I 

109TH CONGRESS 

1ST SESSION H. R. 1697 

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 19, 2005 

Ms. NORTON 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 AND REFERENCE. 

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

5 ‘‘Fair Pay Act of 2005’’. 

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) The existence of such wage rate differen11 tials— 

12 (A) depresses wages and living standards 

13 for employees necessary for their health and ef14 ficiency; 

15 (B) prevents the maximum utilization of 

16 the available labor resources; 

17 (C) tends to cause labor disputes, thereby 

18 burdening, affecting, and obstructing com19 merce; 

20 (D) burdens commerce and the free flow of 

21 goods in commerce; and 

22 (E) constitutes an unfair method of com23 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 2000 study conducted by the Census Bu8 reau of 400 fields that employed 10,000 full-time, 

9 year-round workers found that women were able to 

10 earn at least as much as men in just 5 fields: haz11 ardous material removal, telecommunications line in12 stallation and repair, meeting and convention plan13 ning, food preparation, and construction trade as14 sistant work. 

15 (6) In 2004, an Institute for Women’s Policy 

16 Research analysis of data collected in the Current 

17 Population Survey by the Bureau of Labor Statistics 

18 found that women were paid only 76 cents for every 

19 dollar that a man is paid. 

20 (7) Section 6(d) of the Fair Labor Standards 

21 Act of 1938 (29 U.S.C. 206(d)) prohibits discrimi22 nation in compensation for ‘‘equal work’’ on the 

23 basis of sex. 

24 (8) Title VII of the Civil Rights Act of 1964 

25 (42 U.S.C. 2000e et seq.) prohibits discrimination in 
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1 compensation because of race, color, religion, na2 tional origin, and sex. The Supreme Court, in its de3 cision in County of Washington v. Gunther, 452 

4 U.S. 161 (1981), held that title VII’s prohibition 

5 against discrimination in compensation also applies 

6 to jobs that do not constitute ‘‘equal work’’ as de7 fined in section 6(d) of the Fair Labor Standards 

8 Act of 1938 (29 U.S.C. 206(d)). Decisions of lower 

9 courts, however, have demonstrated that further 

10 clarification of existing legislation is necessary in 

11 order effectively to carry out the intent of Congress 

12 to implement the Supreme Court’s holding in its 

13 Gunther decision. 

14 (9) Artificial barriers to the elimination of dis15 crimination in compensation based upon sex, race, 

16 and national origin continue to exist more than 3 

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

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

19 and the Civil Rights Act of 1964. Elimination of 

20 such barriers would have positive effects, includ21 ing— 

22 (A) providing a solution to problems in the 

23 economy created by discrimination through 

24 wage rate differentials; 
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1 (B) substantially reducing the number of 

2 working women and people of color earning low 

3 wages, thereby reducing the dependence on pub4 lic assistance; and 

5 (C) promoting stable families by enabling 

6 working family members to earn a fair rate of 

7 pay. 

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. 

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

24 payment of different wage rates to employees where such 

25 payment is made pursuant to— 
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1 ‘‘(i) a seniority system; 

2 ‘‘(ii) a merit system; 

3 ‘‘(iii) a system that measures earnings by quan4 tity or quality of production; or 

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

6 other than sex, race, or national origin, such as edu7 cation, training, or experience, except that this 

8 clause shall apply only if— 

9 ‘‘(I) the employer demonstrates that— 

10 ‘‘(aa) such factor— 

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

12 to the position in question; or 

13 ‘‘(BB) furthers a legitimate busi14 ness purpose, except that this item 

15 shall not apply if the employee dem16 onstrates that an alternative employ17 ment practice exists that would serve 

18 the same business purpose without 

19 producing such differential and that 

20 the employer has refused to adopt 

21 such alternative practice; and 

22 ‘‘(bb) such factor was actually applied 

23 and used reasonably in light of the as24 serted justification; and 
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1 ‘‘(II) upon the employer succeeding under 

2 subclause (I), the employee fails to demonstrate 

3 that the differential produced by the reliance of 

4 the employer on such factor is itself the result 

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

6 national origin by the employer. 

