I 

110TH CONGRESS 

1ST SESSION H. R. 2019 

To amend the Fair Labor Standards Act of 1938 to prohibit discrimination 

in the payment of wages on account of sex, race, or national origin, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 24, 2007 

Ms. NORTON introduced the following bill; which was referred to the 

Committee on Education and Labor 

A BILL 

To amend the Fair Labor Standards Act of 1938 to prohibit 

discrimination in the payment of wages on account of 

sex, race, or national origin, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fair Pay Act of 2007’’. 

5 SEC. 2. FINDINGS. 

6 Congress finds the following: 

7 (1) Wage rate differentials exist between equiv8 alent jobs segregated by sex, race, and national ori9 gin in Government employment and in industries enVerDate Aug 31 2005 07:07 Apr 25, 2007 Jkt 059200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2019.IH H2019

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1 gaged in commerce or in the production of goods for 

2 commerce. 

3 (2) The existence of such wage rate differen4 tials— 

5 (A) depresses wages and living standards 

6 for employees necessary for their health and ef7 ficiency; 

8 (B) prevents the maximum utilization of 

9 the available labor resources; 

10 (C) tends to cause labor disputes, thereby 

11 burdening, affecting, and obstructing com12 merce; 

13 (D) burdens commerce and the free flow of 

14 goods in commerce; and 

15 (E) constitutes an unfair method of com16 petition. 

17 (3) Discrimination in hiring and promotion has 

18 played a role in maintaining a segregated work 

19 force. 

20 (4) Many women and people of color work in 

21 occupations dominated by individuals of their same 

22 sex, race, and national origin. 

23 (5) A 2000 study conducted by the Census Bu24 reau of 400 fields that employed 10,000 full-time, 

25 year-round workers found that women were able to 


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1 earn at least as much as men in just 5 fields: haz2 ardous material removal, telecommunications line in3 stallation and repair, meeting and convention plan4 ning, food preparation, and construction trade as5 sistant work. 

6 (6) In 2004, an Institute for Women’s Policy 

7 Research analysis of data collected in the Current 

8 Population Survey by the Bureau of Labor Statistics 

9 found that women were paid only 76 cents for every 

10 dollar that a man is paid. 

11 (7) Section 6(d) of the Fair Labor Standards 

12 Act of 1938 (29 U.S.C. 206(d)) prohibits discrimi13 nation in compensation for ‘‘equal work’’ on the 

14 basis of sex. 

15 (8) Title VII of the Civil Rights Act of 1964 

16 (42 U.S.C. 2000e et seq.) prohibits discrimination in 

17 compensation because of race, color, religion, na18 tional origin, and sex. In 1981, the Supreme Court, 

19 in its decision in County of Washington v. Gunther, 

20 held that title VII’s prohibition against discrimina21 tion in compensation also applies to jobs that do not 

22 constitute ‘‘equal work’’ as defined in section 6(d) of 

23 the Fair Labor Standards Act of 1938 (29 U.S.C. 

24 206(d)). Decisions of lower courts, however, have 

25 demonstrated that further clarification of existing 


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1 legislation is necessary in order effectively to carry 

2 out the intent of Congress to implement the Su3 preme Court’s holding in its Gunther decision. 

4 (9) Artificial barriers to the elimination of dis5 crimination in compensation based upon sex, race, 

6 and national origin continue to exist more than 3 

7 decades after the passage of section 6(d) of the Fair 

8 Labor Standards Act of 1938 (29 U.S.C. 206(d)) 

9 and the Civil Rights Act of 1964. Elimination of 

10 such barriers would have positive effects, includ11 ing— 

12 (A) providing a solution to problems in the 

13 economy created by discrimination through 

14 wage rate differentials; 

15 (B) substantially reducing the number of 

16 working women and people of color earning low 

17 wages, thereby reducing the dependence on pub18 lic assistance; and 

19 (C) promoting stable families by enabling 

20 working family members to earn a fair rate of 

21 pay. 

