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THE PAYCHECK FAIRNESS ACT (H.R. 1338)

HEARING

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON 

EDUCATION AND LABOR

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

HEARING HELD IN WASHINGTON, DC, JULY 11, 2007

Serial No. 110–54

Printed for the use of the Committee on Education and Labor

(

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/education/index.html 

(II)

COMMITTEE ON EDUCATION AND LABOR 

GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice Chairman 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Danny K. Davis, Illinois 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Linda T. Sa ́nchez, California 

John P. Sarbanes, Maryland 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Mazie Hirono, Hawaii 

Jason Altmire, Pennsylvania 

John A. Yarmuth, Kentucky 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

Carol Shea-Porter, New Hampshire 

Howard P. ‘‘Buck’’ McKeon, California, 

Ranking Minority Member 

Thomas E. Petri, Wisconsin 

Peter Hoekstra, Michigan 

Michael N. Castle, Delaware 

Mark E. Souder, Indiana 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Ric Keller, Florida 

Joe Wilson, South Carolina 

John Kline, Minnesota 

Cathy McMorris Rodgers, Washington 

Kenny Marchant, Texas 

Tom Price, Georgia 

Luis G. Fortun ̃ o, Puerto Rico 

Charles W. Boustany, Jr., Louisiana 

Virginia Foxx, North Carolina 

John R. ‘‘Randy’’ Kuhl, Jr., New York 

Rob Bishop, Utah 

David Davis, Tennessee 

Timothy Walberg, Michigan 

Dean Heller, Nevada

Mark Zuckerman, Staff Director 

Vic Klatt, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

LYNN C. WOOLSEY, California, Chairwoman

Donald M. Payne, New Jersey 

Timothy H. Bishop, New York 

Carol Shea-Porter, New Hampshire 

Phil Hare, Illinois 

Joe Wilson, South Carolina, 

Ranking Minority Member 

Tom Price, Georgia 

John Kline, Minnesota 

(III)

C O N T E N T S 

Page

Hearing held on July 11, 2007 ............................................................................... 1

Statement of Members: 

DeLauro, Hon. Rosa L., a Representative in Congress from the State 

of Connecticut, prepared statement of ........................................................ 54

Wilson, Hon. Joe, ranking minority member, Subcommittee on Workforce 

Protections ..................................................................................................... 3

Prepared statement of ............................................................................... 4

Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce Protections ................................................................................................................ 1

Prepared statement of ............................................................................... 3

Additional material submitted: 

Statement of the American Association of University Women ...... 56

Statement of Business and Professional Women/USA .................... 60

Statement of Witnesses: 

Greenberger, Marcia D., co-president, National Women’s Law Center ....... 12

Prepared statement of ............................................................................... 13

Murphy, Evelyn F., president, WAGE Project ............................................... 6

Prepared statement of ............................................................................... 8

Olson, Camille, partner, Seyfarth Shaw LLP, on behalf of the U.S. Chamber of Commerce ........................................................................................... 20

Prepared statement of ............................................................................... 22

Sellers, Joseph M., Cohen, partner, Milstein, Hausfeld & Toll PLLC ......... 36

Prepared statement of ............................................................................... 38

(1)

THE PAYCHECK FAIRNESS ACT (H.R. 1338) 

Wednesday, July 11, 2007

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and Labor 

Washington, DC

The subcommittee met, pursuant to call, at 10:31 a.m., in Room 

2175, Rayburn House Office Building, Hon. Lynn Woolsey [chairwoman of the subcommittee] presiding. 

Present: Representatives Woolsey, Payne, Hare, Wilson, Price, 

and Kline. 

Staff present: Aaron Albright, Press Secretary; Tylease Alli, 

Hearing Clerk; Jody Calemine, Labor Policy Deputy Director; Lynn 

Dondis, Senior Policy Advisor for Subcommittee on Workforce Protections; Michael Gaffin, Staff Assistant, Labor; Jeffrey Hancuff, 

Staff Assistant, Labor; Brian Kennedy, General Counsel; Joe 

Novotny, Chief Clerk; Megan O’Reilly, Labor Policy Advisor; Dray 

Thorne, Senior Systems Administrator; Michele Varnhagen, Labor 

Policy Director; Cameron Coursen, Assistant Communications Director; Rob Gregg, Legislative Assistant; Richard Hoar, Professional Staff Member; Victor Klatt, Minority Staff Director; Jim 

Paretti, Minority Workforce Policy Counsel; Molly McLaughlin 

Salmi, Minority Deputy Director of Workforce Policy; Ken Serafin, 

Minority Professional Staff Member; Linda Stevens, Minority Chief 

Clerk/Assistant to the General Counsel; and Loren Sweatt, Minority Professional Staff Member. 

Chairwoman WOOLSEY [presiding]. A quorum is present. The 

hearing of the Workforce Protection Subcommittee on The Paycheck Fairness Act, H.R. 1338, will come to order. 

Pursuant to committee rule 12-A, any member may submit an 

opening statement in writing which will be made part of the permanent record. 

I now recognize myself followed by Ranking Member Joe Wilson 

for an opening statement. 

I thank you all for coming. This is going to be a hearing on H.R. 

1338, the Paycheck Fairness Act, sponsored by Representative 

Rosa DeLauro of Connecticut. 

Representative DeLauro first introduced this bill about 10 years 

ago. And she has not stopped working on it from the moment she 

introduced it. And I am proud to be one of the over 200 co-sponsors 

of this legislation which strengthens the existing Equal Pay Act to 

ensure that women make equal pay for equal work. 

2

This is important because in the 43 years since the passage of 

the Equal Pay Act, women still make less than men doing the same 

work. In April the full Education and Labor Committee held a 

hearing on equal pay, and our witnesses confirmed this. 

And although most women are in the labor force, including 70 

percent of all moms, on the average, they earn only 77 percent of 

their male counterparts. This translates into lost income anywhere 

from $400,000 to $2 million over a lifetime of work. This gap exists 

at the beginning of a woman’s career, and it grows wider over time. 

Dr. Catherine Hill from the Association of American University 

Women was one of our witnesses at the April hearing. She testified 

that a recently published study conducted by the AAUW found that 

1 year out of college women make only 80 percent of what men 

earn, and that the gap exists in every career field and in every occupation. 

The study also found that 10 years later a woman makes only 

69 percent of a man’s salary. This study looked at a full range of 

other factors that could explain this difference between men and 

women 10 years down the road and discovered that a full 12 percent of the gap was attributable to wage discrimination. 

This wage gap is grossly unfair to women. And it affects not only 

their weekly paycheck, but also their prospects at retirement. 

Older women are less likely than older men to receive pension 

income. And when they do, they receive one-half the benefits that 

men do. The median income for an older woman is about $15,000 

a year compared to $29,000 for an older man. And 70 percent of 

older adults living in poverty are female. 

But not only is unequal pay bad for women, it is particularly bad 

for their families. Currently the average woman’s paycheck makes 

up about one-third of a family’s total income. And for many families, having a working wife can make the difference between being 

in the middle class or being poor. 

This is even true for single women who are heads of their households. They are twice as likely to be in poverty as a single dad. 

The goal of the Equal Pay Act to eliminate pay disparities for 

women is more than a laudable goal. However, it has never lived 

up to its full promise. But H.R. 1338, the Paycheck Fairness Act, 

does just that. 

It imposes a stricter burden on an employer who wishes to affirmatively defend its actions by citing non-gender reasons for the 

difference in pay between a man and a woman. It expands the remedies for victims of pay discrimination beyond back pay to compensatory and punitive damage. 

It prohibits employer retaliation if workers share salary information with each other. It improves the collection of pay information. 

And it creates a grant program for the establishment of negotiation 

skills, training programs for women and girls. 

There is much that we need to do to make workplaces more 

friendly for women and their families. Equal pay is a crucial part 

of that change. 

We have a very distinguished panel of witnesses today who will 

elaborate on this very important bill. And I look forward to their 

testimony. 

Now I yield to Mr. Wilson. 

3

[The statement of Ms. Woolsey follows:]

Prepared Statement of Hon. Lynn C. Woolsey, Chairwoman,

Subcommittee on Workforce Protections 

Thank you all for coming today for this hearing on H.R. 1338, the Paycheck Fairness Act, sponsored by Representative Rose DeLauro of Connecticut. 

Representative DeLauro first introduced this bill some ten years ago and has been 

introducing it ever since. 

I am proud to be one of over 200 co-sponsors of this legislation, which strengthens 

the existing Equal Pay Act to ensure that women make equal pay for equal work. 

This is important because in the 43 years since passage of the Equal Pay Act, 

women still make less than a man. 

In April, the Full Education and Labor Committee held a hearing on equal pay 

and our witnesses confirmed this. 

Although most women are in the labor force—including 70 percent of all mothers—on average they earn only 77 percent of what their male counterparts make. 

This translates into lost income of anywhere from $400,000 to $2 million over a 

lifetime of work. 

This gap exists at the beginning of a woman’s career and grows even wider over 

time. 

Dr. Catherine Hill from the Association of American University of Women was 

one of our witnesses at the April hearing, and she testified about a recently published study conducted by the AAUW. 

What this study found was that one year out of college, women make only 80 percent of what men make, and that the gap exists in every career field and in every 

occupation. 

The study also found that 10 years later, a woman makes only 69 percent of a 

man’s salary. 

This study looked at a full range of other factors that could explain this difference 

between men and women 10 years down the road and discovered that a full 12 percent of the gap was attributable to wage discrimination 

This wage gap is grossly unfair to women and affects not only their weekly pay 

check but also their prospects at retirement.Older women are less likely than older 

men to receive pension income, and when they do, they only receive one-half the 

benefits that men do. 

The median income for an older woman is about $15,000 compared to $29,000 for 

an older man. And 70 percent of older adults living in poverty are women. 

But not only is unequal pay bad for women, it is bad for their families as well. 

Currently, the average woman’s paycheck makes up about one-third of a family’s 

total income.And for many families, having a working wife can make the difference 

between being in the middle class or being poor.This is also very true for single 

women who are the heads of their households. They are twice as likely to be in poverty as single dads.The goal of the Equal Pay Act—to eliminate pay disparities for 

women—is a laudable goal. However it has never lived up to its full promise. 

H.R. 1338, the Paycheck Fairness Act does just that. 

It imposes a stricter burden on an employer who wishes to affirmatively defend 

its actions by citing non-gender reasons for the difference in pay between a man and 

a woman.It expands the remedies for victims of pay discrimination beyond backpay 

to compensatory and punitive damages. 

It prohibits employer retaliation if workers share salary information with each 

other.It improves the collection of pay information.And it creates a grant program 

for the establishment of negotiation skills training programs for women and girls. 

There is so much that we need to do to make the workplace a friendly place for 

women and their families.And equal pay is crucial.We have a very distinguished 

panel of witnesses today who will elaborate on this very important bill, and I look 

forward to their testimony. 

Mr. WILSON. Thank you, Madam Chairman. 

Good morning. And welcome to our witnesses. 

I appreciate the chair calling this legislative hearing this morning to examine H.R. 1338. I would hope this marks the start of a 

commitment to regular order and of giving respect and meaning to 

the deliberative process that this committee, at least for the proceeding 12 years, has come to know. 

4

I choose my words here advisedly. As members well know, too 

often in the last 7 months regular order has not been the order of 

the day. As recently as 2 weeks ago, our committee was presented 

with a markup of complicated legislation that will have profound 

effects on workers and employees with little time for analysis and 

no consideration of the bill through the hearing process. So I am 

glad we are at least starting the process of regular order today. 

The comparison I make is very much on point because I think 

the bill before us today, despite its attractive title, similarly has 

the potential to radically change more than 40 years of well-settled 

anti-discrimination law under the Equal Pay Act and to tip the 

careful balance embodied in the law without significant or meaningful evidence indicating that such change is necessary. Make no 

mistake. As we will hear today, that is what H.R. 1338 does. 

Now, I am deeply concerned with the effects this bill will have 

on workers, employers, and others. I am troubled that H.R. 1338, 

for the first time, would provide unlimited compensatory and punitive damages for employers who had absolutely no intention of discrimination, a remedy not available to victims of intentional discrimination on the basis of race, color or even gender under Title 

7. 

As we will hear, H.R. 1338 will essentially gut the ability of employers to defend differences in pay among employees based on legitimate and nondiscriminatory factors other than sex. The bill 

eliminates the ability of employers to defend pay differentials based 

on different locations, enterprises or geographical regions. It reverses well-settled law under the Fair Labor Standards Act regarding class action lawsuits solely with the result of expanding frivolous litigation. 

And finally, the bill attempts via so-called voluntary guidelines, 

to revive a doctrine of comparable worth that most right-thinking 

policy makers on both sides of the aisle have wisely considered 

dead. 

In closing, let me say I appreciate the opportunity to examine 

this legislation in our subcommittee this morning because I think 

the more closely we look at it, the more flawed we will reveal it 

to be. 

I thank the Chair, welcome our witnesses, and yield back my 

time. 

[The statement of Mr. Wilson follows:]

Prepared Statement of Hon. Joe Wilson, Ranking Republican, 

Subcommittee on Workforce Protections 

Good morning, and welcome to our witnesses. 

I appreciate the Chair calling this legislative hearing this morning to examine 

H.R. 1338. I would hope that this marks the start of a commitment to regular order, 

and of giving respect and meaning to the deliberative process that this Committee—

at least for the preceding twelve years—had come to be known. 

I choose my words here advisedly. As Members well know, too often in the last 

seven months, ‘‘regular order’’ has not been the order of the day. As recently as two 

weeks ago, our Committee was presented with a markup of complicated legislation 

that will have profound effects on workers and employees, with little time for analysis, and no consideration of the bill through the hearing process. So I am glad we 

are at least starting the process of regular order today. 

The comparison I make is very much on point, because I think the bill before us 

today—despite its clever title—similarly has the potential to radically change more 

than 40 years of well-settled anti-discrimination law under the Equal Pay Act, and 

5

to tip the careful balance embodied in the law without significant or meaningful evidence indicating that such change is necessary. 

Make no mistake, and as we will hear today, that is what H.R. 1338 does, and 

I am deeply concerned with the effects this bill will have on workers, employers, 

and others. 

I am troubled that H.R. 1338, for the first time, would provide unlimited compensatory and punitive damages for employers who had absolutely no intention of discrimination—a remedy not available to victims of intentional discrimination on the 

basis of race, or color, or even gender under Title VII. 

As we will hear, H.R. 1338 will essentially gut the ability of employers to defend 

differences in pay among employees based on legitimate and non-discriminatory factors other than sex. The bill eliminates the ability of employers to defend pay differentials based on different locations, enterprises, or geographical regions. It reverses well-settled law under the Fair Labor Standards Act regarding class action 

lawsuits, solely with the result of expanding frivolous litigation. And finally, the bill 

attempts, via so-called ‘‘voluntarily’’ guidelines, to revive a doctrine of ‘‘comparable 

worth’’ that most right-thinking policymakers on both sides of the aisle have wisely 

considered dead. 

In closing, let me say again—I appreciate the opportunity to examine this legislation in our Subcommittee this morning, because I think the more closely we look 

at it, the more flawed we will reveal it to be. I thank the Chair, welcome our witnesses, and yield back my time. 

Chairwoman WOOLSEY. Thank you, Mr. Wilson. 

I would like to introduce the very distinguished panel of witnesses before us. And I will introduce them in the order that they 

will be speaking. 

First, Dr. Evelyn Murphy, who is an economist and the president 

of the Wage Project, a national organization to end wage discrimination in the workplace. She is also the author of ‘‘Getting Even: 

Why Women Still Don’t Get Paid Like Men and What To Do About 

It,’’ which was published in the year 2005. In 1986 Dr. Murphy was 

elected lieutenant governor of Massachusetts. She was the first 

woman in the state’s history ever to serve in any constitutional office. After that, she entered the private sector as executive vice 

president of Blue Cross Blue Shield. She is now a resident scholar 

at the Women’s Research Center at Brandeis University. She received her B.A. and Ph.D. from Duke University and her M.A. from 

Columbia University. 

Thank you for coming, Dr. Murphy. 

Marcia Greenberger—Marcia is the founder and co-president of 

National Women’s Law Center, an organization that has worked to 

expand possibilities for women and girls. For over 30 years Ms. 

Greenberger has been an advocate for women and has been a leader in developing strategies to secure the successful passage of legislation protecting women and counsel in landmark litigation establishing new legal precedents for women. She has received numerous honors for her work, including being recognized by Working 

Woman Magazine as one of the 25 heroines who actively over the 

last 25 years has helped women in the workplace. She received her 

B.A. and law degrees from the University of Pennsylvania. 

Thank you for coming, Marcia. 

Camille Olson—Camille is a partner in the law firm of Seyfarth 

Shaw located in Chicago. She is a member of the firm’s labor and 

employment law’s steering committee, chair of its class action discrimination practice group, and a key member of its interdisciplinary task force on fair labor standards. Ms. Olson has 20 years of 

experience representing employers in all areas of labor and employVerDate 0ct 09 2002 20:38 Mar 27, 2008 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\WP\110-54\36467.TXT HBUD1 PsN: DICK
6

ment law. She received her B.A. and law degrees at the University 

of Michigan. 

Thank you for coming, Ms. Olson. 

Joseph Sellers—Mr. Sellers is a partner at the law firm of 

Cohen, Milstein and is head of the firm’s civil rights and employment practice group. In this capacity he represents victims of discrimination and illegal employment practices individually and 

through class actions. Prior to that, he served as head of the employment discrimination project at the Washington Lawyer’s Committee for Civil Rights and Urban Affairs for over 15 years. Mr. 

Sellers has also been active in legislative matters and worked on 

the passage of the Civil Rights Act of 1991 and the Americans for 

Disabilities Act of 1990. He received his B.A. from Brown University, and his law degree from Case Western Reserve School of Law. 

I welcome all of you. And you are going to be wonderful witnesses. 

For those of you who have not testified before the committee before, let me explain the lighting system. We have a 5-minute rule. 

Everyone, including the members, are limited to 5 minutes of presentation or questioning or a combination. 

The green light is illuminated when you begin to speak. When 

you see the yellow light, it means you have 1 minute remaining. 

And when you see the red light, it is time to conclude. 

