages for such employment in such workweek at 

a rate not less than the wage rate in effect under section 6(b). 

(g)(1) In lieu of the rate prescribed by subsection (a)(1), any employer may pay any employee of such employer, during the first 90 

consecutive calendar days after such employee is initially employed 

by such employer, a wage which is not less than $4.25 an hour. 

(2) In lieu of the rate prescribed by subsection (a)(1), the Governor of Puerto Rico, subject to the approval of the Financial Oversight and Management Board established pursuant to section 101 

of the Puerto Rico Oversight, Management, and Economic Stability 

Act, may designate a time period not to exceed four years during 

which employers in Puerto Rico may pay employees who are initially employed after the date of enactment of such Act a wage 

which is not less than the wage described in paragraph (1). Notwithstanding the time period designated, such wage shall not continue in effect after such Board terminates in accordance with section 209 of such Act. 

(3) No employer may take any action to displace employees (including partial displacements such as reduction in hours, wages, or 

employment benefits) for purposes of hiring individuals at the wage 

authorized in paragraph (1) or (2). 

(4) Any employer who violates this subsection shall be considered 

to have violated section 15(a)(3) (29 U.S.C. 215(a)(3)). 

(5) This subsection shall only apply to an employee who has not 

attained the age of 20 years, except in the case of the wage applicable in Puerto Rico, 25 years, until such time as the Board described 

in paragraph (2) terminates in accordance with section 209 of the 

Act described in such paragraph. 

MAXIMUM HOURS

SEC. 7. (a)(1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is 

engaged in commerce or in the production of goods for commerce, 

or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty 

hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than 

one and one-half times the regular rate at which he is employed. 

(2) No employer shall employ any of his employees who in any 

workweek is engaged in commerce or in the production of goods for 

commerce, or is employed in an enterprise engaged in commerce or 

in the production of goods for commerce, and who in such workweek is brought within the purview of this subsection by the 

amendments made to this Act by the Fair Labor Standards Amendments of 1966— 

(A) for a workweek longer than forty-four hours during the 

first year from the effective date of the Fair Labor Standards 

Amendments of 1966, 

(B) for a workweek longer than forty-two hours during the 

second year from such date, or 

(C) for a workweek longer than forty hours after the expiration of the second year from such date, 


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unless such employee receives compensation for his employment in 

excess of the hours above specified at a rate not less than one and 

one-half times the regular rate at which he is employed. 

(b) No employer shall be deemed to have violated subsection (a) 

by employing any employee for a workweek in excess of that specified in such subsection without paying the compensation for overtime employment prescribed therein if such employee is so employed— 

(1) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as 

bona fide by the National Labor Relations Board, which provides that no employee shall be employed more than one thousand and forty hours during any period of twenty-six consecutive weeks, or 

(2) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as 

bona fide by the National Labor Relations Board which provides that during a specified period of fifty-two consecutive 

weeks the employee shall be employed not more than two thousand two hundred and forty hours and shall be guaranteed not 

less than one thousand eight hundred and forty hours (or not 

less than forty-six weeks at the normal number of hours 

worked per week, but not less than thirty hours per week) and 

not more than two thousand and eighty hours of employment 

for which he shall receive compensation for all hours guaranteed or worked at rates not less than those applicable under 

the agreement to the work performed and for all hours in excess of the guaranty which are also in excess of the maximum 

workweek applicable to such employee under subsection (a) or 

two thousand and eighty in such period at rates not less than 

one and one-half times the regular rate at which he is employed; or 

(3) by an independently owned and controlled local enterprise (including an enterprise with more than one bulk storage 

establishment) engaged in the wholesale or bulk distribution of 

petroleum products if— 

(A) the annual gross volume of sales of such enterprise 

is less than $1,000,000 exclusive of excise taxes. 

(B) more than 75 per centum of such enterprise’s annual 

dollar volume of sales is made within the State in which 

such enterprise is located, and 

(C) not more than 25 per centum of the annual dollar 

volume of sales of such enterprise is to customers who are 

engaged in the bulk distribution of such products for resale; 

and if such employee receives compensation for employment in excess of twelve hours in any workday, or for employment in excess 

of fifty-six hours in any workweek, as the case may be, at a rate 

not less than one and one-half times the regular rate at which he 

is employed. 

(e) As used in this section the ‘‘regular rate’’ at which an employee is employed shall be deemed to include all remuneration for 


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employment paid to, or on behalf of, the employee, but shall not be 

deemed to include— 

(1) sums paid as gifts; payments in the nature of gifts made 

at Christmas time or on other special occasions, as a reward 

for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency; 

(2) payments made for occasional periods when no work is 

performed due to vacation, holiday, illness, failure of the employer to provide sufficient work or other similar cause; reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of his employer’s interests and properly reimburseable by the employer; and other 

similar payments to any employee which are not made as compensation for his hours of employment; 

(3) sums paid in recognition of services performed during a 

given period if either, (a) both the fact that payment is to be 

made and the amount of the payment are determined at the 

sole discretion of the employer at or near the end of the period 

and not pursuant to any prior contract, agreement, or promise 

causing the employee to expect such payments regularly; or (b) 

the payments are made pursuant to a bona fide profit-sharing 

plan or trust or bona fide thrift or savings plan, meeting the 

requirements of the Secretary of Labor set forth in appropriate 

regulations which he shall issue, having due regard among 

other relevant facts, to the extent to which the amounts paid 

to the employee are determined without regard to hours of 

work, production, or efficiency; or (c) the payments are talent 

fees (as such talent fees are defined and delimited by regulations of the Secretary) paid to performers, including announcers, on radio and television programs; 

(4) contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing 

old-age retirement, life, accident, or health insurance or similar 

benefits for employees; 

(5) extra compensation provided by a premium rate paid for 

certain hours worked by the employee in any day or workweek 

because such hours are hours worked in excess of eight in a 

day or in excess of the maximum workweek applicable to such 

employee under subsection (a) or in excess of the employee’s 

normal working hours or regular working hours, as the case 

may be; 

(6) extra compensation provided by a premium rate paid for 

work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and onehalf times the rate established in good faith for like work performed in nonovertime hours on other days; 

(7) extra compensation provided by a premium rate paid to 

the employee, in pursuance of an applicable employment contract or collective-bargaining agreement, for work outside of 

the hours established in good faith by the contract or agreement as the basic, normal, or regular workday (not exceeding 

eight hours) or workweek (not exceeding the maximum workweek applicable to such employee under subsection (a)), where 

such premium rate is not less than one and one-half times the 


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rate established in good faith by the contract or agreement for 

like work performed during such workday or workweek; or 

(8) any value or income derived from employer-provided 

grants or rights provided pursuant to a stock option, stock appreciation right, or bona fide employee stock purchase program 

which is not otherwise excludable under any of paragraphs (1) 

through (7) if— 

(A) grants are made pursuant to a program, the terms 

and conditions of which are communicated to participating 

employees either at the beginning of the employee’s participation in the program or at the time of the grant; 

(B) in the case of stock options and stock appreciation 

rights, the grant or right cannot be exercisable for a period 

of at least 6 months after the time of grant (except that 

grants or rights may become exercisable because of an employee’s death, disability, retirement, or a change in corporate ownership, or other circumstances permitted by regulation), and the exercise price is at least 85 percent of the 

fair market value of the stock at the time of grant; 

(C) exercise of any grant or right is voluntary; and 

(D) any determinations regarding the award of, and the 

amount of, employer-provided grants or rights that are 

based on performance are— 

(i) made based upon meeting previously established 

performance criteria (which may include hours of 

work, efficiency, or productivity) of any business unit 

consisting of at least 10 employees or of a facility, except that, any determinations may be based on length 

of service or minimum schedule of hours or days of 

work; or 

(ii) made based upon the past performance (which 

may include any criteria) of one or more employees in 

a given period so long as the determination is in the 

sole discretion of the employer and not pursuant to 

any prior contract. 

