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106TH CONGRESS

1ST SESSION S. 74

To amend the Fair Labor Standards Act of 1938 to provide more effective

remedies to victims of discrimination in the payment of wages on the

basis of sex, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 19, 1999

Mr. DASCHLE (for himself, Mr. KERRY, Mr. LEAHY, Ms. MIKULSKI, Mrs.

MURRAY, Mr. REID, Mr. WYDEN, Mrs. BOXER, Mr. LAUTENBERG, Mr.

KENNEDY, Mr. KERREY, Mr. DURBIN, Ms. LANDRIEU, Mr. REED, Mr.

ROBB, Mr. TORRICELLI, Mr. BREAUX, Mr. WELLSTONE, Mrs. FEINSTEIN, Mr. HOLLINGS, Mr. DODD, Mr. AKAKA, Mr. FEINGOLD, and Mr.

JOHNSON) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions

A BILL

To amend the Fair Labor Standards Act of 1938 to provide

more effective remedies to victims of discrimination in

the payment of wages on the basis of sex, and for other

purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Paycheck Fairness

5 Act’’.
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1 SEC. 2. FINDINGS.

2 Congress makes the following findings:

3 (1) Women have entered the workforce in

4 record numbers.

5 (2) Even in the 1990’s, women earn signifi6 cantly lower pay than men for work on jobs that re7 quire equal skill, effort, and responsibility and that

8 are performed under similar working conditions.

9 These pay disparities exist in both the private and

10 governmental sectors. In many instances, the pay

11 disparities can only be due to continued intentional

12 discrimination or the lingering effects of past dis13 crimination.

14 (3) The existence of such pay disparities—

15 (A) depresses the wages of working fami16 lies who rely on the wages of all members of the

17 family to make ends meet;

18 (B) prevents the optimum utilization of

19 available labor resources;

20 (C) has been spread and perpetuated,

21 through commerce and the channels and instru22 mentalities of commerce, among the workers of

23 the several States;

24 (D) burdens commerce and the free flow of

25 goods in commerce;
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1 (E) constitutes an unfair method of com2 petition in commerce;

3 (F) leads to labor disputes burdening and

4 obstructing commerce and the free flow of

5 goods in commerce;

6 (G) interferes with the orderly and fair

7 marketing of goods in commerce; and

8 (H) in many instances, may deprive work9 ers of equal protection on the basis of sex in

10 violation of the 5th and 14th amendments.

11 (4)(A) Artificial barriers to the elimination of

12 discrimination in the payment of wages on the basis

13 of sex continue to exist more than 3 decades after

14 the enactment of the Fair Labor Standards Act of

15 1938 (29 U.S.C. 201 et seq.) and the Civil Rights

16 Act of 1964 (42 U.S.C. 2000a et seq.).

17 (B) Elimination of such barriers would have

18 positive effects, including—

19 (i) providing a solution to problems in the

20 economy created by unfair pay disparities;

21 (ii) substantially reducing the number of

22 working women earning unfairly low wages,

23 thereby reducing the dependence on public as24 sistance; and
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1 (iii) promoting stable families by enabling

2 all family members to earn a fair rate of pay;

3 (iv) remedying the effects of past discrimi4 nation on the basis of sex and ensuring that in

5 the future workers are afforded equal protection

6 on the basis of sex; and

7 (v) ensuring equal protection pursuant to

8 Congress’ power to enforce the 5th and 14th

9 amendments.

10 (5) With increased information about the provi11 sions added by the Equal Pay Act of 1963 and wage

12 data, along with more effective remedies, women will

13 be better able to recognize and enforce their rights

14 to equal pay for work on jobs that require equal

15 skill, effort, and responsibility and that are per16 formed under similar working conditions.

17 (6) Certain employers have already made great

18 strides in eradicating unfair pay disparities in the

19 workplace and their achievements should be recog20 nized.

