II

104TH CONGRESS

2D SESSION S. 1650

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

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

and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 28, 1996

Mr. HARKIN (for himself, Mr. KERRY, Mr. SIMON, Mr. LEAHY, Ms. MIKULSKI, and Mr. INOUYE) introduced the following bill; which was read twice

and referred to the Committee on Labor and Human Resources

A BILL

To amend the Fair Labor Standards Act of 1938 to prohibit

discrimination in the payment of wages on account of

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

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

3 SECTION 1. SHORT TITLE AND REFERENCE.

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

5 ‘‘Fair Pay Act of 1995’’.

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

7 whenever in this Act an amendment or repeal is expressed

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

9 other provision, the reference shall be considered to be
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1 made to a section or other provision of the Fair Labor

2 Standards Act of 1938.

3 SEC. 2. FINDINGS.

4 Congress finds the following:

5 (1) Wage differentials exist between equivalent

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

7 Government employment and in industries engaged

8 in commerce or in the production of goods for com9 merce:

10 (2) The existence of such wage differentials—

11 (A) depresses wages and living standards

12 for employees necessary for their health and ef13 ficiency;

14 (B) prevents the maximum utilization of

15 the available labor resources;

16 (C) tends to cause labor disputes, thereby

17 burdening, affecting, and obstructing com18 merce;

19 (D) burdens commerce and the free flow of

20 goods in commerce; and

21 (E) constitutes an unfair method of com22 petition.

23 (3) Discrimination in hiring and promotion has

24 played a role in maintaining a segregated work

25 force.
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1 (4) Many women and people of color work in

2 occupations dominated by individuals of their same

3 sex, race, and national origin.

4 (5)(A) A General Accounting Office analysis of

5 wages in the civil service of the State of Washington

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

7 less than the average of all equivalent jobs, approxi8 mately 39 percent were female-dominated and ap9 proximately 16 percent were male dominated.

10 (B) A study of wages in Minnesota using 1990

11 Decennial Census data found that 75 percent of the

12 wage differential between white and non-white work13 ers was unexplained and may be a result of discrimi14 nation.

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

16 Act of 1938 prohibits discrimination in compensa17 tion for ‘‘equal work’’ on the basis of sex.

18 (7) Title VII of the Civil Rights Act of 1964

19 prohibits discrimination in compensation because of

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

21 United States Supreme Court, in its decision in

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

23 (1981), held that title VII’s prohibition against dis24 crimination in compensation also applies to jobs

25 which do not constitute ‘‘equal work’’ as defined in
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1 section 6(d) of the Fair Labor Standards Act of

2 1938. Decisions of lower courts, however, have dem3 onstrated that further clarification of existing legis4 lation is necessary in order effectively to carry out

5 the intent of Congress to implement the Supreme

6 Court’s holding in its Gunther decision.

7 (8) Artificial barriers to the elimination of dis8 crimination in compensation based upon sex, race,

9 and national origin continue to exist more than 3

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

11 Labor Standards Act of 1938 and the Civil Rights

12 Act of 1964. Elimination of such barriers would

13 have positive effects, including—

14 (A) providing a solution to problems in the

15 economy created by discriminating wage dif16 ferentials;

17 (B) substantially reducing the number of

18 working women and people of color earning low

19 wages, thereby reducing the dependence on pub20 lic assistance; and

21 (C) promoting stable families by enabling

22 working family members to earn a fair rate of

23 pay.
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1 SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS.

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

3 amended by adding at the end the following:

4 ‘‘(g)(1)(A)(i) Except as provided in clause (ii), no em5 ployer having employees subject to any provisions of this

6 section shall discriminate, within any establishment in

7 which such employees are employed, between employees on

8 the basis of sex, race, or national origin by paying wages

9 to employees in such establishment in a job that is domi10 nated by employees of a particular sex, race, or national

11 origin at a rate less than the rate at which the employer

12 pays wages to employees in such establishment in another

13 job that is dominated by employees of the opposite sex

14 or of a different race or national origin, respectively, for

15 work on equivalent jobs.

16 ‘‘(ii) Nothing in clause (i) shall prohibit the payment

17 of different wages to employees where such payment is

18 made pursuant to—

19 ‘‘(I) a seniority system;

20 ‘‘(II) a merit system; or

21 ‘‘(III) a system that measures earnings by

22 quantity or quality of production.