(f) No employer shall be deemed to have violated subsection (a) 

by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under subsection (a) 

if such employee is employed pursuant to a bona fide individual 

contract, or pursuant to an agreement made as a result of collective 

bargaining by representatives of employees, if the duties of such 

employee necessitate irregular hours of work, and the contract or 

agreement (1) specifies a regular rate of pay of not less than the 

minimum hourly rate provided in subsection (a) or (b) of section 6 

(whichever may be applicable) and compensation at not less than 

one and one-half times such rate for all hours worked in excess of 

such maximum workweek, and (2) provides a weekly guaranty of 

pay for not more than sixty hours based on the rates so specified. 

(g) No employer shall be deemed to have violated subsection (a) 

by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under such subsection 

if, pursuant to an agreement or understanding arrived at between 

the employer and the employee before performance of the work, the 

amount paid to the employee for the number of hours worked by 


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him in such workweek in excess of the maximum workweek applicable to such employee under such subsection— 

(1) in the case of an employee employed at piece rates, is 

computed at piece rates not less than one and one-half times 

the bona fide piece rates applicable to the same work when 

performed during nonovertime hours; or 

(2) in the case of an employee performing two or more kinds 

of work for which different hourly or piece rates have been established, is computed at rates not less than one and one-half 

times such bona fide rates applicable to the same work when 

performed during nonovertime hours; or 

(3) is computed at a rate not less than one and one-half 

times the rate established by such agreement or understanding 

as the basic rate to be used in computing overtime compensation thereunder: Provided, That the rate so established shall be 

authorized by regulation by the Secretary of Labor as being 

substantially equivalent to the average hourly earnings of the 

employee, exclusive of overtime premiums, in the particular 

work over a representative period of time; 

and if (i) the employee’s average hourly earnings for the workweek 

exclusive of payments described in paragraphs (1) through (7) of 

subsection (e) are not less than the minimum hourly rate required 

by applicable law, and (ii) extra overtime compensation is properly 

computed and paid on other forms of additional pay required to be 

included in computing the regular rate. 

(h)(1) Except as provided in paragraph (2), sums excluded from 

the regular rate pursuant to subsection (e) shall not be creditable 

toward wages required under section 6 or overtime compensation 

required under this section. 

(2) Extra compensation paid as described in paragraphs (5), 

(6), and (7) of subsection (e) shall be creditable toward overtime compensation payable pursuant to this section. 

(i) No employer shall be deemed to have violated subsection (a) 

by employing any employee of a retail or service establishment for 

a workweek in excess of the applicable workweek specified therein, 

if (1) the regular rate of pay of such employee is in excess of one 

and one-half times the minimum hourly rate applicable to him 

under section 6, and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services. In determining the proportion of compensation representing commissions, all earnings resulting from 

the application of a bona fide commission rate shall be deemed 

commissions on goods or services without regard to whether the 

computed commissions exceed the draw or guarantee. 

(j) No employer engaged in the operation of a hospital or an establishment which is an institution primarily engaged in the care 

of the sick, the aged, or the mentally ill or defective who reside on 

the premises shall be deemed to have violated subsection (a) if, 

pursuant to an agreement or understanding arrived at between the 

employer and the employee before performance of the work, a work 

period of fourteen consecutive days is accepted in lieu of the workweek of seven consecutive days for purposes of overtime computation and if, for his employment in excess of eight hours in any 

workday and in excess of eighty hours in such fourteen-day period, 


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the employee receives compensation at a rate of not less than one 

and one-half times the regular rate at which he is employed. 

(k) No public agency shall be deemed to have violated subsection 

(a) with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if— 

(1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the 

Fair Labor Standards Amendments of 1974) in tours of duty of 

employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or 

(2) in the case of such employee to whom a work period of 

at least 7 but less than 28 days applies, in his work period the 

employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the 

number of consecutive days in his work period as 216 hours (or 

if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days; 

compensation at a rate not less than one and one-half times the 

regular rate at which he is employed. 

(l) No employer shall employ any employee in domestic service in 

one or more households for a workweek longer than forty hours unless such employee receives compensation for such employment in 

accordance with subsection (a). 

(m) For a period or periods of not more than fourteen workweeks 

in the aggregate in any calendar year, any employer may employ 

any employee for a workweek in excess of that specified in subsection (a) without paying the compensation for overtime employment prescribed in such subsection, if such employee— 

(1) is employed by such employer— 

(A) to provide services (including stripping and grading) 

necessary and incidental to the sale at auction of green 

leaf tobacco of type 11, 12, 13, 14, 21, 22, 23, 24, 31, 35, 

36, or 37 (as such types are defined by the Secretary of Agriculture), or in auction sale, buying, handling, stemming, 

redrying, packing, and storing of such tobacco, 

(B) in auction sale, buying, handling, sorting, grading, 

packing, or storing green leaf tobacco of type 32 (as such 

type is defined by the Secretary of Agriculture), or 

(C) in auction sale, buying, handling, stripping, sorting, 

grading, sizing, packing, or stemming prior to packing, of 

perishable cigar leaf tobacco of type 41, 42, 43, 44, 45, 46, 

51, 52, 53, 54, 55, 61, or 62 (as such types are defined by 

the Secretary of Agriculture); and 

(2) receives for— 

(A) such employment by such employer which is in excess of ten hours in any workday, and 

(B) such employment by such employer which is in excess of forty-eight hours in any workweek, 

compensation at a rate not less than one and one-half times 

the regular rate at which he is employed. 

An employer who receives an exemption under this subsection shall 

not be eligible for any other exemption under this section. 


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(n) In the case of an employee of an employer engaged in the 

business of operating a street, suburban or interurban electric railway or local trolley or motorbus carrier (regardless of whether or 

not such railway or carrier is public or private or operated for profit or not for profit), in determining the hours of employment of such 

an employee to which the rate prescribed by subsection (a) applies 

there shall be excluded the hours such employee was employed in 

charter activities by such employer if (1) the employee’s employment in such activities was pursuant to an agreement or understanding with his employer arrived at before engaging in such employment, and (2) if employment in such activities is not part of 

such employee’s regular employment. 

(o)(1) Employees of a public agency which is a State, a political 

subdivision of a State, or an interstate governmental agency may 

receive, in accordance with this subsection and in lieu of overtime 

compensation, compensatory time off at a rate not less than one 

and one-half hours for each hour of employment for which overtime 

compensation is required by this section. 

(2) A public agency may provide compensatory time under paragraph (1) only— 

(A) pursuant to— 

(i) applicable provisions of a collective bargaining agreement, memorandum of understanding, or any other agreement between the public agency and representatives of 

such employees; or 

(ii) in the case of employees not covered by subclause (i), 

an agreement or understanding arrived at between the 

employer and employee before the performance of the 

work; and 

(B) if the employee has not accrued compensatory time in excess of the limit applicable to the employee prescribed by paragraph (3). 

In the case of employees described in clause (A)(ii) hired prior to 

April 15, 1986, the regular practice in effect on April 15, 1986, with 

respect to compensatory time off for such employees in lieu of the 

receipt of overtime compensation, shall constitute an agreement or 

understanding under such clause (A)(ii). Except as provided in the 

previous sentence, the provision of compensatory time off to such 

employees for hours worked after April 14, 1986, shall be in accordance with this subsection. 

(3)(A) If the work of an employee for which compensatory time 

may be provided included work in a public safety activity, an emergency response activity, or a seasonal activity, the employee engaged in such work may accrue not more than 480 hours of compensatory time for hours worked after April 15, 1986. If such work 

was any other work, the employee engaged in such work may accrue not more than 240 hours of compensatory time for hours 

worked after April 15, 1986. Any such employee who, after April 

15, 1986, has accrued 480 or 240 hours, as the case may be, of compensatory time off shall, for additional overtime hours of work, be 

paid overtime compensation. 

(B) If compensation is paid to an employee for accrued compensatory time off, such compensation shall be paid at the regular rate 

earned by the employee at the time the employee receives such 

payment. 


