II 

109TH CONGRESS 

1ST SESSION S. 841 

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 19, 2005 

Mrs. CLINTON (for herself, Mr. REID, Mr. KENNEDY, Mr. HARKIN, Mr. DURBIN, Ms. LANDRIEU, Mr. CORZINE, Mr. LEAHY, Mr. SCHUMER, and Ms. 

STABENOW) 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’’. 

6 SEC. 2. FINDINGS. 

7 Congress makes the following findings: 
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1 (1) Women have entered the workforce in 

2 record numbers over the past 50 years. 

3 (2) Even today, women earn significantly lower 

4 pay than men for work on jobs that require equal 

5 skill, effort, and responsibility and that are per6 formed under similar working conditions. These pay 

7 disparities exist in both the private and govern8 mental sectors. In many instances, the pay dispari9 ties can only be due to continued intentional dis10 crimination or the lingering effects of past discrimi11 nation. 

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; 
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1 (E) burdens commerce and the free flow of 

2 goods in commerce; 

3 (F) constitutes an unfair method of com4 petition in commerce; 

5 (G) leads to labor disputes burdening and 

6 obstructing commerce and the free flow of 

7 goods in commerce; 

8 (H) interferes with the orderly and fair 

9 marketing of goods in commerce; and 

10 (I) in many instances, may deprive workers 

11 of equal protection on the basis of sex in viola12 tion of the 5th and 14th amendments. 

13 (4)(A) Artificial barriers to the elimination of 

14 discrimination in the payment of wages on the basis 

15 of sex continue to exist decades after the enactment 

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

17 201 et seq.) and the Civil Rights Act of 1964 (42 

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

19 (B) Elimination of such barriers would have 

20 positive effects, including— 

21 (i) providing a solution to problems in the 

22 economy created by unfair pay disparities; 

23 (ii) substantially reducing the number of 

24 working women earning unfairly low wages, 
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1 thereby reducing the dependence on public as2 sistance; 

3 (iii) promoting stable families by enabling 

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

5 (iv) remedying the effects of past discrimi6 nation on the basis of sex and ensuring that in 

7 the future workers are afforded equal protection 

8 on the basis of sex; and 

9 (v) ensuring equal protection pursuant to 

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

11 amendments. 

12 (5) The Department of Labor has important 

13 and unique responsibilities to help ensure that 

14 women receive equal pay for doing work that is sub15 stantially equal to men’s work. 

16 (6) The Department of Labor is responsible 

17 for— 

18 (A) collecting and making publicly avail19 able information about women’s pay; 

20 (B) ensuring that companies receiving 

21 Federal contracts comply with the antidiscrimi22 nation and the affirmative action requirements 

23 of Executive Order 11246 (relating to equal 

24 employment opportunity); 
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1 (C) disseminating information about wom2 en’s rights in the workplace; 

3 (D) helping women who have been victims 

4 of pay discrimination obtain a remedy; and 

5 (E) being proactive in investigating and 

6 prosecuting equal pay violations, especially sys7 temic violations, and in enforcing all of its man8 dates. 

9 (7) With a stronger commitment by the Depart10 ment of Labor to its responsibilities, increased infor11 mation about the provisions added by the Equal Pay 

12 Act of 1963, wage data, and more effective rem13 edies, women will be better able to recognize and en14 force their rights. 

15 (8) Certain employers have already made great 

16 strides in eradicating unfair pay disparities in the 

17 workplace and their achievements should be recog18 nized. 

19 SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY RE20 QUIREMENTS. 

21 (a) REQUIRED DEMONSTRATION FOR AFFIRMATIVE

22 DEFENSE.—Section 6(d)(1) of the Fair Labor Standards 

23 Act of 1938 (29 U.S.C. 206(d)(1)) is amended by striking 

24 ‘‘(iv) a differential’’ and all that follows through the period 

25 and inserting the following: ‘‘(iv) a differential based on 
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1 a bona fide factor other than sex, such as education, train2 ing or experience, except that the bona fide factor defense 

