I 

111TH CONGRESS 

1ST SESSION H. R. 2151 

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 28, 2009 

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

5 ‘‘Fair Pay Act of 2009’’. 

6 (b) REFERENCE.—Except as provided in section 8, 

7 whenever in this Act an amendment or repeal is expressed 

8 in terms of an amendment to, or repeal of, a section or 

9 other provision, the reference shall be considered to be 


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1 made to a section or other provision of the Fair Labor 

2 Standards Act of 1938 (29 U.S.C. 201 et seq.). 

3 SEC. 2. FINDINGS. 

4 Congress finds the following: 

5 (1) Wage rate differentials exist between equiv6 alent jobs segregated by sex, race, and national ori7 gin in Government employment and in industries en8 gaged in commerce or in the production of goods for 

9 commerce. 

10 (2) The existence of such wage rate differen11 tials— 

12 (A) depresses wages and living standards 

13 for employees necessary for their health and ef14 ficiency; 

15 (B) prevents the maximum utilization of 

16 the available labor resources; 

17 (C) tends to cause labor disputes, thereby 

18 burdening, affecting, and obstructing com19 merce; 

20 (D) burdens commerce and the free flow of 

21 goods in commerce; and 

22 (E) constitutes an unfair method of com23 petition. 


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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)(A) United States Census Bureau data 

8 shows that in 2007, women in the United States 

9 working full-time, year-round earned roughly 78 

10 cents for every dollar earned by a man working full11 time, year-round. 

12 (B) A 2003 study by the General Accountability 

13 Office found that even when accounting for key fac14 tors generally known to influence earnings such as 

15 race, marital status, age and number of children as 

16 well as hours worked and time out of the workforce, 

17 a 20 percent gap in pay remains which cannot be ac18 counted for but may be partially explained by women 

19 make less who work in traditionally female domi20 nated careers as well as other discrimination in the 

21 workplace. 

22 (6) Section 6(d) of the Fair Labor Standards 

23 Act of 1938 prohibits discrimination in compensa24 tion for ‘‘equal work’’ on the basis of sex. 


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1 (7) Artificial barriers to the elimination of dis2 crimination in compensation based upon sex, race, 

3 and national origin continue to exist more than 4 

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

5 Labor Standards Act of 1938, the Equal Pay Act of 

6 1963, and the Civil Rights Act of 1964 (42 U.S.C. 

7 2000a et seq.). Elimination of such barriers would 

8 have positive effects, including— 

9 (A) providing a solution to problems in the 

10 economy created by discrimination through 

11 wage rate differentials; 

12 (B) substantially reducing the number of 

13 working women and people of color earning low 

14 wages, thereby reducing the dependence on pub15 lic assistance; and 

16 (C) promoting stable families by enabling 

17 working family members to earn a fair rate of 

18 pay. 

19 SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS. 

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

21 amended by adding at the end the following: 

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

23 no employer having employees subject to any provision of 

24 this section shall discriminate, within any establishment 

25 in which such employees are employed, between employees 


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

2 wages to employees in such establishment in a job that 

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

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

5 employer pays wages to employees in such establishment 

6 in another job that is dominated by employees of the oppo7 site sex or of a different race or national origin, respec8 tively, for work on equivalent jobs. 

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

10 payment of different wage rates to employees where such 

11 payment is made pursuant to— 

12 ‘‘(i) a seniority system; 

13 ‘‘(ii) a merit system; 

14 ‘‘(iii) a system that measures earnings by quan15 tity or quality of production; or 

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

17 other than sex, race, or national origin, such as edu18 cation, training, or experience, except that this 

19 clause shall apply only if— 

20 ‘‘(I) the employer demonstrates that— 

21 ‘‘(aa) such factor— 

22 ‘‘(AA) is job-related with respect 

23 to the position in question; or 

24 ‘‘(BB) furthers a legitimate busi25 ness purpose, except that this item 


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1 shall not apply if the employee dem2 onstrates that an alternative employ3 ment practice exists that would serve 

4 the same business purpose without 

5 producing such differential and that 

6 the employer has refused to adopt 

7 such alternative practice; and 

8 ‘‘(bb) such factor was actually applied 

9 and used reasonably in light of the as10 serted justification; and 

11 ‘‘(II) upon the employer succeeding under 

12 subclause (I), the employee fails to demonstrate 

13 that the differential produced by the reliance of 

14 the employer on such factor is itself the result 

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

16 national origin by the employer. 