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(4) An employee who has accrued compensatory time off authorized to be provided under paragraph (1) shall, upon termination of 

employment, be paid for the unused compensatory time at a rate 

of compensation not less than— 

(A) the average regular rate received by such employee during the last 3 years of the employee’s employment, or 

(B) the final regular rate received by such employee, 

whichever is higher 

(5) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency— 

(A) who has accrued compensatory time off authorized to be 

provided under paragraph (1), and 

(B) who has requested the use of such compensatory time, 

shall be permitted by the employee’s employer to use such time 

within a reasonable period after making the request if the use of 

the compensatory time does not unduly disrupt the operations of 

the public agency. 

(6) The hours an employee of a public agency performs court reporting transcript preparation duties shall not be considered as 

hours worked for the purposes of subsection (a) if— 

(A) such employee is paid at a per-page rate which is not less 

than— 

(i) the maximum rate established by State law or local 

ordinance for the jurisdiction of such public agency, 

(ii) the maximum rate otherwise established by a judicial or administrative officer and in effect on July 1, 1995, 

or 

(iii) the rate freely negotiated between the employee and 

the party requesting the transcript, other than the judge 

who presided over the proceedings being transcribed, and 

(B) the hours spent performing such duties are outside of the 

hours such employee performs other work (including hours for 

which the agency requires the employee’s attendance) pursuant 

to the employment relationship with such public agency. 

For purposes of this section, the amount paid such employee in accordance with subparagraph (A) for the performance of court reporting transcript preparation duties, shall not be considered in the 

calculation of the regular rate at which such employee is employed. 

(7) For purposes of this subsection— 

(A) the term ‘‘overtime compensation’’ means the compensation required by subsection (a), and 

(B) the terms ‘‘compensatory time’’ and ‘‘compensatory time 

off’’ mean hours during which an employee is not working, 

which are not counted as hours worked during the applicable 

workweek or other work period for purposes of overtime compensation, and for which the employee is compensated at the 

employee’s regular rate. 

(p)(1) If an individual who is employed by a State, political subdivision of a State, or an interstate governmental agency in fire 

protection or law enforcement activities (including activities of security personnel in correctional institutions) and who, solely at 

such individual’s option, agrees to be employed on a special detail 

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cluded by the public agency employing such individual in the calculation of the hours for which the employee is entitled to overtime 

compensation under this section if the public agency— 

(A) requires that its employees engaged in fire protection, 

law enforcement, or security activities be hired by a separate 

and independent employer to perform the special detail, 

(B) facilitates the employment of such employees by a separate and independent employer, or 

(C) otherwise affects the condition of employment of such 

employees by a separate and independent employer. 

(2) If an employee of a public agency which is a State, political 

subdivision of a State, or an interstate governmental agency undertakes, on an occasional or sporadic basis and solely at the employee’s option, part-time employment for the public agency which is in 

a different capacity from any capacity in which the employee is regularly employed with the public agency, the hours such employee 

was employed in performing the different employment shall be excluded by the public agency in the calculation of the hours for 

which the employee is entitled to overtime compensation under this 

section. 

(3) If an individual who is employed in any capacity by a public 

agency which is a State, political subdivision of a State, or an interstate governmental agency, agrees, with the approval of the public 

agency and solely at the option of such individual, to substitute 

during scheduled work hours for another individual who is employed by such agency in the same capacity, the hours such employee worked as a substitute shall be excluded by the public agency in the calculation of the hours for which the employee is entitled 

to overtime compensation under this section. 

(q) Any employer may employ any employee for a period or periods of not more than 10 hours in the aggregate in any workweek 

in excess of the maximum workweek specified in subsection (a) 

without paying the compensation for overtime employment prescribed in such subsection, if during such period or periods the employee is receiving remedial education that is— 

(1) provided to employees who lack a high school diploma or 

educational attainment at the eighth grade level; 

(2) designed to provide reading and other basic skills at an 

eighth grade level or below; and 

(3) does not include job specific training. 

(r)(1) An employer shall provide— 

(A) a reasonable break time for an employee to express 

breast milk for her nursing child for 1 year after the child’s 

birth each time such employee has need to express the milk; 

and 

(B) a place, other than a bathroom, that is shielded from 

view and free from intrusion from coworkers and the public, 

which may be used by an employee to express breast milk. 

(2) An employer shall not be required to compensate an employee 

receiving reasonable break time under paragraph (1) for any work 

time spent for such purpose. 

(3) An employer that employs less than 50 employees shall not 

be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer 

significant difficulty or expense when considered in relation to the 


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size, financial resources, nature, or structure of the employer’s 

business. 

(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection. 

SEC. 8. REQUIREMENTS AND PROHIBITIONS RELATING TO WAGE, SALARY, AND BENEFIT HISTORY. 

(a) IN GENERAL.—It shall be an unlawful practice for an employer 

to— 

(1) rely on the wage history of a prospective employee in considering the prospective employee for employment, including requiring that a prospective employee’s prior wages satisfy minimum or maximum criteria as a condition of being considered 

for employment; 

(2) rely on the wage history of a prospective employee in determining the wages for such prospective employee, except that an 

employer may rely on wage history if it is voluntarily provided 

by a prospective employee, after the employer makes an offer of 

employment with an offer of compensation to the prospective 

employee, to support a wage higher than the wage offered by the 

employer; 

(3) seek from a prospective employee or any current or former 

employer the wage history of the prospective employee, except 

that an employer may seek to confirm prior wage information 

only after an offer of employment with compensation has been 

made to the prospective employee and the prospective employee 

responds to the offer by providing prior wage information to 

support a wage higher than that offered by the employer; or 

(4) discharge or in any other manner retaliate against any 

employee or prospective employee because the employee or prospective employee— 

(A) opposed any act or practice made unlawful by this 

section; or 

(B) took an action for which discrimination is forbidden 

under section 15(a)(3). 

(b) DEFINITION.—In this section, the term ‘‘wage history’’ means 

the wages paid to the prospective employee by the prospective employee’s current employer or previous employer. 

* * * * * * * 

PROHIBITED ACTS

SEC. 15. (a) After the expiration of one hundred and twenty days 

from the date of enactment of this Act, it shall be unlawful for any 

person— 

(1) to transport, offer for transportation, ship, deliver, or sell 

in commerce, or to ship, deliver, or sell with knowledge that 

shipment or delivery or sale thereof in commerce is intended, 

any goods in the production of which any employee was employed in violation of section 6 or section 7, or in violation of 

any regulation or order of the Secretary of Labor issued under 

section 14; except that no provision of this Act shall impose 

any liability upon any common carrier for the transportation in 

commerce in the regular course of its business of any goods not 

produced by such common carrier, and no provision of this Act 


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shall excuse any common carrier from its obligation to accept 

any goods for transportation; and except that any such transportation, offer, shipment, delivery, or sale of such goods by a 

purchaser who acquired them in good faith in reliance on written assurance from the producer that the goods were produced 

in compliance with the requirements of the Act, and who acquired such goods for value without notice of any such violation, shall not be deemed unlawful; 

(2) to violate any of the provisions of section 6 or section 7, 

or any of the provisions of any regulation or order of the Secretary issued under section 14; 

(3) to discharge or in any other manner discriminate against 

any employee because such øemployee has filed any complaint 

or instituted or caused to be instituted any proceeding under 

or related to this Act, or has testified or is about to testify in 

any such proceeding, or has served or is about to serve on an 

industry committee;¿ employee— 

(A) has made a charge or filed any complaint or instituted or caused to be instituted any investigation, proceeding, hearing, or action under or related to this Act, including an investigation conducted by the employer, or has 

testified or is planning to testify or has assisted or participated in any manner in any such investigation, proceeding, 

hearing or action, or has served or is planning to serve on 

an industry committee; or 

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

of the employee or another employee; 

(4) to violate any of the provisions of section 12; 

(5) to violate any of the provisions of section 11(c) or any regulation or order made or continued in effect under the provisions of section 11(d), or to make any statement, report, or 

record filed or kept pursuant to the provisions of such section 

or of any regulation or order thereunder, knowing such statement, report, or record to be false in a material respectø.¿; or 

(6) to require an employee to sign a contract or waiver that 

would prohibit the employee from disclosing information about 

the employee’s wages. 