22 SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS. 

23 (a) AMENDMENT.—Section 6 of the Fair Labor 

24 Standards Act of 1938 (29 U.S.C. 206) is amended by 

25 adding at the end the following: 


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1 ‘‘(h)(1)(A) Except as provided in subparagraph (B), 

2 no employer having employees subject to any provision of 

3 this section shall discriminate, within any establishment 

4 in which such employees are employed, between employees 

5 on the basis of sex, race, or national origin by paying 

6 wages to employees in such establishment in a job that 

7 is dominated by employees of a particular sex, race, or 

8 national origin at a rate less than the rate at which the 

9 employer pays wages to employees in such establishment 

10 in another job that is dominated by employees of the oppo11 site sex or of a different race or national origin, respec12 tively, for work on equivalent jobs. 

13 ‘‘(B) Nothing in subparagraph (A) shall prohibit the 

14 payment of different wage rates to employees where such 

15 payment is made pursuant to— 

16 ‘‘(i) a seniority system; 

17 ‘‘(ii) a merit system; 

18 ‘‘(iii) a system that measures earnings by quan19 tity or quality of production; or 

20 ‘‘(iv) a differential based on a bona fide factor 

21 other than sex, race, or national origin, such as edu22 cation, training, or experience, except that this 

23 clause shall apply only if— 

24 ‘‘(I) the employer demonstrates that— 

25 ‘‘(aa) such factor— 


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1 ‘‘(AA) is job-related with respect 

2 to the position in question; or 

3 ‘‘(BB) furthers a legitimate busi4 ness purpose, except that this item 

5 shall not apply if the employee dem6 onstrates that an alternative employ7 ment practice exists that would serve 

8 the same business purpose without 

9 producing such differential and that 

10 the employer has refused to adopt 

11 such alternative practice; and 

12 ‘‘(bb) such factor was actually applied 

13 and used reasonably in light of the as14 serted justification; and 

15 ‘‘(II) upon the employer succeeding under 

16 subclause (I), the employee fails to demonstrate 

17 that the differential produced by the reliance of 

18 the employer on such factor is itself the result 

19 of discrimination on the basis of sex, race, or 

20 national origin by the employer. 

21 ‘‘(C) The Equal Employment Opportunity Commis22 sion shall issue guidelines specifying criteria for deter23 mining whether a job is dominated by employees of a par24 ticular sex, race, or national origin. Such guidelines shall 

25 not include a list of such jobs. 


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1 ‘‘(D) An employer who is paying a wage rate differen2 tial in violation of subparagraph (A) shall not, in order 

3 to comply with the provisions of such subparagraph, re4 duce the wage rate of any employee. 

5 ‘‘(2) No labor organization or its agents representing 

6 employees of an employer having employees subject to any 

7 provision of this section shall cause or attempt to cause 

8 such an employer to discriminate against an employee in 

9 violation of paragraph (1)(A). 

10 ‘‘(3) For purposes of administration and enforcement 

11 of this subsection, any amounts owing to any employee 

12 that have been withheld in violation of paragraph (1)(A) 

13 shall be deemed to be unpaid minimum wages or unpaid 

14 overtime compensation under this section or section 7. 

15 ‘‘(4) In this subsection: 

16 ‘‘(A) The term ‘labor organization’ means any 

17 organization of any kind, or any agency or employee 

18 representation committee or plan, in which employ19 ees participate and that exists for the purpose, in 

20 whole or in part, of dealing with employers con21 cerning grievances, labor disputes, wages, rates of 

22 pay, hours of employment, or conditions of work. 

23 ‘‘(B) The term ‘equivalent jobs’ means jobs that 

24 may be dissimilar, but whose requirements are 


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1 equivalent, when viewed as a composite of skills, ef2 fort, responsibility, and working conditions.’’. 

3 (b) CONFORMING AMENDMENT.—Section 13(a) of 

4 the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)) 

5 is amended in the matter before paragraph (1) by striking 

6 ‘‘section 6(d)’’ and inserting ‘‘sections 6(d) and 6(h)’’. 

