I

103D CONGRESS

2D SESSION H. R. 4803

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

JULY 20, 1994

Ms. NORTON (for herself, Mr. OWENS, Mr. TUCKER, Miss COLLINS of Michigan, Mr. GONZALEZ, Ms. ROYBAL-ALLARD, Mr. DELLUMS, Ms. EDDIE

BERNICE JOHNSON of Texas, Ms. MCKINNEY, Ms. BROWN of Florida,

Mr. MINETA, Ms. VELA ́ZQUEZ, Mr. HINCHEY, Mrs. SCHROEDER, Mr.

NADLER, Ms. MARGOLIES-MEZVINSKY, Mr. SERRANO, Mrs. MALONEY,

Mr. MARTINEZ, Mr. MCCLOSKEY, Mr. GENE GREEN of Texas, and Mrs.

KENNELLY) 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 AND REFERENCE.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Fair Pay Act of 1994’’.
2

•HR 4803 IH

1 (b) REFERENCE.—Whenever in this Act an amend2 ment or repeal is expressed in terms of an amendment

3 to, or repeal of, a section or other provision, the reference

4 shall be considered to be made to a section or other provi5 sion of the Fair Labor Standards Act of 1938.

6 SEC. 2. FINDINGS.

7 The Congress finds the following:

8 (1) Wage differentials exist between equivalent

9 jobs segregated by sex, race, and national origin in

10 Government employment and in industries engaged

11 in commerce or in the production of goods for com12 merce:

13 (2) The existence of such wage differentials—

14 (A) depresses wages and living standards

15 for employees necessary for their health and ef16 ficiency;

17 (B) prevents the maximum utilization of

18 the available labor resources;

19 (C) tends to cause labor disputes, thereby

20 burdening, affecting, and obstructing com21 merce;

22 (D) burdens commerce and the free flow of

23 goods in commerce; and

24 (E) constitutes an unfair method of com25 petition.
3

•HR 4803 IH

1 (3) Discrimination in hiring and promotion has

2 played a role in maintaining a segregated work

3 force.

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

5 occupations dominated by individuals of their same

6 sex, race, and national origin.

7 (5) In its seminal 1981 report ‘‘Women, Work,

8 and Wages: Equal Pay for Jobs of Equal Value’’ the

9 National Academy of Sciences Committee on Occu10 pation Classification and Analysis found that in

11 1970 jobs dominated by women were paid $27.50

12 less per year for each additional percentage point fe13 male than equivalent mixed and male-dominated

14 jobs.

15 (6) A General Accounting Office analysis of

16 wages in the civil service of the State of Washington

17 found that in 1985 of the 44 jobs studied that paid

18 less than the average of all equivalent jobs, approxi19 mately 39 percent were female-dominated and ap20 proximately 16 percent were male dominated.

21 (7) A study of wages in Minnesota using 1990

22 Decennial Census data found that 75 percent of the

23 wage differential between white and non-white work24 ers was unexplained and may be a result of discrimi25 nation.
4

•HR 4803 IH

1 (8) Section 6(d) of the Fair Labor Standards

2 Act of 1938 prohibits discrimination in compensa3 tion for ‘‘equal work’’ on the basis of sex.

4 (9) Title VII of the Civil Rights Act of 1964

5 prohibits discrimination in compensation because of

6 race, color, religion, national origin, and sex. The

7 United States Supreme Court, in its decision in

8 County of Washington v. Gunther, 452 U.S. 161

9 (1981), held that title VII’s prohibition against dis10 crimination in compensation also applies to jobs

11 which do not constitute ‘‘equal work’’ as defined in

12 section 6(d) of the Fair Labor Standards Act of

13 1938. Decisions of lower courts, however, have dem14 onstrated that further clarification of existing legis15 lation is necessary in order effectively to carry out

16 the intent of Congress to implement the Supreme

17 Court’s holding in its Gunther decision.

18 (10) Artificial barriers to the elimination of dis19 crimination in compensation based upon sex, race,

20 and national origin continue to exist more than 3

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

22 Labor Standards Act of 1938 and the Civil Rights

23 Act of 1964.
5

•HR 4803 IH

1 SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS.

2 (a) AMENDMENT.—Section 6 (29 U.S.C. 206) is

3 amended by adding at the end the following:

4 ‘‘(g)(1)(A) No employer having employees subject to

5 any provisions of this section shall discriminate between

6 its employees on the basis of sex, race, or national origin

7 by paying wages to employees or groups of employees at

8 a rate less than the rate at which the employer pays wages

9 to employees or groups of employees of the opposite sex

10 or different race or national origin for work in equivalent

11 jobs, except where such payment is made pursuant to a

12 seniority system, a merit system, or a system which meas13 ures earnings by quantity or quality of production.