3 shall apply only if— 

4 ‘‘(I) the employer demonstrates that— 

5 ‘‘(aa) such factor— 

6 ‘‘(AA) is job-related with respect to 

7 the position in question; or 

8 ‘‘(BB) furthers a legitimate business 

9 purpose, except that this item shall not 

10 apply where the employee demonstrates 

11 that an alternative employment practice 

12 exists that would serve the same business 

13 purpose without producing such differen14 tial and that the employer has refused to 

15 adopt such alternative practice; and 

16 ‘‘(bb) such factor was actually applied and 

17 used reasonably in light of the asserted jus18 tification; and 

19 ‘‘(II) upon the employer succeeding under sub20 clause (I), the employee fails to demonstrate that 

21 the differential produced by the reliance of the em22 ployer on such factor is itself the result of discrimi23 nation on the basis of sex by the employer. 
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1 An employer that is not otherwise in compliance with this 

2 paragraph may not reduce the wages of any employee in 

3 order to achieve such compliance.’’. 

4 (b) APPLICATION OF PROVISIONS.—Section 6(d)(1) 

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

6 206(d)(1)) is amended by adding at the end the following: 

7 ‘‘The provisions of this subsection shall apply to applicants 

8 for employment if such applicants, upon employment by 

9 the employer, would be subject to any provisions of this 

10 section.’’. 

11 (c) ELIMINATION OF ESTABLISHMENT REQUIRE12 MENT.—Section 6(d) of the Fair Labor Standards Act of 

13 1938 (29 U.S.C. 206(d)) is amended— 

14 (1) by striking ‘‘, within any establishment in 

15 which such employees are employed,’’; and 

16 (2) by striking ‘‘in such establishment’’ each 

17 place it appears. 

18 (d) NONRETALIATION PROVISION.—Section 15(a)(3) 

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

20 215(a)(3)) is amended— 

21 (1) by striking ‘‘or has’’ each place it appears 

22 and inserting ‘‘has’’; and 

23 (2) by inserting before the semicolon the fol24 lowing: ‘‘, or has inquired about, discussed, or other25 wise disclosed the wages of the employee or another 
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1 employee, or because the employee (or applicant) has 

2 made a charge, testified, assisted, or participated in 

3 any manner in an investigation, proceeding, hearing, 

4 or action under section 6(d)’’. 

5 (e) ENHANCED PENALTIES.—Section 16(b) of the 

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

7 amended— 

8 (1) by inserting after the first sentence the fol9 lowing: ‘‘Any employer who violates section 6(d) 

10 shall additionally be liable for such compensatory or 

11 punitive damages as may be appropriate, except that 

12 the United States shall not be liable for punitive 

13 damages.’’; 

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

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

16 inserting ‘‘any of the preceding sentences of this 

17 subsection’’; 

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

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

20 ‘‘Except with respect to class actions brought to en21 force section 6(d), no employee’’; 

22 (4) by inserting after the sentence referred to 

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

24 any other provision of Federal law, any action 

25 brought to enforce section 6(d) may be maintained 
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1 as a class action as provided by the Federal Rules 

2 of Civil Procedure.’’; and 

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

4 (A) by striking ‘‘in such action’’ and in5 serting ‘‘in any action brought to recover the li6 ability prescribed in any of the preceding sen7 tences of this subsection’’; and 

8 (B) by inserting before the period the fol9 lowing: ‘‘, including expert fees’’. 

10 (f) ACTION BY SECRETARY.—Section 16(c) of the 

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

12 amended— 

13 (1) in the first sentence— 

14 (A) by inserting ‘‘or, in the case of a viola15 tion of section 6(d), additional compensatory or 

16 punitive damages,’’ before ‘‘and the agree17 ment’’; and 

18 (B) by inserting before the period the fol19 lowing: ‘‘, or such compensatory or punitive 

20 damages, as appropriate’’; 

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

22 the period the following: ‘‘and, in the case of a viola23 tion of section 6(d), additional compensatory or pu24 nitive damages’’; 
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1 (3) in the third sentence, by striking ‘‘the first 

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

4 (4) in the last sentence— 

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

6 and inserting ‘‘commenced— 

7 ‘‘(1) in the case’’; 

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

9 or’’; and 

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

11 ‘‘(2) in the case of a class action brought to en12 force section 6(d), on the date on which the indi13 vidual becomes a party plaintiff to the class action.’’. 

