II 

Calendar No. 410 

112TH CONGRESS 

2D SESSION S. 3220 

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 

MAY 22, 2012 

Ms. MIKULSKI (for herself, Mr. AKAKA, Mr. BLUMENTHAL, Mrs. BOXER, Mr. 

BROWN of Ohio, Mr. CARDIN, Mr. CASEY, Mr. DURBIN, Mrs. FEINSTEIN, 

Mrs. GILLIBRAND, Mrs. HAGAN, Mr. HARKIN, Mr. LEAHY, Mr. LEVIN, 

Mrs. MCCASKILL, Mr. MERKLEY, Mrs. MURRAY, Mr. REED, Mr. REID, 

Mr. SANDERS, Mrs. SHAHEEN, Mr. UDALL of New Mexico, Mr. WHITEHOUSE, Mr. KERRY, Ms. LANDRIEU, Mr. BENNET, Ms. KLOBUCHAR, Mr. 

FRANKEN, Mr. COONS, Mr. LAUTENBERG, Ms. CANTWELL, and Mr. 

INOUYE) introduced the following bill; which was read the first time 

MAY 23, 2012 

Read the second time and placed on the calendar 

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, 


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1 SECTION 1. SHORT TITLE. 

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

3 Act’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds the following: 

6 (1) Women have entered the workforce in 

7 record numbers over the past 50 years. 

8 (2) Despite the enactment of the Equal Pay Act 

9 of 1963, many women continue to earn significantly 

10 lower pay than men for equal work. These pay dis11 parities exist in both the private and governmental 

12 sectors. In many instances, the pay disparities can 

13 only be due to continued intentional discrimination 

14 or the lingering effects of past discrimination. 

15 (3) The existence of such pay disparities— 

16 (A) depresses the wages of working fami17 lies who rely on the wages of all members of the 

18 family to make ends meet; 

19 (B) undermines women’s retirement secu20 rity, which is often based on earnings while in 

21 the workforce; 

22 (C) prevents the optimum utilization of 

23 available labor resources; 

24 (D) has been spread and perpetuated, 

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1 mentalities of commerce, among the workers of 

2 the several States; 

3 (E) burdens commerce and the free flow of 

4 goods in commerce; 

5 (F) constitutes an unfair method of com6 petition in commerce; 

7 (G) leads to labor disputes burdening and 

8 obstructing commerce and the free flow of 

9 goods in commerce; 

10 (H) interferes with the orderly and fair 

11 marketing of goods in commerce; and 

12 (I) in many instances, may deprive workers 

13 of equal protection on the basis of sex in viola14 tion of the 5th and 14th Amendments. 

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

16 discrimination in the payment of wages on the basis 

17 of sex continue to exist decades after the enactment 

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

19 201 et seq.) and the Civil Rights Act of 1964 (42 

20 U.S.C. 2000a et seq.). 

21 (B) These barriers have resulted, in significant 

22 part, because the Equal Pay Act of 1963 has not 

23 worked as Congress originally intended. Improve24 ments and modifications to the provisions added by 

25 the Act are necessary to ensure that the provisions 


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1 provide effective protection to those subject to pay 

2 discrimination on the basis of their sex. 

3 (C) Elimination of such barriers would have 

4 positive effects, including— 

5 (i) providing a solution to problems in the 

6 economy created by unfair pay disparities; 

7 (ii) substantially reducing the number of 

8 working women earning unfairly low wages, 

9 thereby reducing the dependence on public as10 sistance; 

11 (iii) promoting stable families by enabling 

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

13 (iv) remedying the effects of past discrimi14 nation on the basis of sex and ensuring that in 

15 the future workers are afforded equal protection 

16 on the basis of sex; and 

17 (v) ensuring equal protection pursuant to 

18 Congress’s power to enforce the 5th and 14th 

19 Amendments. 

20 (5) The Department of Labor and the Equal 

21 Employment Opportunity Commission have impor22 tant and unique responsibilities to help ensure that 

23 women receive equal pay for equal work. 

24 (6) The Department of Labor is responsible 

25 for— 


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1 (A) collecting and making publicly avail2 able information about women’s pay; 

3 (B) ensuring that companies receiving 

4 Federal contracts comply with anti-discrimina5 tion affirmative action requirements of Execu6 tive Order 11246 (relating to equal employment 

7 opportunity); 

8 (C) disseminating information about wom9 en’s rights in the workplace; 

10 (D) helping women who have been victims 

11 of pay discrimination obtain a remedy; and 

12 (E) being proactive in investigating and 

13 prosecuting equal pay violations, especially sys14 temic violations, and in enforcing all of its man15 dates. 

