I

107TH CONGRESS

1ST SESSION H. R. 1362

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 3, 2001

Ms. NORTON (for herself and Mr. ABERCROMBIE) 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 2001’’.

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

11 differentials—

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) A General Accounting Office analysis of

8 wage rates in the civil service of the State of Wash9 ington found that in 1985, of the 44 jobs studied

10 that paid less than the average of all equivalent jobs,

11 approximately 39 percent were female-dominated

12 and approximately 16 percent were male dominated.

13 (B) A study of wage rates in Minnesota using

14 1990 Decennial Census data found that 75 percent

15 of the wage rate differential between white and

16 nonwhite workers was unexplained and may be a re17 sult of discrimination.

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

19 Act of 1938 (29 U.S.C. 206(d)) prohibits discrimi20 nation in compensation for ‘‘equal work’’ on the

21 basis of sex.

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

23 (42 U.S.C. 2000e et seq.) prohibits discrimination in

24 compensation because of race, color, religion, na25 tional origin, and sex. The Supreme Court, in its de-
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1 cision in County of Washington v. Gunther, 452

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

3 against discrimination in compensation also applies

4 to jobs that do not constitute ‘‘equal work’’ as de5 fined in section 6(d) of the Fair Labor Standards

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

7 courts, however, have demonstrated that further

8 clarification of existing legislation is necessary in

9 order effectively to carry out the intent of Congress

10 to implement the Supreme Court’s holding in its

11 Gunther decision.

12 (8) Artificial barriers to the elimination of dis13 crimination in compensation based upon sex, race,

14 and national origin continue to exist more than 3

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

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

17 and the Civil Rights Act of 1964. Elimination of

18 such barriers would have positive effects,

19 including—

20 (A) providing a solution to problems in the

21 economy created by discrimination through

22 wage rate differentials;

23 (B) substantially reducing the number of

24 working women and people of color earning low
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1 wages, thereby reducing the dependence on pub2 lic assistance; and

3 (C) promoting stable families by enabling

4 working family members to earn a fair rate of

5 pay.

6 SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS.

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

8 amended by adding at the end the following:

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

10 no employer having employees subject to any provision of

11 this section shall discriminate, within any establishment

12 in which such employees are employed, between employees

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

14 wages to employees in such establishment in a job that

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

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

17 employer pays wages to employees in such establishment

18 in another job that is dominated by employees of the oppo19 site sex or of a different race or national origin, respec20 tively, for work on equivalent jobs.

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

22 payment of different wage rates to employees where such

23 payment is made pursuant to—

24 ‘‘(i) a seniority system;

25 ‘‘(ii) a merit system;
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1 ‘‘(iii) a system that measures earnings by quan2 tity or quality of production; or

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

4 other than sex, race, or national origin, such as edu5 cation, training, or experience, except that this

6 clause shall apply only if—

7 ‘‘(I) the employer demonstrates that—

8 ‘‘(aa) such factor—

9 ‘‘(AA) is job-related with respect

10 to the position in question; or

11 ‘‘(BB) furthers a legitimate busi12 ness purpose, except that this item

13 shall not apply if the employee dem14 onstrates that an alternative employ15 ment practice exists that would serve

16 the same business purpose without

17 producing such differential and that

18 the employer has refused to adopt

19 such alternative practice; and

20 ‘‘(bb) such factor was actually applied

21 and used reasonably in light of the as22 serted justification; and

23 ‘‘(II) upon the employer succeeding under

24 subclause (I), the employee fails to demonstrate

25 that the differential produced by the reliance of
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1 the employer on such factor is itself the result

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

3 national origin by the employer.

4 ‘‘(C) The Equal Employment Opportunity Commis5 sion shall issue guidelines specifying criteria for deter6 mining whether a job is dominated by employees of a par7 ticular sex, race, or national origin. Such guidelines shall

8 not include a list of such jobs.

9 ‘‘(D) An employer who is paying a wage rate differen10 tial in violation of subparagraph (A) shall not, in order

11 to comply with the provisions of such subparagraph, re12 duce the wage rate of any employee.

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

14 employees of an employer having employees subject to any

15 provision of this section shall cause or attempt to cause

16 such an employer to discriminate against an employee in

17 violation of paragraph (1)(A).

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

19 of this subsection, any amounts owing to any employee

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

21 shall be deemed to be unpaid minimum wages or unpaid

22 overtime compensation under this section or section 7.