(b) For the purposes of subsection (a)(1) proof that any employee 

was employed in any place of employment where goods shipped or 

sold in commerce were produced, within ninety days prior to the 

removal of the goods from such place of employment, shall be 

prima facie evidence that such employee was engaged in the production of such goods. 

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

employee who has access to the wage information of other employees 

as a part of such employee’s essential job functions discloses the 

wages of such other employees to individuals who do not otherwise 

have access to such information, unless such disclosure is in response to a complaint or charge or in furtherance of an investigation, proceeding, hearing, or action under section 6(d), including an 

investigation conducted by the employer. Nothing in this subsection 

shall be construed to limit the rights of an employee provided under 

any other provision of law. 


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PENALTIES

SEC. 16. (a) Any person who willfully violates any of the provisions of section 15 shall upon conviction thereof be subject to a fine 

of not more than $10,000, or to imprisonment for not more than six 

months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such 

person for a prior offense under this subsection. 

(b) Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or the unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Any employer who violates section 6(d) shall additionally be liable for such compensatory 

damages, or, where the employee demonstrates that the employer 

acted with malice or reckless indifference, punitive damages as may 

be appropriate, except that the United States shall not be liable for 

punitive damages. Any employer who violates the provisions of section 15(a)(3) of this Act shall be liable for such legal or equitable 

relief as may be appropriate to effectuate the purposes of section 

15(a)(3), including without limitation employment, reinstatement, 

promotion, and the payment of wages lost and an additional equal 

amount as liquidated damages. Any employer who violates section 

3(m)(2)(B) shall be liable to the employee or employees affected in 

the amount of the sum of any tip credit taken by the employer and 

all such tips unlawfully kept by the employer, and in an additional 

equal amount as liquidated damages. An action to recover the liability prescribed in øthe preceding sentences¿ any of the preceding 

sentences of this subsection may be maintained against any employer (including a public agency) in any Federal or State court of 

competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. øNo employees¿ Except with respect to class actions brought 

to enforce section 6(d), no employee shall be a party plaintiff to any 

such action unless he gives his consent in writing to become such 

a party and such consent is filed in the court in which such action 

is brought. Notwithstanding any other provision of Federal law, any 

action brought to enforce section 6(d) may be maintained as a class 

action as provided by the Federal Rules of Civil Procedure. The 

court øin such action¿ in any action brought to recover the liability 

prescribed in any of the preceding sentences of this subsection shall, 

in addition to any judgment awarded to the plaintiff or plaintiffs, 

allow a reasonable attorney’s fee to be paid by the defendant, and 

costs of the action, including expert fees . The right provided by this 

subsection to bring an action by or on behalf of any employee, and 

the right of any employee to become a party plaintiff to any such 

action, shall terminate upon the filing of a complaint by the Secretary of Labor in an action under section 17 in which (1) restraint 

is sought of any further delay in the payment of unpaid minimum 

wages, or the amount of unpaid overtime compensation, as the case 

may be, owing to such employee under section 6 or section 7 of this 

act by an employer liable therefor under the provisions of this subsection or (2) legal or equitable relief is sought as a result of alleged violations of section 15(a)(3). 


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(c) The Secretary is authorized to supervise the payment of the 

unpaid minimum wages or the unpaid overtime compensation 

owing to any employee or employees under section 6 or 7 of this 

Act, or, in the case of a violation of section 6(d), additional compensatory or punitive damages, as described in subsection (b), and the 

agreement of any employee to accept such payment shall upon payment in full constitute a waiver by such employee of any right he 

may have under subsection (b) of this section to such unpaid minimum wages or unpaid overtime compensation and an additional 

equal amount as liquidated damages, or such compensatory or punitive damages, as appropriate . The Secretary may bring an action 

in any court of competent jurisdiction to recover the amount of the 

unpaid minimum wages or overtime compensation and an equal 

amount as liquidated damages and, in the case of a violation of section 6(d), additional compensatory or punitive damages, as described in subsection (b) . The right provided by subsection (b) to 

bring an action by or on behalf of any employee to recover the liability specified in øthe first sentence¿ the first or second sentence 

of such subsection and of any employee to become a party plaintiff 

to any such action shall terminate upon the filing of a complaint 

by the Secretary in an action under this subsection in which a recovery is sought of unpaid minimum wages or unpaid overtime 

compensation under sections 6 and 7 or liquidated or other damages provided by this subsection owing to such employee by an employer liable under the provisions of subsection (b), unless such action is dismissed without prejudice on motion of the Secretary. Any 

sums thus recovered by the Secretary on behalf of an employee 

pursuant to this subsection shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to the 

employee or employees affected. Any such sums not paid to an employee because of inability to do so within a period of three years 

shall be covered into the Treasury of the United States as miscellaneous receipts. In determining when an action is commenced by the 

Secretary under this subsection for the purposes of the statutes of 

limitations provided in section 6(a) of the Portal-to-Portal Act of 

1947, it shall be considered to be øcommenced in the case¿ commenced— 

(1) in the case of any individual claimant on the date when 

the complaint is filed if he is specifically named as a party 

plaintiff in the complaint, or if his name did not so appear, on 

the subsequent date on which his name is added as a party 

plantiff in such actionø.¿; or 

(2) in the case of a class action brought to enforce section 

6(d), on the date on which the individual becomes a party 

plaintiff to the class action. The authority and requirements 

described in this subsection shall apply with respect to a violation of section 3(m)(2)(B), as appropriate, and the employer 

shall be liable for the amount of the sum of any tip credit 

taken by the employer and all such tips unlawfully kept by the 

employer, and an additional equal amount as liquidated damages. 

(d) In any action or proceeding commenced prior to, on, or after 

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vision or provisions of such Acts (1) with respect to work heretofore 

or hereafter performed in a workplace to which the exemption in 

section 13(f) is applicable, (2) with respect to work performed in 

Guam, the Canal Zone, or Wake Island before the effective date of 

this amendment of subsection (d), or (3) with respect to work performed in a possession named in section 6(a)(3) at any time prior 

to the establishment by the Secretary, as provided therein, of a 

minimum wage rate applicable to such work. 

(e)(1)(A) Any person who violates the provisions of sections 12 or 

13(c), relating to child labor, or any regulation issued pursuant to 

such sections, shall be subject to a civil penalty not to exceed— (i) $11,000 for each employee who was the subject of 

such a violation; or 

(ii) $50,000 with regard to each such violation that 

causes the death or serious injury of any employee 

under the age of 18 years, which penalty may be doubled where the violation is a repeated or willful violation. 

(B) For purposes of subparagraph (A), the term ‘‘serious injury’’ 

means— 

(i) permanent loss or substantial impairment of one of the 

senses (sight, hearing, taste, smell, tactile sensation); 

(ii) permanent loss or substantial impairment of the function 

of a bodily member, organ, or mental faculty, including the loss 

of all or part of an arm, leg, foot, hand or other body part; or 

(iii) permanent paralysis or substantial impairment that 

causes loss of movement or mobility of an arm, leg, foot, hand 

or other body part. 

(2) Any person who repeatedly or willfully violates section 6 or 

7, relating to wages, shall be subject to a civil penalty not to exceed 

$1,100 for each such violation. Any person who violates section 

3(m)(2)(B) shall be subject to a civil penalty not to exceed $1,100 

for each such violation, as the Secretary determines appropriate, in 

addition to being liable to the employee or employees affected for 

all tips unlawfully kept, and an additional equal amount as liquidated damages, as described in subsection (b). 

