II 

112TH CONGRESS 

1ST SESSION S. 788 

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

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

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 12, 2011 

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

Mrs. MURRAY, Mr. LAUTENBERG, and Mr. MERKLEY) introduced the following bill; which was read twice and referred to the Committee on 

Health, Education, Labor, and Pensions 

A BILL 

To amend the Fair Labor Standards Act of 1938 to prohibit 

discrimination in the payment of wages on account of 

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

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

3 SECTION 1. SHORT TITLE. 

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

5 ‘‘Fair Pay Act of 2011’’. 

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

7 whenever in this Act an amendment or repeal is expressed 

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


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1 other provision, the reference shall be considered to be 

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

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

4 SEC. 2. FINDINGS. 

5 Congress finds the following: 

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

10 commerce. 

11 (2) The existence of such wage rate differen12 tials— 

13 (A) depresses wages and living standards 

14 for employees necessary for their health and ef15 ficiency; 

16 (B) prevents the maximum utilization of 

17 the available labor resources; 

18 (C) tends to cause labor disputes, thereby 

19 burdening, affecting, and obstructing com20 merce; 

21 (D) burdens commerce and the free flow of 

22 goods in commerce; and 

23 (E) constitutes an unfair method of com24 petition. 


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1 (3) Discrimination in hiring and promotion has 

2 played a role in maintaining a segregated work 

3 force. 

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

5 occupations dominated by individuals of their same 

6 sex, race, and national origin. 

7 (5)(A) In 2009, a woman in the United States 

8 working in a full-time, year-round job earned 77 

9 cents for every dollar earned by a man working in 

10 a full-time, year-round job. 

11 (B) A 2007 study found that—even when ac12 counting for key factors generally known to influ13 ence earnings such as race, educational attainment, 

14 and experience—nearly half (49.3 percent) of the 

15 pay gap can be explained by differences in the indus16 tries and occupations that men and women work in, 

17 and 41 percent of the pay gap cannot be accounted 

18 for but may be partially explained by discrimination 

19 in the workplace. 

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

21 Act of 1938 prohibits discrimination in compensa22 tion for ‘‘equal work’’ on the basis of sex. 

23 (7) Artificial barriers to the elimination of dis24 crimination in compensation based upon sex, race, 

25 and national origin continue to exist more than 4 


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

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

3 1963, and the Civil Rights Act of 1964 (42 U.S.C. 

4 2000a et seq.). Elimination of such barriers would 

5 have positive effects, including— 

6 (A) providing a solution to problems in the 

7 economy created by discrimination through 

8 wage rate differentials; 

9 (B) substantially reducing the number of 

10 working women and people of color earning low 

11 wages, thereby reducing the dependence on pub12 lic assistance; and 

13 (C) promoting stable families by enabling 

14 working family members to earn a fair rate of 

15 pay. 

16 SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS. 

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

18 amended by adding at the end the following: 

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

20 no employer having employees subject to any provision of 

21 this section shall discriminate, within any establishment 

22 in which such employees are employed, between employees 

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

24 wages to employees in such establishment in a job that 

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


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

2 employer pays wages to employees in such establishment 

3 in another job that is dominated by employees of the oppo4 site sex or of a different race or national origin, respec5 tively, for work on equivalent jobs. 

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

7 payment of different wage rates to employees where such 

8 payment is made pursuant to— 

9 ‘‘(i) a seniority system; 

10 ‘‘(ii) a merit system; 

11 ‘‘(iii) a system that measures earnings by quan12 tity or quality of production; or 

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

14 other than sex, race, or national origin, such as edu15 cation, training, or experience, except that this 

16 clause shall apply only if— 

17 ‘‘(I) the employer demonstrates that— 

18 ‘‘(aa) such factor— 

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

20 to the position in question; or 

21 ‘‘(BB) furthers a legitimate busi22 ness purpose, except that this item 

23 shall not apply if the employee dem24 onstrates that an alternative employ25 ment practice exists that would serve 


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1 the same business purpose without 

2 producing such differential and that 

3 the employer has refused to adopt 

4 such alternative practice; and 

5 ‘‘(bb) such factor was actually applied 

6 and used reasonably in light of the as7 serted justification; and 

8 ‘‘(II) upon the employer succeeding under 

9 subclause (I), the employee fails to demonstrate 

10 that the differential produced by the reliance of 

11 the employer on such factor is itself the result 

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

13 national origin by the employer. 

14 ‘‘(C) The Equal Employment Opportunity Commis15 sion shall issue guidelines specifying criteria for deter16 mining whether a job is dominated by employees of a par17 ticular sex, race, or national origin for purposes of sub18 paragraph (B)(iv). Such guidelines shall not include a list 

19 of such jobs. 

