II 

112TH CONGRESS 

1ST SESSION S. 797 

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 

APRIL 12, 2011 

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

CARDIN, Mr. CASEY, Mr. COONS, Mr. DURBIN, Mr. FRANKEN, Mrs. 

GILLIBRAND, Mr. HARKIN, Mr. KERRY, Ms. KLOBUCHAR, Mr. LAUTENBERG, Mr. LEAHY, Mr. LEVIN, Mrs. MCCASKILL, Mrs. MURRAY, Mr. 

REED, Mr. REID, Mrs. SHAHEEN, Ms. STABENOW, Mr. WHITEHOUSE, 

Mr. WYDEN, Mr. MERKLEY, and Mrs. HAGAN) 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 finds the following: 

3 (1) Women have entered the workforce in 

4 record numbers over the past 50 years. 

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

6 of 1963, many women continue to earn significantly 

7 lower pay than men for equal work. These pay dis8 parities exist in both the private and governmental 

9 sectors. In many instances, the pay disparities can 

10 only be due to continued intentional discrimination 

11 or the lingering effects of past discrimination. 

12 (3) The existence of such pay disparities— 

13 (A) depresses the wages of working fami14 lies who rely on the wages of all members of the 

15 family to make ends meet; 

16 (B) undermines women’s retirement secu17 rity, which is often based on earnings while in 

18 the workforce; 

19 (C) prevents the optimum utilization of 

20 available labor resources; 

21 (D) has been spread and perpetuated, 

22 through commerce and the channels and instru23 mentalities of commerce, among the workers of 

24 the several States; 

25 (E) burdens commerce and the free flow of 

26 goods in commerce; 


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1 (F) constitutes an unfair method of com2 petition in commerce; 

3 (G) leads to labor disputes burdening and 

4 obstructing commerce and the free flow of 

5 goods in commerce; 

6 (H) interferes with the orderly and fair 

7 marketing of goods in commerce; and 

8 (I) in many instances, may deprive workers 

9 of equal protection on the basis of sex in viola10 tion 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 decades after the enactment 

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

15 201 et seq.) and the Civil Rights Act of 1964 (42 

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

17 (B) These barriers have resulted, in significant 

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

19 worked as Congress originally intended. Improve20 ments and modifications to the provisions added by 

21 the Act are necessary to ensure that the provisions 

22 provide effective protection to those subject to pay 

23 discrimination on the basis of their sex. 

24 (C) Elimination of such barriers would have 

25 positive effects, including— 


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1 (i) providing a solution to problems in the 

2 economy created by unfair pay disparities; 

3 (ii) substantially reducing the number of 

4 working women earning unfairly low wages, 

5 thereby reducing the dependence on public as6 sistance; 

7 (iii) promoting stable families by enabling 

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

9 (iv) remedying the effects of past discrimi10 nation on the basis of sex and ensuring that in 

11 the future workers are afforded equal protection 

12 on the basis of sex; and 

13 (v) ensuring equal protection pursuant to 

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

15 Amendments. 

16 (5) The Department of Labor and the Equal 

17 Employment Opportunity Commission have impor18 tant and unique responsibilities to help ensure that 

19 women receive equal pay for equal work. 

20 (6) The Department of Labor is responsible 

21 for— 

22 (A) collecting and making publicly avail23 able information about women’s pay; 

24 (B) ensuring that companies receiving 

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1 tion affirmative action requirements of Execu2 tive Order 11246 (relating to equal employment 

3 opportunity); 

4 (C) disseminating information about wom5 en’s rights in the workplace; 

6 (D) helping women who have been victims 

7 of pay discrimination obtain a remedy; and 

8 (E) being proactive in investigating and 

9 prosecuting equal pay violations, especially sys10 temic violations, and in enforcing all of its man11 dates. 

12 (7) The Equal Employment Opportunity Com13 mission is the primary enforcement agency for 

14 claims made under the provisions added by the 

15 Equal Pay Act of 1963, and issues regulations and 

16 guidance on appropriate interpretations of the law. 

17 (8) With a stronger commitment by the Depart18 ment of Labor and the Equal Employment Oppor19 tunity Commission to their responsibilities, increased 

20 information about the provisions added by the Equal 

21 Pay Act of 1963, wage data, and more effective rem22 edies, women will be better able to recognize and en23 force their rights. 

24 (9) Certain employers have already made great 

25 strides in eradicating unfair pay disparities in the 


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1 workplace and their achievements should be recog2 nized. 