17 ‘‘(C) The Equal Employment Opportunity Commis18 sion shall issue guidelines specifying criteria for deter19 mining whether a job is dominated by employees of a par20 ticular sex, race, or national origin for purposes of sub21 paragraph (B)(iv). Such guidelines shall not include a list 

22 of such jobs. 

23 ‘‘(D) An employer who is paying a wage rate differen24 tial in violation of subparagraph (A) shall not, in order 


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1 to comply with the provisions of such subparagraph, re2 duce the wage rate of any employee. 

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

4 employees of an employer having employees subject to any 

5 provision of this section shall cause or attempt to cause 

6 such an employer to discriminate against an employee in 

7 violation of paragraph (1)(A). 

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

9 of this subsection, any amounts owing to any employee 

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

11 shall be deemed to be unpaid minimum wages or unpaid 

12 overtime compensation under this section or section 7. 

13 ‘‘(4) In this subsection: 

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

15 organization of any kind, or any agency or employee 

16 representation committee or plan, in which employ17 ees participate and that exists for the purpose, in 

18 whole or in part, of dealing with employers con19 cerning grievances, labor disputes, wages, rates of 

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

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

22 may be dissimilar, but whose requirements are 

23 equivalent, when viewed as a composite of skills, ef24 fort, responsibility, and working conditions.’’. 


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

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

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

4 (d) and (h)’’. 

5 SEC. 4. PROHIBITED ACTS. 

6 Section 15(a) (29 U.S.C. 215(a)) is amended— 

7 (1) by striking the period at the end of para8 graph (5) and inserting a semicolon; and 

9 (2) by adding after paragraph (5) the following: 

10 ‘‘(6) to discriminate against any individual be11 cause such individual has opposed any act or prac12 tice made unlawful by section 6(h) or because such 

13 individual made a charge, testified, assisted, or par14 ticipated in any manner in an investigation, pro15 ceeding, or hearing to enforce section 6(h); or 

16 ‘‘(7) to discharge or in any other manner dis17 criminate against, coerce, intimidate, threaten, or 

18 interfere with any employee or any other person be19 cause the employee inquired about, disclosed, com20 pared, or otherwise discussed the employee’s wages 

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

22 employee exercised, enjoyed, aided, or encouraged 

23 any other person to exercise or enjoy any right 

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


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1 SEC. 5. REMEDIES. 

2 (a) ENHANCED PENALTIES.—Section 16(b) (29 

3 U.S.C. 216(b)) is amended— 

4 (1) by inserting after the first sentence the fol5 lowing: ‘‘Any employer who violates subsection (d) or 

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

7 compensatory or punitive damages as may be appro8 priate, except that the United States shall not be lia9 ble for punitive damages.’’; 

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

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

12 inserting ‘‘any of the preceding sentences of this 

13 subsection’’; 

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

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

16 with respect to class actions brought under sub17 section (f), no employee’’; 

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

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

20 action brought to recover the liability prescribed in 

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

22 and 

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

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

25 of section 15(a)’’. 