7 ‘‘(C) The Equal Employment Opportunity Commis8 sion shall issue guidelines specifying criteria for deter9 mining whether a job is dominated by employees of a par10 ticular sex, race, or national origin. Such guidelines shall 

11 not include a list of such jobs. 

12 ‘‘(D) An employer who is paying a wage rate differen13 tial in violation of subparagraph (A) shall not, in order 

14 to comply with the provisions of such subparagraph, re15 duce the wage rate of any employee. 

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

17 employees of an employer having employees subject to any 

18 provision of this section shall cause or attempt to cause 

19 such an employer to discriminate against an employee in 

20 violation of paragraph (1)(A). 

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

22 of this subsection, any amounts owing to any employee 

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

24 shall be deemed to be unpaid minimum wages or unpaid 

25 overtime compensation under this section or section 7. 
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1 ‘‘(4) In this subsection: 

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

3 organization of any kind, or any agency or employee 

4 representation committee or plan, in which employ5 ees participate and that exists for the purpose, in 

6 whole or in part, of dealing with employers con7 cerning grievances, labor disputes, wages, rates of 

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

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

10 may be dissimilar, but whose requirements are 

11 equivalent, when viewed as a composite of skills, ef12 fort, responsibility, and working conditions.’’. 

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

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

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

16 and 6(h)’’. 

17 SEC. 4. PROHIBITED ACTS. 

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

19 (1) by striking the period at the end of para20 graph (5) and inserting a semicolon; and 

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

22 new paragraphs: 

23 ‘‘(6) to discriminate against any individual be24 cause such individual has opposed any act or prac25 tice made unlawful by section 6(h) or because such 
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1 individual made a charge, testified, assisted, or par2 ticipated in any manner in an investigation, pro3 ceeding, or hearing to enforce section 6(h); or 

4 ‘‘(7) to discharge or in any other manner dis5 criminate against, coerce, intimidate, threaten, or 

6 interfere with any employee or any other person be7 cause the employee inquired about, disclosed, com8 pared, or otherwise discussed the employee’s wages 

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

10 employee exercised, enjoyed, aided, or encouraged 

11 any other person to exercise or enjoy any right 

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

13 SEC. 5. REMEDIES. 

14 (a) ENHANCED PENALTIES.—Section 16(b) of the 

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

16 amended— 

17 (1) by inserting after the first sentence the fol18 lowing: ‘‘Any employer who violates subsection (d) or 

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

20 compensatory or punitive damages as may be appro21 priate, except that the United States shall not be lia22 ble for punitive damages.’’; 

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

24 by striking ‘‘either of the preceding sentences’’ and 
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1 inserting ‘‘any of the preceding sentences of this 

2 subsection’’; 

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

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

5 with respect to class actions brought under sub6 section (f), no employee’’; 

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

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

9 action brought to recover the liability prescribed in 

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

11 and 

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

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

14 of section 15(a)’’. 

15 (b) ACTION BY SECRETARY.—Section 16(c) of the 

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

17 amended— 

18 (1) in the first sentence— 

19 (A) by inserting ‘‘or, in the case of a viola20 tion of subsection (d) or (h) of section 6, addi21 tional compensatory or punitive damages,’’ be22 fore ‘‘and the agreement’’; and 

23 (B) by inserting before the period the fol24 lowing: ‘‘, or such compensatory or punitive 

25 damages, as appropriate’’; 
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1 (2) in the second sentence, by inserting before 

2 the period the following: ‘‘and, in the case of a viola3 tion of subsection (d) or (h) of section 6, additional 

4 compensatory or punitive damages’’; and 

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

6 sentence’’ and inserting ‘‘the first or second sen7 tence’’. 

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

9 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 SEC. 6. RECORDS. 

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

18 U.S.C. 211(c)) is amended by inserting ‘‘(1)’’ after ‘‘(c)’’. 

19 (b) RECORDS.—Section 11(c) (as amended by sub20 section (a)) is further amended by adding at the end the 

21 following: 

22 ‘‘(2)(A) Every employer subject to section 6(h) shall 

23 preserve records that document and support the method, 

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

25 in establishing, adjusting, and determining the wage rates 
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1 paid to the employees of the employer. Every employer 

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

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

4 records to the Equal Employment Opportunity Commis5 sion, as shall be prescribed by the Equal Employment Op6 portunity Commission by regulation or order as necessary 

7 or appropriate for the enforcement of the provisions of sec8 tion 6(h) or any regulation promulgated pursuant to sec9 tion 6(h).’’. 