Be certain that as you testify nobody is going to cut you off in 

mid-sentence. But please turn on the microphone in front of you. 

And we will begin with you, Dr. Murphy. 

STATEMENT OF EVELYN MURPHY, PRESIDENT,

WAGE PROJECT 

Ms. MURPHY. Thank you, Chairwoman Woolsey. 

Members of the committee, thank you very much for the opportunity to testify before you in the House on the Paycheck Fairness 

Act. As an economist, I have been interested in the gender wage 

gap for over four decades. Over those years as I watched more and 

more women graduating from college and entering and working all 

of their lives, I just assumed that we would catch up with men’s 

wages. 

So in the mid-1990s when we had not, it shocked me. I have been 

single-mindedly scrutinizing the wage gap ever since. 

My book, ‘‘Getting Even,’’ reveals the extent to which this discrimination permeates the entire United States economy. You can 

read about employers of all kinds who in recent years had to pay 

women employees to settle—or former employees—to settle claims 

of gender discrimination. Even with those consequences, our current laws have not ended workplace discrimination. 

There continue to be barriers to hiring and promoting qualified 

women, financial penalties imposed arbitrarily on pregnant women, 

sexual harassment by bosses and co-workers, failure to pay women 

for the same job as much as men, and biases and stereotyping, 

which may seem slight at the moment when it sets back a women, 

yet also cuts into her paycheck. Inequitable treatment takes money 

out of a woman’s paycheck, which accumulates over years into serious financial losses. 

7

The young woman who graduates from high school last spring 

will make $700,000 less than the young man standing next to her 

getting his high school diploma. A woman who graduated from college will miss $1.2 million over her working life. And a woman 

with an MBA, a law degree or a medical degree will miss $2 million compared to the man getting his degree with her. 

You in Congress, policy analysts, researchers, all of us have yet 

to adequately understand and address the gender wage gap. Statisticians, try as they might, have not been able to fully ‘‘explain’’ 

the gap. Why is that after all this time? Isn’t it time to conclude 

that we are looking at inadequate data to explain the gap? 

The gender gap is not just about worker characteristics that we 

get from the Bureau of Labor, Statistics and the Census Bureau. 

It is about workplace characteristics. And it is time to collect data 

as extensively about workplaces as about workers. 

This bill is important because it finally points public attention in 

the right place, the American workplace, and initiates an expanded 

collection of workplace data. Prompt passage is important. 

Recently the wage project did a survey. And it used the national 

women’s groups, the National Committee on Pay Equity, the BPW, 

the YWCA, the AAUW and used their outlets. Eight hundred 

women responded to this survey. 

And while this is not a random survey I will tell you that their 

voices give you a window into what they are experiencing today 

and the kind of discrimination and pay inequities. The loudest message in that survey is that women fear retaliation when they talk 

about their pay at work. The non-retaliation clause in section three 

will help many women who now fear firing or demotion. 

One college-educated woman in her late 40s said, ‘‘About 3 years 

ago I worked for a major corporation in a supervisory capacity. My 

staff was 47 people, and my colleague’s staff was 12. The salary he 

made was $28,000, and mine was $22,500. The vice president advised me that if I told what I found out, I could be fired.’’ The fear 

factor is real. 

This bill will help women now silenced by the fear of retaliation. 

And besides, fair minded employers should want employees who 

suspect that their pay is unfair to raise the questions now before 

suspicion hardens into grievances and lawsuits and erodes their 

productivity. 

Three out of four women in this survey reported that they had 

recently had some experience with unfair treatment or pay. Passage of this bill will give them a sense that, in fact, the inequities 

in their workplace may get better and improve so they don’t have 

to leave their jobs. 

A 37-year-old caseworker in a non-profit organization said they 

hired a man whom they paid more, and she was to train that man. 

She decided to do that and left her job afterwards discouraged. 

It costs women money when they have to leave their jobs because 

they are not paid or treated fairly. They lose their seniority. And 

they may take a pay cut in order to get their salaries. 

For women whose employers adopt the guidelines from the Secretary of Labor, these are women who will know that not only is 

unequal pay now not the law and not sanctioned by law, but also 

8

pay equity will be ingrained in the workplace and the culture of 

their workplace as well as the practices. 

Every employer should adopt these regulations. That is the surest way to get from here to every American workplace having pay 

equity in the near future. 

And speaking of the future and since I have got a red light, let 

me just say this. I hope you pass this bill soon because of the unintended legacy if we don’t. That is if we don’t do something. 

I mean, it is clear after all these years that we haven’t eliminated the pay gap and can’t with the laws that we now have. If 

we don’t do something, we pass on what women now lose to your 

daughters and granddaughters. It is a lousy legacy. It is one you 

don’t and we don’t want. But if we don’t do something about it, 

that is the legacy we will pass on. 

[The statement of Ms. Murphy follows:]

Prepared Statement of Evelyn F. Murphy, President, WAGE Project 

Chairwoman Woolsey, Congresswoman DeLauro, members of the House Subcommittee on Workforce Protections, thank you for the opportunity to testify on 

H.1338, the Paycheck Fairness Act. 

I am Evelyn Murphy, a Ph. D. economist, President of The WAGE Project, a national nonprofit organization dedicated to eliminating the gender wage gap, author 

of Getting Even: Why Women Don’t Get Paid Like Men and What To Do About It, 

Resident Scholar at the Women’s Studies Research Center at Brandeis University, 

a corporate director, and former Lt. Governor of Massachusetts. 

Gender Discrimination in Today’s Workplaces and Its Cost to Working Women. 

As an economist, I have been interested in the gender wage gap for almost four 

decades. Over those years, as I watched more women graduating from college, and 

more women working throughout their lives, I just assumed that we would catch 

up with men’s wages. I was startled in the mid-1990s when I realized that we were 

nowhere near parity. I have been single-mindedly scrutinizing this wage gap ever 

since. 

My book, Getting Even—the result of eight years of research accumulating evidence of gender wage discrimination never before assembled—reveals the extent to 

which this discrimination permeates the entire United States economy. 

You can read about employers of all kinds who, in recent years, had to pay women 

employees or former employees to settle claims of gender discrimination; or judges 

and juries ordered them to pay up. These consequences and our current laws have 

not ended workplace discrimination. There continue to be barriers to hiring and promoting qualified women; financial penalties imposed arbitrarily on pregnant women; 

sexual harassment by bosses and co-workers; failure to pay women the same money 

as men for doing the same jobs; and biases and stereotyping which may seem slight 

or aggravating setbacks to a woman at the time, yet also cut into her paycheck. 

Inequitable treatment takes money out of a woman’s paycheck, which accumulates into serious financial losses over the 35 years that she typically works: the 

young woman graduating from high school this spring will make $700,000 less than 

the young man receiving his high school diploma at the same time; the woman graduating from college this spring will lose $1.2 million compared to the man getting 

his degree along with her; and the woman with the newly minted MBA, law degree 

or medical degree will make $2 million less. 

Women don’t realize the enormous sums that they lose to wage discrimination because they never see big bites taken out of their paychecks at any one time. Instead, 

little nicks in a paycheck—a promotion delayed because she is pregnant and her 

boss guesses (wrongly) that she intends to shift to part-time work, a sales call she 

misses because her boss assumes she’s going home to cook dinner for her family, 

her request for a different shift to escape a sexual harasser—all add up, over time 

to become: $700,000, $1.2 million and $2 million. 

Also, women do not realize how much wage discrimination hurts them because 

we—Congress, policy analysts, researchers—have yet to adequately understand and 

address the gender wage gap. Statisticians, try as they might, have not been able 

to fully ‘‘explain’’ the gap. Why? Isn’t it time to conclude that we are looking at inadequate data to explain this gap? The gender wage gap is not just about worker characteristics, ie. the data provided by the Bureau of Labor Statistics and Census BuVerDate 0ct 09 2002 20:38 Mar 27, 2008 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\WP\110-54\36467.TXT HBUD1 PsN: DICK
9

reau; it’s about workplace characteristics, too. It’s time to collect data as extensively 

about workplaces as workers. 

H. 1338 is important because it finally points public attention to the right place: 

the American workplace, and initiates an expanded collection of workplace data. 

This bill, with its emphasis on altering workplace pay practices, creates the appropriate conditions for American women to achieve gender pay equity. Working 

women are not looking for pay equity to be handed to them. Women can and will 

take responsibility for ensuring they’re paid and treated fairly. Yet employers must 

also take responsibility to ensure that their pay policies and practices are fair and 

equitable. H. 1338 helps women and employers achieve these common goals and initiates the collection of workplace pay data essential to eliminating workplace discrimination. 

Prompt Action Is Important. 

Prompt passage of H 1338 is very important to working women. Here’s why. 

The WAGE Project surveyed working women through collaborations with several 

national women’s organizations—the National Committee on Pay Equity, The Business and Professional Women, The Young Women’s Christian Association, the 

American Association of University Women, and the National Organization for 

Women. Almost 800 working women responded. These women work in every state 

in the nation and in every sector of the economy. They take home small paychecks 

as waitresses, modest paychecks as office managers and technicians, and relatively 

large paychecks as senior executives, professors and physicians. While this is not 

a random sample of working women, their voices offer a candid window into today’s 

working conditions and their recent experiences with pay inequity. 

The loudest message of this survey is that women fear retaliation if they talk 

about their pay at work. The nonretaliation clause in Section 3 will help many 

women who fear firing or demotion. One college educated woman in her late 40’s 

said: ‘‘About three years ago I worked for a major corporation in a supervisory capacity. My staff was 47 people and my male colleague’s staff was 12. His salary was 

$28,000, mine was $22,500 * * * The Vice President advised me that if I told what 

I found out I could be fired.’’

The fear factor is real. This bill will help women now silenced by fear of retaliation. Besides, fair-minded employers should want employees who suspect unfair pay 

to raise their questions before suspicion hardens into grievances and lawsuits and 

erodes their productivity. 

Three out of four survey respondents reported some recent experience with unfair 

treatment or pay. Passage of H.1338 will give those women and others hope that 

working conditions will become more equitable where they now work and that they 

don’t have to leave their jobs. A 37 year old case worker in a nonprofit organization 

said ‘‘They just hired a male and asked me to train him. He is starting out making 

more than me. There is (sic) certain criteria you must meet for this position which 

he does not meet. Then they want me to train him to do the same job I am doing.’’ 

She did nothing about this ‘‘because I have to keep my job to feed my children. I 

am, however, looking for another job.’’ Typically, when women encountered blatant 

pay inequity, they said they decided to leave: ‘‘I quit.’’ ‘‘I gave notice and left one 

month later.’’ ‘‘I used up my vacation time and never went back.’’

Don’t miss the financial point: it costs women money when they have to leave a 

job in order to be paid and treated fairly. They may lose months of income until 

they find another job. They lost whatever seniority they had built up with the last 

employer. They may have to take a pay cut if pressure to bring in a paycheck forces 

them to settle for a lesser position. 

For women whose employers adopt and enforce the Secretary’s guidelines for pay 

equity, they will be working in a workplace where pay equity is not only the law, 

but also, engrained in the practices of the employer and the culture of their workplace. Every employer should adopt the guidelines to be developed by the Secretary 

of Labor. That is the surest way to establish pay equity in every American workplace in the near future. 

Passage of H. 1338 will send working women an important message: Congress 

recognizes their situation, is taking action to bring them data with which they can 

safely raise pay equity concerns with their employers, and is pressing employers to 

be more accountable for pay equity among their employees. In the absence of pay 

equity hearings, much less legislation, over the last decade, many women have lost 

hope that their employers feel pressure to exercise oversight and vigilance about 

compliance with Title VII of the Civil Rights Act and the Equal Pay Act. 

Finally, there’s the future. I urge you to pass H.1338 to avoid an unwanted, painful legacy. We couldn’t close the wage gap even one penny from 1994 to 2004, even 

with the boom years of the late 1990s! The fact that the gender wage gap has been 

10

stuck tells us that there is nothing inevitable about the wage gap going away on 

its own if we continue to rely only on current laws and their implementation. If we 

do not act, we will pass on to the next generation, and the next after that—to your 

daughters, and your granddaughters, nieces, aunts, and all the younger women in 

your families whom you love and respect—the same financial losses working women 

face today. Is that a legacy you want to pass on to them? Of course not. None of 

us wants to. But that will happen if no action is taken to address today’s discriminatory treatment of women at work. 

Some Important Recommended Changes to Specific Language in the Bill. 

Section 3. Enhanced Enforcement of Equal Pay Requirements. (d) Nonretaliation provision. 

I have already illustrated how important this provision is to help working women 

act on their own behalf without fear of retaliation. Some employers may resist open 

discussion among employees about their salaries and pay scales as this woman confirms: ‘‘my employer intimidates us. We don’t dare talk about what we earn while 

we’re working.’’ But those employers who do treat and pay women equitably have 

nothing to hide. Open discussions among employees and their employer about pay 

and pay scales can enable all employees to feel fairly and adequately compensated. 

As I have listened to working women, they are thoughtful and fair minded about 

pay. More transparency about pay and pay scales in America’s workplaces would be 

beneficial for employers and employees alike. H. 1338 promises to open up workplaces to healthy discussions about who gets paid what and why. I urge the committee to insist on this language in the final bill. 

Section 5. Negotiation Skills Training for Girls and Women. 

Here are my concerns. I leave to staff to wordsmith this section. 

First, I would urge language which clarifies that Congressional intent is to focus 

on negotiation skills directly related to salary and total compensation matters, including not only skills in bargaining and communicating, but also, benchmarking 

techniques. It would be easy for rules and regulations to interpret the current language of this section to permit a broader set of negotiating skills in financial planning, flex time and other workplace conditions. These are important matters. But 

the key here is to maintain the priority and focus on negotiations skills training 

which bear directly on a woman’s earnings. Clarifying language to this section 

might not necessarily exclude these other topics involving a woman’s finances, but 

rather, establish that priority funding goes to training which bears directly on women’s paychecks. 

Secondly, in (a) (5) Use of Funds. In the second sentence, I would suggest substituting the words ‘‘equitable salaries and fair, equitable compensation packages for 

themselves’’ for the current language ‘‘higher salaries and the best compensation 

packages possible for themselves’’. The purpose of this bill is to establish pay equity. 

Training which focuses on women getting paid what they should, what is fair compared with others where they work given their job, experience, responsibility, etc 

fits with the purpose of the bill. The current language suggests training women to 

get promotions (higher salaries) and the most money (compensation package) they 

can. I have no doubt that once women get trained to negotiate for fair pay they will 

have the necessary skills for gaining more pay. The intent of this bill, as I understand it, is to help women achieve pay equity. That, in itself, will be a significant 

outcome. 

Finally, (c) Report. I recommend that the report include not only ‘‘describing activities conducted under this section’’ but also ‘‘and an evaluation of the effectiveness of these activities in enhancing equity in women’s paychecks’’. An assessment 

of which training programs actually advance women’s earnings and which do not 

is essential. 

Section 7. Technical Assistance and Employer Recognition Program. 

(a) Guidelines. Voluntary guidelines are just that: voluntary. The adoption of such 

guidelines by every employer would dramatically advance pay equity. I urge the 

committee to strengthen language in this section such that employers are 

incentivized to adopt these guidelines and conversely, disincentivized for not adopting these guidelines after some specified period of time. 

(b) (2) Please insert ‘‘or layoffs of employees’’ after men in the clause ‘‘* * * lowering wages paid to men’’. Women need men as allies in achieving fair and equitable 

treatment where they work. This clause is intended to make clear that neither layoffs nor lowered wages are an acceptable means for employers to achieve pay equity. 

The experience of the State of Minnesota validates this point. Minnesota achieved 

pay equity—women employees are now paid 97 cents for every dollar men employVerDate 0ct 09 2002 20:38 Mar 27, 2008 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\WP\110-54\36467.TXT HBUD1 PsN: DICK
11

ees earn—without one man losing a job or losing money in his paycheck. Pay equity 

can be achieved not a men’s expense. 

Section 8. Establishment of the National Award for Pay Equity in the Workplace. (b)(1) 

I urge the committee to add language which requires applicants for this award 

to disclose the salaries by gender and job category which were made more equitable. 

The language now makes it possible for an employer to describe worthy efforts but 

not report what, if any, actual effects its pay equity initiative had. Without documented advances, no applicant should be eligible to receive this prestigious award. 

Section 9. Collection of Pay Information by the Equal Opportunity Employment Commission. 

This section of the bill is extremely important. It has the potential to provide 

breakthroughs in the nation’s understanding of pay inequities in today’s workplaces 

and in the nation’s capability to eliminate the discrimination which underlies pay 

inequity. 

I urge the committee to specifically guarantee access and availability of the pay 

information gathered under this section to researchers, public policy analysts, and 

social service organizations. These professionals need this data to advance our understanding of workplace discrimination and what to do about it. While the Secretary of Labor may perform studies and inform the public under Section 6, broad 

based access to pay data collected in Section 9 would stimulate the cross checks and 

debates of data which only develop when many and varied professionals look at the 

same data. The standard here ought to be the accessibility that professionals now 

have to data gathered by Census Bureau and the Bureau of Labor Statistics. 

The designation of the EEOC as lead agency for surveying available data and determining data needed to enhance their enforcement activities is appropriate. Anticipating that some adaptation of the EEO-1 form appears the most likely means 

to collect pay information by gender and job title, I call to your attention how limited the availability of EEO-1 data has been to this larger community of interests. 

Until 2000, EEO-1 data was unavailable to almost everyone and even now, only a 

handful of academics have access. The need for confidentiality concerning company 

specific data must be respected, but, with adequate resources, the EEOC can devise 

ways to enable more researchers and practitioners to access EEO-1 data. Limited 

access to EEO-1 data has seriously limited public debate and policy formulation 

about the gender wage gap. I have tremendous sympathy for extensive enforcement 

mandate the EEOC implements and I do not intend this as criticism of the agency. 

Rather I want to ensure that, if the EEOC becomes the collector of pay information, 

that the agency has not only the mandate but also the resources to make this data 

available to a large community of analysts and practitioners. 

In summary. 

Forty years ago, Title VII of the Civil Rights Act and the Equal Pay Act made 

gender discrimination illegal in America’s workplaces and embraced the principle 

that women should be paid like men when they do the same work. In the last decade, our nation’s progress toward reaching these goals has stalled. Prompt passage 

of The Paycheck Fairness Act can and will reactivate momentum. 