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1 (b) ACTION BY SECRETARY.—Section 16(c) (29 

2 U.S.C. 216(c)) is amended— 

3 (1) in the first sentence— 

4 (A) by inserting ‘‘or, in the case of a viola5 tion of subsection (d) or (h) of section 6, addi6 tional compensatory or punitive damages,’’ be7 fore ‘‘and the agreement’’; and 

8 (B) by inserting before the period the fol9 lowing: ‘‘, or such compensatory or punitive 

10 damages, as appropriate’’; 

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

12 the period the following: ‘‘and, in the case of a viola13 tion of subsection (d) or (h) of section 6, additional 

14 compensatory or punitive damages’’; and 

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

16 sentence’’ and inserting ‘‘the first or second sen17 tence’’. 

18 (c) FEES.—Section 16 (29 U.S.C. 216) is amended 

19 by adding at the end the following: 

20 ‘‘(f) In any action brought under this section for a 

21 violation of section 6(h), the court shall, in addition to 

22 any other remedies awarded to the prevailing plaintiff or 

23 plaintiffs, allow expert fees as part of the costs. Any such 

24 action may be maintained as a class action as provided 

25 by the Federal Rules of Civil Procedure.’’. 


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1 SEC. 6. RECORDS. 

2 (a) RECORDS.—Section 11(c) (29 U.S.C. 211(c)) is 

3 amended— 

4 (1) by inserting ‘‘(1)’’ after ‘‘(c)’’; and 

5 (2) by adding at the end the following: 

6 ‘‘(2) Every employer subject to section 6(h) shall pre7 serve records that document and support the method, sys8 tem, calculations, and other bases used by the employer 

9 in establishing, adjusting, and determining the wage rates 

10 paid to the employees of the employer. Every employer 

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

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

13 records to the Equal Employment Opportunity Commis14 sion, as shall be prescribed by the Equal Employment Op15 portunity Commission by regulation or order as necessary 

16 or appropriate for the enforcement of the provisions of sec17 tion 6(h) or any regulation promulgated pursuant to sec18 tion 6(h).’’. 

19 (b) SMALL BUSINESS EXEMPTIONS.—Section 11(c) 

20 (as amended by subsection (a)) is further amended by 

21 adding at the end the following: 

22 ‘‘(3) Every employer subject to section 6(h) that has 

23 25 or more employees on any date during the first or sec24 ond year after the effective date of this paragraph, or 15 

25 or more employees on any date during any subsequent 

26 year after such second year, shall, in accordance with regVerDate Nov 24 2008 02:38 Apr 30, 2009 Jkt 079200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2151.IH H2151

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1 ulations promulgated by the Equal Employment Oppor2 tunity Commission under paragraph (8), prepare and sub3 mit to the Equal Employment Opportunity Commission 

4 for the year involved a report signed by the president, 

5 treasurer, or corresponding principal officer, of the em6 ployer that includes information that discloses the wage 

7 rates paid to employees of the employer in each classifica8 tion, position, or job title, or to employees in other wage 

9 groups employed by the employer, including information 

10 with respect to the sex, race, and national origin of em11 ployees at each wage rate in each classification, position, 

12 job title, or other wage group.’’. 

13 (c) PROTECTION OF CONFIDENTIALITY.—Section 

14 11(c) (as amended by subsections (a) and (b)) is further 

15 amended by adding at the end the following: 

16 ‘‘(4) The rules and regulations promulgated by the 

17 Equal Employment Opportunity Commission under para18 graph (8), relating to the form of such a report, shall in19 clude requirements to protect the confidentiality of em20 ployees, including a requirement that the report shall not 

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

22 (d) USE; INSPECTIONS; EXAMINATION; REGULA23 TIONS.—Section 11(c) (as amended by subsections (a) 

24 through (c)) is further amended by adding at the end the 

25 following: 


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1 ‘‘(5) The Equal Employment Opportunity Commis2 sion may publish any information and data that the Equal 

3 Employment Opportunity Commission obtains pursuant to 

4 the provisions of paragraph (3). The Equal Employment 

5 Opportunity Commission may use the information and 

6 data for statistical and research purposes, and compile 

7 and publish such studies, analyses, reports, and surveys 

8 based on the information and data as the Equal Employ9 ment Opportunity Commission may consider appropriate. 