21 SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY RE22 QUIREMENTS.

23 (a) REQUIRED DEMONSTRATION FOR AFFIRMATIVE

24 DEFENSE.—Section 6(d)(1) of the Fair Labor Standards

25 Act of 1938 (29 U.S.C. 206(d)(1)) is amended by striking
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1 ‘‘(iv) a differential’’ and all that follows through the period

2 and inserting the following: ‘‘(iv) a differential based on

3 a bona fide factor other than sex, such as education, train4 ing or experience, except that this clause shall apply only

5 if—

6 ‘‘(I) the employer demonstrates

7 that—

8 ‘‘(aa) such factor—

9 ‘‘(AA) is job-related with re10 spect to the position in question;

11 or

12 ‘‘(BB) furthers a legitimate

13 business purpose, except that this

14 item shall not apply where the

15 employee demonstrates that an

16 alternative employment practice

17 exists that would serve the same

18 business purpose without pro19 ducing such differential and that

20 the employer has refused to

21 adopt such alternative practice;

22 and

23 ‘‘(bb) such factor was actually

24 applied and used reasonably in light

25 of the asserted justification; and
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1 ‘‘(II) upon the employer succeeding

2 under subclause I, the employee fails to

3 demonstrate that the differential produced

4 by the reliance of the employer on such

5 factor is itself the result of discrimination

6 on the basis of sex by the employer.

7 ‘‘An employer that is not otherwise in compliance

8 with this paragraph may not reduce the wages of

9 any employee in order to achieve such compliance.’’.

10 (b) APPLICATION OF PROVISIONS.—Section 6(d)(1)

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

12 206(d)(1)) is amended by adding at the end the following:

13 ‘‘The provisions of this subsection shall apply to applicants

14 for employment if such applicants, upon employment by

15 the employer, would be subject to any provisions of this

16 section.’’.

17 (c) ELIMINATION OF ESTABLISHMENT REQUIRE18 MENT.—Section 6(d) of the Fair Labor Standards Act of

19 1938 (29 U.S.C. 206(d)) is amended—

20 (1) by striking ‘‘, within any establishment in

21 which such employees are employed,’’; and

22 (2) by striking ‘‘in such establishment’’ each

23 place it appears.
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1 (d) NONRETALIATION PROVISION.—Section 15(a)(3)

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

3 215(a)(3)) is amended—

4 (1) by striking ‘‘or has’’ each place it appears

5 and inserting ‘‘has’’; and

6 (2) by inserting before the semicolon the fol7 lowing: ‘‘, or has inquired about, discussed, or other8 wise disclosed the wages of the employee or another

9 employee, or because the employee (or applicant) has

10 made a charge, testified, assisted, or participated in

11 any manner in an investigation, proceeding, hearing,

12 or action under section 6(d)’’.

13 (e) ENHANCED PENALTIES.—Section 16(b) of the

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

15 amended—

16 (1) by inserting after the first sentence the fol17 lowing: ‘‘Any employer who violates section 6(d)

18 shall additionally be liable for such compensatory or

19 punitive damages as may be appropriate, except that

20 the United States shall not be liable for punitive

21 damages.’’;

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

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

24 inserting ‘‘any of the preceding sentences of this

25 subsection’’;
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1 (3) in the sentence beginning ‘‘No employees

2 shall’’, by striking ‘‘No employees’’ and inserting

3 ‘‘Except with respect to class actions brought to en4 force section 6(d), no employee’’;

5 (4) by inserting after the sentence referred to

6 in paragraph (3), the following: ‘‘Notwithstanding

7 any other provision of Federal law, any action

8 brought to enforce section 6(d) may be maintained

9 as a class action as provided by the Federal Rules

10 of Civil Procedure.’’; and

11 (5) in the sentence beginning ‘‘The court in’’—

12 (A) by striking ‘‘in such action’’ and in13 serting ‘‘in any action brought to recover the li14 ability prescribed in any of the preceding sen15 tences of this subsection’’; and

16 (B) by inserting before the period the fol17 lowing: ‘‘, including expert fees’’.

