II 

109TH CONGRESS 

1ST SESSION S. 840

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 19, 2005

Mr. HARKIN (for himself, Mrs. MURRAY, Mr. KENNEDY, Ms. MIKULSKI, Mr. 

DURBIN, Mr. LEAHY, Mr. AKAKA, Mr. FEINGOLD, Mrs. LINCOLN, Mr. 

CORZINE, and Mr. KERRY) 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 2005’’. 

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) A study of 400 fields that employed 

8 10,000 full-time, year-round workers conducted by 

9 the United States Census Bureau in 2000, found 

10 that women were able to earn at least as much as 

11 men in just 5 fields, hazardous material removal, 

12 telecommunications line installation and repair, 

13 meeting and convention planning, food preparation, 

14 and construction trade assistant work. 

15 (B) An Institute for Women’s Policy Research 

16 2004 analysis of data collected in the Current Popu17 lation Survey by the United States Bureau of Labor 

18 Statistics found that women were paid only 76 cents 

19 for every dollar that a man makes. 

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) Title VII of the Civil Rights Act of 1964 

24 prohibits discrimination in compensation because of 

25 race, color, religion, national origin, and sex. The 
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1 Supreme Court, in its decision in County of Wash2 ington v. Gunther, 452 U.S. 161 (1981), held that 

3 title VII’s prohibition against disrcimination in com4 pensation also applies to jobs that do not constitute 

5 ‘‘equal work’’ as defined in section 6(d) of the Fair 

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

7 Decisions of lower courts, however, have dem8 onstrated that further clarification of existing legis9 lation is necessary in order effectively to carry out 

10 the intent of Congress to implement the Supreme 

11 Court’s holding in its 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 and the Civil Rights 

17 Act of 1964 (42 U.S.C. 2000a et seq.). Elimination 

18 of such barriers would have positive effects, includ19 ing— 

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 for purposes of sub8 paragraph (B)(iv). Such guidelines shall not include a list 

9 of such jobs. 

10 ‘‘(D) An employer who is paying a wage rate differen11 tial in violation of subparagraph (A) shall not, in order 

12 to comply with the provisions of such subparagraph, re13 duce the wage rate of any employee. 

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

15 employees of an employer having employees subject to any 

16 provision of this section shall cause or attempt to cause 

17 such an employer to discriminate against an employee in 

18 violation of paragraph (1)(A). 

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

20 of this subsection, any amounts owing to any employee 

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

22 shall be deemed to be unpaid minimum wages or unpaid 

23 overtime compensation under this section or section 7. 

24 ‘‘(4) In this subsection: 
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1 ‘‘(A) The term ‘labor organization’ means any 

2 organization of any kind, or any agency or employee 

3 representation committee or plan, in which employ4 ees participate and that exists for the purpose, in 

5 whole or in part, of dealing with employers con6 cerning grievances, labor disputes, wages, rates of 

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

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

9 may be dissimilar, but whose requirements are 

10 equivalent, when viewed as a composite of skills, ef11 fort, responsibility, and working conditions.’’. 

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

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

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

15 (d) and (h)’’. 

16 SEC. 4. PROHIBITED ACTS. 

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

18 (1) by striking the period at the end of para19 graph (5) and inserting a semicolon; and 

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

21 ‘‘(6) to discriminate against any individual be22 cause such individual has opposed any act or prac23 tice made unlawful by section 6(h) or because such 

24 individual made a charge, testified, assisted, or par-
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1 ticipated in any manner in an investigation, pro2 ceeding, or hearing to enforce section 6(h); or 

3 ‘‘(7) to discharge or in any other manner dis4 criminate against, coerce, intimidate, threaten, or 

5 interfere with any employee or any other person be6 cause the employee inquired about, disclosed, com7 pared, or otherwise discussed the employee’s wages 

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

9 employee exercised, enjoyed, aided, or encouraged 

10 any other person to exercise or enjoy any right 

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

12 SEC. 5. REMEDIES. 

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

14 U.S.C. 216(b)) is amended— 

15 (1) by inserting after the first sentence the fol16 lowing: ‘‘Any employer who violates subsection (d) or 

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

18 compensatory or punitive damages as may be appro19 priate, except that the United States shall not be lia20 ble for punitive damages.’’; 

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

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

23 inserting ‘‘any of the preceding sentences of this 

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

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

3 with respect to class actions brought under sub4 section (f), no employee’’; 

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

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

7 action brought to recover the liability prescribed in 

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

9 and 

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

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

12 of section 15(a)’’. 