3 SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY RE4 QUIREMENTS. 

5 (a) BONA FIDE FACTOR DEFENSE AND MODIFICA6 TION OF SAME ESTABLISHMENT REQUIREMENT.—Section 

7 6(d)(1) of the Fair Labor Standards Act of 1938 (29 

8 U.S.C. 206(d)(1)) is amended— 

9 (1) by striking ‘‘No employer having’’ and in10 serting ‘‘(A) No employer having’’; 

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

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

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

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

15 ‘‘(B) The bona fide factor defense described in sub16 paragraph (A)(iv) shall apply only if the employer dem17 onstrates that such factor (i) is not based upon or derived 

18 from a sex-based differential in compensation; (ii) is job19 related with respect to the position in question; and (iii) 

20 is consistent with business necessity. Such defense shall 

21 not apply where the employee demonstrates that an alter22 native employment practice exists that would serve the 

23 same business purpose without producing such differential 

24 and that the employer has refused to adopt such alter25 native practice. 


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

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

3 employees work for the same employer at workplaces lo4 cated in the same county or similar political subdivision 

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

6 as limiting broader applications of the term ‘establish7 ment’ consistent with rules prescribed or guidance issued 

8 by the Equal Opportunity Employment Commission.’’. 

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

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

11 amended— 

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

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

14 and inserting ‘‘employee— 

15 ‘‘(A) has made a charge or filed any com16 plaint or instituted or caused to be instituted 

17 any investigation, proceeding, hearing, or action 

18 under or related to this Act, including an inves19 tigation conducted by the employer, or has tes20 tified or is planning to testify or has assisted or 

21 participated in any manner in any such inves22 tigation, proceeding, hearing, or action, or has 

23 served or is planning to serve on an industry 

24 committee; or 


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1 ‘‘(B) has inquired about, discussed, or dis2 closed the wages of the employee or another 

3 employee;’’; and 

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

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

6 in which an employee who has access to the wage informa7 tion of other employees as a part of such employee’s essen8 tial job functions discloses the wages of such other employ9 ees to an individual who does not otherwise have access 

10 to such information, unless such disclosure is in response 

11 to a charge or complaint or in furtherance of an investiga12 tion, proceeding, hearing, or action under section 6(d), in13 cluding an investigation conducted by the employer. Noth14 ing in this subsection shall be construed to limit the rights 

15 of an employee provided under any other provision of 

16 law.’’. 

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

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

19 amended— 

20 (1) by inserting after the first sentence the fol21 lowing: ‘‘Any employer who violates section 6(d) 

22 shall additionally be liable for such compensatory 

23 damages, or, where the employee demonstrates that 

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1 cept that the United States shall not be liable for 

2 punitive damages.’’; 

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

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

5 inserting ‘‘any of the preceding sentences of this 

6 subsection’’; 

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

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

9 ‘‘Except with respect to class actions brought to en10 force section 6(d), no employee’’; 

11 (4) by inserting after the sentence referred to 

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

13 any other provision of Federal law, any action 

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

15 as a class action as provided by the Federal Rules 

16 of Civil Procedure.’’; and 

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

18 (A) by striking ‘‘in such action’’ and in19 serting ‘‘in any action brought to recover the li20 ability prescribed in any of the preceding sen21 tences of this subsection’’; and 

22 (B) by inserting before the period the fol23 lowing: ‘‘, including expert fees’’. 


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

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

3 amended— 

4 (1) in the first sentence— 

5 (A) by inserting ‘‘or, in the case of a viola6 tion of section 6(d), additional compensatory or 

7 punitive damages, as described in subsection 

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

9 (B) by inserting before the period the fol10 lowing: ‘‘, or such compensatory or punitive 

11 damages, as appropriate’’; 

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

13 the period the following: ‘‘and, in the case of a viola14 tion of section 6(d), additional compensatory or pu15 nitive damages, as described in subsection (b)’’; 

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

17 sentence’’ and inserting ‘‘the first or second sen18 tence’’; and 

19 (4) in the last sentence— 

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

21 and inserting ‘‘commenced— 

22 ‘‘(1) in the case’’; 

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

24 or’’; and 

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


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1 ‘‘(2) in the case of a class action brought to en2 force section 6(d), on the date on which the indi3 vidual becomes a party plaintiff to the class action.’’. 

4 SEC. 4. TRAINING. 

5 The Equal Employment Opportunity Commission 

6 and the Office of Federal Contract Compliance Programs, 

7 subject to the availability of funds appropriated under sec8 tion 10, shall provide training to Commission employees 

9 and affected individuals and entities on matters involving 

10 discrimination in the payment of wages. 