(3) In determining the amount of any penalty under this subsection, the appropriateness of such penalty to the size of the business of the person charged and the gravity of the violation shall be 

considered. The amount of any penalty under this subsection, when 

finally determined, may be— 

(A) deducted from any sums owing by the United States to 

the person charged; 

(B) recovered in a civil action brought by the Secretary in 

any court of competent jurisdiction, in which litigation the Secretary shall be represented by the Solicitor of Labor; or 

(C) ordered by the court, in an action brought for a violation 

of section 15(a)(4) or a repeated or willful violation of section 

15(a)(2), to be paid to the Secretary. 

(4) Any administrative determination by the Secretary of the 

amount of any penalty under this subsection shall be final, unless 

within 15 days after receipt of notice thereof by certified mail the 

person charged with the violation takes exception to the determination that the violations for which the penalty is imposed occurred, 

in which event final determination of the penalty shall be made in 


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an administrative proceeding after opportunity for hearing in accordance with section 554 of title 5, United States Code, and regulations to be promulgated by the Secretary. 

(5) Except for civil penalties collected for violations of section 12, 

sums collected as penalties pursuant to this section shall be applied toward reimbursement of the costs of determining the violations and assessing and collecting such penalties, in accordance 

with the provision of section 2 of the Act entitled ‘‘An Act to authorize the Department of Labor to make special statistical studies 

upon payment of the cost thereof and for other purposes’’ (29 

U.S.C. 9a). Civil penalties collected for violations of section 12 shall 

be deposited in the general fund of the Treasury. 

(f)(1) Any person who violates the provisions of section 8 shall— (A) be subject to a civil penalty of $5,000 for a first offense, increased by an additional $1,000 for each subsequent offense, 

not to exceed $10,000; and 

(B) be liable to each employee or prospective employee who 

was the subject of the violation for special damages not to exceed $10,000 plus attorneys’ fees, and shall be subject to such 

injunctive relief as may be appropriate. 

(2) An action to recover the liability described in paragraph (1)(B) 

may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any 

one or more employees or prospective employees for and on behalf 

of— 

(A) the employees or prospective employees; and 

(B) other employees or prospective employees similarly situated. 

* * * * * * * 

CIVIL RIGHTS ACT OF 1964 

* * * * * * * 

TITLE VII—EQUAL EMPLOYMENT OPPORTUNITY 

* * * * * * * 

INVESTIGATIONS, INSPECTIONS, RECORDS, STATE AGENCIES

SEC. 709. (a) In connection with any investigation of a charge 

filed under section 706, the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any 

person being investigated or proceeded against that relates to unlawful employment practices covered by this title and is relevant 

to the charge under investigation. 

(b) The Commission may cooperate with State and local agencies 

charged with the administration of State fair employment practices 

laws and, with the consent of such agencies, may, for the purpose 

of carrying out its functions and duties under this title and within 

the limitation of funds appropriated specifically for such purpose, 

engage in and contribute to the cost of research and other projects 

of mutual interest undertaken by such agencies, and utilize the 

services of such agencies and their employees, and, notwithVerDate Sep 11 2014 08:24 Mar 19, 2019 Jkt 089006 PO 00000 Frm 00074 Fmt 6659 Sfmt 6601 E:\HR\OC\HR018.XXX HR018

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standing any other provision of law, pay by advance or reimbursement such agencies and their employees for services rendered to 

assist the Commission in carrying out this title. In furtherance of 

such cooperative efforts, the Commission may enter into written 

agreements with such State or local agencies and such agreements 

may include provisions under which the Commission shall refrain 

from processing a charge in any cases or class of cases specified in 

such agreements or under which the Commission shall relieve any 

person or class of persons in such State or locality from requirements imposed under this section. The Commission shall rescind 

any such agreement whenever it determines that the agreement no 

longer serves the interest of effective enforcement of this title. 

(c) Every employer, employment agency, and labor organization 

subject to this title shall (1) make and keep such records relevant 

to the determinations of whether unlawful employment practices 

have been or are being committed, (2) preserve such records for 

such periods, and (3) make such reports therefrom as the Commission shall prescribe by regulation or order, after public hearing, as 

reasonable, necessary, or appropriate for the enforcement of this 

title or the regulations or orders thereunder. The Commission 

shall, by regulation, require each employer, labor organization, and 

joint labor-management committee subject to this title which controls an apprenticeship or other training program to maintain such 

records as are reasonably necessary to carry out the purposes of 

this title, including, but not limited to, a list of applicants who wish 

to participate in such program, including the chronological order in 

which applications were received, and to furnish to the Commission 

upon request, a detailed description of the manner in which persons are selected to participate in the apprenticeship or other training program. Any employer, employment agency, labor organization, or joint labor-management committee which believes that the 

application to it of any regulation or order issued under this section 

would result in undue hardship may apply to the Commission for 

an exemption from the application of such regulation or order, and, 

if such application for an exemption is denied, bring a civil action 

in the United States district court for the district where such 

records are kept. If the Commission or the court, as the case may 

be, finds that the application of the regulation or order to the employer, employment agency, or labor organization in question would 

impose an undue hardship, the Commission or the court, as the 

case may be, may grant appropriate relief. If any person required 

to comply with the provisions of this subsection fails or refuses to 

do so, the United States district court for the district in which such 

person is found, resides, or transacts business, shall, upon application of the Commission, or the Attorney General in a case involving 

a government, governmental agency or political subdivision, have 

jurisdiction to issue to such person an order requiring him to comply. 

(d) In prescribing requirements pursuant to subsection (c) of this 

section, the Commission shall consult with other interested State 

and Federal agencies and shall endeavor to coordinate its requirements with those adopted by such agencies. The Commission shall 

furnish upon request and without cost to any State or local agency 

charged with the administration of a fair employment practice law 

information obtained pursuant to subsection (c) of this section from 


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any employer, employment agency, labor organization, or joint 

labor-management committee subject to the jurisdiction of such 

agency. Such information shall be furnished on condition that it 

not be made public by the recipient agency prior to the institution 

of a proceeding under State or local law involving such information. 

If this condition is violated by a recipient agency, the Commission 

may decline to honor subsequent requests pursuant to this subsection. 

(e) It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information 

obtained by the Commission pursuant to its authority under this 

section prior to the institution of any proceeding under this title involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor 

and upon conviction thereof, shall be fined not more than $1,000, 

or imprisoned not more than one year. 

(f)(1) Not later than 18 months after the date of enactment of this 

subsection, the Commission shall issue regulations to provide for the 

collection from employers of compensation data and other employment-related data (including hiring, termination, and promotion 

data) disaggregated by the sex, race, and national origin of employees. 

(2) In carrying out paragraph (1), the Commission shall have as 

its primary consideration the most effective and efficient means for 

enhancing the enforcement of Federal laws prohibiting pay discrimination. For this purpose, the Commission shall consider factors including the imposition of burdens on employers, the frequency 

of required reports (including the size of employers required to prepare reports), appropriate protections for maintaining data confidentiality, and the most effective format to report such data. 

* * * * * * * 


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MINORITY VIEWS 

INTRODUCTION

Committee Republicans are united in their belief that equal work 

should be rewarded with equal pay, irrespective of a worker’s sex. 

Indeed, that very principle has been the law of the land for decades. It is already—as it should be—against federal law to discriminate, in pay or other employment practices, on the basis of 

sex. Committee Republicans are committed to eliminating unfair 

and illegal wage disparities that are a product of workplace discrimination to ensure a fair, productive, and competitive workforce. 

In 1963, Congress enacted the Equal Pay Act (EPA) within the 

Fair Labor Standards Act (FLSA). The EPA makes it illegal to pay 

different wages to workers of the opposite sex for equal work. One 

year later, Congress enacted comprehensive anti-discrimination 

civil rights protection based on race, color, national origin, religion, 

and sex under Title VII of the Civil Rights Act. Together, these 

laws protect against sex discrimination and provide a range of remedies for victims. In short, the question is not whether sex discrimination in the workplace should be permitted. That question has 

been answered as Committee Republicans agree that such discrimination should not be tolerated, which is why it is a direct violation 

of not one but two federal laws. 