14 SEC. 4. TRAINING. 

15 The Equal Employment Opportunity Commission 

16 and the Office of Federal Contract Compliance Programs, 

17 subject to the availability of funds appropriated under sec18 tion 11, shall provide training to Commission employees 

19 and affected individuals and entities on matters involving 

20 discrimination in the payment of wages. 

21 SEC. 5. NEGOTIATION SKILLS TRAINING FOR GIRLS AND 

22 WOMEN. 

23 (a) PROGRAM AUTHORIZED.— 

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

25 after consultation with the Secretary of Education, 
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1 is authorized to establish and carry out a grant pro2 gram. 

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

4 Secretary of Labor may make grants on a competi5 tive basis to eligible entities, to carry out negotiation 

6 skills training programs for girls and women. 

7 (3) ELIGIBLE ENTITIES.—To be eligible to re8 ceive a grant under this subsection, an entity shall 

9 be a public agency, such as a State, a local govern10 ment in a metropolitan statistical area (as defined 

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

12 educational agency, or a local educational agency, a 

13 private nonprofit organization, or a community14 based organization. 

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

16 grant under this subsection, an entity shall submit 

17 an application to the Secretary of Labor at such 

18 time, in such manner, and containing such informa19 tion as the Secretary of Labor may require. 

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

21 grant under this subsection shall use the funds made 

22 available through the grant to carry out an effective 

23 negotiation skills training program that empowers 

24 girls and women. The training provided through the 

25 program shall help girls and women strengthen their 
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1 negotiation skills to allow the girls and women to ob2 tain higher salaries and the best compensation pack3 ages possible for themselves. 

4 (b) INCORPORATING TRAINING INTO EXISTING PRO5 GRAMS.—The Secretary of Labor and the Secretary of 

6 Education shall issue regulations or policy guidance that 

7 provides for integrating the negotiation skills training, to 

8 the extent practicable, into programs authorized under— 

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

10 the Elementary and Secondary Education Act of 

11 1965 (20 U.S.C. 6301 et seq.), the Carl D. Perkins 

12 Vocational and Technical Education Act of 1998 (20 

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

14 1965 (20 U.S.C. 1001 et seq.), and other programs 

15 carried out by the Department of Education that the 

16 Secretary of Education determines to be appro17 priate; and 

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

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

20 et seq.), and other programs carried out by the De21 partment of Labor that the Secretary of Labor de22 termines to be appropriate. 

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

24 of enactment of this Act, and annually thereafter, the Sec25 retary of Labor and the Secretary of Education shall pre-
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1 pare and submit to Congress a report describing the ac2 tivities conducted under this section. 

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

4 The Secretary of Labor shall conduct studies and 

5 provide information to employers, labor organizations, and 

6 the general public concerning the means available to elimi7 nate pay disparities between men and women, including— 

8 (1) conducting and promoting research to de9 velop the means to correct expeditiously the condi10 tions leading to the pay disparities; 

11 (2) publishing and otherwise making available 

12 to employers, labor organizations, professional asso13 ciations, educational institutions, the media, and the 

14 general public the findings resulting from studies 

15 and other materials, relating to eliminating the pay 

16 disparities; 

17 (3) sponsoring and assisting State and commu18 nity informational and educational programs; 

19 (4) providing information to employers, labor 

20 organizations, professional associations, and other 

21 interested persons on the means of eliminating the 

22 pay disparities; 

23 (5) recognizing and promoting the achievements 

24 of employers, labor organizations, and professional 
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1 associations that have worked to eliminate the pay 

2 disparities; and 

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

4 consider approaches for rectifying, the pay dispari5 ties. 

6 SEC. 7. TECHNICAL ASSISTANCE AND EMPLOYER RECOGNI7 TION PROGRAM. 

8 (a) GUIDELINES.— 

9 (1) IN GENERAL.—The Secretary of Labor shall 

10 develop guidelines to enable employers to evaluate 

11 job categories based on objective criteria such as 

12 educational requirements, skill requirements, inde13 pendence, working conditions, and responsibility, in14 cluding decisionmaking responsibility and de facto 

15 supervisory responsibility. 