The Paycheck Fairness Act sends a strong message to working women that this 

nation intends to eliminate paycheck discrimination in the foreseeable future. At the 

same time, the Paycheck Fairness Act sends just as strong a message to employers 

that they can and should pay for the job, not who does the job. If employers do 

that—pay for the job, not who does the job—we will eliminate pay discrimination 

not just for women, but for minorities, older workers, and handicapped workers. 

That is the promise contained in this bill. 

I commend you on your leadership on this bill and offer to help in whatever you 

wish. 

Thank you. 

Chairwoman WOOLSEY. Thank you, Dr. Murphy. 

Ms. MURPHY. Thank you. 

Chairwoman WOOLSEY. Ms. Greenberger? 

12

STATEMENT OF MARCIA D. GREENBERGER, FOUNDER AND

CO-PRESIDENT, NATIONAL WOMEN’S LAW CENTER 

Ms. GREENBERGER. Thank you very much for the opportunity to 

testify here today and on behalf of the National Women’s Law Center. And I am very happy to testify in support of the Paycheck 

Fairness Act. And I ask that my full written remarks be included 

in the record and will just briefly summarize then in the period 

that I have. 

And I do want to say at the outset that it is vitally important, 

as Dr. Murphy has said, that this piece of legislation is enacted 

into law along with the Ledbetter Fair Pay Act, which is pending 

in Congress now. Unless we have strong laws on the books that reflect a determination on the part of this country that women be 

paid fairly for their hard work and the skills that they bring and 

the contributions that they make in the workplace, then we are not 

living up to our deal, ideals or the promises that we have made to 

women and the daughters of this country that we stand for equal 

pay for equal work. 

I would like to talk for a moment or two about why the current 

Equal Pay Act has not lived up to its promise and why the law 

needs to be strengthened. Passed in 1963, it was seen as a landmark breakthrough, to be sure, that women who are working will 

get equal pay. But for several reasons it has over the years not met 

the needs that the law was intended to address. 

First courts, unfortunately, have interpreted the law in such 

stringent ways, certainly some courts, that it has been exceptionally difficult for a woman to demonstrate a violation, even when 

she is clearly paid less on the basis of her sex. And with courts 

these days asking the legislature to be extremely explicit in the 

way that it writes our laws, it is up to Congress now to amplify 

on the Equal Pay Act to be sure that courts are not going to get 

it wrong in the future. 

In particular, we have seen with some courts an argument that 

even though under the Equal Pay Act regulations, when comparing 

the job that a woman has to a man’s job, it doesn’t have to be identical and that minor differences shouldn’t defeat a claim for equal 

pay. Some courts have allowed those minor differences to justify an 

employer’s paying women less. 

As one commentator stated, there is now a point where with 

some courts, virtually identical jobs are being required but even 

more than that. And it has provided women with a very limited 

substantive right to equal pay as a result. 

In addition, under the Equal Pay Act, in contrast to Title 7’s prohibition against pay discrimination, there is a defense of a factor 

other than sex which employers are allowed to bring to bear when 

defending against an Equal Pay Act claim. And the factor other 

than sex by some courts, again, has been allowed to be advanced 

when that factor has nothing to do with the business justification 

for the pay differential. And as a result, all kinds of inappropriate 

and unconvincing factors have been allowed to be advanced as a 

way of keeping an employer legally able to pay women less, again, 

completely unacceptable. 

Further, the Equal Pay Act’s procedures and remedies have not 

been sufficient as it has turned out in practice. In particular—and 

13

I know, Mr. Wilson, you mentioned the damages issues—under our 

law in general when there is an intentional violation—and that is 

what has to be shown in order to get damages. And for punitive 

damages, an even more stringent standard would have to be 

shown. Under the Equal Pay Act, that traditional remedy is not 

available. 

As a result, for all too many employers in this country pay discrimination can be simply a cost of doing business. And if that employer isn’t caught until many years go by without a compensatory 

damage and without a punitive damage remedy, it can actually be 

cost-effective for an employer to simply pay women less year after 

year after year. 

And the Equal Pay Act damages that are available under the law 

now will not fully compensate a woman for the damage that she 

suffers. And that is a damage that can go not only for herself and 

her family during her work life, but for pensions also during retirement. But it won’t serve as a deterrent, either. 

I know that my time is up. And as a result, I can’t go through 

some of the other very important provisions in the bill that help 

with remedies, including the class action provision, which is important, the information provisions, which are important. 

And just to conclude, the Paycheck Fairness Act is a very balanced approach. It helps with legal enforcement. It helps with voluntary, working together and facilitates that for employees and 

their employers. It helps for government enforcement. So it brings 

all of the private sector resources and public sector resources and 

the promise of this nation to bear to finally tackle the job of equal 

pay. 

Thank you. 

[The statement of Ms. Greenberger follows:]

Prepared Statement of Marcia D. Greenberger, Co-President,

National Women’s Law Center 

Chairman Woolsey, Ranking Member Wilson and members of the Committee, 

thank you for this opportunity to testify on behalf of the National Women’s Law 

Center on ‘‘The Paycheck Fairness Act (H.R. 1338).’’ More than forty years after enactment of the Equal Pay Act of 1963, equal pay for women is not yet a reality in 

our country. While progress toward that goal has been made, women working fulltime year-round still earn only about 77 cents for every dollar earned by men—and 

women of color fare significantly worse. There is not a single state in which women 

have gained economic equality with men, and gender-based wage gaps persist across 

every educational level. 

The evidence shows that these gaps cannot be dismissed simply as the result of 

women’s choices or qualifications. Indeed, substantial evidence demonstrates that 

discrimination and barriers that women face in the workforce must shoulder blame 

for the wage disparities women endure. And the recent Supreme Court decision in 

Ledbetter v. Goodyear Tire & Rubber Co. underscores the problems of equal pay 

that plague all too many women in this country. 

Congress should promptly enact the Paycheck Fairness Act, introduced by Representative DeLauro and Senator Clinton and the subject of today’s hearing. In addition, as the Supreme Court’s damaging decision in Ledbetter demonstrated, Title 

VII must be strengthened. Further, Congress should enact the Fair Pay Act to address the damaging and pervasive impact of occupational sex segregation on fair 

wages for women. 

I am delighted to be here today to talk about ways in which the Paycheck Fairness Act would strengthen current laws against wage discrimination and require the 

government to step up to its responsibility to prevent and address pay disparities. 

Enactment of this Act is critical to ensure that women have the tools necessary to 

achieve equal pay that has too long been denied them. 

14

The Wage Gap Reflects Sex Discrimination 

The wage gap cannot be dismissed simply as the result of ‘‘women’s choices’’ in 

career and family matters. In fact, recent authoritative studies show that even when 

all relevant career and family attributes are taken into account—attributes that 

themselves could reflect underlying discrimination—these factors explain at best a 

minor portion of the gap in men’s and women’s earnings. 

A 2003 study by U.S. Government Accountability Office (then the General Accounting Office) found that, even when all the key factors that influence earnings 

are controlled for—demographic factors such as marital status, race, number and 

age of children, and income, as well as work patterns such as years of work, hours 

worked, and job tenure—women still earned, on average, only 80% of what men 

earned in 2000.1 That is, there remains a 20 cents on the dollar pay gap between 

women and men that cannot be explained or justified by such factors. • One extensive study that examined occupational segregation and the pay gap 

between women and men found that, after controlling for occupational segregation 

by industry, occupation, place of work, and the jobs held within that place of work 

(as well as for education, age, and other demographic characteristics), about one-half 

of the wage gap is due solely to the individual’s sex.2

• A recent study by the American Association of University Women found that, 

just one year out of college, women working fulltime earn only 80 percent of what 

their male counterparts earn. Indeed, even women who make the same choices as 

men in terms of fields of study and occupation earn less than their male counterparts. And the pay gap widens further ten years after graduation—women earn 69% 

of what their male counterparts earn. Even after controlling for factors known to 

affect earnings, a portion of these pay gaps remains ‘‘unexplained,’’ though countless 

women, like Lilly Ledbetter—and their families—know discrimination is the cause.3

Studies like these are borne out by case after case, in the courts and in the news, 

of suits brought by women charging their employers with wage discrimination. The 

evidence shows that sex discrimination in the workplace is still all too prevalent. 

Recent examples of pay discrimination cases include: • In the largest employment discrimination suit ever filed, female employees have 

sued Wal-Mart for paying women less than men for similar work and using an old 

boys’ network for promotions that prevented women’s career advancement. One 

woman alleged that when she complained of the pay disparity, her manager said 

that women would never make as much as men because ‘‘God made Adam first.’’ 

Another woman alleged that when she applied for a raise, her manager said, ‘‘Men 

are here to make a career, and women aren’t. Retail is for housewives who just need 

to earn extra money.’’ 4 The panel of the Ninth Circuit recently reaffirmed the case 

as a class action on behalf of more than 1.5 million women who are current and 

former employees of Wal-Mart.5 A petition for rehearing by the entire Ninth Circuit 

is currently pending. • In February 2007, a federal judge approved a $2.6 million settlement against 

Woodward Governor Company for gender discrimination with respect to pay, promotions and training. The EEOC sued the global engine systems and parts company 

on behalf of female employees working at two of the company’s plants. Pursuant to 

the terms of the agreement, an outside individual will oversee the company’s implementation and compliance, including the development of written job descriptions for 

the positions at issue as well as performance appraisals and a compensation review 

process.6

• In 2004, on the eve of trial, investment house Morgan Stanley agreed to settle 

a sex discrimination class action filed by the Equal Employment Opportunity Commission alleging that the investment firm paid women in mid- and upper-level jobs 

less than men, passed women over for promotions, and committed other discriminatory acts. Although it denied the allegations, Morgan Stanley did agree to pay $54 

million to the plaintiffs and to take numerous other actions to prevent discrimination in the future.7

• In 2004, Wachovia Corporation admitted no wrongdoing but agreed to pay $5.5 

million to settle allegations by the U.S. Office of Federal Contract Compliance Programs that it engaged in compensation discrimination against more than 2,000 current and former female employees over six years.8

• Lilly Ledbetter was one of the few female supervisors at the Goodyear plant in 

Gadsden, Alabama, and worked there for close to two decades. She faced sexual harassment at the plant and was told by her boss that he didn’t think a woman should 

be working there. She suspected that she was getting fewer and lower pay raises 

than the male supervisors, but Goodyear did not allow its employees to discuss their 

pay, and Ms. Ledbetter had no proof until she received an anonymous note revealing the salaries of three of the male managers. After she filed a complaint with the 

EEOC, her case went to trial, and the jury awarded her backpay and approximately 

15

$3.3 million in compensatory and punitive damages for the pay discrimination to 

which she had been subject. Because of the arbitrary limits on damages under Title 

VII, however, the court was forced to cut her damages to only about one-tenth of 

the amount the jury felt she was owed, or $300,000. The Supreme Court took even 

those damages away in Ledbetter v. Goodyear Tire & Rubber Co., Inc., holding that 

she had filed her case too long after the company unlawfully decided to pay her less, 

even though Ledbetter continued to receive discriminatorily reduced paychecks because of the earlier decisions. 

Clearly, sex discrimination plays a major role in producing and sustaining the 

wage gap for women. It is thus hardly surprising that public opinion surveys consistently show that ensuring equal pay is among women’s top work-related priorities. For instance, nine in 10 women responding to the ‘‘Ask a Working Women Survey’’ conducted by the AFL-CIO in 2004 rated ‘‘stronger equal pay laws’’ as a ‘‘very 

important’’ or ‘‘somewhat important’’ legislative priority for them.9 Similarly, a January 2007 national survey of 1000 unmarried adult women by Women’s Voices 

Women Vote found that 73% of respondents said that support for pay equity legislation would make them ‘‘much more likely’’ to support a Congressional candidate.10

Current Law Is Inadequate to Address the Wage Gap 

In 1963, President Kennedy signed the Equal Pay Act into law, making it illegal 

for employers to pay unequal wages to men and women who perform substantially 

equal work. At its core, the Equal Pay Act bars employers from paying wages to 

an employee at an 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 * * * 11

Under the EPA, a plaintiff must establish a prima facie case by showing that ‘‘(1) 

the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort and responsibility; and 

(3) the jobs are performed under similar working conditions.’’ 12 If the plaintiff succeeds in demonstrating each of these requirements, the defendant employer may 

avoid liability by proving that the wage disparity is justified by one of four affirmative defenses—that is, that it has set the challenged wages pursuant to ‘‘(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity 

or quality of production; or (4) a differential based on any other factor other than 

sex.’’ 13

Congress intended the Equal Pay Act to serve sweeping remedial purposes. As the 

Supreme Court has recognized, the Act was designed: to remedy what was perceived 

to be a serious and endemic problem of employment discrimination in private industry—the fact that the wage structure of ‘‘many segments of American industry has 

been based on an ancient but out-moded belief that a man, because of his role in 

society, should be paid more than a woman even though his duties are the same.’’ 14

Unfortunately, and for several reasons, the Equal Pay Act has failed to meet Congress’ remedial goals. First, the substantive standards of the law—both with regard 

to a plaintiff’s prima facie case and with regard to an employer’s affirmative defenses—have been applied by courts in ways that make it difficult to demonstrate 

a violation of the law, even in cases where wage disparities are actually based on 

sex. Second, the remedies and procedures available to plaintiffs under the Equal 

Pay Act are insufficient to ensure the effective protection of this critical anti-discrimination law. Finally, both because employers often fail to disclose—and because 

the government refuses to collect—information on pay disparities, it is exceedingly 

difficult for individuals or enforcement agencies to take effective enforcement action 

against discriminating businesses. 

Plaintiffs Must Meet an Inappropriate Burden to Make Out a Prima Facie Case 

The plaintiff’s prima facie burden is not only demanding, but can operate in a way 

that allows actual pay discrimination to continue. For example, plaintiffs must demonstrate that the pay disparity exists between employees of the same ‘‘establishment’’—that is, ‘‘a distinct physical place of business rather than * * * an entire 

business or ‘enterprise’ which may include several separate places of business.’’ 15

Indeed, courts ‘‘presume that multiple offices are not a ‘single establishment’ unless 

unusual circumstances are demonstrated.’’ 16

In addition, as one court recently noted, the plaintiff’s showing under the Equal 

Pay Act: is harder to make than the prima facie showing [in other cases] * * * because it requires the plaintiff to identify specific employees of the opposite sex holding positions requiring equal skill, effort and responsibility under similar working 

positions [sic] who were more generously compensated.17

16

Although the jobs for which wages are compared need not be identical, moreover, 

they must be substantially equal—a comparison which typically can be satisfied 

only after courts have performed what one commentator has called a ‘‘very exacting 

inquiry.’’ 18 Notwithstanding the remedial purposes of the law, courts have narrowly 

defined what they will consider to be ‘‘equal’’ work. In Angelo v. Bacharach Instrument Company,19 for example, female ‘‘bench assemblers’’ in light assembly alleged 

they were paid less than their male counterparts who were classified as ‘‘heavy assemblers.’’ 20 Both the women and men, as well as an industrial engineering expert, 

testified that the men’s and women’s jobs at the plant were substantially the same 

with respect to skill, effort, and responsibility.21 Despite this testimony, the court 

held that the positions were ‘‘comparable,’’ but not equal.22 As one commentator has 

stated, therefore, despite the admonition contained in the federal regulations that 

‘‘insubstantial differences’’ should not prevent a finding of equal work, the courts 

have not ‘‘reach[ed] beyond comparisons of virtually identical jobs, which in a workforce substantially segregated by gender, provides women with a very limited substantive right indeed.’’ 23

For all of these reasons, plaintiffs must meet an inappropriate and counterproductive burden to proceed with an Equal Pay Act claim. But even plaintiffs who 

successfully make out a prima facie case of unequal pay for equal work face challenges from courts that have construed an employer’s affirmative defenses in ways 

that defeat the basic purposes of the law. 

Interpretation of the ‘‘Factor Other Than Sex’’ Defense Has Created Loopholes in the 

Law 

The Equal Pay Act provides four affirmative defenses through which an employer 

may justify a wage disparity between substantially equal jobs. As a commentator 

has noted, the first three of these defenses—that a pay disparity is based on a seniority system, a merit system, or a system that bases wages on the quantity or 

quality of production—are relatively straightforward ones applied with reasonable 

consistency by the courts.24 Court interpretations of the last of the affirmative defenses, however—the defense that a pay differential between equal jobs is based on 

a ‘‘factor other than sex’’—have in some instances opened the door to a perpetuation 

of the very sex discrimination the Equal Pay Act was designed to outlaw. 

In 1974, the Supreme Court rejected the argument that ‘‘market forces’’—that is, 

the value assigned by the market to men’s and women’s work, or the greater bargaining power that men have historically commanded—can constitute a ‘‘factor other 

than sex,’’ since sex is precisely what those forces have been based upon.25 Despite 

this unequivocal holding, however, courts in the Seventh Circuit recited a ‘‘market 

forces’’ defense as recently as last year.26

At the same time, moreover, some courts have accepted as ‘‘factors other than sex’’ 

arguments that seriously undermine the principles of the Equal Pay Act. Some 

courts have, for example, authorized employers to pay male employees more than 

similarly situated female employees based on the higher prior salaries enjoyed by 

those male workers. In a case decided in March of this year, for example, one federal district court accepted the argument that higher pay for the male comparator 

was necessary to ‘‘lure him away from his prior employer.’’ According to the court, 

‘‘salary matching and experience-based compensation are reasonable, gender-neutral 

business tactics, and therefore qualify as ‘a factor other than sex.’ ’’ 27 Similarly, another district court stated that 

[O]ffering 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.28

Indeed, that court has also stated that ‘‘[i]t 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’’ (emphasis added).29

The problem with these cases is their failure to recognize that the prior salary 

earned by a male comparator may itself be the product of sex discrimination or may 

simply reflect the residual effects of the traditionally enhanced value attached to 

work performed by men. Some courts have applied a similarly blinkered approach 

to evaluating the legitimacy of an employer’s claim that a man’s greater experience 

or education justifies a higher salary. In Boriss v. Addison Farmers Insurance Company,30 for example, the court accepted the male comparators’ purportedly superior 

qualifications as a factor other than sex justifying their higher salaries without any 

examination of whether those qualifications were in fact necessary for the job. According to the court, it ‘‘need not explore this issue [of whether a college degree was 

a prerequisite for the position] as the Seventh Circuit has ruled that a ‘factor other 

than sex’ need not be related to the ‘requirements of a particular position in quesVerDate 0ct 09 2002 20:38 Mar 27, 2008 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\WP\110-54\36467.TXT HBUD1 PsN: DICK
17

tion, nor that it be a ‘business-related reason.’ ’’ 31 In fact, at least two circuits have 

accepted the argument that ‘‘any’’ factor other than sex should be interpreted literally and that employers need not show that those factors are in any way related 

to a legitimate business purpose.32

Cases such as these undermine both the spirit and analytical approach of the 

Equal Pay Act. What was intended to be an affirmative defense for an employer—

a defense that demands that the employer carry the burden of proving that its failure to pay equal wages for equal work is based on a legitimate reason—has instead 

been converted by these courts into a requirement merely that an employer articulate some ostensibly nondiscriminatory basis for its decision-making. Because these 

bases can so easily mask criteria that are at bottom based on sex, the courts’ failure 

to engage in searching analysis circumvents the burden Congress intended employers to bear. 