11 SEC. 5. NEGOTIATION SKILLS TRAINING FOR GIRLS AND 

12 WOMEN. 

13 (a) PROGRAM AUTHORIZED.— 

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

15 after consultation with the Secretary of Education, 

16 is authorized to establish and carry out a grant pro17 gram. 

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

19 Secretary of Labor may make grants on a competi20 tive basis to eligible entities, to carry out negotiation 

21 skills training programs for girls and women. 

22 (3) ELIGIBLE ENTITIES.—To be eligible to re23 ceive a grant under this subsection, an entity shall 

24 be a public agency, such as a State, a local govern25 ment in a metropolitan statistical area (as defined 


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

2 educational agency, or a local educational agency, a 

3 private nonprofit organization, or a community4 based organization. 

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

6 grant under this subsection, an entity shall submit 

7 an application to the Secretary of Labor at such 

8 time, in such manner, and containing such informa9 tion as the Secretary of Labor may require. 

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

11 grant under this subsection shall use the funds made 

12 available through the grant to carry out an effective 

13 negotiation skills training program that empowers 

14 girls and women. The training provided through the 

15 program shall help girls and women strengthen their 

16 negotiation skills to allow the girls and women to ob17 tain higher salaries and rates of compensation that 

18 are equal to those paid to similarly situated male 

19 employees. 

20 (b) INCORPORATING TRAINING INTO EXISTING PRO21 GRAMS.—The Secretary of Labor and the Secretary of 

22 Education shall issue regulations or policy guidance that 

23 provides for integrating the negotiation skills training, to 

24 the extent practicable, into programs authorized under— 


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

2 the Elementary and Secondary Education Act of 

3 1965 (20 U.S.C. 6301 et seq.), the Carl D. Perkins 

4 Career and Technical Education Act of 2006 (20 

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

6 1965 (20 U.S.C. 1001 et seq.), and other programs 

7 carried out by the Department of Education that the 

8 Secretary of Education determines to be appro9 priate; and 

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

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

12 et seq.), and other programs carried out by the De13 partment of Labor that the Secretary of Labor de14 termines to be appropriate. 

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

16 of enactment of this Act, and annually thereafter, the Sec17 retary of Labor and the Secretary of Education shall pre18 pare and submit to Congress a report describing the ac19 tivities conducted under this section and evaluating the ef20 fectiveness of such activities in achieving the purposes of 

21 this Act. 

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

23 The Secretary of Labor shall conduct studies and 

24 provide information to employers, labor organizations, and 


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1 the general public concerning the means available to elimi2 nate pay disparities between men and women, including— 

3 (1) conducting and promoting research to de4 velop the means to correct expeditiously the condi5 tions leading to the pay disparities; 

6 (2) publishing and otherwise making available 

7 to employers, labor organizations, professional asso8 ciations, educational institutions, the media, and the 

9 general public the findings resulting from studies 

10 and other materials, relating to eliminating the pay 

11 disparities; 

12 (3) sponsoring and assisting State and commu13 nity informational and educational programs; 

14 (4) providing information to employers, labor 

15 organizations, professional associations, and other 

16 interested persons on the means of eliminating the 

17 pay disparities; 

18 (5) recognizing and promoting the achievements 

19 of employers, labor organizations, and professional 

20 associations that have worked to eliminate the pay 

21 disparities; and 

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

23 consider approaches for rectifying, the pay dispari24 ties. 


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1 SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR 

2 PAY EQUITY IN THE WORKPLACE. 

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

4 of Labor’s National Award for Pay Equity in the Work5 place, which shall be awarded, as appropriate, to encour6 age proactive efforts to comply with section 6(d) of the 

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

8 (b) CRITERIA FOR QUALIFICATION.—The Secretary 

9 of Labor shall set criteria for receipt of the award, includ10 ing a requirement that an employer has made substantial 

11 effort to eliminate pay disparities between men and 

12 women, and deserves special recognition as a consequence 

13 of such effort. The Secretary shall establish procedures for 

14 the application for and presentation of the award. 

15 (c) EMPLOYER.—In this section, the term ‘‘em16 ployer’’ includes— 

17 (1)(A) a corporation, including a nonprofit cor18 poration; 

19 (B) a partnership; 

20 (C) a professional association; 

21 (D) a labor organization; and 

22 (E) a business entity similar to an entity de23 scribed in any of subparagraphs (A) through (D); 

24 (2) an entity carrying out an education referral 

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1 ship or management training program, or a similar 

2 program; and 

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

4 formed by a combination of any entities described in 

5 paragraph (1) or (2). 