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

11 (as amended by subsections (a) and (b)) is further amend12 ed by adding at the end the following: 

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

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

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

16 or 15 or more employees on any date during any subse17 quent year after such second year, shall, in accordance 

18 with regulations promulgated by the Equal Employment 

19 Opportunity Commission under subparagraph (F), pre20 pare and submit to the Equal Employment Opportunity 

21 Commission for the year involved a report signed by the 

22 president, treasurer, or corresponding principal officer, of 

23 the employer that includes information that discloses the 

24 wage rates paid to employees of the employer in each clas25 sification, position, or job title, or to employees in other 
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1 wage groups employed by the employer, including informa2 tion with respect to the sex, race, and national origin of 

3 employees at each wage rate in each classification, posi4 tion, job title, or other wage group.’’. 

5 (d) PROTECTION OF CONFIDENTIALITY.—Section 

6 11(c) (as amended by subsections (a) through (c)) is fur7 ther amended by adding at the end the following: 

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

9 Equal Employment Opportunity Commission under sub10 paragraph (F), relating to the form of such a report, shall 

11 include requirements to protect the confidentiality of em12 ployees, including a requirement that the report shall not 

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

14 (e) USE; INSPECTIONS; EXAMINATIONS; REGULA15 TIONS.—Section 11(c) (as amended by subsections (a) 

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

17 following: 

18 ‘‘(C) The Equal Employment Opportunity Commis19 sion may publish any information and data that the Equal 

20 Employment Opportunity Commission obtains pursuant to 

21 the provisions of subparagraph (B). The Equal Employ22 ment Opportunity Commission may use the information 

23 and data for statistical and research purposes, and com24 pile and publish such studies, analyses, reports, and sur25 veys based on the information and data as the Equal Em-
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1 ployment Opportunity Commission may consider appro2 priate. 

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

4 the Equal Employment Opportunity Commission shall by 

5 regulation make reasonable provision for the inspection 

6 and examination by any person of the information and 

7 data contained in any report submitted to the Equal Em8 ployment Opportunity Commission pursuant to subpara9 graph (B). 

10 ‘‘(E) The Equal Employment Opportunity Commis11 sion shall by regulation provide for the furnishing of copies 

12 of reports submitted to the Equal Employment Oppor13 tunity Commission pursuant to subparagraph (B) to any 

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

15 the service. 

16 ‘‘(F) The Equal Employment Opportunity Commis17 sion shall issue rules and regulations prescribing the form 

18 and content of reports required to be submitted under sub19 paragraph (B) and such other reasonable rules and regu20 lations as the Equal Employment Opportunity Commis21 sion may find necessary to prevent the circumvention or 

22 evasion of such reporting requirements. In exercising the 

23 authority of the Equal Employment Opportunity Commis24 sion under subparagraph (B), the Equal Employment Op25 portunity Commission may prescribe by general rule sim-
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1 plified reports for employers for whom the Equal Employ2 ment Opportunity Commission finds that because of the 

3 size of the employers a detailed report would be unduly 

4 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 conduct 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(h) prohibiting wage 

14 rate 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 on and include reference to the objectives of such 

18 section to eliminate such discrimination. In order to 

19 achieve the objectives of such section, the Equal Employ20 ment Opportunity Commission shall carry on a continuing 

21 program of research, education, and technical assistance 

22 including— 

23 ‘‘(A) conducting and promoting research with 

24 the intent of developing means to expeditiously cor-
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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, is amended by striking ‘‘sub13 sections (a)(1) and (d) of section 6’’ and inserting 

14 ‘‘subsections (a)(1), (d), and (h) of section 6’’. 

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

16 amended by inserting before the period the fol17 lowing: ‘‘or, in an appropriate case, under section 

18 16(f) of such Act’’. 

19 SEC. 9. EFFECTIVE DATE. 

20 The amendments made by this Act shall take effect 

21 1 year after the date of enactment of this Act. 

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