The Equal Pay Act’s Procedures and Remedies Offer Insufficient Protection for 

Women Subjected to Wage Discrimination 

Unlike those who challenge wage disparities based on race or ethnicity, who are 

entitled to receive full compensatory and punitive damages, successful plaintiffs who 

challenge sex-based wage discrimination under the Equal Pay Act may receive only 

back pay and, in limited cases, an equal amount as liquidated damages. Even where 

liquidated damages are available, moreover—in cases in which the employer acted 

intentionally and not in good faith—the amounts available to compensate plaintiffs 

tend to be insubstantial. 

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. Employers can refrain from addressing, or even examining, pay disparities 

in their workforces without fear of substantial penalties for this failure. The class 

action currently pending against Wal-Mart illustrates precisely this problem. In that 

case, Wal-Mart refrained from any examination of the pay of its male and female 

employees, even though a discrete inquiry into the pay for male and female occupants of a mid-level management job revealed disparities that the company elected 

not to evaluate further. While such conduct would certainly be taken into account 

in assessing the availability of punitive damages under statutes that permitted such 

relief, it is largely irrelevant in calculating remedies under the Equal Pay Act. 

Procedures for enforcing the Equal Pay Act also hamstring plaintiffs attempting 

to prove systemic wage discrimination through the use of class actions. Class actions 

are important because they ensure that relief will be provided to all who are injured 

by the unlawful practice. But the Equal Pay Act, which was enacted prior to adoption of the current federal rule governing class actions,33 requires that all plaintiffs 

opt in to a suit. Unlike in other civil rights claims, in which class members are automatically considered part of the class until they choose to opt out, Equal Pay Act 

plaintiffs are subjected to a substantial burden that can dramatically reduce participation in wage discrimination cases. 

Current Sources of Information on Wage Disparities are Inadequate to Identify, Target or Remedy Problems 

Individuals are significantly handicapped in their ability to enforce their rights 

under the Equal Pay Act by the inaccessibility of information about the wages paid 

to their coworkers. Far from making such information readily available, in fact, numerous employers penalize employees who attempt to discuss their salaries or otherwise glean information about their colleagues’ pay. 

Relevant federal enforcement agencies have not only failed to fill this gap, but 

have, in the case of the Department of Labor, affirmatively undermined the government’s ability to identify and remedy systemic wage discrimination. In September 

of last year, the Department’s Office of Federal Contract Compliance Programs 

(OFCCP) published a final rule that guts the Equal Opportunity Survey, a critical 

enforcement tool developed over the course of two decades and three administrations 

to better allow OFCCP to identify and investigate federal contractors most likely to 

be engaging in pay discrimination. Without the Equal Opportunity Survey—the only 

enforcement tool for the collection of wage data by sex—the federal government now 

requires no submission of pay information. This refusal to collect relevant data deprives the government of any means to systematically monitor pay disparities or efficiently enforce the anti-discrimination laws.34

The Paycheck Fairness Act Would Remedy the Deficiencies of Current Law 

The Paycheck Fairness Act would respond, in appropriate and targeted ways, to 

precisely the problems discussed previously in this testimony that have undermined 

the effectiveness of current law. Among other provisions, the Paycheck Fairness Act 

would: 

18

• Improve Equal Pay Act Remedies 

The Act improves the remedy provisions of the Equal Pay Act by allowing prevailing plaintiffs to recover compensatory and punitive damages. The change will 

put gender-based wage discrimination on an equal footing with wage discrimination 

based on race or ethnicity, for which full compensatory and punitive damages are 

already available. It will also eliminate the unacceptable situation of an employer 

defending a denial of equal pay to a woman of color as based on her gender rather 

than her race. 

• Facilitate Class Action Equal Pay Act Claims 

The Act allows an Equal Pay Act lawsuit to proceed as a class action in conformity with the Federal Rules of Civil Procedure. This would conform Equal Pay 

Act procedures to those available for other civil rights claims. 

• Improve Collection of Pay Information by the EEOC 

The Act requires the EEOC to survey pay data already available and issue regulations within 18 months that require employers to submit any needed pay data identified by the race, sex, and national origin of employees. These data will enhance 

the EEOC’s ability to detect violations of law and improve its enforcement of the 

laws against pay discrimination. 

• Prohibit Employer Retaliation 

The Act prohibits employers from punishing employees for sharing salary information with their co-workers. This change will greatly enhance employees’ ability 

to learn about wage disparities and to evaluate whether they are experiencing wage 

discrimination. Had this provision been the law at the time that Lilly Ledbetter was 

working for Goodyear, for example, she might have been able sooner to identify and 

challenge the sex discrimination to which she was subject. 

• Close the ‘‘Factor Other Than Sex’’ Loophole in the Equal Pay Act 

The Act would tighten the ‘‘factor other than sex’’ affirmative defense so that it 

can excuse a pay differential for men and women only where the employer can show 

that the differential is truly caused by something other than sex and is related to 

job performance—such as differences in education, training, or experience. 

• Eliminate the ‘‘Establishment’’ Requirement 

The Act clarifies that a comparison need not be between employees in the same 

physical place of business. 

• Reinstate Pay Equity Programs and Enforcement at the Department of 

Labor 

The Act reinstates the collection of gender-based data in the Current Employment 

Statistics survey. It sets standards for conducting systematic wage discrimination 

analyses by the Office for Federal Contract Compliance Programs.35 The Act also 

directs implementation of the Equal Opportunity Survey.36

Conclusion 

In sum, the wage gap is real and cannot be dismissed as the result of women’s 

choices in career and family matters. Even when women make the same career 

choices as men and work the same hours, they still earn less. The consequences of 

this wage discrimination are profound and far-reaching. Pay disparities cost women 

and their families thousands of dollars each year while they are working and thousands in retirement income when they leave the workforce. It is long past time for 

Congress to act to ensure that the promise of equal pay becomes a reality. 

ENDNOTES

1 U.S. General Accounting Office, Women’s Earnings: Work Patterns Partially Explain Difference between Men’s and Women’s Earnings 2, GAO-04-35 (Oct. 2003), available at http://

www.gao.gov/cgi-bin/getrpt?GAO-04-35 (last visited Feb. 26, 2007). 2See Kimberly Bayard, Judith Hellerstein, et al., New Evidence on Sex Segregation and Sex 

Differences in Wages from Matched Employee-Employer Data, 21 J. Labor Economics 887, 904 

(2003). 3 American Association of University Women Educational Fund, Behind the Pay Gap (April 

23, 2007), available at http://www.aauw.org/research/behindPayGap.cfm (last visited July 8, 

2007). 4 Bob Egelko, Sex Discrimination Cited at Wal-Mart: Women Accuse Wal-Mart, Lawyers Seek 

OK for Class-Action Suit, San Francisco Chronicle, Apr. 29, 2003, at B1, available at sfgate.com/

cgi-bin/article.cgi?file=/chronicle/archive/2003/04/29/BU303648.DTL (last visited Feb. 26, 2007). 5Dukes v. Wal-Mart, Inc., 474 F.3d 1214 (9th Cir. 2007), available at http://

www.ca9.uscourts.gov/ca9/newopinions.nsf/D12BAFD84138E886882572790082A486/$file/

0416688.pdf?openelement (last visited Feb. 26, 2007). 

19

6The court consolidated the EEOC’s case with a class action by employees alleging race discrimination against African Americans, Hispanics, and Asians with regards to pay, promotions, 

and training. The terms of the settlement provide that $2.4 million will go to plaintiffs with 

race-based claims. Press Release, Judge Approves $5 Million Settlement of Job Bias Lawsuits 

Against Woodward Governor (Feb. 20, 2007), available at http://www.eeoc.gov/press/2-20-

07.html (last visited Mar. 27, 2007). 7Press Release, EEOC and Morgan Stanley Announce Settlement of Sex Discrimination Lawsuit (July 12, 2004), available at http://www.eeoc.gov/press/7-12-04.html (last visited Feb. 25, 

2007). 8See Office of Federal Contract Compliance Programs, U.S. Dep’t of Labor v. Wachovia Corp., 

Case No. 2001-OFC-0004 (U.S. Dep’t of Labor Office of Admin. Law Judges, Sept. 21, 2004), 

available at http://www.oalj.dol.gov/DMSSEARCH/CASEDETAILS.CFM?CaseId=205183 (last 

visited Feb. 26, 2007); Wachovia to Pay $5.5M in Discrimination Case, Tampa Bay Business 

Journal, Sept. 24, 2004, available at http://tampabay.bizjournals.com/tampabay/stories/2004/

09/20/daily37.html (last visited Feb. 26, 2007). 9 AFL-CIO, Ask a Working Woman Survey Report, 9 (2004) available at http://

www.aflcio.org/issues/jobseconomy/women/speakout/upload/aawwreport.pdf (last visited Feb. 

23, 2007). 10Memorandum from Greenberg Quinlan Rosner Research to Women’s Voices Women Vote, 

13 (Feb. 12, 2007) (on file with the National Women’s Law Center). 11 29 U.S.C. § 206(d). 12 Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). 13 29 U.S.C. § 206(d)(1). 14 Corning Glass Works, 417 U.S. at 195. 15 Ingrams v. Brink’s, Inc., 414 F.3d 222, 232 (1st Cir. 2005) (citing 29 C.F.R. § 1620.9). 16Meeks v. Computer Ass’n Int’l, 15 F.3d 1013, 1017 (11th Cir. 1994), (citing 29 C.F.R. Sec. 

1620.9(a)). 17 Ingram v. Brink’s, Inc., 414 F.3d at 232 (citations omitted). 18Peter Avery, Note, The Diluted Equal Pay Act: How Was It Broken? How Can It be Fixed?, 

56 Rutgers L. Rev. 849, 858 (Spring 2004). 19 555 F.2d 1164 (3d Cir. 1977). 20 Id. at 1166. 21 Id. at 1167-1170. 22 Id. at 1176. 23 Elizabeth J. Wyman, The Unenforced Promise of Equal Pay Acts: A National Problem and 

Possible Solution from Maine, 55 Me. L. Rev. 23, 34 (2003) (quoting Jennifer M. Quinn, Visibility and Value: The Role of Job Evaluation in Assuring Equal Pay for Women, 25 LAW & 

POL’Y INT’L BUS. 1403, 1439 (1994)). 24 Avery, supra note 17, at 868. 25 Corning Glass Works, 417 U.S. at 205 (noting that the company’s decision to pay women 

less for the same work men performed ‘‘took advantage’’ of the market and was illegal under 

the EPA). See also Siler-Khodr v. Univ. of Texas Health Science Ctr. San Antonio, 261 F.3d 542, 

549 (5th Cir. 2001) (noting that ‘‘This court has previously stated that the University’s market 

forces argument is not tenable and simply perpetuates the discrimination that Congress wanted 

to alleviate when it enacted the EPA.’’ (citations omitted).) 26Merillat v. Metal Spinners, Inc., 470 F.3d 685, 697, n6 (7th Cir. 2006) (noting that the court 

has ‘‘held that an employer may take into account market forces when determining the salary 

of an employee,’’ although cautioning in a footnote against employers taking advantage of market forces to justify discrimination). 27Drury v. Waterfront Media, Inc., No. 05 Civ. 10646, 2007 WL 737486, at *9 (S.D.N.Y. Mar. 

8, 2007). 28Glunt v. GES Exposition Services, Inc., 123 F. Supp. 2d 847, 859 (D. Md. 2000) (citing 

Mazzella v. RCA Global Comm, Inc., 814 F.2d 653 (2d.Cir.1987); Walter v. KFGO Radio, 518 

F.Supp. 1309 (D.N.D.1981)). 29Glunt v. GES Exposition Services, 123 F. Supp. 2d at 859. But see Lenihan v. The Boeing 

Co., 994 F. Supp. 776, 798 (S. D. Tex. 1998) (‘‘prior salary, standing alone, cannot justify a disparity in pay’’); Equal Employment Opportunity Commission, Compliance Manual Section 10: 

Compensation Discrimination, at 10-IV(F)(2)(g) (2000), available at http://www.eeoc.gov/policy/

docs/compensation.html#10-IV%20COMPENSATION%20DISCRIMINATION (last visited April 

10, 2007). 30 No. 91 C 3144, 1993 WL 284331 (N.D. Ill. July 26, 1993). 31 Id. at *9, (quoting Fallon v. State of IL, 882 F.2d 1206, 1211 (7th Cir.1989) (citing Covington 

v. SIU, 816 F.2D 317, 321-22 (7th Cir.1987)). 32See Wernsing v. Dep’t of Human Servs., 427 F.3d 466, 470 (7th Cir. 2005) (‘‘The disagreement between this circuit (plus the eighth) and those that required an ‘acceptable business reason’ is established, and we are not even slightly tempted to change sides.’’). 33FED. R. CIV. P. 23. 34 In addition, current law does not address wage disparities that are premised on occupational sex segregation. Many occupations today remain dominated by one gender, and many that 

are dominated by women still pay artificially depressed wages. But courts have refused to use 

existing laws to address this continuing devaluation of traditionally female fields. The Fair Pay 

Act would ensure that continued occupational sex segregation does not perpetuate the suppressed wages usually paid for typically female jobs. 35The Paycheck Fairness Act would overturn the DOL’s 2006 decision to narrow the scope 

of its investigations into systematic wage discrimination. See DOL, Interpreting Nondiscrimination Requirements of Executive Order 11246 with Respect to Systemic Compensation Discrimination, 71 Fed. Reg. 35,124 (June 16, 2006). 

20

36The Act refers to a regulation the Office of Federal Contract Compliance Programs (OFCCP) 

rescinded on September 8, 2006. See DOL, Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors; Equal Opportunity Survey, 41 C.F.R. § 60.2. 

Chairwoman WOOLSEY. Thank you, Ms. Greenberger. 

Ms. Olson? 

STATEMENT OF CAMILLE OLSON, PARTNER,

SEYFARTH SHAW LLP 

Ms. OLSON. Good morning. Thank you, Madam Chairperson. 

I appear before you today on behalf of the U.S. Chamber of Commerce, the world’s largest business federation. I am a member of 

its labor relations committee, as well as its subcommittee on employment non-discrimination issues. 

As set forth in my written testimony presented to the subcommittee, the United States Chamber of Commerce strongly opposes the Paycheck Fairness Act. If passed it would amend the 

Equal Pay Act in significant substantive as well as procedural 

ways upon the unsubstantiated premise that any differences in 

wages between men and women are the result of intentional discrimination by employers. 

Yet, in fact, the Equal Pay Act is not an intentional discrimination statute. It imposes what has been called by commentators and 

judges strict liability on employers upon a showing of unequal pay 

for unequal work without a finding of intentional discrimination. 

In addition, once a plaintiff can show a disparity in pay, the employer has the burden of producing not just evidence, but retains 

the ultimate burden of persuading a jury that, in fact, the difference was based on one of the factors enumerated in the statute 

or a factor other than sex. 

The Paycheck Fairness Act is fundamentally flawed, as is some 

of the testimony that you have heard in the underpinnings of this 

act in that it imposes harsh, lottery-type penalties upon employers. 

It lowers the applicable standards of proof for employees and provides plaintiffs’ class action attorneys with class action devices to 

be applied, which are much more lenient than the current ones 

that exist under the statute. 

It also reinvigorates, as you have heard today through the testimony that has already been presented, the concept of comparable 

work directly the OFCCPs and the Department of Labor’s directive 

to issue guidelines to focus on the comparisons of jobs that are not 

equal to determine in the minds of the government as opposed to 

the market forces whether or not the difference in pay between jobs 

that are not equal is in their minds fair. 

What I would like to do is describe for you just briefly today 

under the Equal Pay Act and Title 7 what remedies do exist for 

women who claim sex discrimination in pay. Women bringing 

claims of pay discrimination based on their sex have the following 

remedies under the Equal Pay Act: back pay, as well as an adjustment of pay going forward; interest, a concept also that hasn’t been 

mentioned here yet today; liquidated damages, meaning a doubling 

of any damages that are found in terms of back pay as well as attorneys’ fees and costs. 

And because it is part of the Fair Labor Standard Act’s procedures, there is also a potential for individual liability for defendVerDate 0ct 09 2002 20:38 Mar 27, 2008 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\WP\110-54\36467.TXT HBUD1 PsN: DICK
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ants, including to up to $10,000 in fines and up to 6 months in 

prison. 

In addition, under Title 7, women are also currently entitled to 

up to $300,000 in compensatory and punitive damages, depending 

on the size of the employer, upon a showing of intentional discrimination. That is not available under Title 7 with respect to a disparate impact finding. Nor is it with respect to other findings, for 

example, under the Americans with Disabilities Act in connection 

with the reasonable accommodation issues if there is not a finding 

of intentional discrimination. 

In addition, under the Equal Pay Act and Title 7 as it currently 

exists, plaintiffs also have the right to bring collective actions. Basically what a plaintiff has a right to do is bring an action on behalf of anyone who is similarly situated who is interested in joining 

the action. All they must do is file a written consent that they are 

interested in joining. 