14 ‘‘(B) An employer who is paying a wage rate differen15 tial in violation of subparagraph (A) shall not, in order

16 to comply with the provisions of such subparagraph, re17 duce the wage rate of any employee.

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

19 employees of an employer having employees subject to any

20 provision of this section shall cause or attempt to cause

21 such an employer to discriminate against an employee in

22 violation of paragraph (1)(A).

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

24 of this subsection, any amounts owing to any employee

25 which have been withheld in violation of paragraph (1)(A)
6

•HR 4803 IH

1 shall be deemed to be unpaid minimum wages or unpaid

2 overtime compensation under this section or section 7.

3 ‘‘(4) As used in this subsection:

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

5 organization of any kind, or any agency or employee

6 representation committee or plan, in which employ7 ees participate and which exists for the purpose, in

8 whole or in part, of dealing with employers concern9 ing grievances, labor disputes, wages, rates of pay,

10 hours of employment, or conditions of work.

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

12 may be dissimilar, but whose requirements are

13 equivalent, when viewed as a composite of skills, ef14 fort, responsibility, and working conditions.’’.

15 (b) CONFORMING AMENDMENT.—Section 13(a) (29

16 U.S.C. 213(a)) is amended in the matter before paragraph

17 (1) by striking ‘‘section 6(d)’’ and inserting ‘‘sections 6(d)

18 and 6(g)’’.

19 SEC. 4. PROHIBITED ACTS.

20 Section 15(a) (29 U.S.C. 215(a)) is amended by

21 striking the period at the end of paragraph (5) and insert22 ing a semicolon and by adding after paragraph (5) the

23 following:

24 ‘‘(6) to discriminate against any individual be25 cause such individual has opposed any act or prac-
7

•HR 4803 IH

1 tice made unlawful by section 6(g) or because such

2 individual made a charge, testified, assisted, or par3 ticipated in any manner in an investigation, proceed4 ing, or hearing under section 6(g); or

5 ‘‘(7) to discharge or in any other manner dis6 criminate against, coerce, intimidate, threaten, or

7 interfere with any employee or any other person be8 cause the employee inquired about, disclosed, com9 pared, or otherwise discussed the employee’s wages

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

11 employee exercised, enjoyed, aided, or encouraged

12 any other person to exercise or enjoy any right

13 granted or protected by section 6(g).’’.

14 SEC. 5. REMEDIES.

15 Section 16 (29 U.S.C. 216) is amended—

16 (1) by adding at the end the following:

17 ‘‘(f) In any action brought under this section for vio18 lation of section 6(g), the court shall, in addition to any

19 other remedies awarded to the prevailing plaintiff or plain20 tiffs, allow expert fees as part of the costs. Any such action

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

22 Federal Rules of Civil Procedure.’’;

23 (2) in subsection (b), by striking ‘‘section

24 15(a)(3)’’ each place it occurs and inserting ‘‘para25 graphs (3), (6), and (7) of section 15(a)’’; and
8

•HR 4803 IH

1 (3) in the fourth sentence of subsection (b), by

2 striking ‘‘No employees’’ and inserting ‘‘Except with

3 respect to class actions brought under subsection (f),

4 no employees’’.

5 SEC. 6. RECORDS.

6 Section 11(c) (29 U.S.C. 211(c)) is amended by in7 serting ‘‘(1)’’ after ‘‘(c)’’ and by adding at the end the

8 following:

9 ‘‘(2)(A) Every employer subject to section 6(g) shall

10 preserve records which document and support the method,

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

12 in establishing, adjusting, and determining the wages paid

13 to the employees of the employer. Every employer subject

14 to section 6(g) shall preserve such records for such periods

15 of time and shall make such reports therefrom to the

16 Equal Employment Opportunity Commission as shall be

17 prescribed by the Equal Employment Opportunity Com18 mission by regulation or order as necessary or appropriate

19 for the enforcement of the provisions of section 6(g) or

20 any regulations promulgated thereunder.