7 SEC. 4. PROHIBITED ACTS. 

8 Section 15(a) of the Fair Labor Standards Act of 

9 1938 (29 U.S.C. 215(a)) is amended— 

10 (1) by striking the period at the end of para11 graph (5) and inserting a semicolon; and 

12 (2) by adding after paragraph (5) the following 

13 new paragraphs: 

14 ‘‘(6) to discriminate against any individual be15 cause such individual has opposed any act or prac16 tice made unlawful by section 6(h) or because such 

17 individual made a charge, testified, assisted, or par18 ticipated in any manner in an investigation, pro19 ceeding, or hearing to enforce section 6(h); or 

20 ‘‘(7) to discharge or in any other manner dis21 criminate against, coerce, intimidate, threaten, or 

22 interfere with any employee or any other person be23 cause the employee inquired about, disclosed, com24 pared, or otherwise discussed the employee’s wages 

25 or the wages of any other employee, or because the 


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1 employee exercised, enjoyed, aided, or encouraged 

2 any other person to exercise or enjoy any right 

3 granted or protected by section 6(h).’’. 

4 SEC. 5. REMEDIES. 

5 (a) ENHANCED PENALTIES.—Section 16(b) of the 

6 Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)) is 

7 amended— 

8 (1) by inserting after the first sentence the fol9 lowing: ‘‘Any employer who violates subsection (d) or 

10 (h) of section 6 shall additionally be liable for such 

11 compensatory or punitive damages as may be appro12 priate, except that the United States shall not be lia13 ble for punitive damages.’’; 

14 (2) in the sentence beginning ‘‘An action to’’, 

15 by striking ‘‘either of the preceding sentences’’ and 

16 inserting ‘‘any of the preceding sentences of this 

17 subsection’’; 

18 (3) in the sentence beginning ‘‘No employees’’, 

19 by striking ‘‘No employees’’ and inserting ‘‘Except 

20 with respect to class actions brought under sub21 section (f), no employee’’; 

22 (4) in the sentence beginning ‘‘The court in’’, 

23 by striking ‘‘in such action’’ and inserting ‘‘in any 

24 action brought to recover the liability prescribed in 


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1 any of the preceding sentences of this subsection’’; 

2 and 

3 (5) by striking ‘‘section 15(a)(3)’’ each place it 

4 occurs and inserting ‘‘paragraphs (3), (6), and (7) 

5 of section 15(a)’’. 

6 (b) ACTION BY SECRETARY.—Section 16(c) of the 

7 Fair Labor Standards Act of 1938 (29 U.S.C. 216(c)) is 

8 amended— 

9 (1) in the first sentence— 

10 (A) by inserting ‘‘or, in the case of a viola11 tion of subsection (d) or (h) of section 6, addi12 tional compensatory or punitive damages,’’ be13 fore ‘‘and the agreement’’; and 

14 (B) by inserting before the period the fol15 lowing: ‘‘, or such compensatory or punitive 

16 damages, as appropriate’’; 

17 (2) in the second sentence, by inserting before 

18 the period the following: ‘‘and, in the case of a viola19 tion of subsection (d) or (h) of section 6, additional 

20 compensatory or punitive damages’’; and 

21 (3) in the third sentence, by striking ‘‘the first 

22 sentence’’ and inserting ‘‘the first or second sen23 tence’’. 


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1 (c) FEES.—Section 16 of the Fair Labor Standards 

2 Act of 1938 (29 U.S.C. 216) is amended by adding at 

3 the end the following: 

4 ‘‘(f) In any action brought under this section for vio5 lation of section 6(h), the court shall, in addition to any 

6 other remedies awarded to the prevailing plaintiff or plain7 tiffs, allow expert fees as part of the costs. Any such action 

8 may be maintained as a class action as provided by the 

9 Federal Rules of Civil Procedure.’’. 

10 SEC. 6. RECORDS. 

11 (a) TECHNICAL AMENDMENT.—Section 11(c) of the 

12 Fair Labor Standards Act of 1938 (29 U.S.C. 211(c)) is 

13 amended by inserting ‘‘(1)’’ after ‘‘(c)’’. 