It is against this backdrop that Committee Republicans reject 

H.R. 7, the so-called Paycheck Fairness Act. Simply put, H.R. 7 

does little to protect the wages and paychecks of American workers 

and does far more to line the pockets of the plaintiffs’ trial-lawyer 

bar. First, the bill dramatically limits and likely eliminates the 

ability of business owners to defend claims of discrimination based 

on pay differences that arise from lawful and legitimate business 

purposes, while radically expanding liability and damages under 

the EPA. The bill also obstructs the recruitment and hiring process 

by restricting use of information related to a prospective employee’s 

current compensation. Further, the bill requires a burdensome, intrusive, and unnecessary government collection of questionable 

utility of worker pay data. The data is broken down by race, sex, 

and national origin, and raises significant confidentiality and privacy concerns. For these reasons, and as set forth more fully below, 

Committee Republicans are united in their opposition to H.R. 7. 

CONCERNS WITH H.R. 7

Committee Republicans identify the following as some of the 

bill’s most objectionable provisions: 

H.R. 7 Dramatically Limits Legitimate and Lawful Defenses 

H.R. 7 dramatically scales back and likely eliminates a business 

owner’s ability to defend itself from claims of pay discrimination 


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1Paycheck Fairness Act (H.R. 7): Equal Pay for Equal Work: Hearing on H.R. 7 Before the 

Subcomm. on Civil Rights and Human Serv. and Subcomm. on Workforce Protections of the H. 

Comm. on Educ. and Labor, 116th Cong. (2019) (statement of Camille Olson, Partner, Seyfarth 

Shaw LLP, at 8). 2 Id. at 9. 

where disparities arise from wholly lawful business decisions. For 

example, H.R. 7 strictly limits a business owner’s ability to defend 

pay differentials that are accounted for by reasons wholly unrelated to a worker’s sex. Under current law, a business owner can 

defend him or herself from a claim of pay discrimination by propounding evidence and convincing a trier of fact that the differential is based not on sex, but on another factor. H.R. 7 dramatically 

and unfairly curtails the scope of that defense and requires that a 

business owner convince a judge or jury, potentially years later, 

that the reason was required by ‘‘business necessity’’—essentially 

putting courts in charge of determining what a business owner 

must do to avoid going bankrupt. Ms. Camille A. Olson, a partner 

at Seyfarth Shaw LLP, explained at the only hearing on H.R. 7 

why requiring proof of ‘‘business necessity’’ is unworkable: 

Business necessity suggests that the very viability of the 

business is dependent upon the compensation decision. Requiring an employer to prove that a wage differential between two individuals is a business necessity is unworkable. It would require an employer to meet an impossible 

threshold—to prove that it is a business necessity for the 

employer to pay one person more than another based on 

innumerable intangible criteria such as relative levels of 

education, experience, or job performance. . . . This highly 

onerous standard would place an unrealistic burden on 

employers that would be virtually impossible to achieve.1

Further, H.R. 7 requires the business owner to justify the entire 

pay difference between a male worker and female worker. This is 

yet another unworkable standard. Business owners make compensation decisions based on many factors that are not easily quantifiable. Requiring businesses to explain every cent of a pay differential could only be satisfied by rigid pay grades, as governments use for civil servants. Ms. Olson commented on how this provision in H.R. 7 is also unworkable: 

Compensation decisions in the private sector are made 

based on a variety of factors that are not capable of an 

exact dollar-for-dollar comparison. Differences in experience, education and performance, among other job-related 

factors, matter significantly for purposes of setting compensation. How would an employer ever be able to explain 

that it credited an employee with X dollars for their 6.3 

years of prior experience, and Y dollars because the candidate went to a top tier school versus Z dollars for a midtier school? It will be virtually impossible for employers to 

meet such a standard.2

Even more egregious, if a business owner somehow persuades the 

factfinder that 100 percent of the differential was not based on sex, 

an employee is still entitled to argue that there are other ways to 

address this business need without a pay differential. In short, 


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3 Id. at 21. 4 Id. at 17. 

H.R. 7 takes core management decisions out of the hands of business owners and places them squarely in the realm of judges, juries, and trial lawyers. This brazen attack on market economies 

and on private-sector discretion must be rejected. 

Moreover, H.R. 7 significantly limits the ability of business owners to justify differences in pay based on different work locations 

(as has been the case throughout the 56-year history of the EPA). 

Rather, under the bill as reported, an employee can compare his or 

her pay to any other coworker in the same county or political subdivision (or perhaps more broadly, given the bill’s provision allowing for the Equal Employment Opportunity Commission (EEOC) to 

define ‘‘work establishment’’ even more broadly) to prove pay discrimination. Ms. Olson pointed out in her testimony that a county 

can include urban and suburban areas with different commuting 

costs that could justify a pay differential.3 The practical elimination of a legitimate defense available to business owners under 

current law simply fails to recognize economic reality and our market-based economy. 

H.R. 7 Radically Expands Remedies 

H.R. 7 radically expands remedies under the EPA to provide for 

unlimited compensatory damages, even where there is absolutely 

no showing that any pay disparity was the effect of intentional discrimination, as well as uncapped punitive damages. In doing so, 

H.R. 7 places claims of discrimination in wages based on sex in a 

more favorable position than similar claims of pay discrimination 

under Title VII or the Americans with Disabilities Act, which properly provide for limited compensatory and punitive damages. Indeed, taken in concert with the remedies available under Title VII, 

remedies for claims of pay discrimination under H.R. 7 would be 

greater than those available under any of our nation’s current civil 

rights laws. Ms. Olson discussed in her testimony why these expanded remedies are inappropriate: 

The required showing for proof of an EPA violation is 

lower than under Title VII, but the available damages are 

higher. What is more, H.R. 7 would also allow for uncapped punitive damages in addition to the EPA’s existing 

double recovery of economic damages. The current damage 

mechanisms under the EPA serve their intended purpose 

of eliminating wage disparities, making employees whole, 

compensating employees with an equal amount of special 

liquidated damages, and paying all attorneys’ fees and 

costs. These remedies are appropriately proportional as a 

remedy for an employer’s actions that produce unintentional, unlawful wage disparities. To upend this design 

through a contortionist’s attempt to carry over parts of 

Title VII’s remedial scheme in a selected manner, and expand damages under lower proof requirements is not appropriate.4

This radical expansion of remedies, particularly where they may be 

assessed without showing any discriminatory intent, tips the scales 


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5 Id. at 18. 

6 Id. at 12. 

to favor outsized judgments unrelated to actual damages, and calls 

the entire rationale for the bill into question. 

H.R. 7 Encourages Frivolous Class Action Lawsuits 

Perhaps nowhere is this bill’s true intent—to generate more lawsuits and to line the pockets of trial lawyers—made more evident 

as in its provisions expanding class action lawsuits. Currently, 

under the FLSA, plaintiffs may sue on behalf of themselves and 

those similarly situated, and thereby pursue a collective action. To 

ensure that these suits are merit-based—and brought by those who 

wish to pursue them—workers must opt in to these collective suits. 

H.R. 7 reverses that presumption and eliminates those safeguards, 

instead deeming all potential class members to be joined to a suit, 

placing the affirmative burden on these plaintiffs—who may not 

even know of the suit’s existence—to opt out of a claim. 

Supporters of H.R. 7 have not adequately explained why a 

change is needed for collective actions under the EPA. Ms. Olson 

reached the conclusion that ‘‘the current mechanism sufficiently 

balances the interests of employers and aggrieved employees, and 

the proponents of the bill have not sufficiently demonstrated a need 

for such a procedural overhaul.’’ 5 The class action provisions in the 

bill are plainly designed to ensure that plaintiffs’ lawyers get handsome financial payoffs to pursue class-action lawsuits, trumping 

any legitimate interest in protecting the paychecks of American 

workers, and these special-interest provisions should be rejected. 