20 ‘‘(D) An employer who is paying a wage rate differen21 tial in violation of subparagraph (A) shall not, in order 

22 to comply with the provisions of such subparagraph, re23 duce the wage rate of any employee. 

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

25 employees of an employer having employees subject to any 


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1 provision of this section shall cause or attempt to cause 

2 such an employer to discriminate against an employee in 

3 violation of paragraph (1)(A). 

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

5 of this subsection, any amounts owing to any employee 

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

7 shall be deemed to be unpaid minimum wages or unpaid 

8 overtime compensation under this section or section 7. 

9 ‘‘(4) In this subsection: 

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

11 organization of any kind, or any agency or employee 

12 representation committee or plan, in which employ13 ees participate and that exists for the purpose, in 

14 whole or in part, of dealing with employers con15 cerning grievances, labor disputes, wages, rates of 

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

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

18 may be dissimilar, but whose requirements are 

19 equivalent, when viewed as a composite of skills, ef20 fort, responsibility, and working conditions.’’. 

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

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

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

24 (d) and (h)’’. 


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1 SEC. 4. PROHIBITED ACTS. 

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

3 (1) by striking the period at the end of para4 graph (5) and inserting a semicolon; and 

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

6 ‘‘(6) to discriminate against any individual be7 cause such individual has opposed any act or prac8 tice made unlawful by section 6(h) or because such 

9 individual made a charge, testified, assisted, or par10 ticipated in any manner in an investigation, pro11 ceeding, or hearing to enforce section 6(h); or 

12 ‘‘(7) to discharge or in any other manner dis13 criminate against, coerce, intimidate, threaten, or 

14 interfere with any employee or any other person be15 cause the employee inquired about, disclosed, com16 pared, or otherwise discussed the employee’s wages 

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

18 employee exercised, enjoyed, aided, or encouraged 

19 any other person to exercise or enjoy any right 

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

21 SEC. 5. REMEDIES. 

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

23 U.S.C. 216(b)) is amended— 

24 (1) by inserting after the first sentence the fol25 lowing: ‘‘Any employer who violates subsection (d) or 

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


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1 compensatory or punitive damages as may be appro2 priate, except that the United States shall not be lia3 ble for punitive damages.’’; 

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

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

6 inserting ‘‘any of the preceding sentences of this 

7 subsection’’; 

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

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

10 with respect to class actions brought under sub11 section (f), no employee’’; 

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

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

14 action brought to recover the liability prescribed in 

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

16 and 

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

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

19 of section 15(a)’’. 

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

21 U.S.C. 216(c)) is amended— 

22 (1) in the first sentence— 

23 (A) by inserting ‘‘or, in the case of a viola24 tion of subsection (d) or (h) of section 6, addiVerDate Mar 15 2010 00:32 Apr 13, 2011 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S788.IS S788

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1 tional compensatory or punitive damages,’’ be2 fore ‘‘and the agreement’’; and 

3 (B) by inserting before the period the fol4 lowing: ‘‘, or such compensatory or punitive 

5 damages, as appropriate’’; 

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

7 the period the following: ‘‘and, in the case of a viola8 tion of subsection (d) or (h) of section 6, additional 

9 compensatory or punitive damages’’; and 

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

11 sentence’’ and inserting ‘‘the first or second sen12 tence’’. 

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

14 by adding at the end the following: 

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

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

17 any other remedies awarded to the prevailing plaintiff or 

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

19 action may be maintained as a class action as provided 

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

21 SEC. 6. RECORDS. 

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

23 amended— 

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

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


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1 ‘‘(2) Every employer subject to section 6(h) shall pre2 serve records that document and support the method, sys3 tem, calculations, and other bases used by the employer 

4 in establishing, adjusting, and determining the wage rates 

5 paid to the employees of the employer. Every employer 

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

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

8 records to the Equal Employment Opportunity Commis9 sion, as shall be prescribed by the Equal Employment Op10 portunity Commission by regulation or order as necessary 

11 or appropriate for the enforcement of the provisions of sec12 tion 6(h) or any regulation promulgated pursuant to sec13 tion 6(h).’’. 

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

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

16 adding at the end the following: 

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

18 25 or more employees on any date during the first or sec19 ond year after the effective date of this paragraph, or 15 

20 or more employees on any date during any subsequent 

21 year after such second year, shall, in accordance with reg22 ulations promulgated by the Equal Employment Oppor23 tunity Commission under paragraph (8), prepare and sub24 mit to the Equal Employment Opportunity Commission 

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


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1 treasurer, or corresponding principal officer, of the em2 ployer that includes information that discloses the wage 

3 rates paid to employees of the employer in each classifica4 tion, position, or job title, or to employees in other wage 

5 groups employed by the employer, including information 

6 with respect to the sex, race, and national origin of em7 ployees at each wage rate in each classification, position, 

8 job title, or other wage group.’’. 