There is no charge-filing requirement of 180 or 300 days. In addition, there is a longer statute of limitations. That claim is filed directly with the court system and can be filed up to 2 to 3 years if 

there is a willful finding in connection with a finding of a violation. 

As mentioned earlier, the requirement for a plaintiff under the 

Equal Pay Act is to show a difference in wages not to show intentional discrimination. At no time does the plaintiff bear this burden. 

Instead the burden shifts to the employer under the current law 

to show a legitimate factor other than sex, as enumerated in the 

statute or as otherwise considered by the employer is the reason 

for the disparity. Courts have widely recalled the fact that if you 

compare Title 7 to the statute’s current requirements under the 

Equal Pay Act that, in fact, under the Equal Pay Act it is much 

more difficult for an employer to get summary judgments so that 

more plaintiffs’ claims go to juries. 

I don’t have time to discuss the significant concerns with the 

Paycheck Fairness Act that exist, but let me at least name the categories for you so you have them: the issue of uncapped punitive 

and compensatory damages unrelated to a finding of intentional 

discrimination; a substantial change to a factor other than sex affirmative defense; as well as directing the Department of Labor 

and the OFCCP to issue guidelines which basically import comparable worth analysis into the equation, guidelines that generally 

under other laws have been viewed and provided to juries as strong 

evidence of what the agency that is responsible for enforcing that 

statute believes is the law; and finally, as mentioned earlier, 

changing the class action procedures to one that would include 

many more potential plaintiffs. 

In summary, the chamber strongly opposes the Paycheck Fairness Act and requests the subcommittee proceed very cautiously 

with its review of its provisions. 

[The statement of Ms. Olson follows:]

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Chairwoman WOOLSEY. Thank you, Ms. Olson. 

Mr. Sellers? 

STATEMENT OF JOSEPH SELLERS, PARTNER, COHEN, 

MILSTEIN, HAUSFELD AND TOLL PLLC 

Mr. SELLERS. Good morning, Madam Chair, members of the subcommittee. Thank you for inviting me today. 


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When it was enacted in 1963, the Equal Pay Act, the first federal 

sex discrimination law that had been passed applying to the workplace, held great promise. But it has fallen far short of that promise because of a number of procedural flaws in the legislation, 

many of which the Paycheck Fairness Act would address. 

I want to identify a few of the areas and begin with the area that 

has not been discussed. And that is the initial burden that women 

who wish to invoke the Equal Pay Act must satisfy in order to even 

shift the burden to the employer to have his business practices 

scrutinized. 

The factors that must be satisfied are difficult to satisfy, typically 

requiring expert analysis that most individuals cannot afford to 

pay. And therefore, many women stumble at the beginning in pursuing these claims when they pursue them individually. So I would 

like the subcommittee not to begin its assessment of this bill by assuming, as might otherwise be led to believe, that these claims are 

anything but very difficult to bring under the best of circumstances. 

We have already discussed briefly among the panel the catch-all 

defense, the factor other than sex that can be used by employers 

to defend these claims. That defense can permit such practices as 

strength and agility tests or prior pay levels at the time before employees are hired to be used to justify existing pay disparities between men and women in the workplace. 

And simply because they do not on the surface reflect an intention to discriminate or reflect some basis to be inclined to discriminate, they may satisfy this factor other than sex standard. And so, 

I applaud the Paycheck Fairness Act’s proposed changes here, 

which do nothing more than import into this statute the protections that were already accorded to workers in the Civil Rights Act 

of 1991 as it applied to disparate impact claims. 

There is nothing revolutionary about requiring that the factors 

be bona fide, that they be related to the job in question, that they 

be shown to serve a legitimate business purpose. Those are hardly 

extraordinary requirements. And that is what this provision would 

require. 

I turn quickly to the issue of multiple party claims, class actions. 

I think there is a good deal of misunderstanding perhaps about 

what this bill would accomplish here. 

I have represented employees for nearly 30 years in a number of 

pay discrimination cases. And I have found repeatedly that they 

are, as I think Dr. Murphy mentioned at the beginning, there is a 

great deal of fear about suing your employer. 

And the provision currently in place, which is simply an anomaly 

because this act was—the Equal Pay Act was an amendment to the 

Fair Labor Standards Act—requires that each woman who wishes 

to participate in these cases has to file a notice to her employer and 

take some affirmative action to actually participate in the case. In 

practice that leads to far often fewer than 50 percent of women aggrieved with respect to a particular pay practice actually participating. That is hardly the goal we should seek to achieve, unless 

your goal is simply to minimize liability for an employer. 

And that is certainly, I would hope, not the sole goal of our nation’s civil rights laws, but rather to do justice. And those women 

38

who are aggrieved ought to be given the opportunity to participate 

in these cases. 

The act would simply add to the law a provision which is applicable under Title 7, applicable to virtually every other modern civil 

rights law that individuals who wish to pursue a claim as a group 

can invoke the rules of civil procedure applicable to all cases in federal court. And therefore, people who are aggrieved can participate 

in those cases where they initiate their own action or not. So it 

really puts this law in parity with the other civil rights laws. 

The remedies—I will say only one thing quickly about that. And 

that is by simply awarding to aggrieved individuals the earnings 

lost and occasionally double the earnings lost, it provides no deterrent to employers to ensure that their pay practices are fair. It simply, as has already been explained, potentially the cost of doing 

business to discriminate on the basis of pay. 

And finally, the last point I will make to conclude quickly is I 

really want to stress the importance of the reporting requirements 

that this bill would add to require employers to present data about 

pay to the Office of Federal Contract Compliance Programs and the 

EEOC. As Justice Ginsburg in the Ledbetter decision recognized, 

most employees don’t know how others are paid, lack the basis to 

make those comparisons. We need the federal agencies to collect 

that information in order to provide the proper enforcement. 

Thank you very much. 

[The statement of Mr. Sellers follows:]

Prepared Statement of Joseph M. Sellers, Partner,

Cohen, Milstein, Hausfeld & Toll PLLC 

Although in effect for more than 40 years, the Equal Pay Act (‘‘EPA’’) has fallen 

into disuse. The liability requirements of the EPA are extraordinarily difficult for 

plaintiffs to satisfy, the remedies available fail to address the full range of harm 

suffered by aggrieved women and the enforcement scheme provided by the statute 

ignores the realities of the modern workplace. As a result, women who believe they 

have been subject to pay discrimination in compensation more often invoke Title VII 

of the Civil Rights Act of 1964, enacted one year after the EPA was passed. Properly 

recast, however, the EPA can offer a powerful tool in the ongoing efforts to reduce 

the gap in earnings between men and women. The Paycheck Fairness Act of 2007 

(‘‘PFA’’ or ‘‘Act’’) would eliminate most shortcomings of the EPA that have limited 

its utility. 

In this statement, I will identify and discuss the most serious flaws of the EPA. 

In offering these views, I draw upon nearly 30 years of legal practice representing 

victims of civil rights violations, especially in equal employment opportunity matters. 

First, the initial proof required of a plaintiff to establish a prima facie case is prohibitively high, as a result of which most women who pursue claims individually 

under the EPA do not prevail. 

Second, the EPA permits employers to defend claims by asserting that the pay 

difference is attributable to one or more ‘‘factors other than sex.’’ This defense 

shields from challenge grounds for pay disparities that, while not overtly attributable to sex, may nonetheless be closely associated with gender. As such, the scope 

of the defense must be confined to grounds that plainly could have no relationship 

to gender. 

Third, where evidence exists of a pattern or practice of pay discrimination, the 

EPA requires each aggrieved worker to opt into the case in order to receive any relief. This opt in requirement has had the effect of excluding many women from participation in EPA cases. Instead of employing this outdated and burdensome procedure where multiple claims are advanced, the EPA should employ Rule 23 of the 

Federal Rules of Civil Procedure which includes within a certified class all women 

who may be aggrieved by the same or similar pay practice without the obligation 

to opt into the case.1

39

Fourth, the remedies available under the Equal Pay Act fail to address fully the 

harm that pay discrimination causes and provide little deterrence to employers from 

engaging in such discrimination, as the maximum relief available is often little more 

than payment of the wages the aggrieved women would have been paid in the absence of the pay discrimination to which they were subject. 

Fifth, as most employees are unaware of the compensation paid to their co-workers, they lack the information needed to initiate actions under the EPA. Private enforcement of this statute, therefore, will often fail to reveal, much less challenge and 

end, systemic gender-based pay disparities. Without regular disclosure of worker 

compensation by gender to an appropriate enforcement agency, the protections afforded by the EPA will never be realized. 

I. Difficulties in establishing plaintiff’s prima facie case 

A plaintiff seeking to recover under the Equal Pay Act bears a heavy burden of 

proof to demonstrate a sex-based pay disparity is discriminatory. A plaintiff must 

show she performed work that is ‘‘equal’’ or ‘‘substantially equal’’ to that of a male 

comparator in the same establishment and under similar working conditions.In determining whether work is equal or substantially equal, courts consider factors such 

as skill, effort, responsibility, and working conditions.While a plaintiff must show 

more than that the work of the comparator is comparable, she is not required to 

prove the work was identical.The meaning of equal work in the EPA, therefore, lies 

somewhere between comparable and identical work. This range of possible meanings 

that can be ascribed to ‘‘equal work,’’ the central requirement that the plaintiff must 

satisfy, has created considerable uncertainty about how to satisfy this standard. 

Rather than conducting a comparison of the essential features of jobs held by a 

plaintiff and her comparator, courts too often compare superficial features of the 

jobs and overlook fundamental similarities that are masked by trivial differences. 

Without the assistance of an expert to conduct analyses of each job at issue, which 

requires an expense few plaintiffs can afford individually, courts are left at sea in 

interpreting the requirements that plaintiffs must satisfy. Rather than assessing 

whether the jobs involve equal or similar skill, effort, and responsibility, courts have 

been tempted simply to compare a detailed job task list.Similarly, courts are not required to consider (1) experience, training, education, and ability required of jobs 

when assessing whether they involve equal skill; (2) the degree of mental or physical exertion required by the two jobs, as effort may be equal even if exerted in a 

different manner; and (3) the degree of accountability required for each job responsibility, despite the relevance of such factors in determining job comparability. Without the assistance of experts to guide the interpretation of broad statutory language 

and its application to job features that may not be easily compared, courts often find 

plaintiffs failed to satisfy their initial burden of proof and, as a result, the burden 

of proof never shifts to the employer to justify its challenged pay practices. 

The Equal Pay Act also requires that a plaintiff and her male comparator work 

in the same establishment.As more employers have multiple facilities at which the 

same jobs are performed, this requirement imposes increasingly unjustified constraints on the job comparisons that must be made. Where women work in jobs 

whose only comparators are located in other facilities, this provision creates a requirement that is impossible to satisfy. 

These difficulties in establishing appropriate comparators pose the greatest obstacles to success under the EPA for women holding higher level jobs where an employer’s contention that each job is unique may seem most plausible. Current litigation 

trends show that blue-collar workers who hold jobs with simple, well-defined duties 

and whose work is almost identical have had greater success in satisfying their burden of proof under the EPA.In contrast, women in administrative, managerial and 

executive positions have experienced a high rate of dismissal of their EPA claims 

because their jobs are more easily viewed as unique and therefore lack an appropriate comparator. As women have come to occupy higher level positions in the 

workplace with increasing frequency, they have found less available to them the 

protection against pay discrimination that Congress intended to provide by enacting 

the EPA. 

The Paycheck Fairness Act in part addresses these obstacles to satisfying the 

plaintiffs’ burden of proof under the EPA. The Act would appropriately eliminate the 

requirement that equal work must be performed at jobs located at the same facility, 

thereby shifting the focus of any comparison to the characteristics of the work performed.Other artificial barriers to satisfaction of the plaintiffs’ burden of proof cannot be so easily eliminated. Clearer and more precise definitions of the initial requirements that plaintiffs must satisfy might provide courts with greater guidance 

and reduce the all-too-common resort to mechanical comparisons that ignore important features of the jobs. Ultimately, the elaborate comparisons of multiple job diVerDate 0ct 09 2002 20:38 Mar 27, 2008 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\WP\110-54\36467.TXT HBUD1 PsN: DICK
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mensions that the EPA requires are most likely accomplished with assistance from 

experts. But, their cost is prohibitive for most employees who pursue their claims 

individually, making the ability to pursue such claims collectively especially important to effective enforcement of the EPA. 

II. The defense available to employers, that a pay disparity was attributable to a 

‘‘factor other than sex,’’ must be more narrowly defined, as it presently protects 

conduct that causes gender pay disparities. 

In order to avoid liability, employers must rebut evidence of a gender-based pay 

disparity by proving that the wage gap is a result of one of the following—a bona 

fide seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a factor other than sex. The first three defenses 

available to employers are specifically defined by statute and are normally associated with sound business practices likely to minimize the influence of gender in 

compensation decisions. The last defense that the EPA affords employers, however, 

that the pay disparity was caused by a ‘‘factor other than sex,’’ insulates from judicial scrutiny a wide array of business practices which, while neutral on their face, 

nonetheless may rely on factors that disadvantage women. Accordingly, the ‘‘factor 

other than sex’’ defense must be confined to business practices shown to serve compelling and legitimate interests of the employer and for which no alternative exists 

that would cause a smaller or no disparity in pay. 

For example, a policy that paid war veterans more than non-war veterans in jobs 

involving the same work was found to be a gender-neutral ‘‘factor other than sex’’ 

notwithstanding that the lower paid non-war veteran employees were all women 

and the higher paid war veterans were all men.Reliance on pre-hire pay levels and 

strength and agility requirements offer other examples of factors that correlate 

highly with gender but which nonetheless can satisfy the ‘‘factor other than sex’’ defense. 

While not expressly relying upon gender, these factors and others like them are 

so closely associated with gender that they serve as a proxy for gender. As such, 

they should not qualify as grounds on which an employer may successfully defend 

a gender-based pay disparity. 

Nor is the EPA clear in prescribing the burden of proof that employers must satisfy in order to assert the ‘‘factor other than sex’’ defense successfully. The vague 

language of this defense, in contrast to the specificity of the other three defenses, 

has led courts to allow employers to satisfy the ‘‘factor other than sex’’ defense more 

easily than the other defenses. In Strecker v. Grand Forks County Social Service 

Board, for example, the court accepted the employer’s simple assertion that use of 

the state personnel classification system was a gender-neutral ‘‘factor other than 

sex’’ that contributed to the observed gender-based pay disparity.In contrast, in 

Brewster v. Barnes, the court required the employer to satisfy a burden of persuasion; that is, to persuade it that the proffered reason actually contributed to the pay 

disparity and was gender neutral.As a result, the court concluded that the employer 

had failed to raise a ‘‘factor other than sex’’ because it failed to investigate or determine whether the employee in fact spent more than fifty percent of her time performing certain tasks. Defining the ‘‘factor other than sex’’ defense with greater particularity and specifying the burden of proof that the employer must satisfy would 

likely ensure that courts hold employers to the same evidentiary standard as they 

do with the other affirmative defenses available under the EPA. 

The Paycheck Fairness Act would address the shortcomings in the ‘‘factor other 

than sex’’ defense available in the EPA. First, the Act requires that the ‘‘factor other 

than sex’’ be bona fide. The addition of the bona fide requirement ensures the factor 

proffered by the employer actually is neutral and unrelated to sex. Second, the Act 

requires that, in order to qualify as a defense, the proffered factor must be related 

to the position in which the pay disparity was observed, ensuring that it actually 

accounts for the challenged pay disparity.Third, the Act requires as an alternative 

ground that the proffered factor serve a ‘‘legitimate business purpose’’ and that no 

alternatives be available that would achieve the same business purpose but cause 

less pay disparity.This provision will be invaluable in ensuring that neutral practices, such as pre-hire pay levels or criteria relying upon stamina or strength, be 

scrutinized closely for the purpose they serve and compared with alternative criteria 

that may not cause gender-based pay disparities. 

Oddly, the Act as it is presently drafted treats these two new requirements that 

a ‘‘factor other than sex’’ must satisfy as alternatives rather than as standards both 

of which must be met.There is no reason the requirement that a ‘‘factor other than 

sex’’ be related to the job in question serve as an alternative to the requirement that 

‘‘a factor other than sex’’ serve a legitimate business purpose and have no alternative factors available that may cause no pay disparity. The first requirement, that 

41

the factor at issue is job related, ensures that it is applicable to the job in which 

the disparity was observed, not simply apply to a broader or different category of 

jobs. The second requirement, that the factor serve a legitimate business purpose 

and have no alternatives that would have caused less pay disparity, ensures that 

the factor at issue be important to the employer’s business and that the availability 

of options that might not cause the observed pay disparity be considered in assessing the lawfulness of the employer’s compensation practice. Both requirements are 

necessary to ensure a ‘‘factor other than sex,’’ while neutral on its face, not serve 

as a proxy for sex. The Act should be revised to treat these requirements in the conjunctive, not the disjunctive as they now appear, to ensure that both requirements 

be satisfied when an employer asserts the defense that a gender-based pay disparity 

was due to a ‘‘factor other than sex.’’

III. When multiple claims are asserted under the epa, each claimant should be able 

to participate in the case without the need to opt into the action. 

When more than one woman working for the same employer claims she was the 

subject of a gender-based pay disparity, the EPA may permit them to pursue their 

claims together. Unlike virtually every other employment discrimination law, however, the EPA requires each woman who may have been adversely affected by the 

same discriminatory pay practice to file a notice with the court in which the case 

is pending expressing an intention to participate in the action. This burden erects 

an obstacle to women who may have been aggrieved by the same pay practice that 

may deny to some, or even many, the opportunity to participate in the case. Women 

aggrieved by the same pay practice should be afforded the opportunity to participate 

in the same lawsuit by order of the court, as occurs under virtually every other civil 

rights statute, rather than be required to notify their employer and the court of such 

an interest. 