21 ‘‘(B) Every employer subject to section 6(g) shall file

22 annually with the Equal Employment Opportunity Com23 mission a report signed by its president, treasurer, or cor24 responding principal officer containing information in

25 such detail as may be necessary accurately to disclose the
9

•HR 4803 IH

1 wage or salary rates paid to each classification, position,

2 job title, or other wage or salary group of employees em3 ployed by the employer, as well as the sex, race, and na4 tional origin of employees at each wage or salary level in

5 each classification, position, job title, or other wage or sal6 ary group. The report shall not list the name of any indi7 vidual employee.

8 ‘‘(C) Every employer required to submit a report

9 under subparagraph (B) shall make available to all of its

10 employees the information required to be contained in

11 such report.

12 ‘‘(D) The contents of the reports filed with the Equal

13 Employment Opportunity Commission pursuant to sub14 paragraph (B) shall be public information, and the Equal

15 Employment Opportunity Commission may publish any

16 information and data which it obtains pursuant to the pro17 visions of subparagraph (B). The Equal Employment Op18 portunity Commission may use the information and data

19 for statistical and research purposes, and compile and

20 publish such studies, analyses, reports, and surveys based

21 thereon as it may deem appropriate.

22 ‘‘(E) The Equal Employment Opportunity Commis23 sion shall by regulation make reasonable provision for the

24 inspection and examination by any person of the informa-
10

•HR 4803 IH

1 tion and data contained in any report filed with it pursu2 ant to subparagraph (B).

3 ‘‘(F) The Equal Employment Opportunity Commis4 sion shall by regulation provide for the furnishing of copies

5 of reports filed with it pursuant to subparagraph (B) to

6 any person upon payment of a charge based upon the cost

7 of the service.

8 ‘‘(G) The Equal Employment Opportunity Commis9 sion shall issue rules and regulations prescribing the form

10 and content of reports required to be filed under subpara11 graph (B) and such other reasonable rules and regulations

12 as it may find necessary to prevent the circumvention or

13 evasion of such reporting requirements. In exercising its

14 authority under subparagraph (B), the Equal Employ15 ment Opportunity Commission may prescribe by general

16 rule simplified reports for employers for whom it finds

17 that by virtue of their size a detailed report would be un18 duly burdensome.’’.

19 SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSIST20 ANCE PROGRAM; REPORT TO CONGRESS.

21 Section 4(d) (29 U.S.C. 204(d)) is amended by add22 ing at the end the following:

23 ‘‘(4) The Equal Employment Opportunity Commis24 sion shall undertake studies and provide information and

25 technical assistance to employers, labor organizations, and
11

•HR 4803 IH

1 the general public concerning effective means available to

2 implement the provisions of section 6(g) prohibiting wage

3 discrimination between employees performing work in

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

5 Such studies, information, and technical assistance shall

6 be based upon and include reference to the declared policy

7 of such section to eliminate such discrimination. In order

8 to achieve the purposes of such section, the Equal Employ9 ment Opportunity Commission shall further carry on a

10 continuing program of research, education, and technical

11 assistance including—

12 ‘‘(A) undertaking and promoting research with

13 the intent of developing means to expeditiously cor14 rect the conditions leading to section 6(g);

15 ‘‘(B) publishing and otherwise making available

16 to employers, labor organizations, professional asso17 ciations, educational institutions, the various media

18 of communication, and the general public the find19 ings of studies and other materials for promoting

20 compliance with section 6(g);

21 ‘‘(C) sponsoring and assisting State and com22 munity informational and educational programs; and

23 ‘‘(D) providing technical assistance to employ24 ers, labor organizations, professional associations

25 and other interested persons on means of achieving
12

•HR 4803 IH

1 and maintaining compliance with the provisions of

2 section 6(g).

3 ‘‘(5) The report submitted annually by the Equal

4 Employment Opportunity Commission to Congress pursu5 ant to paragraph (1) shall include a separate evaluation

6 and appraisal regarding the implementation of section

7 6(g).’’.

8 SEC. 8. EFFECTIVE DATE.

9 The amendments made by this Act shall take effect

10 upon the expiration of one year from the date of its enact11 ment.

Æ