9 (c) PROTECTION OF CONFIDENTIALITY.—Section 

10 11(c) (as amended by subsections (a) and (b)) is further 

11 amended by adding at the end the following: 

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

13 Equal Employment Opportunity Commission under para14 graph (8), relating to the form of such a report, shall in15 clude requirements to protect the confidentiality of em16 ployees, including a requirement that the report shall not 

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

18 (d) USE; INSPECTIONS; EXAMINATION; REGULA19 TIONS.—Section 11(c) (as amended by subsections (a) 

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

21 following: 

22 ‘‘(5) The Equal Employment Opportunity Commis23 sion may publish any information and data that the Equal 

24 Employment Opportunity Commission obtains pursuant to 

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


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1 Opportunity Commission may use the information and 

2 data for statistical and research purposes, and compile 

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

4 based on the information and data as the Equal Employ5 ment Opportunity Commission may consider appropriate. 

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

7 the Equal Employment Opportunity Commission shall by 

8 regulation make reasonable provision for the inspection 

9 and examination by any person of the information and 

10 data contained in any report submitted to the Equal Em11 ployment Opportunity Commission pursuant to paragraph 

12 (3). 

13 ‘‘(7) The Equal Employment Opportunity Commis14 sion shall by regulation provide for the furnishing of copies 

15 of reports submitted to the Equal Employment Oppor16 tunity Commission pursuant to paragraph (3) to any per17 son upon payment of a charge based upon the cost of the 

18 service. 

19 ‘‘(8) The Equal Employment Opportunity Commis20 sion shall issue rules and regulations prescribing the form 

21 and content of reports required to be submitted under 

22 paragraph (3) and such other reasonable rules and regula23 tions as the Equal Employment Opportunity Commission 

24 may find necessary to prevent the circumvention or eva25 sion of such reporting requirements. In exercising the auVerDate Mar 15 2010 00:32 Apr 13, 2011 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S788.IS S788

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1 thority of the Equal Employment Opportunity Commis2 sion under paragraph (3), the Equal Employment Oppor3 tunity Commission may prescribe by general rule sim4 plified reports for employers for whom the Equal Employ5 ment Opportunity Commission finds that because of the 

6 size of the employers a detailed report would be unduly 

7 burdensome.’’. 

8 SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSIST9 ANCE PROGRAM; REPORT TO CONGRESS. 

10 Section 4(d) (29 U.S.C. 204(d)) is amended by add11 ing at the end the following: 

12 ‘‘(4) The Equal Employment Opportunity Commis13 sion shall conduct studies and provide information and 

14 technical assistance to employers, labor organizations, and 

15 the general public concerning effective means available to 

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

17 rate discrimination between employees performing work in 

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

19 Such studies, information, and technical assistance shall 

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

21 section to eliminate such discrimination. In order to 

22 achieve the objectives of such section, the Equal Employ23 ment Opportunity Commission shall carry on a continuing 

24 program of research, education, and technical assistance 

25 including— 


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1 ‘‘(A) conducting and promoting research with 

2 the intent of developing means to expeditiously cor3 rect the wage rate differentials described in section 

4 6(h); 

5 ‘‘(B) publishing and otherwise making available 

6 to employers, labor organizations, professional asso7 ciations, educational institutions, the various media 

8 of communication, and the general public the find9 ings of studies and other materials for promoting 

10 compliance with section 6(h); 

11 ‘‘(C) sponsoring and assisting State and com12 munity informational and educational programs; and 

13 ‘‘(D) providing technical assistance to employ14 ers, labor organizations, professional associations 

15 and other interested persons on means of achieving 

16 and maintaining compliance with the provisions of 

17 section 6(h). 

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

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

20 evaluation and appraisal regarding the implementation of 

21 section 6(h).’’. 

22 SEC. 8. CONFORMING AMENDMENTS. 

23 (a) CONGRESSIONAL EMPLOYEES.— 


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

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

3 1313(a)(1)) is amended— 

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

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

6 (d), and (h) of section 6’’; and 

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

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

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

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

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

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

13 (b) EXECUTIVE BRANCH EMPLOYEES.— 

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

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

16 Presidential and Executive Office Accountability Act 

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

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

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

20 section 6’’. 

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

22 amended by inserting before the period the fol23 lowing: ‘‘or, in an appropriate case, under section 

24 16(f) of such Act’’. 


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1 SEC. 9. EFFECTIVE DATE. 

2 The amendments made by this Act shall take effect 

3 1 year after the date of enactment of this Act. 

Æ 


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