18 (f) ACTION BY SECRETARY.—Section 16(c) of the

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

20 amended—

21 (1) in the first sentence—

22 (A) by inserting ‘‘or, in the case of a viola23 tion of section 6(d), additional compensatory or

24 punitive damages,’’ before ‘‘and the agree25 ment’’; and
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1 (B) by inserting before the period the fol2 lowing: ‘‘, or such compensatory or punitive

3 damages, as appropriate’’;

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

5 the period the following: ‘‘and, in the case of a viola6 tion of section 6(d), additional compensatory or pu7 nitive damages’’;

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

9 sentence’’ and inserting ‘‘the first or second sen10 tence’’; and

11 (4) in the last sentence—

12 (A) by striking ‘‘commenced in the case’’

13 and inserting ‘‘commenced—

14 ‘‘(1) in the case’’;

15 (B) by striking the period and inserting

16 ‘‘; or’’; and

17 (C) by adding at the end the following:

18 ‘‘(2) in the case of a class action brought to en19 force section 6(d), on the date on which the indi20 vidual becomes a party plaintiff to the class action’’.

21 SEC. 4. TRAINING.

22 The Equal Employment Opportunity Commission

23 and the Office of Federal Contract Compliance Programs,

24 subject to the availability of funds appropriated under sec25 tion 9(b), shall provide training to Commission employees
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1 and affected individuals and entities on matters involving

2 discrimination in the payment of wages.

3 SEC. 5. RESEARCH, EDUCATION, AND OUTREACH.

4 The Secretary of Labor shall conduct studies and

5 provide information to employers, labor organizations, and

6 the general public concerning the means available to elimi7 nate pay disparities between men and women, including—

8 (1) conducting and promoting research to de9 velop the means to correct expeditiously the condi10 tions leading to the pay disparities;

11 (2) publishing and otherwise making available

12 to employers, labor organizations, professional asso13 ciations, educational institutions, the media, and the

14 general public the findings resulting from studies

15 and other materials, relating to eliminating the pay

16 disparities;

17 (3) sponsoring and assisting State and commu18 nity informational and educational programs;

19 (4) providing information to employers, labor

20 organizations, professional associations, and other

21 interested persons on the means of eliminating the

22 pay disparities;

23 (5) recognizing and promoting the achievements

24 of employers, labor organizations, and professional
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1 associations that have worked to eliminate the pay

2 disparities; and

3 (6) convening a national summit to discuss, and

4 consider approaches for rectifying, the pay dispari5 ties.

6 SEC. 6. TECHNICAL ASSISTANCE AND EMPLOYER RECOGNI7 TION PROGRAM.

8 (a) GUIDELINES.—

9 (1) IN GENERAL.—The Secretary of Labor shall

10 develop guidelines to enable employers to evaluate

11 job categories based on objective criteria such as

12 educational requirements, skill requirements, inde13 pendence, working conditions, and responsibility, in14 cluding decisionmaking responsibility and de facto

15 supervisory responsibility.

16 (2) USE.—The guidelines developed under

17 paragraph (1) shall be designed to enable employers

18 voluntarily to compare wages paid for different jobs

19 to determine if the pay scales involved adequately

20 and fairly reflect the educational requirements, skill

21 requirements, independence, working conditions, and

22 responsibility for each such job with the goal of

23 eliminating unfair pay disparities between occupa24 tions traditionally dominated by men or women.
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1 (3) PUBLICATION.—The guidelines shall be de2 veloped under paragraph (1) and published in the

3 Federal Register not later than 180 days after the

4 date of enactment of this Act.

5 (b) EMPLOYER RECOGNITION.—

6 (1) PURPOSE.—It is the purpose of this sub7 section to emphasize the importance of, encourage

8 the improvement of, and recognize the excellence of

9 employer efforts to pay wages to women that reflect

10 the real value of the contributions of such women to

11 the workplace.

12 (2) IN GENERAL.—To carry out the purpose of

13 this subsection, the Secretary of Labor shall estab14 lish a program under which the Secretary shall pro15 vide for the recognition of employers who, pursuant

16 to a voluntary job evaluation conducted by the em17 ployer, adjust their wage scales (such adjustments

18 shall not include the lowering of wages paid to men)

19 using the guidelines developed under subsection (a)

20 to ensure that women are paid fairly in comparison

21 to men.