23 ‘‘(4) In this subsection:

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

25 organization of any kind, or any agency or employee
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1 representation committee or plan, in which employ2 ees participate and that exists for the purpose, in

3 whole or in part, of dealing with employers con4 cerning grievances, labor disputes, wages, rates of

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

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

7 may be dissimilar, but whose requirements are

8 equivalent, when viewed as a composite of skills, ef9 fort, responsibility, and working conditions.’’.

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

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

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

13 and 6(h)’’.

14 SEC. 4. PROHIBITED ACTS.

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

16 (1) by striking the period at the end of para17 graph (5) and inserting a semicolon; and

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

19 new paragraphs:

20 ‘‘(6) to discriminate against any individual be21 cause such individual has opposed any act or prac22 tice made unlawful by section 6(h) or because such

23 individual made a charge, testified, assisted, or par24 ticipated in any manner in an investigation, pro25 ceeding, or hearing to enforce section 6(h); or
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1 ‘‘(7) to discharge or in any other manner dis2 criminate against, coerce, intimidate, threaten, or

3 interfere with any employee or any other person be4 cause the employee inquired about, disclosed, com5 pared, or otherwise discussed the employee’s wages

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

7 employee exercised, enjoyed, aided, or encouraged

8 any other person to exercise or enjoy any right

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

10 SEC. 5. REMEDIES.

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

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

13 amended—

14 (1) by inserting after the first sentence the fol15 lowing: ‘‘Any employer who violates subsection (d) or

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

17 compensatory or punitive damages as may be appro18 priate, except that the United States shall not be lia19 ble for punitive damages.’’;

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

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

22 inserting ‘‘any of the preceding sentences of this

23 subsection’’;

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

25 by striking ‘‘No employees’’ and inserting ‘‘Except
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1 with respect to class actions brought under sub2 section (f), no employee’’;

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

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

5 action brought to recover the liability prescribed in

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

7 and

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

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

10 of section 15(a)’’.

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

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

13 amended—

14 (1) in the first sentence—

15 (A) by inserting ‘‘or, in the case of a viola16 tion of subsection (d) or (h) of section 6, addi17 tional compensatory or punitive damages,’’ be18 fore ‘‘and the agreement’’; and

19 (B) by inserting before the period the fol20 lowing: ‘‘, or such compensatory or punitive

21 damages, as appropriate’’;

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

23 the period the following: ‘‘and, in the case of a viola24 tion of subsection (d) or (h) of section 6, additional

25 compensatory or punitive damages’’; and
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1 (3) in the third sentence, by striking ‘‘the first

2 sentence’’ and inserting ‘‘the first or second sen3 tence’’.

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

5 by adding at the end the following:

6 ‘‘(f) In any action brought under this section for vio7 lation of section 6(h), the court shall, in addition to any

8 other remedies awarded to the prevailing plaintiff or plain9 tiffs, allow expert fees as part of the costs. Any such action

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

11 Federal Rules of Civil Procedure.’’.

12 SEC. 6. RECORDS.

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

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

15 (b) RECORDS.—Section 11(c) (as amended by sub16 section (a)) is further amended by adding at the end the

17 following:

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

19 preserve records that document and support the method,

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

21 in establishing, adjusting, and determining the wage rates

22 paid to the employees of the employer. Every employer

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

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

25 records to the Equal Employment Opportunity Commis-
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1 sion, as shall be prescribed by the Equal Employment Op2 portunity Commission by regulation or order as necessary

3 or appropriate for the enforcement of the provisions of sec4 tion 6(h) or any regulation promulgated pursuant to sec5 tion 6(h).’’.

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

7 (as amended by subsections (a) and (b)) is further amend8 ed by adding at the end the following:

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

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

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

12 or 15 or more employees on any date during any subse13 quent year after such second year, shall, in accordance

14 with regulations promulgated by the Equal Employment

15 Opportunity Commission under subparagraph (F), pre16 pare and submit to the Equal Employment Opportunity

17 Commission for the year involved a report signed by the

18 president, treasurer, or corresponding principal officer, of

19 the employer that includes information that discloses the

20 wage rates paid to employees of the employer in each clas21 sification, position, or job title, or to employees in other

22 wage groups employed by the employer, including informa23 tion with respect to the sex, race, and national origin of

24 employees at each wage rate in each classification, posi25 tion, job title, or other wage group.’’.
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1 (d) PROTECTION OF CONFIDENTIALITY.—Section