16 (2) USE.—The guidelines developed under 

17 paragraph (1) shall be designed to enable employers 

18 voluntarily to compare wages paid for different jobs 

19 to determine if the pay scales involved adequately 

20 and fairly reflect the educational requirements, skill 

21 requirements, independence, working conditions, and 

22 responsibility for each such job with the goal of 

23 eliminating unfair pay disparities between occupa24 tions traditionally dominated by men or women. 
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1 (3) PUBLICATION.—The guidelines shall be de2 veloped under paragraph (1) and published in the 

3 Federal Register not later than 180 days after the 

4 date of enactment of this Act. 

5 (b) EMPLOYER RECOGNITION.— 

6 (1) PURPOSE.—It is the purpose of this sub7 section to emphasize the importance of, encourage 

8 the improvement of, and recognize the excellence of 

9 employer efforts to pay wages to women that reflect 

10 the real value of the contributions of such women to 

11 the workplace. 

12 (2) IN GENERAL.—To carry out the purpose of 

13 this subsection, the Secretary of Labor shall estab14 lish a program under which the Secretary shall pro15 vide for the recognition of employers who, pursuant 

16 to a voluntary job evaluation conducted by the em17 ployer, adjust their wage scales (such adjustments 

18 shall not include the lowering of wages paid to men) 

19 using the guidelines developed under subsection (a) 

20 to ensure that women are paid fairly in comparison 

21 to men. 

22 (3) TECHNICAL ASSISTANCE.—The Secretary of 

23 Labor may provide technical assistance to assist an 

24 employer in carrying out an evaluation under para25 graph (2). 
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1 (c) REGULATIONS.—The Secretary of Labor shall 

2 promulgate such rules and regulations as may be nec3 essary to carry out this section. 

4 SEC. 8. ESTABLISHMENT OF THE NATIONAL AWARD FOR 

5 PAY EQUITY IN THE WORKPLACE. 

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

7 of Labor’s National Award for Pay Equity in the Work8 place, which shall be evidenced by a medal bearing the 

9 inscription ‘‘Secretary of Labor’s National Award for Pay 

10 Equity in the Workplace’’. The medal shall be of such de11 sign and materials, and bear such additional inscriptions, 

12 as the Secretary of Labor may prescribe. 

13 (b) CRITERIA FOR QUALIFICATION.—To qualify to 

14 receive an award under this section a business shall— 

15 (1) submit a written application to the Sec16 retary of Labor, at such time, in such manner, and 

17 containing such information as the Secretary may 

18 require, including at a minimum information that 

19 demonstrates that the business has made substantial 

20 effort to eliminate pay disparities between men and 

21 women, and deserves special recognition as a con22 sequence; and 

23 (2) meet such additional requirements and 

24 specifications as the Secretary of Labor determines 

25 to be appropriate. 
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1 (c) MAKING AND PRESENTATION OF AWARD.— 

2 (1) AWARD.—After receiving recommendations 

3 from the Secretary of Labor, the President or the 

4 designated representative of the President shall an5 nually present the award described in subsection (a) 

6 to businesses that meet the qualifications described 

7 in subsection (b). 

8 (2) PRESENTATION.—The President or the des9 ignated representative of the President shall present 

10 the award under this section with such ceremonies 

11 as the President or the designated representative of 

12 the President may determine to be appropriate. 

13 (d) BUSINESS.—In this section, the term ‘‘business’’ 

14 includes— 

15 (1)(A) a corporation, including a nonprofit cor16 poration; 

17 (B) a partnership; 

18 (C) a professional association; 

19 (D) a labor organization; and 

20 (E) a business entity similar to an entity de21 scribed in any of subparagraphs (A) through (D); 

22 (2) an entity carrying out an education referral 

23 program, a training program, such as an apprentice24 ship or management training program, or a similar 

25 program; and 
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1 (3) an entity carrying out a joint program, 

2 formed by a combination of any entities described in 

3 paragraph (1) or (2). 