H.R. 7 Obstructs Recruitment and Hiring 

H.R. 7 includes highly prescriptive prohibitions relating to recruitment and hiring. The bill prohibits a business owner from relying on the current or previous wage of a prospective employee in 

considering the individual for employment or determining the 

wages of the individual unless the individual voluntarily provides 

the wage information after a job offer has been made. These restrictions are included even though, as Ms. Olson notes in her testimony, courts and the EEOC have said that wage information can 

be a legitimate factor in determining current wages because it can 

accurately reflect job-related ability or qualifications. Ms. Olson 

elaborated on legitimate uses of wage information: 

Employers routinely rely on prior salary information for 

competitive purposes as a way to gather real time market 

data. It is also used to benchmark against the pay of current employees or to target offers to top performing employees at competitor firms. It can also be used as an indicator of a candidate’s experience, performance or level of 

expertise in an area.6

Ms. Olson further explained how H.R. 7 obstructs recruitment 

and hiring: 

Prohibiting employers from relying on prior salary information, even if it’s voluntarily provided, until after an 

offer that includes compensation information has been exVerDate Sep 11 2014 08:24 Mar 19, 2019 Jkt 089006 PO 00000 Frm 00080 Fmt 6604 Sfmt 6602 E:\HR\OC\HR018.XXX HR018

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7 Id. 

8 Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, 319 F. Supp. 773 

(E.D. Pa. 2018), appealed, No. 18–2175 (3d Cir. May 30, 2018). 9 Id. at 797. 

tended will invoke an unnatural cadence that does not reflect the realities of the workforce. Indeed, human resources representatives will be forced to issue ‘‘Mirandatype’’ warnings to applicants advising them that they cannot provide information regarding prior salary . . . . The 

only effect that the current proposal is guaranteed to have 

are steeper recruiting costs which will be borne by both 

employers and applicants.7

H.R. 7 additionally prohibits a business owner from seeking wage 

information from a prospective employee or any current or former 

business owner. A similar provision in a City of Philadelphia ordinance has been struck down as violating the First Amendment 

speech rights of business owners.8 The judge wrote that the Philadelphia City Council’s evidence that prohibiting business owners 

from inquiring about wage information could reduce discrimination 

was based on ‘‘unsubstantiated conclusions,’’ and the court found a 

lack of evidence that knowing an individual’s wage information results in discrimination: 

[N]one of the testimony addressed why asking about 

wage history necessarily results in the perpetuation of an 

initial discriminatory wage. Moreover, no witness cited to 

evidence that prior wage history inquiry contributes to a 

discriminatory wage gap.9

Likewise, H.R. 7 lacks a basis for its assumption that a business 

owner seeking wage information will perpetuate discriminatory 

compensation or that prohibiting this practice will reduce unlawful, 

gender-based pay discrepancies. 

H.R. 7 Eliminates business owners’ ability to protect the confidentiality of wage and salary data 

H.R. 7 attempts to further undermine the ability of business 

owners to manage their enterprises by adopting broad new anti-retaliation provisions relating to discussions of pay or compensation, 

extending protection far beyond the scope of protection already provided to employees under federal law. Title VII among other federal civil rights laws protect employees from asserting their rights 

with respect to nondiscrimination in pay. The National Labor Relations Act also protects employees who discuss their wages as part 

of a concerted activity. 

However, H.R. 7 effectively eliminates the ability of a business 

owner to maintain any policy protecting the privacy and confidentiality of its payroll and wage information, even for supervisory and 

managerial employees, long considered to be part of the legitimate 

management of a business. Ms. Olson explained the problems with 

this open-ended provision: 

H.R. 7 is written so broadly that employees would have 

the right to inquire about, discuss, or disclose wage information without limitation . . . . There is no consideration 


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10Press Release, Equal Emp. Opportunity Comm’n, EEOC to Collect Summary Pay Data 

(Sept. 29, 2016). 11Letter from U.S. Chamber of Commerce to EEOC 22 (Apr. 1, 2016), https:// 

www.uschamber.com/sites/default/files/documents/files/uscc_eeo1_comments_april_1.pdf. 

of the reasonableness of the employee’s actions with respect to their inquiries, discussions, or disclosures, nor is 

the permissibility of such action tethered to the alleged underlying pay disparity. Further, the proposed bill does not 

take into account or protect the privacy rights of other employees with respect to publicly disseminating information 

about their pay, nor does it contain a mechanism for balancing and protecting employers’ legitimate business concerns in maintaining confidentiality of certain compensation information. Under H.R. 7, an employee who chooses 

to post on social media the wages of all other employees, 

by name, would be deemed to be engaging in protected activity, against which other employees and the employer 

would have no recourse. 

These provisions of the bill contain no limiting principle and will 

very likely harm workers and business owners, and they should be 

defeated. 

H.R. 7 Mandates intrusive government collection of worker pay data 

H.R. 7 directs the EEOC, for the first time ever, to collect compensation data from business owners disaggregated by the sex, 

race, and national origin of workers, including hiring, termination, 

and promotion data. This collection would go further than the 

Obama administration proposal in 2016 to collect pay data,10 which 

did not include hiring, termination, and promotion data. 

As with the Obama administration proposal, this mandate raises 

serious privacy and confidentiality concerns. Time and again there 

have been massive and harmful data breaches of federal agencies. 

This data would create yet another valuable target, and H.R. 7 

fails to address how the data will be protected. Aggregated data 

published at the regional and industrial level could reveal salaries 

of individual workers, which is proprietary data. The EEOC would 

also share the data with the Department of Labor, which could release sensitive data pursuant to a Freedom of Information Act request. 

It is highly unlikely that the data in question will be useful to 

the EEOC or the public. To the extent pay discrimination exists, 

it is doubtful that amassing pay data in this manner will effectively combat such discrimination. The raw data collected will not 

account for the many factors that may explain pay differences, such 

as skill levels and regional differences in compensation, and will result in information that is misleading and confusing. 

Finally, this mandate is uniquely burdensome. The U.S. Chamber of Commerce estimated that the annual burden of complying 

with the current EEOC Employer Information Report (EEO–1) if 

pay date were added to the report would be between $693 and $729 

million.11

In addition to the intrusive government collection of pay data, 

the previous section of this report has summarized substantive concerns with changes to the EPA contained in H.R. 7 that make it 


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12 U.S. DEP’T OF LABOR, BUREAU OF LABOR STATISTICS, BLS REPORTS, HIGHLIGHTS OF WOM- EN’S EARNINGS IN 2017 (Aug. 2018). 13See, e.g., CONSAD RESEARCH CORP., AN ANALYSIS OF REASONS FOR THE DISPARITY IN

WAGES BETWEEN MEN AND WOMEN 1–2 (prepared for the U.S. Dep’t of Labor) (Jan. 12, 2009), 

https://www.shrm.org/hr-today/public-policy/hr-public-policy-issues/Documents/ 

Gender%20Wage%20Gap%20Final%20Report.pdf. 14 U.S. DEP’T OF LABOR, supra note 12. 15See CONSAD RESEARCH CORP., supra note 13. 16 Valentin Bolotnyy and Natalia Emanuel, Why Do Women Earn Less Than Men? Evidence 

from Bus and Train Operators (Harvard Univ., Working Paper, Jan. 2, 2019), https://scholar.harvard.edu/bolotnyy/publications/why-do-women-earn-less-men-evidence-bus-and-train-operators-job-market-paper. 

impossible to defend legitimate pay differences, improperly allow 

unlimited compensatory and punitive damages, and inappropriately 

expand class actions, as well as obstructing the recruiting and hiring process. These concerns represent but a few of the most egregious policy flaws in H.R. 7. There are numerous others, ranging 

from the ill-conceived resurrection of flawed statistical models at 

the Department of Labor’s Office of Federal Contract Compliance 

Programs to the creation of new negotiation skills ‘‘training’’ programs that have yet to be shown necessary and have a paternalistic view toward workers. Whether singly or taken as a whole, the 

provisions of H.R. 7 should be rejected. 