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

7 EMPLOYMENT OPPORTUNITY COMMISSION. 

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

9 U.S.C. 2000e–8) is amended by adding at the end the fol10 lowing: 

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

12 enactment of this subsection, the Commission shall— 

13 ‘‘(A) complete a survey of the data that is cur14 rently available to the Federal Government relating 

15 to employee pay information for use in the enforce16 ment of Federal laws prohibiting pay discrimination 

17 and, in consultation with other relevant Federal 

18 agencies, identify additional data collections that will 

19 enhance the enforcement of such laws; and 

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

21 consultations under subparagraph (A), issue regula22 tions to provide for the collection of pay information 

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

24 and national origin of employees. 


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

2 shall have as its primary consideration the most effective 

3 and efficient means for enhancing the enforcement of Fed4 eral laws prohibiting pay discrimination. For this purpose, 

5 the Commission shall consider factors including the impo6 sition of burdens on employers, the frequency of required 

7 data collection reports (including which employers should 

8 be required to prepare reports), appropriate protections 

9 for maintaining data confidentiality, and the most effec10 tive format for the data collection reports.’’. 

11 SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND 

12 PAY EQUITY DATA COLLECTION. 

13 (a) BUREAU OF LABOR STATISTICS DATA COLLEC14 TION.—The Commissioner of Labor Statistics shall con15 tinue to collect data on women workers in the Current 

16 Employment Statistics survey. 

17 (b) OFFICE OF FEDERAL CONTRACT COMPLIANCE

18 PROGRAMS INITIATIVES.—The Director of the Office of 

19 Federal Contract Compliance Programs shall ensure that 

20 employees of the Office— 

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

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

23 methodology; 

24 (B) in considering evidence of possible com25 pensation discrimination— 


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1 (i) shall not limit its consideration to a 

2 small number of types of evidence; and 

3 (ii) shall not limit its evaluation of the evi4 dence to a small number of methods of evalu5 ating the evidence; and 

6 (C) shall not require a multiple regression anal7 ysis or anecdotal evidence for a compensation dis8 crimination case; 

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

10 and enforcement activities, shall define ‘‘similarly 

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

12 and not more stringent than the definition provided 

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

14 Equal Employment Opportunity Commission Com15 pliance Manual (2000), and shall consider only fac16 tors that the Office’s investigation reveals were used 

17 in making compensation decisions; and 

18 (3) shall reinstate the Equal Opportunity Sur19 vey, as required by section 60–2.18 of title 41, Code 

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

21 2006), designating not less than half of all non22 construction contractor establishments each year to 

23 prepare and file such survey, and shall review and 

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1 tractor establishments for further evaluation and for 

2 other enforcement purposes as appropriate. 

3 (c) DEPARTMENT OF LABOR DISTRIBUTION OF

4 WAGE DISCRIMINATION INFORMATION.—The Secretary of 

5 Labor shall make readily available (in print, on the De6 partment of Labor website, and through any other forum 

7 that the Department may use to distribute compensation 

8 discrimination information), accurate information on com9 pensation discrimination, including statistics, explanations 

10 of employee rights, historical analyses of such discrimina11 tion, instructions for employers on compliance, and any 

12 other information that will assist the public in under13 standing and addressing such discrimination. 

14 SEC. 10. AUTHORIZATION OF APPROPRIATIONS. 

15 (a) AUTHORIZATION OF APPROPRIATIONS.—There is 

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

17 this Act. 

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

19 appropriated pursuant to subsection (a) for purposes of 

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

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

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


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1 SEC. 11. SMALL BUSINESS ASSISTANCE. 

2 (a) EFFECTIVE DATE.—This Act and the amend3 ments made by this Act shall take effect on the date that 

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

5 (b) TECHNICAL ASSISTANCE MATERIALS.—The Sec6 retary of Labor and the Commissioner of the Equal Em7 ployment Opportunity Commission shall jointly develop 

8 technical assistance material to assist small businesses in 

9 complying with the requirements of this Act and the 

10 amendments made by this Act. 

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

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

13 that such business is exempt from the requirements of the 

14 Fair Labor Standards Act of 1938 pursuant to clauses 

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

16 203(s)(1)(A)). 

17 SEC. 12. RULE OF CONSTRUCTION. 

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

19 this Act, shall affect the obligation of employers and em20 ployees to fully comply with all applicable immigration 

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

Æ 


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