16 (7) The Equal Employment Opportunity Com17 mission is the primary enforcement agency for 

18 claims made under the provisions added by the 

19 Equal Pay Act of 1963, and issues regulations and 

20 guidance on appropriate interpretations of the law. 

21 (8) With a stronger commitment by the Depart22 ment of Labor and the Equal Employment Oppor23 tunity Commission to their responsibilities, increased 

24 information about the provisions added by the Equal 

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1 edies, women will be better able to recognize and en2 force their rights. 

3 (9) Certain employers have already made great 

4 strides in eradicating unfair pay disparities in the 

5 workplace and their achievements should be recog6 nized. 

7 SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY RE8 QUIREMENTS. 

9 (a) BONA FIDE FACTOR DEFENSE AND MODIFICA10 TION OF SAME ESTABLISHMENT REQUIREMENT.—Section 

11 6(d)(1) of the Fair Labor Standards Act of 1938 (29 

12 U.S.C. 206(d)(1)) is amended— 

13 (1) by striking ‘‘No employer having’’ and in14 serting ‘‘(A) No employer having’’; 

15 (2) by striking ‘‘any other factor other than 

16 sex’’ and inserting ‘‘a bona fide factor other than 

17 sex, such as education, training, or experience’’; and 

18 (3) by inserting at the end the following: 

19 ‘‘(B) The bona fide factor defense described in sub20 paragraph (A)(iv) shall apply only if the employer dem21 onstrates that such factor (i) is not based upon or derived 

22 from a sex-based differential in compensation; (ii) is job23 related with respect to the position in question; and (iii) 

24 is consistent with business necessity. Such defense shall 

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1 native employment practice exists that would serve the 

2 same business purpose without producing such differential 

3 and that the employer has refused to adopt such alter4 native practice. 

5 ‘‘(C) For purposes of subparagraph (A), employees 

6 shall be deemed to work in the same establishment if the 

7 employees work for the same employer at workplaces lo8 cated in the same county or similar political subdivision 

9 of a State. The preceding sentence shall not be construed 

10 as limiting broader applications of the term ‘establish11 ment’ consistent with rules prescribed or guidance issued 

12 by the Equal Opportunity Employment Commission.’’. 

13 (b) NONRETALIATION PROVISION.—Section 15 of the 

14 Fair Labor Standards Act of 1938 (29 U.S.C. 215) is 

15 amended— 

16 (1) in subsection (a)(3), by striking ‘‘employee 

17 has filed’’ and all that follows through ‘‘committee;’’ 

18 and inserting ‘‘employee— 

19 ‘‘(A) has made a charge or filed any com20 plaint or instituted or caused to be instituted 

21 any investigation, proceeding, hearing, or action 

22 under or related to this Act, including an inves23 tigation conducted by the employer, or has tes24 tified or is planning to testify or has assisted or 

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1 tigation, proceeding, hearing, or action, or has 

2 served or is planning to serve on an industry 

3 committee; or 

4 ‘‘(B) has inquired about, discussed, or dis5 closed the wages of the employee or another 

6 employee;’’; and 

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

8 ‘‘(c) Subsection (a)(3)(B) shall not apply to instances 

9 in which an employee who has access to the wage informa10 tion of other employees as a part of such employee’s essen11 tial job functions discloses the wages of such other employ12 ees to an individual who does not otherwise have access 

13 to such information, unless such disclosure is in response 

14 to a charge or complaint or in furtherance of an investiga15 tion, proceeding, hearing, or action under section 6(d), in16 cluding an investigation conducted by the employer. Noth17 ing in this subsection shall be construed to limit the rights 

18 of an employee provided under any other provision of 

19 law.’’. 