4 SEC. 9. COLLECTION OF PAY INFORMATION BY THE EQUAL 

5 EMPLOYMENT OPPORTUNITY COMMISSION. 

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

7 U.S.C. 2000e–8) is amended by adding at the end the fol8 lowing: 

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

10 enactment of this subsection, the Commission shall— 

11 ‘‘(A) complete a survey of the data that is cur12 rently available to the Federal Government relating 

13 to employee pay information for use in the enforce14 ment of Federal laws prohibiting pay discrimination 

15 and, in consultation with other relevant Federal 

16 agencies, identify additional data collections that will 

17 enhance the enforcement of such laws; and 

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

19 consultations under subparagraph (A), issue regula20 tions to provide for the collection of pay information 

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

22 and national origin of employees. 

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

24 shall have as its primary consideration the most effective 

25 and efficient means for enhancing the enforcement of Fed-
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1 eral laws prohibiting pay discrimination. For this purpose, 

2 the Commission shall consider factors including the impo3 sition of burdens on employers, the frequency of required 

4 reports (including which employers should be required to 

5 prepare reports), appropriate protections for maintaining 

6 data confidentiality, and the most effective format for the 

7 data collection reports.’’. 

8 SEC. 10. REINSTATEMENT OF PAY EQUITY PROGRAMS AND 

9 ENFORCEMENT EFFORTS. 

10 (a) BUREAU OF LABOR STATISTICS DATA COLLEC11 TION.—The Commissioner of Labor Statistics shall collect 

12 data on women workers in the Current Employment Sta13 tistics survey. 

14 (b) OFFICE OF FEDERAL CONTRACT COMPLIANCE

15 PROGRAMS INITIATIVES.— 

16 (1) IN GENERAL.—The Director of the Office of 

17 Federal Contract Compliance Programs shall ensure 

18 that employees of the Office— 

19 (A)(i) shall use the full range of investiga20 tory tools at the Office’s disposal, including pay 

21 grade methodology; 

22 (ii) in considering evidence of possible com23 pensation discrimination— 

24 (I) shall not limit its consideration to 

25 a small number of types of evidence; and 
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1 (II) shall not limit its evaluation of 

2 the evidence to a small number of methods 

3 of evaluating the evidence; and 

4 (iii) shall not require a multiple regression 

5 analysis or anecdotal evidence for a compensa6 tion discrimination case; 

7 (B) for purposes of its investigative, com8 pliance, and enforcement activities, shall define 

9 ‘‘similarly situated employees’’ in a way that is 

10 consistent with and not more stringent than the 

11 definition provided in item 1 of subsection A of 

12 section 10–III of the Equal Employment Op13 portunity Commission Compliance Manual 

14 (2000), and shall consider only factors that the 

15 Office’s investigation reveals were used in mak16 ing compensation decisions; and 

17 (C) shall designate not less than half of all 

18 nonconstruction contractor establishments each 

19 year to prepare and file the Equal Opportunity 

20 Survey, required by section 60–2.18 of title 41, 

21 Code of Federal Regulations, and shall review 

22 and utilize the responses to the survey to iden23 tify contractor establishments for further eval24 uation. 
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1 (2) REGULATIONS.—In promulgating any regu2 lations with respect to the compensation discrimina3 tion cases, the Secretary of Labor, in establishing 

4 standards for similarly situated employees, shall in5 clude examples of similar jobs. 

6 (c) DEPARTMENT OF LABOR DISTRIBUTION OF

7 WAGE DISCRIMINATION INFORMATION.—The Secretary of 

8 Labor shall make readily available (in print, on the De9 partment of Labor website, and through any other forum 

10 that the Department may use to distribute compensation 

11 discrimination information), accurate information on com12 pensation discrimination, including statistics, explanations 

13 of employee rights, historical analyses of such discrimina14 tion, instructions for employers on compliance, and any 

15 other information that will assist the public in under16 standing and addressing such discrimination. 

17 SEC. 11. AUTHORIZATION OF APPROPRIATIONS. 

18 There are authorized to be appropriated such sums 

19 as may be necessary to carry out this Act. 

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