I 

115TH CONGRESS 

1ST SESSION H. R. 2095 

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

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

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 14, 2017 

Ms. NORTON (for herself, Mr. POCAN, Mr. RYAN of Ohio, Mrs. DAVIS of California, and Mr. PALLONE) introduced the following bill; which was referred to the Committee on Education and the Workforce 

A BILL 

To amend the Fair Labor Standards Act of 1938 to prohibit 

discrimination in the payment of wages on account of 

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

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

3 SECTION 1. SHORT TITLE. 

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

5 ‘‘Fair Pay Act of 2017’’. 

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

7 whenever in this Act an amendment or repeal is expressed 

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

9 other provision, the reference shall be considered to be 


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

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

3 SEC. 2. FINDINGS. 

4 Congress finds the following: 

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

9 commerce. 

10 (2) Discrimination in hiring and promotion has 

11 played a role in maintaining a segregated work 

12 force. 

13 (3) Many women and people of color work in 

14 occupations dominated by individuals of their same 

15 sex, race, and national origin. 

16 (A) While a wage rate differential exists in 

17 nearly every occupational field, traditionally 

18 male jobs tend to pay better than traditionally 

19 female jobs which require equal skill, effort, and 

20 responsibility, and which are performed under 

21 similar working conditions. 

22 (B) Traditionally male jobs that are low23 wage require less skill, education, and certifi24 cations than traditionally female jobs that are 


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1 low-wage, despite their generally receiving high2 er pay. 

3 (4) In 2015, a woman in the United States 

4 working in a full-time, year-round job earned 80 

5 cents for every dollar earned by a man working in 

6 a full-time, year-round job. 

7 (A) The wage gap is larger when the data 

8 is disaggregated by race. Among women who 

9 hold full-time, year-round jobs in the United 

10 States, African-American women were paid on 

11 average, only 63 percent of what White men 

12 were paid in 2015, while Native Hawaiian and 

13 Other Pacific Islander women were paid 60 per14 cent, American Indian and Alaska Native 

15 women were paid 58 percent, and Hispanic and 

16 Latina women were paid only 54 percent. 

17 (B) The gender pay gap persists across 

18 educational levels. As a result, women who com19 plete college degrees are less able to pay off 

20 their student loans promptly, leaving them pay21 ing more and for a longer time than men. In 

22 2012, among students who graduated in 2007– 

23 2008, women working full time had paid off 33 

24 percent of their student loan debt on average, 


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1 while men working full time had paid off 44 

2 percent of their debt. 

3 (C) In the United States, mothers are pri4 mary or sole breadwinners in nearly 40 percent 

5 of families. Yet the wage gap for mothers is 

6 larger than for women overall. According to 

7 2013 data, mothers employed full time, year 

8 round are paid 71 cents for every dollar paid to 

9 fathers. It is worse for single mothers with full10 time, year-round jobs, who are paid just 58 

11 cents for every dollar paid to fathers. 

12 (D) A conservative estimate is that women 

13 employed in the United States lose a combined 

14 total of nearly $500 billion every year due to 

15 the wage gap. These women, their families, 

16 businesses and the economy suffer as a result. 

17 Lost wages mean families have less money to 

18 save for the future or to spend on basic goods 

19 and services—spending that helps drive the 

20 economy. 

21 (E) Statistical analysis shows that 62 per22 cent of the wage gap can be attributed to occu23 pational and industry differences; differences in 

24 experience and education; and factors such as 

25 race, region and unionization. That leaves 38 


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1 percent of the gap unaccounted for, leading re2 searchers to conclude that factors such as dis3 crimination and unconscious bias continue to 

4 affect women’s wages. 

5 (5) The existence of such wage rate differen6 tials— 

7 (A) depresses wages and living standards 

8 for employees necessary for their health and ef9 ficiency; 

10 (B) prevents the maximum utilization of 

11 the available labor resources; 

12 (C) tends to cause labor disputes, thereby 

13 burdening, affecting, and obstructing com14 merce; 

15 (D) burdens commerce and the free flow of 

16 goods in commerce; 

17 (E) constitutes an unfair method of com18 petition; and 

19 (F) contributes to poor living conditions, 

20 poor nutrition, and fewer opportunities for fam21 ilies with children under 18 where the mother 

22 is the sole or primary breadwinner. 