20 (c) ENHANCED PENALTIES.—Section 16(b) of the 

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

22 amended— 

23 (1) by inserting after the first sentence the fol24 lowing: ‘‘Any employer who violates section 6(d) 

25 shall additionally be liable for such compensatory 


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1 damages, or, where the employee demonstrates that 

2 the employer acted with malice or reckless indiffer3 ence, punitive damages as may be appropriate, ex4 cept that the United States shall not be liable for 

5 punitive damages.’’; 

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

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

8 inserting ‘‘any of the preceding sentences of this 

9 subsection’’; 

10 (3) in the sentence beginning ‘‘No employees 

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

12 ‘‘Except with respect to class actions brought to en13 force section 6(d), no employee’’; 

14 (4) by inserting after the sentence referred to 

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

16 any other provision of Federal law, any action 

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

18 as a class action as provided by the Federal Rules 

19 of Civil Procedure.’’; and 

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

21 (A) by striking ‘‘in such action’’ and in22 serting ‘‘in any action brought to recover the li23 ability prescribed in any of the preceding sen24 tences of this subsection’’; and 


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1 (B) by inserting before the period the fol2 lowing: ‘‘, including expert fees’’. 

3 (d) ACTION BY SECRETARY.—Section 16(c) of the 

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

5 amended— 

6 (1) in the first sentence— 

7 (A) by inserting ‘‘or, in the case of a viola8 tion of section 6(d), additional compensatory or 

9 punitive damages, as described in subsection 

10 (b),’’ before ‘‘and the agreement’’; and 

11 (B) by inserting before the period the fol12 lowing: ‘‘, or such compensatory or punitive 

13 damages, as appropriate’’; 

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

15 the period the following: ‘‘and, in the case of a viola16 tion of section 6(d), additional compensatory or pu17 nitive damages, as described in subsection (b)’’; 

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

19 sentence’’ and inserting ‘‘the first or second sen20 tence’’; and 

21 (4) in the last sentence— 

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

23 and inserting ‘‘commenced— 

24 ‘‘(1) in the case’’; 


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1 (B) by striking the period and inserting ‘‘; 

2 or’’; and 

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

4 ‘‘(2) in the case of a class action brought to en5 force section 6(d), on the date on which the indi6 vidual becomes a party plaintiff to the class action.’’. 

7 SEC. 4. TRAINING. 

8 The Equal Employment Opportunity Commission 

9 and the Office of Federal Contract Compliance Programs, 

10 subject to the availability of funds appropriated under sec11 tion 10, shall provide training to Commission employees 

12 and affected individuals and entities on matters involving 

13 discrimination in the payment of wages. 

14 SEC. 5. NEGOTIATION SKILLS TRAINING FOR GIRLS AND 

15 WOMEN. 

16 (a) PROGRAM AUTHORIZED.— 

17 (1) IN GENERAL.—The Secretary of Labor, 

18 after consultation with the Secretary of Education, 

19 is authorized to establish and carry out a grant pro20 gram. 

21 (2) GRANTS.—In carrying out the program, the 

22 Secretary of Labor may make grants on a competi23 tive basis to eligible entities, to carry out negotiation 

24 skills training programs for girls and women. 


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1 (3) ELIGIBLE ENTITIES.—To be eligible to re2 ceive a grant under this subsection, an entity shall 

3 be a public agency, such as a State, a local govern4 ment in a metropolitan statistical area (as defined 

5 by the Office of Management and Budget), a State 

6 educational agency, or a local educational agency, a 

7 private nonprofit organization, or a community8 based organization. 

9 (4) APPLICATION.—To be eligible to receive a 

10 grant under this subsection, an entity shall submit 

11 an application to the Secretary of Labor at such 

12 time, in such manner, and containing such informa13 tion as the Secretary of Labor may require. 

14 (5) USE OF FUNDS.—An entity that receives a 

15 grant under this subsection shall use the funds made 

16 available through the grant to carry out an effective 

17 negotiation skills training program that empowers 

18 girls and women. The training provided through the 

19 program shall help girls and women strengthen their 

20 negotiation skills to allow the girls and women to ob21 tain higher salaries and rates of compensation that 

22 are equal to those paid to similarly situated male 

23 employees. 

24 (b) INCORPORATING TRAINING INTO EXISTING PRO25 GRAMS.—The Secretary of Labor and the Secretary of 


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1 Education shall issue regulations or policy guidance that 

2 provides for integrating the negotiation skills training, to 

3 the extent practicable, into programs authorized under— 

4 (1) in the case of the Secretary of Education, 

5 the Elementary and Secondary Education Act of 

6 1965 (20 U.S.C. 6301 et seq.), the Carl D. Perkins 

7 Career and Technical Education Act of 2006 (20 

8 U.S.C. 2301 et seq.), the Higher Education Act of 

9 1965 (20 U.S.C. 1001 et seq.), and other programs 

10 carried out by the Department of Education that the 

11 Secretary of Education determines to be appro12 priate; and 

13 (2) in the case of the Secretary of Labor, the 

14 Workforce Investment Act of 1998 (29 U.S.C. 2801 

15 et seq.), and other programs carried out by the De16 partment of Labor that the Secretary of Labor de17 termines to be appropriate. 