23 ‘‘(iii) The Equal Employment Opportunity Commis24 sion shall issue guidelines specifying criteria for determin25 ing whether a job is dominated by employees of a particu-
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1 lar sex, race, or national origin. Such regulations shall not

2 include a list of such jobs.

3 ‘‘(B) An employer who is paying a wage rate differen4 tial in violation of subparagraph (A) shall not, in order

5 to comply with the provisions of such subparagraph, re6 duce the wage rate of any employee.

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

8 employees of an employer having employees subject to any

9 provision of this section shall cause or attempt to cause

10 such an employer to discriminate against an employee in

11 violation of paragraph (1)(A).

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

13 of this subsection, any amounts owing to any employee

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

15 shall be deemed to be unpaid minimum wages or unpaid

16 overtime compensation under this section or section 7.

17 ‘‘(4) As used in this subsection:

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

19 organization of any kind, or any agency or employee

20 representation committee or plan, in which employ21 ees participate and which exists for the purpose, in

22 whole or in part, of dealing with employers concern23 ing grievances, labor disputes, wages, rates of pay,

24 hours of employment, or conditions of work.
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1 ‘‘(B) The term ‘equivalent jobs’ means jobs that

2 may be dissimilar, but whose requirements are

3 equivalent, when viewed as a composite of skills, ef4 fort, responsibility, and working conditions.’’.

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

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

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

8 and 6(g)’’.

9 SEC. 4. PROHIBITED ACTS.

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

11 (1) by striking the period at the end of para12 graph (5) and inserting a semicolon; and

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

14 new paragraphs:

15 ‘‘(6) to discriminate against any individual be16 cause such individual has opposed any act or prac17 tice made unlawful by section 6(g) or because such

18 individual made a charge, testified, assisted, or par19 ticipated in any manner in an investigation, proceed20 ing, or hearing under section 6(g); or

21 ‘‘(7) to discharge or in any other manner dis22 criminate against, coerce, intimidate, threaten, or

23 interfere with any employee or any other person be24 cause the employee inquired about, disclosed, com25 pared, or otherwise discussed the employee’s wages
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1 or the wages of any other employee, or because the

2 employee exercised, enjoyed, aided, or encouraged

3 any other person to exercise or enjoy any right

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

5 SEC. 5. REMEDIES.

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

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

8 ‘‘(f) In any action brought under this section for vio9 lation of section 6(g), the court shall, in addition to any

10 other remedies awarded to the prevailing plaintiff or plain11 tiffs, allow expert fees as part of the costs. Any such action

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

13 Federal Rules of Civil Procedure.’’;

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

15 15(a)(3)’’ each place it occurs and inserting ‘‘para16 graphs (3), (6), and (7) of section 15(a)’’; and

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

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

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

20 no employees’’.

21 SEC. 6. RECORDS.

22 (a) TECHNICAL AMENDMENT.—Section 11(c) (29

23 U.S.C. 211(c)) is amended by inserting ‘‘(1)’’ after ‘‘(c)’’.
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1 (b) RECORDS.—Section 11(c) (as amended by sub2 section (a)) is further amended by adding at the end the

3 following:

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

5 preserve records which document and support the method,

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

7 in establishing, adjusting, and determining the wages paid

8 to the employees of the employer. Every employer subject

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

10 of time, and shall make such reports therefrom to the

11 Equal Employment Opportunity Commission, as shall be

12 prescribed by the Equal Employment Opportunity Com13 mission by regulation or order as necessary or appropriate

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

15 any regulations promulgated pursuant to section 6(g).’’.

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

17 (as amended by subsections (a) and (b)) is further amend18 ed by adding at the end the following:

19 ‘‘(B)(i) Every employer subject to section 6(g) that

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

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

22 or 15 or more employees on any date during a subsequent

23 year, shall file with the Equal Employment Opportunity

24 Commission for the year involved a report signed by the

25 president, treasurer, or corresponding principal officer, of
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1 the employer containing information in such detail as may

2 be necessary to accurately disclose the wage or salary rates

3 paid to employees in each classification, position, or job

4 title or to employees in other wage or salary groups em5 ployed by the employer, including information with respect

6 to the sex, race, and national origin of employees at each

7 wage or salary level in each classification, position, job

8 title, or other wage or salary group.’’.

