I

106TH CONGRESS

1ST SESSION H. R. 1271

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

MARCH 24, 1999

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 1999’’.

6 (b) REFERENCE.—Whenever in this Act an amend7 ment or repeal is expressed in terms of an amendment

8 to, or repeal of, a section or other provision, the reference
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1 shall be considered to be made to a section or other provi2 sion of the Fair Labor Standards Act of 1938.

3 SEC. 2. FINDINGS.

4 The Congress finds the following:

5 (1) Wage differentials exist between equivalent

6 jobs segregated by sex, race, and national origin in

7 Government employment and in industries engaged

8 in commerce or in the production of goods for com9 merce:

10 (2) The existence of such wage differentials—

11 (A) depresses wages and living standards

12 for employees necessary for their health and ef13 ficiency;

14 (B) prevents the maximum utilization of

15 the available labor resources;

16 (C) tends to cause labor disputes, thereby

17 burdening, affecting, and obstructing com18 merce;

19 (D) burdens commerce and the free flow of

20 goods in commerce; and

21 (E) constitutes an unfair method of com22 petition.

23 (3) Discrimination in hiring and promotion has

24 played a role in maintaining a segregated work

25 force.
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1 (4) Many women and people of color work in

2 occupations dominated by individuals of their same

3 sex, race, and national origin.

4 (5)(A) A General Accounting Office analysis of

5 wages in the civil service of the State of Washington

6 found that in 1985 of the 44 jobs studied that paid

7 less than the average of all equivalent jobs, approxi8 mately 39 percent were female-dominated and ap9 proximately 16 percent were male dominated.

10 (B) A study of wages in Minnesota using 1990

11 Decennial Census data found that 75 percent of the

12 wage differential between white and non-white work13 ers was unexplained and may be a result of discrimi14 nation.

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

16 Act of 1938 prohibits discrimination in compensa17 tion for ‘‘equal work’’ on the basis of sex.

18 (7) Title VII of the Civil Rights Act of 1964

19 prohibits discrimination in compensation because of

20 race, color, religion, national origin, and sex. The

21 United States Supreme Court, in its decision in

22 County of Washington v. Gunther, 452 U.S. 161

23 (1981), held that title VII’s prohibition against dis24 crimination in compensation also applies to jobs

25 which do not constitute ‘‘equal work’’ as defined in
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1 section 6(d) of the Fair Labor Standards Act of

2 1938. Decisions of lower courts, however, have dem3 onstrated that further clarification of existing legis4 lation is necessary in order effectively to carry out

5 the intent of Congress to implement the Supreme

6 Court’s holding in its Gunther decision.

7 (8) Artificial barriers to the elimination of dis8 crimination in compensation based upon sex, race,

9 and national origin continue to exist more than 3

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

11 Labor Standards Act of 1938 and the Civil Rights

12 Act of 1964. Elimination of such barriers would

13 have positive effects, including—

14 (A) providing a solution to problems in the

15 economy created by discriminating wage dif16 ferentials;

17 (B) substantially reducing the number of

18 working women and people of color earning low

19 wages, thereby reducing the dependence on pub20 lic assistance; and

21 (C) promoting stable families by enabling

22 working family members to earn a fair rate of

23 pay.
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1 SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS.

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

3 amended by adding at the end the following:

4 ‘‘(g)(1)(A) No employer having employees subject to

5 any provisions of this section shall discriminate between

6 its employees on the basis of sex, race, or national origin

7 by paying wages to employees or groups of employees at

8 a rate less than the rate at which the employer pays wages

9 to employees or groups of employees of the opposite sex

10 or different race or national origin for work in equivalent

11 jobs, except where such payment is made pursuant to a

12 seniority system, a merit system, or a system which meas13 ures earnings by quantity or quality of production.

14 ‘‘(B) An employer who is paying a wage rate differen15 tial in violation of subparagraph (A) shall not, in order

16 to comply with the provisions of such subparagraph, re17 duce the wage rate of any employee.

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

19 employees of an employer having employees subject to any

20 provision of this section shall cause or attempt to cause

21 such an employer to discriminate against an employee in

22 violation of paragraph (1)(A).

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

24 of this subsection, any amounts owing to any employee

25 which have been withheld in violation of paragraph (1)(A)
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1 shall be deemed to be unpaid minimum wages or unpaid

2 overtime compensation under this section or section 7.

3 ‘‘(4) As used in this subsection:

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

5 organization of any kind, or any agency or employee

6 representation committee or plan, in which employ7 ees participate and which exists for the purpose, in

8 whole or in part, of dealing with employers con9 cerning grievances, labor disputes, wages, rates of

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

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

12 may be dissimilar, but whose requirements are

13 equivalent, when viewed as a composite of skills, ef14 fort, responsibility, and working conditions.’’.

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

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

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

18 and 6(g)’’.

19 SEC. 4. PROHIBITED ACTS.

20 Section 15(a) (29 U.S.C. 215(a)) is amended by

21 striking the period at the end of paragraph (5) and insert22 ing a semicolon and by adding after paragraph (5) the

23 following:

24 ‘‘(6) to discriminate against any individual be25 cause such individual has opposed any act or prac-
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1 tice made unlawful by section 6(g) or because such

2 individual made a charge, testified, assisted, or par3 ticipated in any manner in an investigation, pro4 ceeding, or hearing under section 6(g); or

5 ‘‘(7) to discharge or in any other manner dis6 criminate against, coerce, intimidate, threaten, or

7 interfere with any employee or any other person be8 cause the employee inquired about, disclosed, com9 pared, or otherwise discussed the employee’s wages

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

11 employee exercised, enjoyed, aided, or encouraged

12 any other person to exercise or enjoy any right

13 granted or protected by section 6(g).’’.

