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[House Report 116-18]
[From the U.S. Government Publishing Office]

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

    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;
                  (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 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 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), appropriate 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).
  ``(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 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.
---------------------------------------------------------------------------
    \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://
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. 
---------------------------------------------------------------------------
    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 
Statistics survey; and requires the Department of Labor to 
collect employment and pay data from non-construction federal 
contractors.
---------------------------------------------------------------------------
    \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-Do-2017.pdf.
    \5\The 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).
    \6\Section 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.
---------------------------------------------------------------------------

                            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 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 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.
---------------------------------------------------------------------------
    \8\Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 141-42 (N.D. 
Cal. 2004).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \9\The 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).
---------------------------------------------------------------------------
    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 
referred 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, 
Congresswoman 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.
    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.

                                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 wage-based 
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\
---------------------------------------------------------------------------
    \10\29 U.S.C. Sec. 255.
    \11\29 U.S.C. Sec. 216; 29 U.S.C. Sec. 260.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \12\42 U.S.C. Sec. 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. Sec. 1981a.
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \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.
    \18\Id.
    \19\Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56-57.
---------------------------------------------------------------------------
    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; 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.

                      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:
---------------------------------------------------------------------------
    \20\Support 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. Sec. 206(d).

          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\
---------------------------------------------------------------------------
    \22\H.R. Rep. No. 110-783 at 12 (2008) (internal citations and 
quotations omitted).

    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:
---------------------------------------------------------------------------
    \23\Id. (internal citations and quotations omitted).
    \24\Id. (internal citations and quotations omitted).

          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\
---------------------------------------------------------------------------
    \25\Id. (internal citations and quotations omitted).

    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\
---------------------------------------------------------------------------
    \26\Id. (internal citations and quotations omitted).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \27\Id. at 12-13 (internal citations and quotations omitted).

          [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\
---------------------------------------------------------------------------
    \28\H.R. Rep. No. 110-783 at 12 (2008) (internal citations and 
quotations omitted).

    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\
---------------------------------------------------------------------------
    \29\Id. at 13 (internal citations and quotations omitted).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \30\Id. (internal citations and quotations omitted).

    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\
---------------------------------------------------------------------------
    \31\29 U.S.C. Sec. 206(d)(1).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \32\H.R. Rep. No. 110-783 at 13 (2008) (internal citations and 
quotations omitted).
    \33\Id. (internal citations and quotations omitted).
---------------------------------------------------------------------------

                    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.
---------------------------------------------------------------------------
    \34\Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241.
    \35\42 U.S.C. Sec. 2000e et. seq.
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \36\Lynn 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).
    \37\Id. at 250.
    \38\Id. at 301.
    \39\Id. at 271 n.162.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \40\H.R. Rep. No. 110-783 at 14 n.28 (2008) (internal citations and 
quotations omitted).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \41\29 U.S.C. Sec. 255.
    \42\Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 
(2007).
    \43\42 U.S.C. Sec. 2000-e-5(e).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \44\EEOC Compliance Manual, No. 915.003 Sec. 10-5 (Dec. 5, 2000), 
https://www.eeoc.gov/policy/docs/compensation.html.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \45\Id.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \46\29 U.S.C. Sec. 216; 29 U.S.C. Sec. 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \52\42 U.S.C. Sec. 1981(a).
---------------------------------------------------------------------------

                  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\
---------------------------------------------------------------------------
    \53\The 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].