14 (b) RECORDS.—Section 11(c) of the Fair Labor 

15 Standards Act of 1938 (as amended by subsection (a)) 

16 is further amended by adding at the end the following: 

17 ‘‘(2)(A) Every employer subject to section 6(h) shall 

18 preserve records that document and support the method, 

19 system, calculations, and other bases used by the employer 

20 in establishing, adjusting, and determining the wage rates 

21 paid to the employees of the employer. Every employer 

22 subject to section 6(h) shall preserve such records for such 

23 periods of time, and shall make such reports from the 

24 records to the Equal Employment Opportunity Commis25 sion, as shall be prescribed by the Equal Employment OpVerDate Aug 31 2005 07:07 Apr 25, 2007 Jkt 059200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2019.IH H2019

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1 portunity Commission by regulation or order as necessary 

2 or appropriate for the enforcement of the provisions of sec3 tion 6(h) or any regulation promulgated pursuant to sec4 tion 6(h).’’. 

5 (c) SMALL BUSINESS EXEMPTIONS.—Section 11(c) 

6 of the Fair Labor Standards Act of 1938 (as amended 

7 by subsections (a) and (b)) is further amended by adding 

8 at the end the following: 

9 ‘‘(B)(i) Every employer subject to section 6(h) that 

10 has 25 or more employees on any date during the first 

11 or second year after the effective date of this paragraph, 

12 or 15 or more employees on any date during any subse13 quent year after such second year, shall, in accordance 

14 with regulations promulgated by the Equal Employment 

15 Opportunity Commission under subparagraph (F), pre16 pare and submit to the Equal Employment Opportunity 

17 Commission for the year involved a report signed by the 

18 president, treasurer, or corresponding principal officer, of 

19 the employer that includes information that discloses the 

20 wage rates paid to employees of the employer in each clas21 sification, position, or job title, or to employees in other 

22 wage groups employed by the employer, including informa23 tion with respect to the sex, race, and national origin of 

24 employees at each wage rate in each classification, posi25 tion, job title, or other wage group.’’. 


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1 (d) PROTECTION OF CONFIDENTIALITY.—Section 

2 11(c) of the Fair Labor Standards Act of 1938 (as amend3 ed by subsections (a) through (c)) is further amended by 

4 adding at the end the following: 

5 ‘‘(ii) The rules and regulations promulgated by the 

6 Equal Employment Opportunity Commission under sub7 paragraph (F), relating to the form of such a report, shall 

8 include requirements to protect the confidentiality of em9 ployees, including a requirement that the report shall not 

10 contain the name of any individual employee.’’. 

11 (e) USE; INSPECTIONS; EXAMINATIONS; REGULA12 TIONS.—Section 11(c) of the Fair Labor Standards Act 

13 of 1938 (as amended by subsections (a) through (d)) is 

14 further amended by adding at the end the following: 

15 ‘‘(C) The Equal Employment Opportunity Commis16 sion may publish any information and data that the Equal 

17 Employment Opportunity Commission obtains pursuant to 

18 the provisions of subparagraph (B). The Equal Employ19 ment Opportunity Commission may use the information 

20 and data for statistical and research purposes, and com21 pile and publish such studies, analyses, reports, and sur22 veys based on the information and data as the Equal Em23 ployment Opportunity Commission may consider appro24 priate. 


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1 ‘‘(D) In order to carry out the purposes of this Act, 

2 the Equal Employment Opportunity Commission shall by 

3 regulation make reasonable provision for the inspection 

4 and examination by any person of the information and 

5 data contained in any report submitted to the Equal Em6 ployment Opportunity Commission pursuant to subpara7 graph (B). 

8 ‘‘(E) The Equal Employment Opportunity Commis9 sion shall by regulation provide for the furnishing of copies 

10 of reports submitted to the Equal Employment Oppor11 tunity Commission pursuant to subparagraph (B) to any 

12 person upon payment of a charge based upon the cost of 

13 the service. 