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

24 Act of 1938 prohibits discrimination in compensa25 tion for ‘‘equal work’’ on the basis of sex. 


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

3 and national origin continue to exist more than five 

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

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

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

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

8 have positive effects. 

9 (A) Problems in the economy created by 

10 discrimination through wage rate differentials 

11 would be reduced. In 2012, the U.S. economy 

12 would have produced additional income of 

13 $447.6 billion if women received equal pay; this 

14 represents 2.9 percent of 2012 gross domestic 

15 product. 

16 (B) Fewer working women and people of 

17 color would earn low wages, thereby reducing 

18 dependence on public assistance. The total in19 crease in women’s earnings with pay equity rep20 resents more than 14 times what the Federal 

21 and State governments spent in fiscal year 

22 2012 on Temporary Assistance to Needy Fami23 lies. 

24 (C) Working family members earning a 

25 fair rate of pay would encourage stable families 


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1 and reduce poverty. The poverty rate for all 

2 working women would be cut in half, falling to 

3 3.9 percent from 8.1 percent. The very high 

4 poverty rate for working single mothers would 

5 fall by nearly half, from 28.7 percent to 15.0 

6 percent, and two-thirds would receive a pay in7 crease. 

8 SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS. 

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

10 amended by adding at the end the following: 

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

12 no employer having employees subject to any provision of 

13 this section shall discriminate, within any establishment 

14 in which such employees are employed, between employees 

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

16 wages to employees in such establishment in a job that 

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

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

19 employer pays wages to employees in such establishment 

20 in another job that is dominated by employees of the oppo21 site sex or of a different race or national origin, respec22 tively, for work on equivalent jobs, nor shall such employer 

23 between such employees on the basis of sex, race, or na24 tional origin in any other terms, conditions, privileges, or 

25 benefits of employment. 


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

2 payment of different wage rates to employees where such 

3 payment is made pursuant to— 

4 ‘‘(i) a seniority system; 

5 ‘‘(ii) a merit system; 

6 ‘‘(iii) a system that measures earnings by quan7 tity or quality of production; or 

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

9 other than sex, race, or national origin, such as edu10 cation, training, or experience, except that this 

11 clause shall apply only if— 

12 ‘‘(I) the employer demonstrates that— 

13 ‘‘(aa) such factor— 

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

15 to the position in question; or 

16 ‘‘(BB) furthers a legitimate busi17 ness purpose, except that this item 

18 shall not apply if the employee dem19 onstrates that an alternative employ20 ment practice exists that would serve 

21 the same business purpose without 

22 producing such differential and that 

23 the employer has refused to adopt 

24 such alternative practice; and 


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1 ‘‘(bb) such factor was actually applied 

2 and used reasonably in light of the as3 serted justification; and 

4 ‘‘(II) upon the employer succeeding under 

5 subclause (I), the employee fails to demonstrate 

6 that the differential produced by the reliance of 

7 the employer on such factor is itself the result 

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

9 national origin by the employer. 

10 ‘‘(C) The Equal Employment Opportunity Commis11 sion shall issue guidelines specifying criteria for deter12 mining whether a job is dominated by employees of a par13 ticular sex, race, or national origin for purposes of sub14 paragraph (B)(iv). Such guidelines shall not include a list 

15 of such jobs. 

16 ‘‘(D) An employer who is paying a wage rate differen17 tial in violation of subparagraph (A) shall not, in order 

18 to comply with the provisions of such subparagraph, re19 duce the wage rate of any employee. 

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

21 employees of an employer having employees subject to any 

22 provision of this section shall cause or attempt to cause 

23 such an employer to discriminate against an employee in 

24 violation of paragraph (1)(A). 


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

2 of this subsection, any amounts owing to any employee 

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

4 shall be deemed to be unpaid minimum wages or unpaid 

5 overtime compensation under this section or section 7. 