THE FLAWED ‘‘WAGE GAP’’ THEORY

Advocates of H.R. 7 claim that despite two federal laws prohibiting pay discrimination, female workers are still paid on average 

considerably less than male workers, and, as a result, a pernicious 

‘‘wage gap’’ exists. According to Bureau of Labor Statistics (BLS) 

data, female weekly earnings were 82 percent of male weekly earnings in 2017, as compared to 62 percent in 1979.12 Supporters of 

H.R. 7 argue that this flawed theory makes enactment of the bill 

necessary. 

However, many experts effectively argue the ‘‘wage gap’’ between 

men and women is not necessarily the product of workplace discrimination. In fact, most of the gap disappears when factors such 

as hours worked per week, rate of leaving the labor force, and industry and occupation are considered.13 For example, among fulltime workers, men are more likely than women to choose to work 

more than 40 hours per week. In 2017, 25 percent of men who usually work full time worked 41 or more hours per week, compared 

with 14 percent of women. For those who worked exactly a 40-hour 

workweek, women earned 88 percent as much as men.14 Factoring 

work experience, job tenure, and preferences for non-wage benefits, 

such as health insurance and other fringe benefits, also further reduces the gap.15

A 2018 Harvard University study found that the gap in pay between female and male bus and train operators working for the 

Massachusetts Bay Transportation Authority (MBTA) can be explained by the workplace choices that women and men make rather 

than other factors such as discrimination.16 The study found that 

the earnings gap for MBTA bus and train operators is explained by 

the fact that the male operators took 48 percent fewer unpaid 

hours off and worked 83 percent more overtime hours per year 

than the female operators. These differences are not due to any different work options faced by female and male operators. Rather, 


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the study found that the female operators had a greater demand 

for workplace flexibility and a lower demand for overtime work 

hours than the male operators. 

The Harvard MBTA study is noteworthy because the workplace 

characteristics of the female operators are entirely comparable to 

those of the male operators. All operators are represented by the 

same union, and all are covered by the same collective bargaining 

agreement. The study found the earnings gap persists even when 

seniority was the same, which means that differences in choices 

that women and men made when faced with the same options in 

the MBTA workplace can fully explain the earnings gap. Because 

of the strict seniority system, the study debunked discrimination as 

a cause of the gender earnings gap at the MBTA. 

In sum, there is a lack of definitive evidence that a ‘‘wage gap’’ 

exists which is caused by gender-based discrimination in pay. The 

flawed premise of the ‘‘wage gap’’ does not justify the enactment of 

radical, sweeping reforms to the EPA and other federal laws contained in H.R. 7. 

REPUBLICAN AMENDMENTS

Recognizing the fundamental failures of policy contained in H.R. 

7, Committee Republicans offered several amendments during 

Committee markup to highlight Republican priorities and solutions 

for working women and men. 

To demonstrate just how far afield the Majority has gone with 

this legislation, Representative Bradley Byrne (R–AL) offered two 

common-sense amendments during the Committee’s consideration 

of H.R. 7. The first amendment offered by Representative Byrne 

underscored the true beneficiaries of this bill—the trial lawyers’ 

lobby. Under the FLSA (and unchanged by H.R. 7), a successful 

plaintiff may recover a ‘‘reasonable’’ attorney’s fee. Representative 

Byrne’s amendment would simply have provided that if a plaintiff 

entered into a contingency fee arrangement, the attorney’s contingency fee cannot exceed 15 percent of the judgment awarded the 

plaintiff to be considered ‘‘reasonable.’’ Democrats unanimously rejected the simple proposition that no trial lawyer can ‘‘reasonably’’ 

be paid a contingency fee of more than 15 percent of the judgment 

awarded to the plaintiff. 

Representative Byrne’s second amendment would have strengthened the EPA while eliminating the multiple provisions in H.R. 7 

that make it impossible for a business owner to defend a pay differential. This amendment strengthened the EPA by replacing the 

‘‘any factor other than sex’’ defense with the language ‘‘a bona fide 

business-related reason other than sex.’’ This change would make 

clear to the courts that the ‘‘other than sex’’ defense cannot be used 

as a loophole or excuse for relying on sex as a factor when there 

is a pay differential. The Byrne amendment also struck the remaining provision in H.R. 7 relating to defenses. These unnecessary provisions require that, even when a business owner already shows 

the factor causing the pay differential is ‘‘other than sex,’’ it must 

meet several illogical and insurmountable burdens, effectively paving an unimpeded path to the promise of unlimited punitive and 

compensatory damages to line the pockets of trial lawyers. Committee Democrats unanimously rejected this amendment that 


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would have strengthened the EPA while eliminating the unworkable provisions that would make it impossible for a business owner 

to defend legitimate business practices. 

A third amendment would have ensured H.R. 7 does not harm 

the very people it is supposedly aimed at helping. H.R. 7 escalates 

liability, eliminates a business owner’s ability to contest genderbased pay discrimination cases, dramatically expands damages, 

and encourages frivolous litigation. As a whole, the bill will limit 

or obstruct business owners’ efforts to recruit, hire, and promote 

workers, and to increase their pay. In addition, to avoid the unlimited liability created by this bill, business owners will be hesitant 

to reward merit and success on the job, which will harm workers 

by restricting their opportunities for increased compensation. H.R. 

7 will likely force business owners to use rigid compensation formulas, such as those used in government employment. 

In response to these fundamental flaws in H.R. 7, Representative 

Rick Allen (R–GA) offered an amendment directing the Secretary 

of Labor to study and certify the effects of the bill’s changes to the 

EPA on business owners’ ability to recruit, hire, promote, and increase the pay of workers, and report back to the Congress within 

90 days. Under the amendment, these provisions in H.R. 7 would 

not become effective until Congress receives and is given 90 days 

to review the Secretary’s report. Further, the amendment provides 

that the EPA changes in the bill will not take effect if the Secretary of Labor determines that they ‘‘significantly hinder’’ business owners in recruiting, hiring, promoting, and increasing the 

pay of workers, irrespective of gender. Democrats unanimously rejected this prudent amendment that would ensure the bill doesn’t 

make it harder for workers to find jobs and get pay raises. 

Committee Republicans offered a final amendment reflecting 

their grave concerns with the government collection of pay data 

mandated in H.R. 7. The bill requires the EEOC, for the first time 

ever, to collect worker compensation data from business owners 

broken down by sex, race, and national origin of employees, including hiring, termination, and promotion data. This astounding government collection of worker pay data raises significant privacy 

and confidentiality concerns. Further, the utility of this data is 

questionable, and it is doubtful the EEOC would be able to manage 

and interpret this massive amount of pay data appropriately. Finally, the data collection requirement would impose an extremely 

costly and uniquely burdensome mandate on business owners with 

reams of proprietary data being provided to the government, the 

uses of which are not adequately explained in the bill. Representative Virginia Foxx (R–NC), the Committee’s Republican Leader, offered an amendment to strike this pay data collection from the bill, 

which the Democrats unanimously rejected. 

CONCLUSION

H.R. 7 is a fundamentally flawed bill that does nothing to ensure 

‘‘paycheck fairness.’’ The bill’s proponents have failed to demonstrate that its provisions are needed or will prove workable. H.R. 

7 is instead a gift for trial lawyers, who are the main beneficiaries 

of the bill. For these reasons, and all of those set forth above, we 


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oppose enactment of H.R. 7 as reported from the Committee on 

Education and Labor. 

VIRGINIA FOXX, 

Ranking Member. 

DAVID P. ROE. 

GLENN ‘‘GT’’ THOMPSON. 

TIM WALBERG. 

BRETT GUTHRIE. 

BRADLEY BYRNE. 

GLENN GROTHMAN. 

RICK W. ALLEN. 

FRANCIS ROONEY. 

LLOYD SMUCKER. 

JIM BANKS. 

MARK WALKER. 

JAMES COMER. 

BEN CLINE. 

RUSS FULCHER. 

VAN TAYLOR. 

STEVE C. WATKINS. 

RON WRIGHT. 

DANIEL MEUSER. 

WILLIAM R. TIMMONS, IV. 

DUSTY JOHNSON. 

Æ 


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