9 (d) PROTECTION OF CONFIDENTIALITY.—Section

10 11(c) (as amended by subsections (a) through (c)) is fur11 ther amended by adding at the end the following:

12 ‘‘(ii) The rules and regulations issued by the Equal

13 Employment Opportunity Commission under subpara14 graph (F), relating to the form of such a report, shall in15 clude requirements to protect the confidentiality of em16 ployees, including a requirement that the report shall not

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

18 (e) USE; INSPECTIONS; EXAMINATIONS; REGULA19 TIONS.—Section 11(c) (as amended by subsections (a)

20 through (d)) is further amended by adding at the end the

21 following:

22 ‘‘(C) The Equal Employment Opportunity Commis23 sion may publish any information and data that the Equal

24 Employment Opportunity Commission obtains pursuant to

25 the provisions of subparagraph (B). The Equal Employ-
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1 ment Opportunity Commission may use the information

2 and data for statistical and research purposes, and com3 pile and publish such studies, analyses, reports, and sur4 veys based thereon as it may consider appropriate.

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

6 the Equal Employment Opportunity Commission shall by

7 regulation make reasonable provision for the inspection

8 and examination by any person of the information and

9 data contained in any report filed with the Equal Employ10 ment Opportunity Commission pursuant to subparagraph

11 (B).

12 ‘‘(E) The Equal Employment Opportunity Commis13 sion shall by regulation provide for the furnishing of copies

14 of reports filed with the Equal Employment Opportunity

15 Commission pursuant to subparagraph (B) to any person

16 upon payment of a charge based upon the cost of the serv17 ice.

18 ‘‘(F) The Equal Employment Opportunity Commis19 sion shall issue rules and regulations prescribing the form

20 and content of reports required to be filed under subpara21 graph (B) and such other reasonable rules and regulations

22 as it may find necessary to prevent the circumvention or

23 evasion of such reporting requirements. In exercising its

24 authority under subparagraph (B), the Equal Employ25 ment Opportunity Commission may prescribe by general
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1 rule simplified reports for employers for whom the Equal

2 Employment Opportunity Commission finds that because

3 of the size of the employers a detailed report would be

4 unduly burdensome.’’.

5 SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSIST6 ANCE PROGRAM; REPORT TO CONGRESS.

7 Section 4(d) (29 U.S.C. 204(d)) is amended by add8 ing at the end the following:

9 ‘‘(4) The Equal Employment Opportunity Commis10 sion shall undertake studies and provide information and

11 technical assistance to employers, labor organizations, and

12 the general public concerning effective means available to

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

14 discrimination between employees performing work in

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

16 Such studies, information, and technical assistance shall

17 be based upon and include reference to the declared policy

18 of such section to eliminate such discrimination. In order

19 to achieve the purposes of such section, the Equal Employ20 ment Opportunity Commission shall further carry on a

21 continuing program of research, education, and technical

22 assistance including—

23 ‘‘(A) undertaking and promoting research with

24 the intent of developing means to expeditiously cor25 rect the conditions leading to section 6(g);
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1 ‘‘(B) publishing and otherwise making available

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

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

6 compliance with section 6(g);

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

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

11 and other interested persons on means of achieving

12 and maintaining compliance with the provisions of

13 section 6(g).

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

15 Employment Opportunity Commission to Congress pursu16 ant to paragraph (1) shall include a separate evaluation

17 and appraisal regarding the implementation of section

18 6(g).’’.

19 SEC. 8. CONFORMING AMENDMENTS.

20 (a) APPLICATION.—Section 203(a)(1) of the Con21 gressional Accountability Act of 1995 (2 U.S.C.

22 1313(a)(1)) is amended—

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

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

25 and (g) of section 6’’; and
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1 (2) by striking ‘‘206 (a)(1) and (d)’’ and insert2 ing ‘‘206 (a)(1), (d), and (g)’’.

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

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

5 the following: ‘‘or, in an appropriate case, under section

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

7 SEC. 9. EFFECTIVE DATE.

8 The amendments made by this Act shall take effect

9 1 year after the date of enactment of this Act.

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