At the time the EPA was enacted in 1963, most of the civil rights laws in effect 

today had not been passed. As there was no other federal law in effect at that time 

which protected against sex discrimination in the workplace, the EPA was enacted 

as an amendment to the Fair Labor Standards Act, 29 U.S.C. §§ 201-219. (‘‘FLSA’’) 

Enacted in 1938, the FLSA provides that where multiple persons wish to challenge 

the same conduct under that statute, each must file a separate notice with the court 

in order to opt into the case. One year after the EPA was enacted, Congress passed 

the Civil Rights Act of 1964, of which Title VII provides comprehensive protections 

against employment discrimination in all phases of the employment relationship, including compensation practices. Because Title VII was enacted as freestanding legislation, claims brought under it are governed by the Federal Rules of Civil Procedure 

which generally apply to all cases brought in the federal courts. Rule 23 of the Federal Rules of Civil Procedure provides that, where multiple claimants seek to challenge the same conduct, an order of the court certifying their group as a class ensures their participation in the action and their eligibility to share in any remedies 

awarded to members of the class. As a consequence of its early enactment and the 

absence of other laws that addressed sex discrimination in the workplace at that 

time, the EPA borrowed a procedure to govern multi-party claims from the FLSA, 

a statute that was enacted about 30 years earlier, before the Federal Rules of Civil 

Procedure and Rule 23 existed. 

The ability of all women aggrieved by a discriminatory pay practice to participate 

in the same case is critical to vindicating their rights under the EPA and ensuring 

that the rights of all women with the same claim are adjudicated in the same case 

at the same time and before the same court. The current process governing the pursuit of multiple pay discrimination claims against the same employer inevitably 

leads to the exclusion of many women with similar claims from the case in which 

the alleged pay practices are challenged. Although the EPA permits the court to 

issue notice to all women who may have been aggrieved by the challenged pay practice, some women have refrained from opting into EPA cases as they may lack 

knowledge personally that they were paid less than similarly situated men. Other 

women have declined to opt into the EPA cases from fear that the notice they must 

provide to their employer of an interest in participating in the case will subject 

them to retaliation. The cumulative effect of these additional hurdles that must be 

surmounted for women to participate in EPA multi-party cases, in my experience, 

leads to the exclusion of as many as half of the women eligible to participate. 

The better approach to the adjudication of multi-party claims arising under the 

EPA is to permit pursuit of such claims in a class action certified by a court pursuant to Rule 23 of the Federal Rules of Civil Procedure, where the circumstances 

warrant it. By employing the class certification process, the claims of women aggrieved by the same or similar pay practice are encompassed within the same case 

by court order and without the need for each woman to file notice opting into the 

42

action. This process comports with the procedure used for adjudicating multi-party 

sex discrimination claims arising under Title VII and ensures that all women who 

may have been aggrieved by the same or similar pay practice will pursue their 

claims together. 

The Paycheck Fairness Act would amply address this shortcoming in the EPA by 

expressly providing that women seeking to challenge the same or similar pay practices may proceed by class action governed by Rule 23 of the Federal Rules of Civil 

Procedure.This provision will rectify a significant procedural flaw in the EPA and 

bring it into conformity with other civil rights laws enacted during the same period. 

IV. Remedies available under the equal pay act should include the award of compensatory and punitive damages 

The remedies available under the Equal Pay Act are too limited to address the 

harm that is suffered by pay discrimination and to provide an adequate deterrence 

to discrimination by employers. 

Successful litigants under the Equal Pay Act ordinarily recover the difference between the wages they were paid and the average wages paid to employees of the 

opposite sex who performed equal work for the two years before their complaint was 

filed. If the plaintiffs show the violation was willful, then they receive three years 

of back pay. Should the employer fail to show that the challenged pay disparities 

were the product of good faith, then the plaintiffs may also recover liquidated damages in the amount of the pay disparity. 

Unlike Title VII of the Civil Rights Act of 1964, which was amended in 1991 to 

permit the award of compensatory and punitive damages to victims of intentional 

discrimination, the Equal Pay Act does not authorize the award of such remedies. 

The award of compensatory damages may be warranted where a victim’s knowledge 

of the pay disparity causes emotional harm or the payment of wages to women 

below those paid to similarly-situated men leads to consequential damage to a victim. Punitive damages might be warranted where an employer knew of the genderbased pay disparity and failed to take prompt and appropriate corrective action or 

the employer recklessly disregarded the rights of women to be free from pay discrimination. Absent the availability of these remedies, the EPA fails to provide the 

full panoply of remedies that are now routinely available under federal law to victims of intentional employment discrimination. 

Moreover, the monetary remedies currently available under the EPA for the most 

part simply require payment of wages that were unlawfully withheld in pursuit of 

gender-based pay discrimination. That remedy fails to provide an adequate incentive 

for employers to engage regularly in the examination of their own compensation 

practices and to investigate and address any pay disparities that may be detected. 

Even the payment of lost wages doubled where an employer has failed to demonstrate it acted in good faith permits employers to tolerate the risk that employment practices resulting in gender-based pay disparities will be detected and challenged, as they can compute precisely the economic exposure and determine whether 

it is a tolerable cost of doing business. The potential for the award of damages, on 

the other hand, may create risk that is not easily quantified and financial exposure 

that will cause employers to be more diligent in examining their pay practices and 

promptly address gender-based disparities where warranted. 

The Paycheck Fairness Act redresses the deficiency in the remedies available 

under the EPA by permitting the award of compensatory and punitive damages.In 

doing so, the Act eliminates a shortcoming of the EPA that has long diminished its 

value as a vehicle for addressing unlawful pay disparities. 

V. As most employees are unaware of the amount of pay their co-workers receive, 

compensation data must be reported to federal enforcement agencies to ensure 

unlawful pay disparities can be systematically detected and redressed. 

In most workplaces, the amount of compensation paid to each employee is not 

known by his or her co-workers. As a result, employees ordinarily lack the factual 

basis with which to compare the compensation they receive with pay levels of coworkers performing the same work. The lack of such information from which informed pay comparisons can be made greatly limits the ability of most workers to 

formulate and advance a claim of pay discrimination under the EPA. The enforcement of the EPA, therefore, cannot depend for the most part on private legal action. 

Instead, the 

protections of the EPA can only be secured by investigation and enforcement of 

pay disparities by the EEOC and the Office of Federal Contract Compliance Programs, the federal agencies charged with enforcing the EPA in the private sector. 

In order to ensure that these agencies possess reliable information about employer 

43

compensation levels, employers must be required to report such information regularly to them. 

Unlike most personnel actions, the results of which are readily evident to many 

employees, the levels of compensation paid to an employee are rarely known to coworkers. In contrast, the identity of persons selected for promotion is often observed 

by employees who work near or with the selectee. Perhaps more than any other personnel action, the results of compensation decisions are typically confidential and 

the ensuing amounts of compensation paid are known only to the pay recipient and 

a handful of managers and personnel staff. Indeed, the limits on knowledge about 

pay levels and the corresponding difficulty most employees have in comparing their 

compensation with amounts paid to co-workers prompted Justice Ginsburg to observe recently that: ‘‘Comparative pay information * * * is often hidden from the 

employee’s view.’’

The lack of knowledge about the amounts paid to co-workers is undoubtedly attributable to several causes. First, concealing compensation levels from workers protects the privacy of employees, for most of whom the amount of their pay is regarded as a matter of considerable sensitivity. Second, many employers discourage, 

and some actually ban, discussion between employees about the amounts of their 

compensation. Third, even employees informed about the pay levels of their co-workers likely lack knowledge about the factors that influenced those pay levels, such 

as evaluation of their co-workers performance and perhaps even the level of education and training each has received. 

Absent ready access to the pay levels of their co-workers and the factors that led 

to those pay levels, most employees lack the knowledge needed to make a viable 

claim of pay discrimination under the EPA. While discovery is ordinarily available 

to workers who initiate litigation under the EPA, workers must have sufficient information with which to determine they wish to file such a claim before bringing 

an action to enforce the EPA. It is not surprising, therefore, that of the claims filed 

alleging discrimination in the workplace, only a small percentage make specific allegations of pay discrimination. 

Lacking regular access to information about the amounts of compensation paid to 

their co-workers, the few employee-initiated complaints of pay discrimination cannot 

serve as an adequate source of information to federal enforcement agencies about 

the incidence of gender-based pay disparities in the workplace. Instead, those agencies must be granted access on a regular and organized fashion to information about 

the amounts of compensation paid to workers, identified by their demographic features and by the characteristics of the jobs they hold. Only with access to such information can federal enforcement of the EPA and its sister protections under Title VII 

of the Civil Rights Act of 1964 be pursued systematically and thoroughly. 

The Paycheck Fairness Act directs the EEOC to survey the data on employee compensation currently available to the federal government and, soon thereafter, to 

issue regulations that will provide for the collection of pay information from employers.This provision offers the best hope for the systematic investigation of employer 

compensation practices and, to the extent warranted, the pursuit of an organized 

and strategically developed enforcement program. A similar provision should be 

added to the Act directing the Office of Federal Contract Compliance Programs of 

the Department of Labor to undertake similar measures. 

Conclusion 

More than 40 years ago, the Equal Pay Act was enacted with great hope that its 

protections would eliminate gender-based pay disparities from workplaces throughout the nation. But, the difficult scheme employed for enforcement of the EPA and 

the inaccessibility of information about pay to most employees has caused enforcement of this statute to fall far short of its promise. The Paycheck Fairness Act 

would considerably enhance the ability of employees to secure the protections 

against pay discrimination afforded by the EPA and create the first comprehensive 

program to investigate and eradicate gender-based pay disparities in this country. 

I urge its speedy enactment. 

NOTES

1 Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). 

2Working conditions need not be equal, but must be similar as evidenced by the physical surroundings and job hazards. Id. at 200. 3 29 C.F.R. 1620.14(a) (2003); Lambert v.Genesee Hosp., 10 F.3d 46, 56 (2d Cir. 1993) 

4 Cavuoto v. Oxford Health Plans, Inc., 2001 WL 789316, *7 (D.Conn. June 13, 2001) (conducting a superficial task-by-task comparison of job duties as opposed to inquiring into the effort, skill, and responsibility involved in the jobs being compared); 29 C.F.R. § 1620.15(a) (2003). 5 29 U.S.C. § 216(d) (2007). 

44

6See, e.g., Georgen-Saad v. Texas Mutual Insurance Co., 195 F.Supp.2d 853, 857 (W.D. Tex. 

2002) (noting that the Equal Pay Act is more easily applied to lower-level workers performing 

commodity-like work and is not suitable for assessing high-level workers) 7See Juliene James, The Equal Pay Act in the Courts: A De Facto White-Collar Exemption, 

79 N.Y.U. L. REV. 1873 (2004) (explaining the historical and normative factors that result in 

a de facto white collar exemption to the Equal Pay Act). 8PFA, § 3(c). 

9Fallon v. State of Illinois, 882 F.2d 1206, 1212 (7th Cir. 1989). 

10 640 F.2d 96 (8th Cir. 1980), rev’d on other grounds by Pullman-Standard v. Swint, 456 U.S. 

273 (1982); see also Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251 (7th Cir. 1985) (holding that the defendant satisfied the factor-other-than-sex defense based on the existence of a 

reorganization plan). 11 788 F.2d 985 (4th Cir. 1986). A burden of persuasion requires the party to which it is assigned to prove or persuade a fact finder that the fact proffered is more likely true than not. 

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993); Texas Dept. of Community Affairs 

v. Burdine, 450 U.S. 248, 254 (1981). In contrast, a burden of production only requires the party 

to which it is assigned to articulate or produce evidence in support of the fact proffered, not 

persuade the fact finder that such evidence should be credited. Id. See also Stanziale v. 

Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000) (concluding that, unlike Title VII claims, Equal 

Pay Act claims follows a two-step burden-shifting paradigm). 12PFA § 3(a). 13PFA § 3(a)(I)(aa)(AA). 14PFA § 3(a)(I)(aa)(BB). 15PFA § 3(a)(I)(aa)(AA). 16PFA § 3(e)(4). 17PFA § 3(e)(1). 18Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S.———, No. 05-1074, slip op. at 3 

(2007)(Ginsberg, J. dissenting). 19See Equal Employment Opportunity Commission, EEOC Litigation Statistics FY 1997 to FY 

2006, available at http://www.eeoc.gov/stats/litigation.html (showing that only 10 of the 403 

suits filed in 2006 included Equal Pay Act claims). 20PFA§ 9. 

Chairwoman WOOLSEY. Thank you. 

Thank you all for your testimony. 

Now I am going to recognize myself for 5 minutes. And my first 

question is to you, Dr. Murphy. In Ms. Olson’s written testimony, 

she claims that unexplained differences in the wage gap are attributable to women’s choices. How would you respond to that? 

Ms. MURPHY. Well, for years now statisticians have been analyzing, doing regression analysis to try and explain through women’s characteristics or through workers’ characteristics what this 

23-cent difference is all about. And finally, I mean, the consensus 

right now is that 40 percent of that cannot be explained by all 

these regression analyses. I am a data nerd. You have to excuse 

me. 

But being a data nerd, if you look carefully at this 40 percent, 

as much as everybody has tried to explain that it is not discrimination, you have to conclude after a while that this is discrimination. 

If you start with that 40 percent and then you look back into other 

statements about what is explained and look carefully at the footnotes and the hedging clauses, you will find that there may be 

some discrimination in the explained portions. 

So I take the 40 percent to be discrimination. And it may be substantially more than that. That is why, as Attorney Sellers was 

saying, that is why it is important to gather this other data until 

we have data from the workplace that can be factored in and used 

as well to explain and understand the extent of this discrimination. 

We have pushed as far as we possibly can with the Bureau of 

Labor Statistics and the Census Bureau’s data. You can’t go any 

further without analysis to get a clear statement and understand 

what discrimination is. But you can with the EEOC data and some 

modification which finally gets the pay data in workplaces. 

45

Chairwoman WOOLSEY. Okay, thank you. 

Ms. Greenberger, you would probably like to respond to that, too. 

But I would like you to talk to us a little bit about the current 

Equal Pay Act and what has happened with the Ledbetter decision 

and with the very idea of that we are weakening, not strengthening 

support for women in the workforce. So where does this legislation 

we are talking about now—how would that help or hinder what 

came out of Ledbetter? 

Ms. GREENBERGER. Well, let me just make one quick comment 

with respect to the pay gap and the nature of discrimination as a 

major cause of the pay gap in the country today, as Dr. Murphy 

said. Not only is the ‘‘unexplained’’ portion, which has to be due to 

discrimination substantial in and of itself, but also the so-called 

other factors like women making choices sometimes to stay at 

home to take care of children. 

Well, clearly, for some women that is their choice. And it is a 

choice to be supported. And I wish we had policies in our country 

that better did support those choices. 

But in many families, it is the worker, the wage earner who 

earns the least, who economically is the one who then cuts back on 

their paid labor force participation in order to deal with family responsibilities, whether it is children, elderly parents or the like. 

And so, what is deemed by many of these judgments as women’s 

choices actually in a number of instances also reflects the pay discrimination that women face, which means they are the ones who 

have to give up paid employment, health insurance, pension plans 

and the like to meet the family responsibilities that need to be addressed in this country. 

So we are facing very substantial costs for families and for 

women with this pay discrimination. That is number one. 

Now, where are we with the law? First of all, what we have seen 

over the past number of years is an actual cutback in government 

enforcement of our anti-discrimination laws in general in the workplace, including the Equal Pay Act. So we have seen a cutback in 

data being collected on the basis of race, national origin, sex, religion, et cetera. We have seen the Bureau of Labor Statistics collecting less information with respect to women, not more. 

We know there is a particular problem with respect to women of 

color who suffer especially with respect to discrimination in the 

workplace and with pay. We do not collect adequate data by race, 

by gender or by gender and by ethnicity. 

That data is essential in order to identify the problems to have 

enforcement. Without that data, which this bill would go a long 

way to assuring is collected, we cannot target enforcement for the 

government properly. We cannot as a country understand the full 

scope and effect and the damage being done by pay discrimination. 

So this legislation is essential for that. On top of that, you mentioned the Ledbetter Supreme Court decision, a five-four decision 

where the Supreme Court by one vote narrowly interpreted Title 

7’s ability to address the issue of pay discrimination by limiting individual’s right to bring a complaint to 180 days within the first 

discrimination. 

46

Chairwoman WOOLSEY. Okay, I am going to stop you there. And 

we are going to have a second round. And I am going to ask you 

to go further into Ledbetter. 

Ms. GREENBERGER. Okay, thank you. 

Chairwoman WOOLSEY. Mr. Wilson? 

Mr. WILSON. Thank you, Madam Chair. 

And, again, witnesses, thank you for being here. 

Dr. Murphy, I have a high regard for economists. But I have to 

tell you I am quite partial to three attorneys. And this is unheard 

of, I know. But I am an inactive attorney myself, sir, practiced for 

25 years. And I am very grateful my oldest son is a trial attorney. 

And so, I appreciate your profession very much. 

Ms. Olson, my first question would be what is the difference between ‘‘a factor other than sex’’ and ‘‘a bona fide other than sex,’’ 

if you can explain the distinction. Then as follow-up, if you could, 

can you explain what the practical impacts of the further limitations on the defense such as the alternative employment practice 

requirement would be? 

Ms. OLSON. Thank you, yes. It is difficult to tell because the 

words bona fide are not defined by the act. Instead when you look 

up the definition of the word bona fide, it says genuine. And the 

question is is that going to be something that one is going to look 

at with subjective intent, or is that something that is going to be 

looked at in terms of whether there is an underlying determination 

that there was intentional discrimination, or was it an appropriate 

factor to consider. 

Mr. WILSON. So whether or not it was a result of discrimination, 

if a reviewing court or jury determines it just wasn’t an appropriate factor or the right factor that the employer should be considering, would that be sufficient to be bona fide within the meaning 

of the act? And I think that would be the subject of significant litigation for many years to come. 

Question: Does it impart a state of mind obligation or doesn’t it? 

Is it something that can be supplanted in terms of the judgment 

of a particular employer by a jury? And that is clearly one of the 

issues. 

Ms. OLSON. In addition to amending any other factor other than 

sex by adding bona fide, there are a number of other differences 

and a much higher standard of proof that an employer—and, again, 

an employer who at this point, unlike Title 7, would bear the ultimate burden of persuasion in front of a jury, would be required to 

show, they would also be required to show that there was a legitimate business purpose. 