6 ‘‘(4) In this subsection: 

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

8 organization of any kind, or any agency or employee 

9 representation committee or plan, in which employ10 ees participate and that exists for the purpose, in 

11 whole or in part, of dealing with employers con12 cerning grievances, labor disputes, wages, rates of 

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

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

15 may be dissimilar, but whose requirements are 

16 equivalent, when viewed as a composite of skills, ef17 fort, responsibility, and working conditions.’’. 

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

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

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

21 (d) and (h)’’. 

22 SEC. 4. PROHIBITED ACTS. 

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

24 (1) by striking the period at the end of para25 graph (5) and inserting a semicolon; and 


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

2 ‘‘(6) to discriminate against any individual be3 cause such individual has opposed any act or prac4 tice made unlawful by section 6(h) or because such 

5 individual made a charge, testified, assisted, or par6 ticipated in any manner in an investigation, pro7 ceeding, or hearing to enforce section 6(h); or 

8 ‘‘(7) to discharge or in any other manner dis9 criminate against, coerce, intimidate, threaten, or 

10 interfere with any employee or any other person be11 cause the employee inquired about, disclosed, com12 pared, or otherwise discussed the employee’s wages 

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

14 employee exercised, enjoyed, aided, or encouraged 

15 any other person to exercise or enjoy any right 

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

17 SEC. 5. REMEDIES. 

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

19 U.S.C. 216(b)) is amended— 

20 (1) by inserting after the first sentence the fol21 lowing: ‘‘Any employer who violates subsection (d) or 

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

23 compensatory or punitive damages as may be appro24 priate, except that the United States shall not be lia25 ble for punitive damages.’’; 


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

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

3 inserting ‘‘any of the preceding sentences of this 

4 subsection’’; 

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

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

7 with respect to class actions brought under sub8 section (f), no employee’’; 

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

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

11 action brought to recover the liability prescribed in 

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

13 and 

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

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

16 of section 15(a)’’. 

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

18 U.S.C. 216(c)) is amended— 

19 (1) in the first sentence— 

20 (A) by inserting ‘‘or, in the case of a viola21 tion of subsection (d) or (h) of section 6, addi22 tional compensatory or punitive damages,’’ be23 fore ‘‘and the agreement’’; 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 subsection (d) or (h) of section 6, additional 

7 compensatory or punitive damages’’; and 

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

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

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

12 by adding at the end the following: 

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

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

15 any other remedies awarded to the prevailing plaintiff or 

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

17 action may be maintained as a class action as provided 

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

19 SEC. 6. RECORDS. 

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

21 amended— 

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

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

24 ‘‘(2) Every employer subject to section 6(h) shall pre25 serve records that document and support the method, sysVerDate Sep 11 2014 21:14 Apr 18, 2017 Jkt 069200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H2095.IH H2095

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1 tem, calculations, and other bases used by the employer 

2 in establishing, adjusting, and determining the wage rates 

3 paid to the employees of the employer. Every employer 

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

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

6 records to the Equal Employment Opportunity Commis7 sion, as shall be prescribed by the Equal Employment Op8 portunity Commission by regulation or order as necessary 

9 or appropriate for the enforcement of the provisions of sec10 tion 6(h) or any regulation promulgated pursuant to sec11 tion 6(h).’’. 

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

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

14 adding at the end the following: 

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

16 25 or more employees on any date during the first or sec17 ond year after the effective date of this paragraph, or 15 

18 or more employees on any date during any subsequent 

19 year after such second year, shall, in accordance with reg20 ulations promulgated by the Equal Employment Oppor21 tunity Commission under paragraph (8), prepare and sub22 mit to the Equal Employment Opportunity Commission 

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

24 treasurer, or corresponding principal officer, of the em25 ployer that includes information that discloses the wage 


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1 rates paid to employees of the employer in each classifica2 tion, position, or job title, or to employees in other wage 

3 groups employed by the employer, including information 

4 with respect to the sex, race, and national origin of em5 ployees at each wage rate in each classification, position, 

6 job title, or other wage group.’’. 