14 ‘‘(F) The Equal Employment Opportunity Commis15 sion shall issue rules and regulations prescribing the form 

16 and content of reports required to be submitted under sub17 paragraph (B) and such other reasonable rules and regu18 lations as the Equal Employment Opportunity Commis19 sion may find necessary to prevent the circumvention or 

20 evasion of such reporting requirements. In exercising the 

21 authority of the Equal Employment Opportunity Commis22 sion under subparagraph (B), the Equal Employment Op23 portunity Commission may prescribe by general rule sim24 plified reports for employers for whom the Equal Employ25 ment Opportunity Commission finds that because of the 


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1 size of the employers a detailed report would be unduly 

2 burdensome.’’. 

3 SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSIST4 ANCE PROGRAM; REPORT TO CONGRESS. 

5 Section 4(d) of the Fair Labor Standards Act of 

6 1938 (29 U.S.C. 204(d)) is amended by adding at the end 

7 the following: 

8 ‘‘(4) The Equal Employment Opportunity Commis9 sion shall conduct studies and provide information and 

10 technical assistance to employers, labor organizations, and 

11 the general public concerning effective means available to 

12 implement the provisions of section 6(h) prohibiting wage 

13 rate discrimination between employees performing work in 

14 equivalent jobs on the basis of sex, race, or national origin. 

15 Such studies, information, and technical assistance shall 

16 be based on and include reference to the objectives of such 

17 section to eliminate such discrimination. In order to 

18 achieve the objectives of such section, the Equal Employ19 ment Opportunity Commission shall carry on a continuing 

20 program of research, education, and technical assistance 

21 including— 

22 ‘‘(A) conducting and promoting research with 

23 the intent of developing means to expeditiously cor24 rect the wage rate differentials described in section 

25 6(h); 


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1 ‘‘(B) publishing and otherwise making available 

2 to employers, labor organizations, professional asso3 ciations, educational institutions, the various media 

4 of communication, and the general public the find5 ings of studies and other materials for promoting 

6 compliance with section 6(h); 

7 ‘‘(C) sponsoring and assisting State and com8 munity informational and educational programs; and 

9 ‘‘(D) providing technical assistance to employ10 ers, labor organizations, professional associations, 

11 and other interested persons on means of achieving 

12 and maintaining compliance with the provisions of 

13 section 6(h). 

14 ‘‘(5) The report submitted biennially by the Secretary 

15 to Congress under paragraph (1) shall include a separate 

16 evaluation and appraisal regarding the implementation of 

17 section 6(h).’’. 

18 SEC. 8. CONFORMING AMENDMENTS. 

19 (a) CONGRESSIONAL EMPLOYEES.— 

20 (1) APPLICATION.—Section 203(a)(1) of the 

21 Congressional Accountability Act of 1995 (2 U.S.C. 

22 1313(a)(1)) is amended— 

23 (A) by striking ‘‘subsections (a)(1) and (d) 

24 of section 6’’ and inserting ‘‘subsections (a)(1), 

25 (d), and (h) of section 6’’; and 


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1 (B) by striking ‘‘206 (a)(1) and (d)’’ and 

2 inserting ‘‘206(a)(1), (d), and (h)’’. 

3 (2) REMEDIES.—Section 203(b) of such Act (2 

4 U.S.C. 1313(b)) is amended by inserting before the 

5 period the following: ‘‘or, in an appropriate case, 

6 under section 16(f) of such Act (29 U.S.C. 216(f))’’. 

7 (b) EXECUTIVE BRANCH EMPLOYEES.— 

8 (1) APPLICATION.—Section 413(a)(1) of title 3, 

9 United States Code, is amended by striking ‘‘sub10 sections (a)(1) and (d) of section 6’’ and inserting 

11 ‘‘subsections (a)(1), (d), and (h) of section 6’’. 

12 (2) REMEDIES.—Section 413(b) of such title is 

13 amended by inserting before the period the fol14 lowing: ‘‘or, in an appropriate case, under section 

15 16(f) of such Act’’. 

16 SEC. 9. EFFECTIVE DATE. 

17 The amendments made by this Act shall take effect 

18 1 year after the date of enactment of this Act. 

Æ 


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