And even once they show that, the plaintiff could still prevail if 

the plaintiff were able to show, notwithstanding a business necessity in connection with the defense that is built in here, that there 

was another way in which second guessing in hindsight, somebody 

looking at the decisions of the employer, a jury, could determine 

that perhaps the same objective could have been achieved by the 

employer using another factor that might not have in retrospect as 

significant an impact on women. 

An example might be, for example, an employer might have a 

pre-employment or a requirement, an employee in terms of a certain position have a certain amount of training. And the plaintiff 

47

may be able to defeat the employer’s legitimate factor, which was 

training, by saying the employer could have spent 6 months to a 

year on the job training individuals who were not trained outside 

of the workplace and that that would eliminate the disparate factor, disparate treatment of women in connection with that particular issue. 

Mr. WILSON. But shouldn’t an employer have the right at the 

start of a relationship to hire employees who are the most qualified 

to do the job? 

Additionally, can you explain to me in greater detail the theory 

of comparable worth and how this bill might result in more of these 

sorts of claims being brought? How exactly does a comparable pay 

system work? And what are the results, generally? 

Ms. OLSON. That is a very good question. And it is an amazing 

thing that we are looking at a strict liability statute, the Equal Pay 

Act, that does not even require intentional discrimination. And we 

are looking at changing it by including the entire concept of comparable worth, which has been resoundly rejected, not just by this 

legislature, not just by the initial legislature that passed the Equal 

Pay Act, as you can see from my written comments, but also by 

judges and circuits courts of appeal and the U.S. Supreme Court. 

Comparable worth theory, at its essence, allows someone to compare the pay of one job to another job, even though the jobs are 

different. Basically what this statute would do, the Paycheck Fairness Act would do, would be to direct the Department of Labor and 

the OFCCP to compare—and the language of the statue is clear—

jobs that are different for the purpose of determining whether employers have determined ‘‘fair pay’’ for those jobs. That is not what 

is required under Title 7, under the Equal Pay Act or under any 

federal legislation that I am aware. 

Mr. WILSON. Thank you very much. 

Chairwoman WOOLSEY. Thank you. 

Mr. Hare? 

Mr. HARE. Thank you very much, Madam Chair. I do share one 

thing with the ranking member. I am troubled by this legislation. 

But I am troubled that we even have to have hearings in past legislation to end discrimination against women in the workplace. 

I came out of a clothing factory where 95 percent of the people 

that were employed there were women. And I could tell you we live 

in a fantasy world if we really believe that this isn’t happening to 

women every single day as we sit here. And so, from my perspective, I think it is not just the right thing to do. I think we have 

a moral obligation to pass this bill and to pass it quickly and hopefully get the President to sign this. 

I would like to ask you, Ms. Olson. You were talking about in 

your defense of the EPA cases—I was wondering how many cases 

under the EPA with multiple claims, including a positive action, 

have you personally defended. And the second part of that question 

would be with regard to those cases, how successful have the plaintiffs been in the cases that you were defending? 

Ms. OLSON. I defended a number of cases on behalf of employers. 

And in those cases, a number of cases, as you know, approximately, 

I think, over 90 percent of all cases settle prior to going to trial. 

And many of those cases do settle at some point. In addition, the 

48

motion for summary judgment structure is set up to allow both 

plaintiffs and defendants to file motions. 

And if you look at cases, some of them are won in summary judgment. Some of them are tried to juries. Most of those cases do not 

just include Equal Pay Act cases. One might argue that it would 

be actually malpractice for a plaintiff’s lawyer to simply bring an 

Equal Pay Act case without a Title 7 case because of the overlapping and the lucrative available remedies when you pair those two 

statutes together. 

Let me just mention that if you look at——

Mr. HARE. Well, I guess my question was how successful—because it seems that the plaintiff has to go through numerous, numerous hoops to even get to that step. And I am wondering in the 

cases where you defended the employer, how successful was the 

plaintiff in—I mean, what percent of cases were you not successful 

in representing the defendant on? 

Ms. OLSON. I can’t give you a percentage of success. But I can 

tell you that in connection with those cases, cases where there was 

an issue with respect to whether or not there was equality in pay, 

obviously are considered and are resolved prior to a resolution by 

defense counsel, including myself. 

With respect to those cases in which the employer has a strong 

position that, in fact, there was a disparity that was based on a factor other than sex, those cases actually were tried through pleadings. And actually employers were successful in my situation, every 

case that I can recall involving the Equal Pay Act. 

Mr. HARE. So you had 100 percent success rate, then, defending 

your clients? 

Ms. OLSON. That is not the way I would look at it. I would look 

at it—because you have to include the much more significant number of cases that are resolved short of a determination positively 

in terms of one person’s favor or another. 

In addition, if you look at just the last 2 years and Equal Pay 

Act and Title 7 wage claims, and if you look at just the reported 

cases, you will see verdicts of anywhere between $1 million and 

over $50 million in connection with verdicts across the country in 

connection with those cases. So to say that, in fact, there isn’t an 

effective mechanism out there today in which classes are being certified or collective actions are proceeding wouldn’t be an accurate 

reflection of the case law. 

Mr. HARE. Okay. 

So I just wanted to ask Mr. Sellers this. But I guess, so you have 

never lost one then, in other words? You are batting 1,000? 

Ms. OLSON. I have settled. That is correct. I have settled. 

Mr. HARE. Okay. 

Mr. Sellers, of people who go to court, go all the way through this 

process where there is not a settlement who have a case and have 

taken all this time and all the effort to bring this to an end, what 

percent of those cases does the plaintiff, from your personal experience—how successful is the plaintiff in even getting a judgment in 

their behalf? 

Mr. SELLERS. I would estimate it somewhere less than 10 percent. And that is, of course, recognizing that there are many 

women who don’t pursue their claims to begin with. They often 

49

contact me, and I conclude the proof required to even make the initial showing is too demanding, and, therefore, they wouldn’t even 

get to the point of shifting the burden to the employer. 

Mr. HARE. Go ahead. 

Mr. SELLERS. I just wanted to make one other point because we 

have heard a couple of times the use of the reference to the statute 

as a strict liability statute. And I really want to respectfully disagree with that characterization. 

A strict liability statute would be one in which the plaintiff prevailed if she simply satisfied the legal requirements set forth for 

her. This statute provides a whole array of defenses for employers. 

There is no employer that has a case brought against it, as I think 

Ms. Olson’s experience demonstrates, that doesn’t have very substantial defenses available. 

So I really think it is a mistake to characterize this as some kind 

of ‘‘you bring your case and you automatically win.’’ The practice 

is otherwise; I think strict liability is nowhere to be applied to this 

statute. 

Mr. HARE. Thank you. I yield back. 

Chairwoman WOOLSEY. Thank you very much. 

Mr. Price? 

Mr. PRICE. Thank you, Madam Chair. 

I appreciate the panelists coming today. I appreciate the information that has been presented. 

I thank the Chair for providing this opportunity because I think 

it points out clearly distinct differences between the approach that 

many of us take here in Congress. This would be, I think, another 

classic example of what I have coined to be Orwellian democracy 

that we are engaged in here in this 110th Congress. 

We have a bill before us that is entitled the Paycheck Fairness 

Act might better be described or titled the Increase in Class Action 

Suit Litigation Act in order to be more accurate in its description. 

I come to this setting, again, appreciating the information. I 

come from a family of professional women. I come from a profession 

where the number of women are increasing, medicine. I will assure 

you that the federal government discriminates equally against both 

men and women in the area of health care and of medicine and 

would hope that we would be addressing some of those issues as 

well. 

I am struck by many of the comments. And it is always a challenge to try to figure out exactly how to use your time up here because we get 5 minutes. 

Mr. Sellers, I was interested in your comment about apparently 

if a job had to do with strength and agility, the employer ought not 

be able to take strength and agility into account. I was amused, I 

guess, by the fact that you lamented that there weren’t more lawsuits that were able to be brought. 

It is understandable, given your profession. But I think that it 

is somewhat curious that that ought to be our goal. And my good 

friend who just spoke seemed to think that because plaintiffs 

weren’t winning more then we ought to change the rules so that 

plaintiffs could win more, not talking about the merits of the issue 

or the merits of the cases. 

50

Dr. Murphy talked about being a data nerd. I am a fact nerd. 

And facts are stubborn, stubborn things. And so, I would like to 

draw the attention of all a couple facts. CBO found that among 

people ages 27 to 33 who have never had a child, women’s earnings 

approached 98 percent of men’s. And women who hold positions 

and have skills of similar experience to those of men face wage disparities of less than 10 percent. And many are within a couple 

points. 

Now, is there discrimination out there? Absolutely, absolutely. 

But I have got real reservations about how rampant that is indeed 

and whether or not the vast majority of these factors aren’t simply 

the market. 

I have asked a number of times to get information about companies held, owned, and operated by women and whether the pay discrepancies that—or pay differentials—in those companies are similar to others. And I suspect that—and I haven’t been able to get 

that, but I suspect that that is indeed the case. 

Again, talking about Orwellian democracy, this Congress might 

be—and this committee might be described as being an anti-jobs 

committee and an anti-jobs Congress. There are three major things 

that drive the cost of business: taxation, litigation, and regulation. 

And we are coming down hard on business on every one. 

This, I believe, would significantly increase the litigation that is 

present and, therefore, decrease jobs in America, decrease jobs for 

men and women. And I would suggest that that is a direction in 

which we ought not head as a nation. 

But if I may, Ms. Olson, my reading of 1338 shows that we would 

provide—if it were enacted—we would provide for an uncapped 

compensatory and punitive damages. And I wondered if you might 

talk about the consequences of that in employment litigation and 

in the marketplace. 

Ms. OLSON. Yes. And if I might add, in terms of the issue of uncapped punitive and compensatory damages, those are not available today under Title 7 so that you would be taking sex discrimination in pay and saying that sex discrimination in pay as opposed 

to under the Americans with Disabilities Act, the Age Discrimination Employment Act or Title 7 should have a higher, an uncapped, 

unlimited amount of damages available. It would be much more 

difficult in those situations. 

Let me just mention in its essence, again, there is no intentional 

finding that is required under the Equal Pay Act. Mr. Sellers disagrees with those courts that have described the Equal Pay Act as 

a strict liability statute, as he may. But he hasn’t disagreed with 

the concept that it is fundamentally different than Title 7. 

Punitive damages are damages that are assessed by courts and 

juries to deter, to punish bad conduct. That kind of assessment is 

one that is completely contrary to the notions of the Equal Pay Act 

that don’t require even intent, yet alone a willfulness in terms of 

an even higher standard, yet alone an intentional punitive damagetype determination. 

There are cases involving the Equal Pay Act and Title 7 in which 

juries have found that an employer violated the Equal Pay Act and 

was willful in doing so. But that standard is lower than even the 

general intentional discrimination standard under Title 7. And, 

51

therefore, they didn’t make it a violation of Title 7. And there is 

a 10th Circuit case to that effect. There are a number of cases to 

that effect that are cited in my written testimony. 

It would be very difficult to determine what is the practical effect. There would be many more cases. There would be much more 

litigation. It is an open-ended checkbook. How do you determine 

what the economic value of those cases are if there are meritorious 

ones to try to settle? It provides a lottery-type recovery over and 

above what would be required in connection with liquidated damages. 

Mr. PRICE. My time is expired. 

And I appreciate that, Madam Chair. 

Chairwoman WOOLSEY. Thank you. 

Mr. PRICE. I would just echo those sentiments. I have grave concerns about the unintended consequences. 

Chairwoman WOOLSEY. Thank you, Mr. Kline. We actually didn’t 

turn the light on way into your opening statement. 

Mr. PRICE. Right. 

Chairwoman WOOLSEY. So you——

Mr. PRICE. I am Mr. Price. 

Chairwoman WOOLSEY. Right, I am sorry, Mr. Price. 

Mr. PRICE. I don’t want you to——

Chairwoman WOOLSEY. Thank you. 

Mr. Payne? 

Mr. PAYNE. Thank you very much. And we could really look at 

discrimination, I guess. There are some medical people there. But 

if we ever take a look at discrimination in the medical profession, 

it would be unbelievable. 

They did a study of aspirin years ago. Twenty-two thousand people were included in it and not a single woman. And the whole 

question was to see about life expectancy and the impact. And we 

find even in the tamoxifen clinical tests they really didn’t tell 

women that they could get a different type of cancer by using this, 

the drug over the placebo. But I am not a doctor. 

Also this question about comparable worth. We talk about it 

more simply as equal pay for work of equal value and the disparate 

impact, for example. Fire departments just did not want women to 

be fire persons, I guess, or firemen. 

And so, they would have a part of the test—and I was a member 

of the municipal council—that everyone who qualified had to drag 

a dummy weighing 150 pounds or 200 pounds across a gym floor 

of about 100 years in a certain amount of time. Well, many women 

could not make it. 

Now, the question of disparate impact, whether it is necessary. 

How many people are you going to drag across a floor weighing 

over 150 pounds every time you get a fire? So one of the things we 

did was to say, well, is this a disparate impact, does it make sense. 

And it didn’t. And, therefore, we were able to get women on the fire 

department. 

But there is no question that there are so many built in discriminations against women, whether it is in, like I said, the medical 

field where they are not brought into clinical tests. And they have 

said, well, it is bad business, those three business points that I 

52

mentioned, taxation, regulation, and litigation and how this is so 

terrible for America. 

But I just wonder if maybe Dr. Murphy or Ms. Greenberger—is 

the disparate pay between men and women bad for the economy? 

You know, we just heard that this job creation, its impact. And I 

just wonder what your opinion is on this topic that my colleague 

just talked about being so bad for American business. 

Ms. GREENBERGER. We have heard some arguments to that effect 

about every single anti-discrimination statute that if it means that 

employers somehow are going to have all these enormous burdens, 

that we need to just let the market work its will, that we can’t afford to have people vindicating their rights in court, that if women 

get equal rights, that it means that they will end up hurting the 

economy. All of those predictions have turned out not to be true. 

And, in fact, women’s wages are essential for the economy today. 

Most families rely upon the wages of women as well as men in 

order to make ends meet. If you ask—and there have been many 

public opinion surveys—about the nature of pay discrimination and 

do men and women see pay discrimination against women, the 

numbers are off the charts about the importance of addressing pay 

discrimination. 

Because around the kitchen table, men and women know that 

women’s wages are not fair, they are not equal, and that the children, the families, men, women, sons, daughters pay the price for 

the discrimination against women in the workplace. And our economy is the poorer for it as well because women’s skills aren’t being 

able to be developed. 

They don’t have the resources to pay for health care. And there 

are a number of studies about the problems that women face in the 

health care system, the fact that they do not have the kind of 

health insurance that they need, that they don’t get that as part 

of the pay in the workplace. 

Our country pays an enormous price because of this pay discrimination. And I agree completely that our economy would be stronger, the workplace would be not only fairer, but also that we as a 

country would be far richer if women were paid what they are 

worth. 

And I do want to make one point with respect to Ms. Olson. I 

think she misreads the statute in very serious respects and has paraded a whole range of horrible effects of this legislation, which it 

doesn’t require. But in particular with respect to comparable worth 

or comparable pay, which was a question that was asked, all that 

this legislation does is talk about studying the issue. It isn’t talking 

about requiring this. 

But when we have parking attendants making more than child 

workers, employers ought to be looking and seeing whether that is 

a pay scale that makes sense. 

Chairwoman WOOLSEY. Thank you, Ms. Greenberger. 

Ms. GREENBERGER. Thank you. 

Chairwoman WOOLSEY. I want to remind Mr. Price that the reason it seemed like I cut him off was that he had a minute-and-ahalf before we even turned his clock on. 

Mr. Kline? 

53

Mr. KLINE. Thank you, Madam Chair. And anytime that you get 

Dr. Price and I confused, it is okay with me. I fare better when 

that happens. 

I want to thank the witnesses for being here today. I was a little 

bit concerned when my good friend and colleague, the gentleman 

from Illinois, said it was a moral imperative that we pass this legislation. And I disagree, of course. 

But what really concerns me is that we have put this on a moral 

basis, that those that might not support this somehow are lacking 

in morals. So I hate it when the dialogue kind of gets down to that 

level. 

This is a lot about details, and lawyers are involved here. That 

is what we do here, I suppose, is get lawyers involved because we 

are writing law. 

I would like to, Ms. Olson, give you the opportunity to address 

a couple of issues. One, we had a discussion. There was some confusion about the theory of comparable worth. And then disparate 

impact was brought in. Can you sort of sort through that for us a 

little bit? And then if time allows, I would like you to address the 

regression analysis discussion that Dr. Murphy had. And we have 

got a vote on, so we will be scrambling out of here pretty shortly. 

Ms. OLSON. Okay. And if I just might start my comments by saying there is something to the issue of whether it would be bad for 

the economy. There is no question it would be bad for the free market system that we have in our country in terms of the way wages 

are set as opposed to government agencies determining which jobs 

should be treated as comparable and which pay should be attached 

to those as opposed to allowing the free market system to do that. 

In terms of comparable worth, the comment that has come here 

from the table is that, in fact, I misunderstand the statute and that 

it doesn’t intend to inject comparable worth into the description of 

what would be required by the Equal Pay Act. In fact, it does so 

by directing the Department of Labor and the OFCCP to actually 

study jobs that are different and to publish guidelines to be addressed and reviewed by employers. 

My experience—and I have spent a lot of time doing trial work 

in front of juries—is that judges automatically take those guidelines promulgated by the various agencies, whether it is the EEOC 

or the Department of Labor, and present them to the juries as the 

governing law in connection with what is appropriate, whether it 

be a pre-employment testing issue or in this situation, which would 

be an issue of what jobs should be treated as comparable and what 

they pay ought to be. That is not something which has previously 

been the province of any agency or the province of judges or juries 

in connection with employment discrimination litigation. 

In terms of disparate impact analysis, today plaintiffs and 

women have the right under Title 7 using the rule 23 device that 

Mr. Sellers described to bring disparate impact pay claims that 

exist today. And those cases are brought. And I describe—they are 

significant settlements in many of those cases over the last number 

of years. 

With respect to regression analysis, it is an analysis that was 

adopted by the OFCCP back in June of last year in terms of once 

it gave significant consideration to how can we best determine 

54

what is appropriate in terms of the comparison of different jobs and 

different issues in terms of pay. It felt that accrued analysis just 

looking at jobs by pay band really didn’t explain the differences. 

