II

106TH CONGRESS

1ST SESSION S. 702

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 24, 1999

Mr. HARKIN (for himself, Mrs. BOXER, Mr. KERRY, Mr. LEAHY, Mr. INOUYE,

Mr. TORRICELLI, Mr. KENNEDY, Ms. MIKULSKI, and Mrs. MURRAY) 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 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 1999’’.

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
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1 other provision, the reference shall be considered to be

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

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

4 SEC. 2. FINDINGS.

5 Congress finds the following:

6 (1) Wage rate differentials exist between equiv7 alent jobs segregated by sex, race, and national ori8 gin in Government employment and in industries en9 gaged in commerce or in the production of goods for

10 commerce.

11 (2) The existence of such wage rate

12 differentials—

13 (A) depresses wages and living standards

14 for employees necessary for their health and ef15 ficiency;

16 (B) prevents the maximum utilization of

17 the available labor resources;

18 (C) tends to cause labor disputes, thereby

19 burdening, affecting, and obstructing com20 merce;

21 (D) burdens commerce and the free flow of

22 goods in commerce; and

23 (E) constitutes an unfair method of com24 petition.
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1 (3) Discrimination in hiring and promotion has

2 played a role in maintaining a segregated work

3 force.

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

5 occupations dominated by individuals of their same

6 sex, race, and national origin.

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

8 wage rates in the civil service of the State of Wash9 ington found that in 1985 of the 44 jobs studied

10 that paid less than the average of all equivalent jobs,

11 approximately 39 percent were female-dominated

12 and approximately 16 percent were male dominated.

13 (B) A study of wage rates in Minnesota using

14 1990 Decennial Census data found that 75 percent

15 of the wage rate differential between white and non16 white workers was unexplained and may be a result

17 of discrimination.

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

19 Act of 1938 prohibits discrimination in compensa20 tion for ‘‘equal work’’ on the basis of sex.

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

22 prohibits discrimination in compensation because of

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

24 Supreme Court, in its decision in County of Wash25 ington v. Gunther, 452 U.S. 161 (1981), held that
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1 title VII’s prohibition against discrimination in com2 pensation also applies to jobs that do not constitute

3 ‘‘equal work’’ as defined in section 6(d) of the Fair

4 Labor Standards Act of 1938. Decisions of lower

5 courts, however, have demonstrated that further

6 clarification of existing legislation is necessary in

7 order effectively to carry out the intent of Congress

8 to implement the Supreme Court’s holding in its

9 Gunther decision.

10 (8) Artificial barriers to the elimination of dis11 crimination in compensation based upon sex, race,

12 and national origin continue to exist more than 3

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

14 Labor Standards Act of 1938 and the Civil Rights

15 Act of 1964. Elimination of such barriers would

16 have positive effects, including—

17 (A) providing a solution to problems in the

18 economy created by discrimination through

19 wage rate differentials;

20 (B) substantially reducing the number of

21 working women and people of color earning low

22 wages, thereby reducing the dependence on pub23 lic assistance; and
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1 (C) promoting stable families by enabling

2 working family members to earn a fair rate of

3 pay.

4 SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS.

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

6 amended by adding at the end the following:

7 ‘‘(h)(1)(A)(i) Except as provided in clause (ii), no em8 ployer having employees subject to any provision of this

9 section shall discriminate, within any establishment in

10 which such employees are employed, between employees on

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

12 to employees in such establishment in a job that is domi13 nated by employees of a particular sex, race, or national

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

15 pays wages to employees in such establishment in another

16 job that is dominated by employees of the opposite sex

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

18 work on equivalent jobs.

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

20 of different wage rates to employees where such payment

21 is made pursuant to—

22 ‘‘(I) a seniority system;

23 ‘‘(II) a merit system; or

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

25 quantity or quality of production.
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1 ‘‘(iii) The Equal Employment Opportunity Commis2 sion shall issue guidelines specifying criteria for deter3 mining whether a job is dominated by employees of a par4 ticular sex, race, or national origin. Such guidelines shall

5 not include a list of such jobs.