14 SEC. 5. REMEDIES.

15 Section 16 (29 U.S.C. 216) is amended—

16 (1) by adding at the end the following:

17 ‘‘(f) In any action brought under this section for vio18 lation of section 6(g), the court shall, in addition to any

19 other remedies awarded to the prevailing plaintiff or plain20 tiffs, allow expert fees as part of the costs. Any such action

21 may be maintained as a class action as provided by the

22 Federal Rules of Civil Procedure.’’;

23 (2) in subsection (b), by striking ‘‘section

24 15(a)(3)’’ each place it occurs and inserting ‘‘para25 graphs (3), (6), and (7) of section 15(a)’’; and
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1 (3) in the fourth sentence of subsection (b), by

2 striking ‘‘No employees’’ and inserting ‘‘Except with

3 respect to class actions brought under subsection (f),

4 no employees’’.

5 SEC. 6. RECORDS.

6 Section 11(c) (29 U.S.C. 211(c)) is amended by in7 serting ‘‘(1)’’ after ‘‘(c)’’ and by adding at the end the

8 following:

9 ‘‘(2)(A) Every employer subject to section 6(g) shall

10 preserve records which document and support the method,

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

12 in establishing, adjusting, and determining the wages paid

13 to the employees of the employer. Every employer subject

14 to section 6(g) shall preserve such records for such periods

15 of time and shall make such reports therefrom to the

16 Equal Employment Opportunity Commission as shall be

17 prescribed by the Equal Employment Opportunity Com18 mission by regulation or order as necessary or appropriate

19 for the enforcement of the provisions of section 6(g) or

20 any regulations promulgated thereunder.

21 ‘‘(B) Every employer subject to section 6(g) shall file

22 annually with the Equal Employment Opportunity Com23 mission a report signed by its president, treasurer, or cor24 responding principal officer containing information in

25 such detail as may be necessary accurately to disclose the
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1 wage or salary rates paid to each classification, position,

2 job title, or other wage or salary group of employees em3 ployed by the employer, as well as the sex, race, and na4 tional origin of employees at each wage or salary level in

5 each classification, position, job title, or other wage or sal6 ary group. The report shall not contain the name of any

7 individual employee.

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

9 the contents of the reports filed with the Equal Employ10 ment Opportunity Commission pursuant to subparagraph

11 (B) shall be public information, and the Equal Employ12 ment Opportunity Commission may publish any informa13 tion and data which it obtains pursuant to the provisions

14 of subparagraph (B). The Equal Employment Oppor15 tunity Commission may use the information and data for

16 statistical and research purposes, and compile and publish

17 such studies, analyses, reports, and surveys based thereon

18 as it may deem appropriate.

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

20 the Equal Employment Opportunity Commission shall by

21 regulation make reasonable provision for the inspection

22 and examination by any person of the information and

23 data contained in any report filed with it pursuant to sub24 paragraph (B).
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1 ‘‘(E) The Equal Employment Opportunity Commis2 sion shall by regulation provide for the furnishing of copies

3 of reports filed with it pursuant to subparagraph (B) to

4 any person upon payment of a charge based upon the cost

5 of the service.

6 ‘‘(F) The Equal Employment Opportunity Commis7 sion shall issue rules and regulations prescribing the form

8 and content of reports required to be filed under subpara9 graph (B) and such other reasonable rules and regulations

10 as it may find necessary to prevent the circumvention or

11 evasion of such reporting requirements. In exercising its

12 authority under subparagraph (B), the Equal Employ13 ment Opportunity Commission may prescribe by general

14 rule simplified reports for employers for whom it finds

15 that by virtue of their size a detailed report would be un16 duly burdensome.’’.

17 SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSIST18 ANCE PROGRAM; REPORT TO CONGRESS.

19 Section 4(d) (29 U.S.C. 204(d)) is amended by add20 ing at the end the following:

21 ‘‘(4) The Equal Employment Opportunity Commis22 sion shall undertake studies and provide information and

23 technical assistance to employers, labor organizations, and

24 the general public concerning effective means available to

25 implement the provisions of section 6(g) prohibiting wage
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1 discrimination between employees performing work in

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

3 Such studies, information, and technical assistance shall

4 be based upon and include reference to the declared policy

5 of such section to eliminate such discrimination. In order

6 to achieve the purposes of such section, the Equal Employ7 ment Opportunity Commission shall further carry on a

8 continuing program of research, education, and technical

9 assistance including—

10 ‘‘(A) undertaking and promoting research with

11 the intent of developing means to expeditiously cor12 rect the conditions leading to section 6(g);

13 ‘‘(B) publishing and otherwise making available

14 to employers, labor organizations, professional asso15 ciations, educational institutions, the various media

16 of communication, and the general public the find17 ings of studies and other materials for promoting

18 compliance with section 6(g);

19 ‘‘(C) sponsoring and assisting State and com20 munity informational and educational programs; and

21 ‘‘(D) providing technical assistance to employ22 ers, labor organizations, professional associations

23 and other interested persons on means of achieving

24 and maintaining compliance with the provisions of

25 section 6(g).
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1 ‘‘(5) The report submitted annually by the Equal

2 Employment Opportunity Commission to Congress pursu3 ant to paragraph (1) shall include a separate evaluation

4 and appraisal regarding the implementation of section

5 6(g).’’.

6 SEC. 8. EFFECTIVE DATE.

7 The amendments made by this Act shall take effect

8 upon the expiration of one year from the date of its

9 enactment.

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