7 (c) PROTECTION OF CONFIDENTIALITY.—Section 

8 11(c) (as amended by subsections (a) and (b)) is further 

9 amended by adding at the end the following: 

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

11 Equal Employment Opportunity Commission under para12 graph (8), relating to the form of such a report, shall in13 clude requirements to protect the confidentiality of em14 ployees, including a requirement that the report shall not 

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

16 (d) USE; INSPECTIONS; EXAMINATION; REGULA17 TIONS.—Section 11(c) (as amended by subsections (a) 

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

19 following: 

20 ‘‘(5) The Equal Employment Opportunity Commis21 sion may publish any information and data that the Equal 

22 Employment Opportunity Commission obtains pursuant to 

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

24 Opportunity Commission may use the information and 

25 data for statistical and research purposes, and compile 


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

2 based on the information and data as the Equal Employ3 ment Opportunity Commission may consider appropriate. 

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

5 the Equal Employment Opportunity Commission shall by 

6 regulation make reasonable provision for the inspection 

7 and examination by any person of the information and 

8 data contained in any report submitted to the Equal Em9 ployment Opportunity Commission pursuant to paragraph 

10 (3). 

11 ‘‘(7) The Equal Employment Opportunity Commis12 sion shall by regulation provide for the furnishing of copies 

13 of reports submitted to the Equal Employment Oppor14 tunity Commission pursuant to paragraph (3) to any per15 son upon payment of a charge based upon the cost of the 

16 service. 

17 ‘‘(8) The Equal Employment Opportunity Commis18 sion shall issue rules and regulations prescribing the form 

19 and content of reports required to be submitted under 

20 paragraph (3) and such other reasonable rules and regula21 tions as the Equal Employment Opportunity Commission 

22 may find necessary to prevent the circumvention or eva23 sion of such reporting requirements. In exercising the au24 thority of the Equal Employment Opportunity Commis25 sion under paragraph (3), the Equal Employment OpporVerDate Sep 11 2014 21:14 Apr 18, 2017 Jkt 069200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\H2095.IH H2095

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1 tunity Commission may prescribe by general rule sim2 plified reports for employers for whom the Equal Employ3 ment Opportunity Commission finds that because of the 

4 size of the employers a detailed report would be unduly 

5 burdensome.’’. 

6 SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSIST7 ANCE PROGRAM; REPORT TO CONGRESS. 

8 Section 4(d) (29 U.S.C. 204(d)) is amended by add9 ing at the end the following: 

10 ‘‘(4) The Equal Employment Opportunity Commis11 sion shall conduct studies and provide information and 

12 technical assistance to employers, labor organizations, and 

13 the general public concerning effective means available to 

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

15 rate discrimination between employees performing work in 

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

17 Such studies, information, and technical assistance shall 

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

19 section to eliminate such discrimination. In order to 

20 achieve the objectives of such section, the Equal Employ21 ment Opportunity Commission shall carry on a continuing 

22 program of research, education, and technical assistance 

23 including— 

24 ‘‘(A) conducting and promoting research with 

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1 rect the wage rate differentials described in section 

2 6(h); 

3 ‘‘(B) publishing and otherwise making available 

4 to employers, labor organizations, professional asso5 ciations, educational institutions, the various media 

6 of communication, and the general public the find7 ings of studies and other materials for promoting 

8 compliance with section 6(h); 

9 ‘‘(C) sponsoring and assisting State and com10 munity informational and educational programs; and 

11 ‘‘(D) providing technical assistance to employ12 ers, labor organizations, professional associations 

13 and other interested persons on means of achieving 

14 and maintaining compliance with the provisions of 

15 section 6(h). 

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

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

18 evaluation and appraisal regarding the implementation of 

19 section 6(h).’’. 

20 SEC. 8. CONFORMING AMENDMENTS. 

21 (a) CONGRESSIONAL EMPLOYEES.— 

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

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

24 1313(a)(1)) is amended— 


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

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

3 (d), and (h) of section 6’’; and 

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

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

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

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

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

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

10 (b) EXECUTIVE BRANCH EMPLOYEES.— 

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

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

13 Presidential and Executive Office Accountability Act 

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

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

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

17 section 6’’. 

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

19 amended by inserting before the period the fol20 lowing: ‘‘or, in an appropriate case, under section 

21 16(f) of such Act’’. 

22 SEC. 9. EFFECTIVE DATE. 

23 The amendments made by this Act shall take effect 

24 1 year after the date of enactment of this Act. 

Æ 


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