18 (c) REPORT.—Not later than 1 year after the date 

19 of enactment of this Act, and annually thereafter, the Sec20 retary of Labor and the Secretary of Education shall pre21 pare and submit to Congress a report describing the ac22 tivities conducted under this section and evaluating the ef23 fectiveness of such activities in achieving the purposes of 

24 this Act. 


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1 SEC. 6. RESEARCH, EDUCATION, AND OUTREACH. 

2 The Secretary of Labor shall conduct studies and 

3 provide information to employers, labor organizations, and 

4 the general public concerning the means available to elimi5 nate pay disparities between men and women, including— 

6 (1) conducting and promoting research to de7 velop the means to correct expeditiously the condi8 tions leading to the pay disparities; 

9 (2) publishing and otherwise making available 

10 to employers, labor organizations, professional asso11 ciations, educational institutions, the media, and the 

12 general public the findings resulting from studies 

13 and other materials, relating to eliminating the pay 

14 disparities; 

15 (3) sponsoring and assisting State and commu16 nity informational and educational programs; 

17 (4) providing information to employers, labor 

18 organizations, professional associations, and other 

19 interested persons on the means of eliminating the 

20 pay disparities; 

21 (5) recognizing and promoting the achievements 

22 of employers, labor organizations, and professional 

23 associations that have worked to eliminate the pay 

24 disparities; and 


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

2 consider approaches for rectifying, the pay dispari3 ties. 

4 SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR 

5 PAY EQUITY IN THE WORKPLACE. 

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

7 of Labor’s National Award for Pay Equity in the Work8 place, which shall be awarded, as appropriate, to encour9 age proactive efforts to comply with section 6(d) of the 

10 Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)). 

11 (b) CRITERIA FOR QUALIFICATION.—The Secretary 

12 of Labor shall set criteria for receipt of the award, includ13 ing a requirement that an employer has made substantial 

14 effort to eliminate pay disparities between men and 

15 women, and deserves special recognition as a consequence 

16 of such effort. The Secretary shall establish procedures for 

17 the application for and presentation of the award. 

18 (c) EMPLOYER.—In this section, the term ‘‘em19 ployer’’ includes— 

20 (1)(A) a corporation, including a nonprofit cor21 poration; 

22 (B) a partnership; 

23 (C) a professional association; 

24 (D) a labor organization; and 


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1 (E) a business entity similar to an entity de2 scribed in any of subparagraphs (A) through (D); 

3 (2) an entity carrying out an education referral 

4 program, a training program, such as an apprentice5 ship or management training program, or a similar 

6 program; and 

7 (3) an entity carrying out a joint program, 

8 formed by a combination of any entities described in 

9 paragraph (1) or (2). 

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

11 EMPLOYMENT OPPORTUNITY COMMISSION. 

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

13 U.S.C. 2000e–8) is amended by adding at the end the fol14 lowing: 

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

16 enactment of this subsection, the Commission shall— 

17 ‘‘(A) complete a survey of the data that is cur18 rently available to the Federal Government relating 

19 to employee pay information for use in the enforce20 ment of Federal laws prohibiting pay discrimination 

21 and, in consultation with other relevant Federal 

22 agencies, identify additional data collections that will 

23 enhance the enforcement of such laws; and 

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

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1 tions to provide for the collection of pay information 

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

3 and national origin of employees. 

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

5 shall have as its primary consideration the most effective 

6 and efficient means for enhancing the enforcement of Fed7 eral laws prohibiting pay discrimination. For this purpose, 

8 the Commission shall consider factors including the impo9 sition of burdens on employers, the frequency of required 

10 data collection reports (including which employers should 

11 be required to prepare reports), appropriate protections 

12 for maintaining data confidentiality, and the most effec13 tive format for the data collection reports.’’. 