10 ‘‘(6) In order to carry out the purposes of this Act, 

11 the Equal Employment Opportunity Commission shall by 

12 regulation make reasonable provision for the inspection 

13 and examination by any person of the information and 

14 data contained in any report submitted to the Equal Em15 ployment Opportunity Commission pursuant to paragraph 

16 (3). 

17 ‘‘(7) The Equal Employment Opportunity Commis18 sion shall by regulation provide for the furnishing of copies 

19 of reports submitted to the Equal Employment Oppor20 tunity Commission pursuant to paragraph (3) to any per21 son upon payment of a charge based upon the cost of the 

22 service. 

23 ‘‘(8) The Equal Employment Opportunity Commis24 sion shall issue rules and regulations prescribing the form 

25 and content of reports required to be submitted under 


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1 paragraph (3) and such other reasonable rules and regula2 tions as the Equal Employment Opportunity Commission 

3 may find necessary to prevent the circumvention or eva4 sion of such reporting requirements. In exercising the au5 thority of the Equal Employment Opportunity Commis6 sion under paragraph (3), the Equal Employment Oppor7 tunity Commission may prescribe by general rule sim8 plified reports for employers for whom the Equal Employ9 ment Opportunity Commission finds that because of the 

10 size of the employers a detailed report would be unduly 

11 burdensome.’’. 

12 SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSIST13 ANCE PROGRAM; REPORT TO CONGRESS. 

14 Section 4(d) (29 U.S.C. 204(d)) is amended by add15 ing at the end the following: 

16 ‘‘(4) The Equal Employment Opportunity Commis17 sion shall conduct studies and provide information and 

18 technical assistance to employers, labor organizations, and 

19 the general public concerning effective means available to 

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

21 rate discrimination between employees performing work in 

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

23 Such studies, information, and technical assistance shall 

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

25 section to eliminate such discrimination. In order to 


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1 achieve the objectives of such section, the Equal Employ2 ment Opportunity Commission shall carry on a continuing 

3 program of research, education, and technical assistance 

4 including— 

5 ‘‘(A) conducting and promoting research with 

6 the intent of developing means to expeditiously cor7 rect the wage rate differentials described in section 

8 6(h); 

9 ‘‘(B) publishing and otherwise making available 

10 to employers, labor organizations, professional asso11 ciations, educational institutions, the various media 

12 of communication, and the general public the find13 ings of studies and other materials for promoting 

14 compliance with section 6(h); 

15 ‘‘(C) sponsoring and assisting State and com16 munity informational and educational programs; and 

17 ‘‘(D) providing technical assistance to employ18 ers, labor organizations, professional associations 

19 and other interested persons on means of achieving 

20 and maintaining compliance with the provisions of 

21 section 6(h). 

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

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

24 evaluation and appraisal regarding the implementation of 

25 section 6(h).’’. 


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1 SEC. 8. CONFORMING AMENDMENTS. 

2 (a) CONGRESSIONAL EMPLOYEES.— 

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

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

5 1313(a)(1)) is amended— 

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

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

8 (d), and (h) of section 6’’; and 

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

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

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

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

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

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

15 (b) EXECUTIVE BRANCH EMPLOYEES.— 

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

17 United States Code, as added by section 2(a) of the 

18 Presidential and Executive Office Accountability Act 

19 (Public Law 104–331; 110 Stat. 4053), is amended 

20 by striking ‘‘subsections (a)(1) and (d) of section 6’’ 

21 and inserting ‘‘subsections (a)(1), (d), and (h) of 

22 section 6’’. 

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

24 amended by inserting before the period the fol25 lowing: ‘‘or, in an appropriate case, under section 

26 16(f) of such Act’’. 


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1 SEC. 9. EFFECTIVE DATE. 

2 The amendments made by this Act shall take effect 

3 1 year after the date of enactment of this Act. 

Æ 


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