2 11(c) (as amended by subsections (a) through (c)) is fur3 ther amended by adding at the end the following:

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

5 Equal Employment Opportunity Commission under sub6 paragraph (F), relating to the form of such a report, shall

7 include requirements to protect the confidentiality of em8 ployees, including a requirement that the report shall not

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

10 (e) USE; INSPECTIONS; EXAMINATIONS; REGULA11 TIONS.—Section 11(c) (as amended by subsections (a)

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

13 following:

14 ‘‘(C) The Equal Employment Opportunity Commis15 sion may publish any information and data that the Equal

16 Employment Opportunity Commission obtains pursuant to

17 the provisions of subparagraph (B). The Equal Employ18 ment Opportunity Commission may use the information

19 and data for statistical and research purposes, and com20 pile and publish such studies, analyses, reports, and sur21 veys based on the information and data as the Equal Em22 ployment Opportunity Commission may consider appro23 priate.

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

25 the Equal Employment Opportunity Commission shall by
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1 regulation make reasonable provision for the inspection

2 and examination by any person of the information and

3 data contained in any report submitted to the Equal Em4 ployment Opportunity Commission pursuant to subpara5 graph (B).

6 ‘‘(E) The Equal Employment Opportunity Commis7 sion shall by regulation provide for the furnishing of copies

8 of reports submitted to the Equal Employment Oppor9 tunity Commission pursuant to subparagraph (B) to any

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

11 the service.

12 ‘‘(F) The Equal Employment Opportunity Commis13 sion shall issue rules and regulations prescribing the form

14 and content of reports required to be submitted under sub15 paragraph (B) and such other reasonable rules and regu16 lations as the Equal Employment Opportunity Commis17 sion may find necessary to prevent the circumvention or

18 evasion of such reporting requirements. In exercising the

19 authority of the Equal Employment Opportunity Commis20 sion under subparagraph (B), the Equal Employment Op21 portunity Commission may prescribe by general rule sim22 plified reports for employers for whom the Equal Employ23 ment Opportunity Commission finds that because of the

24 size of the employers a detailed report would be unduly

25 burdensome.’’.
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1 SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSIST2 ANCE PROGRAM; REPORT TO CONGRESS.

3 Section 4(d) (29 U.S.C. 204(d)) is amended by add4 ing at the end the following:

5 ‘‘(4) The Equal Employment Opportunity Commis6 sion shall conduct studies and provide information and

7 technical assistance to employers, labor organizations, and

8 the general public concerning effective means available to

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

10 rate discrimination between employees performing work in

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

12 Such studies, information, and technical assistance shall

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

14 section to eliminate such discrimination. In order to

15 achieve the objectives of such section, the Equal Employ16 ment Opportunity Commission shall carry on a continuing

17 program of research, education, and technical assistance

18 including—

19 ‘‘(A) conducting and promoting research with

20 the intent of developing means to expeditiously cor21 rect the wage rate differentials described in section

22 6(h);

23 ‘‘(B) publishing and otherwise making available

24 to employers, labor organizations, professional asso25 ciations, educational institutions, the various media

26 of communication, and the general public the find-
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1 ings of studies and other materials for promoting

2 compliance with section 6(h);

3 ‘‘(C) sponsoring and assisting State and com4 munity informational and educational programs; and

5 ‘‘(D) providing technical assistance to employ6 ers, labor organizations, professional associations,

7 and other interested persons on means of achieving

8 and maintaining compliance with the provisions of

9 section 6(h).

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

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

12 evaluation and appraisal regarding the implementation of

13 section 6(h).’’.

14 SEC. 8. CONFORMING AMENDMENTS.

15 (a) CONGRESSIONAL EMPLOYEES.—

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

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

18 1313(a)(1)) is amended—

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

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

21 (d), and (h) of section 6’’; and

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

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

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

25 U.S.C. 1313(b)) is amended by inserting before the
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1 period the following: ‘‘or, in an appropriate case,

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

3 (b) EXECUTIVE BRANCH EMPLOYEES.—

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

5 United States Code, is amended by striking ‘‘sub6 sections (a)(1) and (d) of section 6’’ and inserting

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

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

9 amended by inserting before the period the fol10 lowing: ‘‘or, in an appropriate case, under section

11 16(f) of such Act’’.

12 SEC. 9. EFFECTIVE DATE.

13 The amendments made by this Act shall take effect

14 1 year after the date of enactment of this Act.

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