14 SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND 

15 PAY EQUITY DATA COLLECTION. 

16 (a) BUREAU OF LABOR STATISTICS DATA COLLEC17 TION.—The Commissioner of Labor Statistics shall con18 tinue to collect data on women workers in the Current 

19 Employment Statistics survey. 

20 (b) OFFICE OF FEDERAL CONTRACT COMPLIANCE

21 PROGRAMS INITIATIVES.—The Director of the Office of 

22 Federal Contract Compliance Programs shall ensure that 

23 employees of the Office— 


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1 (1)(A) shall use the full range of investigatory 

2 tools at the Office’s disposal, including pay grade 

3 methodology; 

4 (B) in considering evidence of possible com5 pensation discrimination— 

6 (i) shall not limit its consideration to a 

7 small number of types of evidence; and 

8 (ii) shall not limit its evaluation of the evi9 dence to a small number of methods of evalu10 ating the evidence; and 

11 (C) shall not require a multiple regression anal12 ysis or anecdotal evidence for a compensation dis13 crimination case; 

14 (2) for purposes of its investigative, compliance, 

15 and enforcement activities, shall define ‘‘similarly 

16 situated employees’’ in a way that is consistent with 

17 and not more stringent than the definition provided 

18 in item 1 of subsection A of section 10–III of the 

19 Equal Employment Opportunity Commission Com20 pliance Manual (2000), and shall consider only fac21 tors that the Office’s investigation reveals were used 

22 in making compensation decisions; and 

23 (3) shall reinstate the Equal Opportunity Sur24 vey, as required by section 60–2.18 of title 41, Code 

25 of Federal Regulations (as in effect on September 7, 


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1 2006), designating not less than half of all non2 construction contractor establishments each year to 

3 prepare and file such survey, and shall review and 

4 utilize the responses to such survey to identify con5 tractor establishments for further evaluation and for 

6 other enforcement purposes as appropriate. 

7 (c) DEPARTMENT OF LABOR DISTRIBUTION OF

8 WAGE DISCRIMINATION INFORMATION.—The Secretary of 

9 Labor shall make readily available (in print, on the De10 partment of Labor website, and through any other forum 

11 that the Department may use to distribute compensation 

12 discrimination information), accurate information on com13 pensation discrimination, including statistics, explanations 

14 of employee rights, historical analyses of such discrimina15 tion, instructions for employers on compliance, and any 

16 other information that will assist the public in under17 standing and addressing such discrimination. 

18 SEC. 10. AUTHORIZATION OF APPROPRIATIONS. 

19 (a) AUTHORIZATION OF APPROPRIATIONS.—There is 

20 authorized to be appropriated $15,000,000 to carry out 

21 this Act. 

22 (b) PROHIBITION ON EARMARKS.—None of the funds 

23 appropriated pursuant to subsection (a) for purposes of 

24 the grant program in section 5 of this Act may be used 


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1 for a congressional earmark as defined in clause 9(e) of 

2 rule XXI of the Rules of the House of Representatives. 

3 SEC. 11. SMALL BUSINESS ASSISTANCE. 

4 (a) EFFECTIVE DATE.—This Act and the amend5 ments made by this Act shall take effect on the date that 

6 is 6 months after the date of enactment of this Act. 

7 (b) TECHNICAL ASSISTANCE MATERIALS.—The Sec8 retary of Labor and the Commissioner of the Equal Em9 ployment Opportunity Commission shall jointly develop 

10 technical assistance material to assist small businesses in 

11 complying with the requirements of this Act and the 

12 amendments made by this Act. 

13 (c) SMALL BUSINESSES.—A small business shall be 

14 exempt from the provisions of this Act to the same extent 

15 that such business is exempt from the requirements of the 

16 Fair Labor Standards Act of 1938 pursuant to clauses 

17 (i) and (ii) of section 3(s)(1)(A) of such Act (29 U.S.C. 

18 203(s)(1)(A)). 

19 SEC. 12. RULE OF CONSTRUCTION. 

20 Nothing in this Act, or in any amendment made by 

21 this Act, shall affect the obligation of employers and em22 ployees to fully comply with all applicable immigration 

23 laws, including any penalties, fines, or other sanctions. 


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Calendar No. 410 

112TH CONGRESS 

2D SESSION S. 3220 

A BILL 

To amend the Fair Labor Standards Act of 1938 

basis of sex, and for other purposes. discrimination in the payment of wages on the to provide more effective remedies to victims of 

MAY 23, 2012 

Read the second time and placed on the calendar 


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