22 (3) TECHNICAL ASSISTANCE.—The Secretary of

23 Labor may provide technical assistance to assist an

24 employer in carrying out an evaluation under para25 graph (2).
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1 (c) REGULATIONS.—The Secretary of Labor shall

2 promulgate such rules and regulations as may be nec3 essary to carry out this section.

4 SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR

5 PAY EQUITY IN THE WORKPLACE.

6 (a) IN GENERAL.—There is established the Robert

7 Reich National Award for Pay Equity in the Workplace,

8 which shall be evidenced by a medal bearing the inscrip9 tion ‘‘Robert Reich National Award for Pay Equity in the

10 Workplace’’. The medal shall be of such design and mate11 rials, and bear such additional inscriptions, as the Sec12 retary of Labor may prescribe.

13 (b) CRITERIA FOR QUALIFICATION.—To qualify to

14 receive an award under this section a business shall—

15 (1) submit a written application to the Sec16 retary of Labor, at such time, in such manner, and

17 containing such information as the Secretary may

18 require, including at a minimum information that

19 demonstrates that the business has made substantial

20 effort to eliminate pay disparities between men and

21 women, and deserves special recognition as a con22 sequence; and

23 (2) meet such additional requirements and

24 specifications as the Secretary of Labor determines

25 to be appropriate.
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1 (c) MAKING AND PRESENTATION OF AWARD.—

2 (1) AWARD.—After receiving recommendations

3 from the Secretary of Labor, the President or the

4 designated representative of the President shall an5 nually present the award described in subsection (a)

6 to businesses that meet the qualifications described

7 in subsection (b).

8 (2) PRESENTATION.—The President or the des9 ignated representative of the President shall present

10 the award under this section with such ceremonies

11 as the President or the designated representative of

12 the President may determine to be appropriate.

13 (d) BUSINESS.—In this section, the term ‘‘business’’

14 includes—

15 (1)(A) a corporation, including a nonprofit cor16 poration;

17 (B) a partnership;

18 (C) a professional association;

19 (D) a labor organization; and

20 (E) a business entity similar to an entity de21 scribed in any of subparagraphs (A) through (D);

22 (2) an entity carrying out an education referral

23 program, a training program, such as an apprentice24 ship or management training program, or a similar

25 program; and
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1 (3) an entity carrying out a joint program,

2 formed by a combination of any entities described in

3 paragraph (1) or (2).

4 SEC. 8. COLLECTION OF PAY INFORMATION BY THE EQUAL

5 EMPLOYMENT OPPORTUNITY COMMISSION.

6 Section 709 of the Civil Rights Act of 1964 (42

7 U.S.C. 2000e–8) is amended by adding at the end the fol8 lowing:

9 ‘‘(f)(1) Not later than 18 months after the date of

10 enactment of this subsection, the Commission shall—

11 ‘‘(A) complete a survey of the data that is cur12 rently available to the Federal Government relating

13 to employee pay information for use in the enforce14 ment of Federal laws prohibiting pay discrimination

15 and, in consultation with other relevant Federal

16 agencies, identify additional data collections that will

17 enhance the enforcement of such laws; and

18 ‘‘(B) based on the results of the survey and

19 consultations under subparagraph (A), issue regula20 tions to provide for the collection of pay information

21 data from employers as described by the sex, race,

22 and national origin of employees.

23 ‘‘(2) In implementing paragraph (1), the Commission

24 shall have as its primary consideration the most effective

25 and efficient means for enhancing the enforcement of Fed-
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1 eral laws prohibiting pay discrimination. For this purpose,

2 the Commission shall consider factors including the impo3 sition of burdens on employers, the frequency of required

4 reports (including which employers should be required to

5 prepare reports), appropriate protections for maintaining

6 data confidentiality, and the most effective format for the

7 data collection reports.’’.

8 SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

9 There are authorized to be appropriated such sums

10 as may be necessary to carry out this Act.

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