    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\
---------------------------------------------------------------------------
    \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-Do-2017.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-Do-2017.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.
---------------------------------------------------------------------------
    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 women 
make up a substantial share of the workforce and controlling 
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\
---------------------------------------------------------------------------
    \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.
    \63\Washington 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_96_1/37/21/2x-03/55/29/2x-0
    \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.
    \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://nwlc-
ciw49tixgw5lbab.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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \69\Sarah 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.
    \71\Michelle 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.
---------------------------------------------------------------------------
    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 mothers, and the number of children 
with working mothers living in poverty would drop from 5.6 
million to 3.1 million.\78\
---------------------------------------------------------------------------
    \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.
    \78\Id.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
    \79\The 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].
    \80\Ledbetter v. Goodyear Tire & Rubber Co. Inc., 127 S. Ct. 2162, 
2179 (2007) (Ginsburg, J., dissenting).
    \81\Goss Graves Testimony at 7.
    \82\Id. 
    \83\Id. 
    \84\Id. 
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \85\Rowe-Finkbeiner Testimony at 2.
    \86\Id.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \87\The 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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \89\Id.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \90\H.R. Rep. No. 110-783 at 18 (2008) (internal citations and 
quotations omitted).
    \91\Id. at 18 n.76.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
    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.
---------------------------------------------------------------------------
    \93\What 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.).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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/rise-federal-contractors.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \97\H.R. Rep. No. 110-783 at 18 (2008) (internal citations and 
quotations omitted).
    \98\Id. at 19 (internal citations and quotations omitted).
---------------------------------------------------------------------------
    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 one-half 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\
---------------------------------------------------------------------------
    \99\Id. (internal citations and quotations omitted).
    \100\Id. (internal citations and quotations omitted).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \101\Id. (internal citations and quotations omitted).
---------------------------------------------------------------------------
    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 altogether.\102\ The Obama Administration recognized 
that the gender pay gap continued to exist despite the 
prohibitions against gender-based 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:
---------------------------------------------------------------------------
    \102\Id. (internal citations and quotations omitted).
    \103\Memorandum 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.

          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.
---------------------------------------------------------------------------
    \105\EEOC to Collect Summary Pay Data, EEOC, https://www.eeoc.gov/
eeoc/newsroom/release/9-29-16.cfm (last visited Mar. 11, 2019).
---------------------------------------------------------------------------
          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 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\

    \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.

    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\
---------------------------------------------------------------------------
    \108\H.R. Rep. No. 110-783 at 19 (internal citations and quotations 
omitted).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \109\Shankar 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.
    \110\Dina 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \111\Yang Testimony at 6.
    \112\Goss Graves Testimony at 6.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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 Sec. 10-IV.F.2.g (Dec. 5, 
2000), https://www.eeoc.gov/policy/docs/compensation.html.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \115\Rowe-Finkbeiner Testimony at 6.

    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 from the candidate pool. ``A recent study 
demonstrated that employers 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.
---------------------------------------------------------------------------
    \116\Goss Graves Testimony at 11.
---------------------------------------------------------------------------

  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\
---------------------------------------------------------------------------
    \117\Id. at 13.
    \118\A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 496 (1945); 29 
C.F.R. Sec. 1620.9(a).
    \119\Goss Graves Testimony at 13.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \120\Juliene James, The Equal Pay Act in the Courts: A De-Facto 
White-Collar Exemption, 79 N.Y.U. L. Rev. 1873 (2004).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \121\Georgen-Saad v. Texas Mut. Ins. Co., 195 F. Supp. 2d 853 (W.D. 
Tex. 2002).

          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 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 assembly-line 
        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\
---------------------------------------------------------------------------
    \122\Georgen-Saad v. Texas Mut. Ins. Co., 195 F. Supp. 2d 853 (W.D. 
Tex. 2002).

    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.
---------------------------------------------------------------------------
    \123\29 C.F.R. Sec. 1620.9(a)-(b).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \124\Grumbine v. United States, 586 F. Supp. 1144 (D.D.C. 1984).
    \125\Id.
    \126\Id. at 1148.
---------------------------------------------------------------------------
    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 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 claim\129\ as were 
13 elementary schools operated by a single school district near 
Houston.\130\
---------------------------------------------------------------------------
    \127\Vickers v. Int'l Baking Co., No. 398CV1864D, 2000 U.S. Dist. 
LEXIS 17995 (N.D. Tex. Dec. 7, 2000).
    \128\Id. at *15.
    \129\Marshall 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \131\Meeks 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'').
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.'').
---------------------------------------------------------------------------