6 ‘‘(B) An employer who is paying a wage rate differen7 tial in violation of subparagraph (A) shall not, in order

8 to comply with the provisions of such subparagraph, re9 duce the wage rate of any employee.

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

11 employees of an employer having employees subject to any

12 provision of this section shall cause or attempt to cause

13 such an employer to discriminate against an employee in

14 violation of paragraph (1)(A).

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

16 of this subsection, any amounts owing to any employee

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

18 shall be deemed to be unpaid minimum wages or unpaid

19 overtime compensation under this section or section 7.

20 ‘‘(4) As used in this subsection:

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

22 organization of any kind, or any agency or employee

23 representation committee or plan, in which employ24 ees participate and which exists for the purpose, in

25 whole or in part, of dealing with employers con-
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1 cerning grievances, labor disputes, wages, rates of

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

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

4 may be dissimilar, but whose requirements are

5 equivalent, when viewed as a composite of skills, ef6 fort, responsibility, and working conditions.’’.

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

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

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

10 and 6(h)’’.

11 SEC. 4. PROHIBITED ACTS.

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

13 (1) by striking the period at the end of para14 graph (5) and inserting a semicolon; and

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

16 new paragraphs:

17 ‘‘(6) to discriminate against any individual be18 cause such individual has opposed any act or prac19 tice made unlawful by section 6(h) or because such

20 individual made a charge, testified, assisted, or par21 ticipated in any manner in an investigation, pro22 ceeding, or hearing to enforce section 6(h); or

23 ‘‘(7) to discharge or in any other manner dis24 criminate against, coerce, intimidate, threaten, or

25 interfere with any employee or any other person be-
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1 cause the employee inquired about, disclosed, com2 pared, or otherwise discussed the employee’s wages

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

4 employee exercised, enjoyed, aided, or encouraged

5 any other person to exercise or enjoy any right

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

7 SEC. 5. REMEDIES.

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

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

10 ‘‘(f) In any action brought under this section for vio11 lation of section 6(h), the court shall, in addition to any

12 other remedies awarded to the prevailing plaintiff or plain13 tiffs, allow expert fees as part of the costs. Any such action

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

15 Federal Rules of Civil Procedure.’’;

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

17 15(a)(3)’’ each place it occurs and inserting ‘‘para18 graphs (3), (6), and (7) of section 15(a)’’; and

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

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

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

22 no employees’’.

23 SEC. 6. RECORDS.

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

25 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(h) shall

5 preserve records that document and support the method,

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

7 in establishing, adjusting, and determining the wage rates

8 paid to the employees of the employer. Every employer

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

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

11 records to the Equal Employment Opportunity Commis12 sion, as shall be prescribed by the Equal Employment Op13 portunity Commission by regulation or order as necessary

14 or appropriate for the enforcement of the provisions of sec15 tion 6(h) or any regulation promulgated pursuant to sec16 tion 6(h).’’.

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

18 (as amended by subsections (a) and (b)) is further amend19 ed by adding at the end the following:

20 ‘‘(B)(i) Every employer subject to section 6(h) that

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

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

23 or 15 or more employees on any date during any subse24 quent year after such second year, shall, in accordance

25 with regulations promulgated by the Equal Employment
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1 Opportunity Commission under subparagraph (F), pre2 pare and submit to the Equal Employment Opportunity

3 Commission for the year involved a report signed by the

4 president, treasurer, or corresponding principal officer, of

5 the employer that includes information that discloses the

6 wage rates paid to employees of the employer in each clas7 sification, position, or job title, or to employees in other

8 wage groups employed by the employer, including informa9 tion with respect to the sex, race, and national origin of

10 employees at each wage rate in each classification, posi11 tion, job title, or other wage group.’’.