You really need to consider a number of different factors. And 

the statistical methodology to do that is regression analysis. And 

it adopted it in just June of last year as the appropriate way it 

would go about taking a look at jobs and pay. 

Mr. KLINE. Thank you, Madam Chair. I yield back. 

Chairwoman WOOLSEY. I think you heard the bells ringing. We 

have a series of four votes. So we will conclude. 

And in concluding, I would like to say there is a difference between both sides of the aisle on this issue. Many of us and many 

of you believe that you can have jobs, you can have successful businesses, and you can have equality. One does not cancel out the 

other. 

So in looking at that, if the Equal Pay Act worked as well as Ms. 

Olson believes it does, then my question is why do women earn 23 

cents less an hour than men. Are women not worth the same as 

men? Of course not. 

That is what we are dealing with. That is what we will have to 

do something about. That is what you have spoken to us about 

today. 

I wish we had a lot more time. But you don’t want to hang 

around here while we go vote. It is going to be at least 45 minutes. 

And I want to thank you so much for being here, all four of you. 

You have brought a lot to the discussion. 

As previously ordered, members will have 14 days to submit additional materials for the hearing record. And any member who 

wishes to submit follow-up questions in writing to the witnesses 

should coordinate with the majority staff within 14 days. 

Without objection, this hearing is adjourned. 

[The prepared statement of Ms. DeLauro follows:]

Prepared Statement of Hon. Rosa L. DeLauro, a Representative in Congress 

From the State of Connecticut 

Madame Chairwoman, I want to thank the Committee for hosting its second hearing on the ’Paycheck Fairness Act’. This is an important sign of progress, showing 

just how serious the Committee is about this issue and just how well you appreciate 

the need to help women in the workplace. 

In the more than ten years, I have spent working on these issues, we were not 

able to get a hearing on the bill. Now we have had two hearings in just three 

months. I am very proud of the momentum we are building. 

It is time to value the work that women do in our society. It is time to continue 

fighting, as we are doing here today, for working women and families—and for 

women like Lilly Ledbetter. 

When the Supreme Court ruled 5 to 4 against Ms. Ledbetter this Spring, it decided that a victim of pay disparity should be able to document a discriminatory difference in pay within a mere six months, despite the typical office secrecy over income. When women still earn only about 77 percent of what men earn, this ruling 

leaves them with no remedy, essentially rolling back efforts to ensure equal pay. 

We need to fix the Supreme Court ruling, and we need to ensure no woman is 

ever subject to the injustice Lilly Ledbetter experienced. That is why I have called 

on Congress to pass the ’Paycheck Fairness Act’ and give women the tools to confront discrimination in the workplace and give teeth to the Equal Pay Act. Shortchanging women of their due, shortchanges their entire families, limits their opportunity, and undermines their work. 

It is no wonder, that today the ’Paycheck Fairness Act’ enjoys the bipartisan support of 224 cosponsors. This is an issue of fairness. We owe it to Lilly Ledbetter. 

We owe it to the more than 1.5 million female employees at Wal-Mart who have 

55

sued the retailer for paying them less than their male counterparts. We need to ensure women have the tools to remedy and if necessary, fight pay discrimination. 

And that is exactly what Paycheck Fairness would do, requiring the Department 

of Labor to enhance outreach and training efforts to work with employers to eliminate pay disparities. It would prohibit employers from retaliating against employees 

who share salary information with their co-workers and stiffen penalties for employers in violation of the Equal Pay Act. And it would require the Department of Labor 

to resume collecting and disseminating information about women workers and create a new grant program that would help strengthen women’s salary negotiation 

skills. 

Ensuring pay equity can help families gain the resources they need to give their 

children a better future—the great promise of our American dream. 

And in today’s hearing we will hear from some excellent witnesses who will help 

illuminate these issues from a number of valuable perspectives. Evelyn Murphy, an 

economist, is founder of the Wage Clubs and the author of ‘‘Getting Even: Why 

Women Still Don’t Get Paid Like Men.’’ Joe Sellers, an attorney, working on civil 

rights and employment cases has worked with Wal-Mart employees claiming discrimination, and Marcia Greenberger, Co-President, National Women’s Law Center. 

Again, Madame Chairwoman, I want to thank you for your careful deliberation 

of this critical issue and I look forward to the day when we bring The Paycheck 

Fairness Act to the House floor. 

[The prepared statement of the American Association of University Women, submitted by Ms. Woolsey, follows:]

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[The prepared statement of Business and Professional Women/

USA, submitted by Ms. Woolsey, follows:]

Prepared Statement of Business and Professional Women/USA 

Chairman Woolsey and members of the Committee, thank you for this opportunity 

to provide written testimony on wage inequity and its impact on working women, 

their families, and employers. 

Business and Professional Women/USA (BPW/USA) and Business and Professional Women’s Foundation have a unique perspective on this issue in that we understand that working women are both employees and employers. Legislative solutions to workplace inequity must provide tools that support both the employee and 

employer, to level the playing field and provide opportunities that dismantle the systemic barriers that remain. We bring this perspective to our testimony today. 


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Background of Organizations 

Founded in 1919, BPW/USA is a multi-generational, nonpartisan membership organization with a mission to achieve equity for all women in the workplace through 

advocacy, education, and information. Established as the first organization to focus 

on issues of working women, BPW/USA is historically a leader in grassroots activism, policy influence and advocacy for millions of working women. BPW/USA’s legislative platform focuses on the issues of workplace equity and work-life effectiveness. 

Pay equity undeniably falls within this focus making fair pay one of our top policy 

priorities. BPW/USA has long fought for equal pay as our members were witness 

to President Kennedy signing the Equal Pay Act into law. Today, the wage gap continues to be one of the greatest economic factors that affect working women and 

families. Therefore BPW/USA remains committed to the pay equity issue by being 

the leading advocate to move legislation forward and educator for working women, 

and policy makers. 

In 1956, Business and Professional Women’s (BPW) Foundation became the first 

research and education institution of national scope solely dedicated to issues that 

affect working women. BPW Foundation utilizes the avenues of research, education, 

policy and knowledge development to achieve its mission: to empower working 

women to achieve their full potential and to partner with employers to build successful workplaces. BPW Foundation encourages cross-sector collaboration between 

employers, research organizations, working women and policymakers. This collaboration is based on the understanding that each sector plays an important role in 

creating successful workplaces for working women and their employers by virtue of 

their ability to identify and act collectively upon common ground areas ready for 

change. 

Women in the Workforce 

Workingwomen have made great strides in establishing themselves as an integral 

force in the American economy in the last five decades. The growing participation 

of women in the paid labor force was a critical factor in the economic growth of the 

United States during this time. By 2006, women comprised 46 percent of the labor 

force increasing from 29 percent in 1956 and 36 percent in 1976.i By 2002, womenowned employer firms employed 7.1 million workers and paid $173.7 billion in annual payrolls and accounted for 6.5 percent of total employment in U.S.ii Women 

comprised 46.3 percent of wealthiest Americans, by 2001, with a combined net 

worth of $5.8 trillion.iii

The importance of working women to the U.S. economy and to their families’ incomes can not be underestimated. According to the U.S. Census Bureau the wages 

of men (under age 44) have undergone a steady decline. At the same time the real 

median income of families has risen; economists attribute this rise to the growth 

in women’s labor force participation.iv Typically, women in dual-income households 

provide approximately one-third of the family income. Two-thirds of all families with 

children have all available parents at work; among prime-age women (ages 25 to 

45), 75 percent of women and 71 percent of mothers are in the labor force.v

Additionally, working women’s continuing readiness to take on primary responsibility for addressing critical societal needs such as care giving for children, elders 

or ill family members or acting as volunteer leaders has fueled a shadow economy 

of unpaid work that contributes significantly to the economic and social well-being 

of communities and families. One estimate shows unpaid care giving (by women and 

men) for older or ill family members, alone, provides $257 billion in services to the 

nation.vi

Over the past 50 years, women in large numbers realized the individual accomplishments demanded of them at the start of the movement to achieve equity in the 

workplace: they received college degrees in ever increasing numbers, started their 

own businesses, made concerted efforts to move into nontraditional fields, mentored 

and were mentored.vii

Women are outperforming men at almost every educational level with 88 percent 

of women in the 25-29 age group completing high school compared to 85 percent of 

men; women also now make up 58 percent of U.S. college students compared to 43 

percent in 1970. Women have earned more bachelor’s degrees than men since 1982 

and more master’s degrees since 1986. Within four years, it is estimated that 

women undergraduate and graduate students will outnumber men by 10.2 million 

to 7.4 million. Women are also more likely to have higher grades than men.viii But 

still, women with graduate degrees earn only slightly more than men with only a 

high school diploma ($41,995 compared to $40,822).ix

Yet with all of this progress the wage gap persists in the 21st Century. 

62

The Persisting Wage Gap 

In a time when women make up nearly half the workforce, many think that the 

issue of wage inequity no longer exists. However, a recent deluge of corporate law 

suits disproves this view. A number of corporations such as Goodyear Tire, Smith 

Barney, Merrill Lynch, Wal-Mart and Boeing have all faced sex discrimination lawsuits in recent years brought on by female employees asserting that their employers 

paid them less than men or did not promote them as quickly. These pay discrimination law suits brought media attention to an issue that continues to impact the paychecks of many working women. 

The 2006 Census Bureau estimates that full time, year-round female workers 

make 77 cents for every dollar a male earns. For minority women this statistic worsens as African-American women make 66 cents, Latinas make 55 cents and AsianAmerican women make 80 cents. After stalling in the 1980’s, at the current rate 

of change, it will be another 50 years before women achieve equal pay. 

Many women are aware of the wage gap and the enormous impact it will have 

on their financial lives; unfortunately some are not. According to economist Evelyn 

Murphy, over a working lifetime, the gender wage disparity will cost a woman between $700,000 and $2 million in lost wages, dependent upon her education level. 

Women know that the wage gap exists due to lost promotions and chronic discrimination. Economists believe that between 10 percent and 30 percent of the wage gap 

is attributable to discrimination.x

Pay inequity is not a women’s issue, but a family issue. Men have an equal investment in ending the wage gap for the sake of total household income and retirement 

savings. Today the majority of American families depend on the earnings of both 

parents to financially survive so rewarding equal pay for equal work would result 

in increased family incomes. As a result of the wage gap, women stand to lose significant amounts of money that could be used for their families and retirement.xi

Lower pension and social security benefits that result from unequal pay cause this 

gap to follow women and their families throughout their lives. 

The Power of Grassroots 

The goal of BPW/USA is to empower working women to be strong advocates for 

themselves, in their workplaces, and on behalf of legislation like the Paycheck Fairness Act. Annually, BPW/USA members recognize Equal Pay Day in April by 

hosting events and activities across the nation to raise awareness of the wage gap. 

BPW/USA believes in the three pronged approach to addressing the issue of pay equity. This entails passing legislation to enact tougher laws, holding businesses accountable for unfair pay practices, and providing women with the knowledge and 

tools to empower themselves. BPW/USA educates women about the wage gap, what 

to do if they are being paid unfairly, and how to negotiate a better salary. While 

BPW/USA is reaching thousands of women through its signature conferences, grassroots programs and activities, there needs to be government supported programs 

and trainings educating a broad audience of women about the wage gap, and providing them with needed skills training. 

Change in the Workplace 

As a neutral convener and independent research and education institution, BPW 

Foundation plays a unique and critical role in identifying opportunities for change 

and in building collaborative solutions. 

In the 21st century, workplaces are undergoing constant transformation. The 

forces reshaping America’s workplaces contain a compelling opportunity for innovation, adaptation and change. Such change can enable the dismantling of the remaining barriers that block women’s full and equitable participation in the workforce.xii

An emerging workplace trend is the increasing realization that forces shaping options for working women are, in fact, forces affecting everyone in the workplace including women, men, caregivers, entry-level workers, impending retirees, second careerists, people with disabilities and employers. Public policy, aimed at ending the 

wage gap, has the power to offer solutions and tools that can positively reshape the 

workplace for all employees and expand the labor pool for all employers.xiii

Research conducted by BPW Foundation at its annual National Employer Summits has revealed that the causes of workplace dissatisfaction are often the same 

issues that create potential inequity in the workplace. Workplaces and workforces 

are wrestling with the changing realities of employees’ lives and expectations, the 

demographic transformation of the labor force, the impacts of technology on work 

design, and the growth of global workplaces.xiv In the midst of this, employers striving to create diverse, equitable workplaces are faced with dismantling the systemic 

and cultural barriers that continue to block women’s full and equitable participation 

in the workplace. Solutions to remove the structural and cultural barriers that styVerDate 0ct 09 2002 20:38 Mar 27, 2008 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\WP\110-54\36467.TXT HBUD1 PsN: DICK
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mie women’s participation in the workplace necessitate the collaboration of policy 

makers, employers and working women and requires a combination of public policy 

and voluntary practice-based solutions.xv

The Need for Public Policy to Address Pay Inequity 

Ideally closing the wage gap should not occur as a result of legislative action, but 

because employers proactively pay their employees fairly. Unfortunately, many employers fall behind in monitoring their pay scales adequately, which is why Congress 

stepped in forty years ago to pass the Equal Pay Act. 

The Equal Pay Act was passed to help remedy the chronic employment discrimination taking place in the private industry. Lawmakers in the 1960’s knew that a 

law must be in place to bring fairness to a marketplace that was failing its working 

women. While women have been able to take charge of workplace biases and discrimination by holding businesses accountable for their pay practices by filing under 

the Equal Pay Act, there are limitations to this law which have hampered progress. 

The marketplace alone cannot prevent pay discrimination, giving the government 

a significant role in ensuring fair workplace practices. Previous anti-discrimination 

laws like the Equal Pay Act, Civil Rights Act, Americans with Disabilities Act and 

Pregnancy Discrimination Act have each played a role in ensuring that people are 

treated fairly in the workplace. Congress is now in a position to take a proactive 

role in continuing the advancement women have made in the workplace and in ensuring that women are getting the paychecks and promotions they have earned 

through the Paycheck Fairness Act. 

This legislation addresses some of the remaining systemic barriers to women 

being paid fairly and provides employees and employers with the tools and skills 

to deal with them. Provisions within the Paycheck Fairness Act address two important ingredients to closing the wage gap. These include providing women with negotiation skills and avenues of redress when discrimination occurs, which support 

working women as they deal with the structural inequities and biases within many 

workplaces. The bill also offers some support to employers. Rather than putting the 

onus on early adopters of equitable work practices, the bill would spread the work 

among all firms by allowing employers equal access to guidelines developed by the 

Department of Labor, and by utilizing government researchers to gather and pool 

employer data on wages to establish benchmarks and track progress. It also provides the opportunity for employers to share their knowledge through a national 

summit, about the transformation of their workplace practices. 

The Paycheck Fairness Act would also educate a broad audience of women by establishing a competitive grants program to develop training for women and girls on 

compensation negotiations, and requiring the Department of Labor to reinstate 

equal pay activities and investigatory enforcement tools for cases of gender discrimination. Women who have better negotiation skills increase their chances of being 

paid and promoted fairly. However, they cannot receive this needed training without 

the passage of the Paycheck Fairness Act. The support of the Department of Labor 

will allow many working women to be exposed to strengthening their skills when 

negotiating salary for a new position or lobbying for a promotion. 

The Paycheck Fairness Act addresses many of these limitations, clarifies key definitions that have limited the court’s willingness to intercede in unfair practices and 

provides working women, researchers, and engaged employers with the tools and research they need to make and measure progress. 

Suggestions for Paycheck Fairness Act 

To further strengthen the legislation and the ability of employees and employers 

to create win-win solutions in the workplace, we suggest the following: 

• The awards program focus on progress rather than effort. Existing awards programs that highlight employers of choice are coming under greater scrutiny with 

critics pointing out that these programs often give applicants a skewed vision of 

what is actually available in the workplace. Often programs or policies may exist 

that go unused by employees because of perceived cultural or systemic biases within 

firms. It is important that any recognition program focus on quantitative results in 

changing wage inequities and not simply on effort expended. 

• Incentives should be offered to employers to help offset costs for reviewing and 

transforming their human resource practices. 

• As partners in this change process, employers should be actively engaged in discussions about wage equity and workplace practices and the supports they need to 

create successful workplaces. The summit provision within the legislation is a good 

start. We encourage those developing legislation to engage more employers within 

the current development process to proactively address concerns and cost issues. 

64

Conclusion 

Solving the wage gap will require women to be proactive about their negotiation 

skills, the passage of effective legislation and the realization by businesses that paying women fairly has benefits to the bottom line. For the sake of our daughters, it 

is time for American women to stand together and create positive change not only 

for ourselves, but for the financial future of our families. 

ENDNOTES

i ‘‘The New Math of Unemployment,’’ Time Magazine. November 1976. 

ii ‘‘Women in Business: A Demographic Review of Women’s Business Ownership,’’ Office of Advocacy, Small Business Administration. 2006 iii ‘‘Personal Wealth, 2001,’’ Statistics of Income Division, Internal Revenue Service, Barry W. 

Johnson and Brian G. Raub. 2005. ivSociety for Human Resource Management, 2006. www.shrm.org/trends/visions/3issue2006/

0306b.asp v Equal Employment Opportunity Commission Hearing, Heather Bourshey, Center for Economic and Policy Research, April 17, 2007. vi Expenditure Data from HCFA, Office of the Actuary, Levit K. et all., Health Affairs, 2002. viiForces Shaping 21st Century Workplaces and Workforces, BPW Foundation, 2006. viiiSociety for Human Resource Management, 2006. www.shrm.org/trends/visions/3issue2006/

0306b.asp ix Institute for Women’s Policy Research, 2004. xSociety for Human Resource Management, 2006. www.shrm.org/trends/visions/3issue2006/

0306b.asp xiThe State of Work-Life Effectiveness, BPW Foundation, June 2005. xiiForces Shaping 21st Century Workplaces and Workforces, BPW Foundation, 2006 xiii 2006 National Employer Summit Report, BPW Foundation, 2007. xiv Resources and Policy Changes Needed to Create Successful Workplaces, BPW Foundation, 

April 2006. xv 2006 National Employer Summit Report, BPW Foundation, 2007. 

[Whereupon, at 11:45 a.m., the subcommittee was adjourned.]

Æ