                       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.
---------------------------------------------------------------------------
    \133\29 U.S.C. Sec. 206(d)(1); see also Yang Testimony at 4.
    \134\See Fallon v. Illinois, 882 F.2d 1206 (7th Cir. 1989).
---------------------------------------------------------------------------
    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 this issue. The Court denied 
certiorari in the case of Randolph Central School District v. 
Aldrich\136\ with three justices dissenting and acknowledging 
the conflict among the circuits.\137\
---------------------------------------------------------------------------
    \135\Corning Glass Works v. Brennan, 417 U.S. 188 (1974); see also 
Yang Testimony at 4.
    \136\Randolph Cent. Sch. Dist. v. Aldrich, 506 U.S. 965 (1992).
    \137\Id.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \138\Yang Testimony at 6.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \139\Corning Glass Works v. Brennan, 417 U.S. 188 (1974).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \140\Boriss v. Addison Farmers Ins. Co., No. 91 C 3144, 1993 U.S. 
Dist. LEXIS 10331 (N.D. Ill. July 27, 1993).
---------------------------------------------------------------------------
    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 factor is discriminatorily applied or if it 
causes a discriminatory effect.''\143\
---------------------------------------------------------------------------
    \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).
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \144\Id.
    \145\Id.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \146\Warren 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \147\Corning Glass Works v. Brennan, 417 U.S. 188 (1974).
    \148\Id. at 233.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \149\See 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.
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \154\Merillat v. Metal Spinners, Inc., 470 F.3d 685, 698 (7th Cir. 
2006).
    \155\Id. at 697.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \158\Id. at 596.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \159\Drury 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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \162\Drury v. Waterfront Media, Inc., 05 Civ. 10646 (JSR), 2007 
U.S. Dist. LEXIS 18435 (S.D.N.Y. Mar. 8, 2007).
---------------------------------------------------------------------------
    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 co-workers 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.
---------------------------------------------------------------------------
    \163\Glunt v. GES Exposition Servs., 123 F. Supp. 2d 847 (D. Md. 
2000).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \164\Id. at 859.
    \165\Id.
    \166\Id.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
    \169\Sobol v. Kidder, Peabody & Co., 49 F. Supp. 2d 208, 220 
(S.D.N.Y. 1999).
    \170\Id.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \171\Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982).
    \172\Wernsing 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.'').
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \173\H.R. Rep. No. 110-783, at 28 (2008) (internal citations and 
quotations omitted).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \174\Corning Glass Works v. Brennan, 417 U.S. 188 (1974).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \175\Griggs v. Duke Power, 515 F.2d 86 (4th Cir. 1975).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \176\H.R. Rep. No. 110-783 at 12 (2008) (internal citations and 
quotations omitted).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \177\Griggs v. Duke Power, 401 U.S. 424 (1971).
    \178\Id. at 431.
    \179\See 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).
    \180\Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).

          [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 this inquiry is a reasoned review of 
        the employer's justification for his use of the 
        challenged practice. A mere insubstantial justification 
        will not suffice . . . [a]t the same time, though, 
        there is no requirement that the challenged practice be 
        ``essential'' or ``indispensable'' to the employer's 
        business.\181\
---------------------------------------------------------------------------
    \181\Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989).

    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\
---------------------------------------------------------------------------
    \182\Civil Rights Act of 1991, Pub. L. No. 102-166, Sec. 2, 105 
Stat. 1071.
    \183\Lanning 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \184\Yang Testimony at 8.
    \185\H.R. Rep. No. 110-783 at 12 (2008) (internal citations and 
quotations omitted).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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. Sec. 2000e-2(n).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \189\Goss Graves Testimony at 14.
---------------------------------------------------------------------------

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 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\
---------------------------------------------------------------------------
    \190\29 U.S.C. Sec. 260.
    \191\42 U.S.C. Sec. 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.'').
---------------------------------------------------------------------------
    ``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:
---------------------------------------------------------------------------
    \193\Goss Graves Testimony at 15.

          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\
---------------------------------------------------------------------------
    \194\Id.

    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. 
Wal-Mart 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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    Punitive damages, especially uncapped punitive damages, are 
necessary to deter unscrupulous businesses from harming workers 
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.
---------------------------------------------------------------------------
    \199\Michael L. Rustad, In Defense of Punitive Damages in Products 
Liability: Testing Tort Anecdotes with Empirical Data, 78 Iowa L. Rev. 
1, 12 (1992).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \200\42 U.S.C. Sec. 1981.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \201\See 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).
    \202\See 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.
    \204\See 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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \205\Ledbetter v. Goodyear Tire & Rubber Co. Inc., 127 S. Ct. 2162 
(2007).
    \206\Id.
---------------------------------------------------------------------------
    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 would suggest that they 
        have experienced pay discrimination, which undermines 
        their ability to challenge such discrimination. 
        Punitive pay secrecy policies and practices allow this 
        form of discrimination not only to persist, but to 
        become institutionalized.\208\
---------------------------------------------------------------------------
    \207\See 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.
    \208\Goss Graves Testimony at 6.