12 (d) PROTECTION OF CONFIDENTIALITY.—Section

13 11(c) (as amended by subsections (a) through (c)) is fur14 ther amended by adding at the end the following:

15 ‘‘(ii) The rules and regulations promulgated by the

16 Equal Employment Opportunity Commission under sub17 paragraph (F), relating to the form of such a report, shall

18 include requirements to protect the confidentiality of em19 ployees, including a requirement that the report shall not

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

21 (e) USE; INSPECTIONS; EXAMINATIONS; REGULA22 TIONS.—Section 11(c) (as amended by subsections (a)

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

24 following:
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1 ‘‘(C) The Equal Employment Opportunity Commis2 sion may publish any information and data that the Equal

3 Employment Opportunity Commission obtains pursuant to

4 the provisions of subparagraph (B). The Equal Employ5 ment Opportunity Commission may use the information

6 and data for statistical and research purposes, and com7 pile and publish such studies, analyses, reports, and sur8 veys based on the information and data as the Equal Em9 ployment Opportunity Commission may consider appro10 priate.

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

12 the Equal Employment Opportunity Commission shall by

13 regulation make reasonable provision for the inspection

14 and examination by any person of the information and

15 data contained in any report submitted to the Equal Em16 ployment Opportunity Commission pursuant to subpara17 graph (B).

18 ‘‘(E) The Equal Employment Opportunity Commis19 sion shall by regulation provide for the furnishing of copies

20 of reports submitted to the Equal Employment Oppor21 tunity Commission pursuant to subparagraph (B) to any

22 person upon payment of a charge based upon the cost of

23 the service.

24 ‘‘(F) The Equal Employment Opportunity Commis25 sion shall issue rules and regulations prescribing the form
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1 and content of reports required to be submitted under sub2 paragraph (B) and such other reasonable rules and regu3 lations as the Equal Employment Opportunity Commis4 sion may find necessary to prevent the circumvention or

5 evasion of such reporting requirements. In exercising the

6 authority of the Equal Employment Opportunity Commis7 sion under subparagraph (B), the Equal Employment Op8 portunity Commission may prescribe by general rule sim9 plified reports for employers for whom the Equal Employ10 ment Opportunity Commission finds that because of the

11 size of the employers a detailed report would be unduly

12 burdensome.’’.

13 SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSIST14 ANCE PROGRAM; REPORT TO CONGRESS.

15 Section 4(d) (29 U.S.C. 204(d)) is amended by add16 ing at the end the following:

17 ‘‘(4) The Equal Employment Opportunity Commis18 sion shall conduct studies and provide information and

19 technical assistance to employers, labor organizations, and

20 the general public concerning effective means available to

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

22 rate discrimination between employees performing work in

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

24 Such studies, information, and technical assistance shall

25 be based on and include reference to the objectives of such
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1 section to eliminate such discrimination. In order to

2 achieve the objectives of such section, the Equal Employ3 ment Opportunity Commission shall carry on a continuing

4 program of research, education, and technical assistance

5 including—

6 ‘‘(A) conducting and promoting research with

7 the intent of developing means to expeditiously cor8 rect the wage rate differentials described in section

9 (6)(h);

10 ‘‘(B) publishing and otherwise making available

11 to employers, labor organizations, professional asso12 ciations, educational institutions, the various media

13 of communication, and the general public the find14 ings of studies and other materials for promoting

15 compliance with section 6(h);

16 ‘‘(C) sponsoring and assisting State and com17 munity informational and educational programs; and

18 ‘‘(D) providing technical assistance to employ19 ers, labor organizations, professional associations

20 and other interested persons on means of achieving

21 and maintaining compliance with the provisions of

22 section 6(h).

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

24 to Congress under paragraph (1) shall include a separate
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1 evaluation and appraisal regarding the implementation of

2 section 6(h).’’.

3 SEC. 8. CONFORMING AMENDMENTS.

4 (a) CONGRESSIONAL EMPLOYEES.—

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

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

7 1313(a)(1)) is amended—

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

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

10 (d), and (h) of section 6’’; and

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

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

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

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

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

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

17 (b) EXECUTIVE BRANCH EMPLOYEES.—

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

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

20 Presidential and Executive Office Accountability Act

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

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

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

24 section 6’’.
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1 (2) REMEDIES.—Section 413(b) of such title is

2 amended by inserting before the period the fol3 lowing: ‘‘or, in an appropriate case, under section

4 16(f) of such Act’’.

5 SEC. 9. EFFECTIVE DATE.

6 The amendments made by this Act shall take effect

7 1 year after the date of enactment of this Act.

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