    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 anti-retaliatory 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.
---------------------------------------------------------------------------
    \209\29 U.S.C. Sec. 215(a)(3).
    \210\Id.
---------------------------------------------------------------------------
    For example, in McKenzie v. Reinberg's Incorporated,\211\ 
the plaintiff alleged that she was fired in violation of the 
FLSA's anti-retaliation 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:
---------------------------------------------------------------------------
    \211\McKenzie 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.'').

          [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\
---------------------------------------------------------------------------
    \213\McKenzie v. Renberg's Inc., 94 F.3d 1478, 1487 (10th Cir. 
1996).

    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\
---------------------------------------------------------------------------
    \214\H.R. Rep. No. 110-783, at 34-35 (2008).
    \215\Id.
---------------------------------------------------------------------------
    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 the kinds of discussions that will 
allow employees to uncover unequal 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\
---------------------------------------------------------------------------
    \216\H.R. 7, 116th Cong. Sec. 10(a) (2019).

    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 
restricts 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.
---------------------------------------------------------------------------
    \217\See Facts about the Genetic Information Nondiscrimination Act, 
EEOC, https://www.eeoc.gov/eeoc/publications/fs-gina.cfm (last visited 
Mar. 11, 2019).
    \218\The 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).
---------------------------------------------------------------------------

                      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 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 opt-out 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 skills training programs that aim to address all 
pay disparities, including 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.
    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.

                       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:

             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:

                                     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 provisions. 
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 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 Congressional Budget Office under section 402 
of the Congressional Budget Act.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, 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 ascertaining and promulgating minimum 
        piece rates; to prescribe standards for employer piece 
        rates, including the proportion 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) [No 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 [any 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.
  (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
                  (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,
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 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 one-half 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 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 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, 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.
  (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.
  (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 by a separate or independent 
employer in fire protection, law enforcement, or related 
activities, the hours such individual was employed by such 
separate and independent employer shall be excluded 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 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 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 [employee 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 respect[.]; 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.

                               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 [the preceding 
sentences] any of the preceding sentences of this subsection 
may be maintained against any employer (including a public 
agency) in any Federal or State court of competent jurisdiction 
by any one or more employees for and in behalf of himself or 
themselves and other employees similarly situated. [No 
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 [in 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).
  (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 [the 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 [commenced 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 
        action[.]; 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 the date of enactment of this subsection, no employer 
shall be subject to any liability or punishment under this Act 
or the Portal-to-Portal Act of 1947 on account of his failure 
to comply with any provision 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 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, notwithstanding 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 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.

           *       *       *       *       *       *       *

                             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 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\
---------------------------------------------------------------------------
    \1\Paycheck 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).

    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 mid-tier school? It will be 
        virtually impossible for employers to meet such a 
        standard.\2\
---------------------------------------------------------------------------
    \2\Id. at 9.
---------------------------------------------------------------------------
    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, 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.
---------------------------------------------------------------------------
    \3\Id. at 21.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \4\Id. at 17.

This radical expansion of remedies, particularly where they may 
be assessed without showing any discriminatory intent, tips the 
scales 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.
---------------------------------------------------------------------------
    \5\Id. at 18.
---------------------------------------------------------------------------
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\

    \6\Id. at 12.

    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 extended will invoke an unnatural cadence that 
        does not reflect the realities of the workforce. 
        Indeed, human resources representatives will be forced 
        to issue ``Miranda-type'' 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\
---------------------------------------------------------------------------
    \7\Id.

    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:
---------------------------------------------------------------------------
    \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).

          [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\
---------------------------------------------------------------------------
    \9\Id. at 797.

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 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.
---------------------------------------------------------------------------
    \10\Press Release, Equal Emp. Opportunity Comm'n, EEOC to Collect 
Summary Pay Data (Sept. 29, 2016).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \11\Letter 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.
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \12\U.S. Dep't of Labor, Bureau of Labor Statistics, BLS Reports, 
Highlights of Women's Earnings in 2017 (Aug. 2018).
---------------------------------------------------------------------------
    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 full-time 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\
---------------------------------------------------------------------------
    \13\See, 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.
    \15\See CONSAD Research Corp., supra note 13.
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    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, 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.
---------------------------------------------------------------------------
    \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.
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    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 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 gender-based 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 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.
```