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

14 U.S.C. 216(c)) is amended— 

15 (1) in the first sentence— 

16 (A) by inserting ‘‘or, in the case of a viola17 tion of subsection (d) or (h) of section 6, addi18 tional compensatory or punitive damages,’’ be19 fore ‘‘and the agreement’’; and 

20 (B) by inserting before the period the fol21 lowing: ‘‘, or such compensatory or punitive 

22 damages, as appropriate’’; 

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

24 the period the following: ‘‘and, in the case of a viola-
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1 tion of subsection (d) or (h) of section 6, additional 

2 compensatory or punitive damages’’; and 

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

4 sentence’’ and inserting ‘‘the first or second sen5 tence’’. 

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

7 by adding at the end the following: 

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

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

10 any other remedies awarded to the prevailing plaintiff or 

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

12 action may be maintained as a class action as provided 

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

14 SEC. 6. RECORDS. 

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

16 amended— 

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

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

19 ‘‘(2) Every employer subject to section 6(h) shall pre20 serve records that document and support the method, sys21 tem, calculations, and other bases used by the employer 

22 in establishing, adjusting, and determining the wage rates 

23 paid to the employees of the employer. Every employer 

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

25 periods of time, and shall make such reports from the
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1 records to the Equal Employment Opportunity Commis2 sion, as shall be prescribed by the Equal Employment Op3 portunity Commission by regulation or order as necessary 

4 or appropriate for the enforcement of the provisions of sec5 tion 6(h) or any regulation promulgated pursuant to sec6 tion 6(h).’’. 

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

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

9 adding at the end the following: 

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

11 25 or more employees on any date during the first or sec12 ond year after the effective date of this paragraph, or 15 

13 or more employees on any date during any subsequent 

14 year after such second year, shall, in accordance with reg15 ulations promulgated by the Equal Employment Oppor16 tunity Commission under paragraph (8), prepare and sub17 mit to the Equal Employment Opportunity Commission 

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

19 treasurer, or corresponding principal officer, of the em20 ployer that includes information that discloses the wage 

21 rates paid to employees of the employer in each classifica22 tion, position, or job title, or to employees in other wage 

23 groups employed by the employer, including information 

24 with respect to the sex, race, and national origin of em-
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1 ployees at each wage rate in each classification, position, 

2 job title, or other wage group.’’. 

3 (c) PROTECTION OF CONFIDENTIALITY.—Section 

4 11(c) (as amended by subsections (a) and (b)) is further 

5 amended by adding at the end the following: 

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

7 Equal Employment Opportunity Commission under para8 graph (8), relating to the form of such a report, shall in9 clude requirements to protect the confidentiality of em10 ployees, including a requirement that the report shall not 

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

12 (d) USE; INSPECTIONS; EXAMINATION; REGULA13 TIONS.—Section 11(c) (as amended by subsections (a) 

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

15 following: 

16 ‘‘(5) The Equal Employment Opportunity Commis17 sion may publish any information and data that the Equal 

18 Employment Opportunity Commission obtains pursuant to 

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

20 Opportunity Commission may use the information and 

21 data for statistical and research purposes, and compile 

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

23 based on the information and data as the Equal Employ24 ment Opportunity Commission may consider appropriate. 
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1 ‘‘(6) In order to carry out the purposes of this Act, 

2 the Equal Employment Opportunity Commission shall by 

3 regulation make reasonable provision for the inspection 

4 and examination by any person of the information and 

5 data contained in any report submitted to the Equal Em6 ployment Opportunity Commission pursuant to paragraph 

7 (3). 

8 ‘‘(7) The Equal Employment Opportunity Commis9 sion shall by regulation provide for the furnishing of copies 

10 of reports submitted to the Equal Employment Oppor11 tunity Commission pursuant to paragraph (3) to any per12 son upon payment of a charge based upon the cost of the 

13 service. 

14 ‘‘(8) The Equal Employment Opportunity Commis15 sion shall issue rules and regulations prescribing the form 

16 and content of reports required to be submitted under 

17 paragraph (3) and such other reasonable rules and regula18 tions as the Equal Employment Opportunity Commission 

19 may find necessary to prevent the circumvention or eva20 sion of such reporting requirements. In exercising the au21 thority of the Equal Employment Opportunity Commis22 sion under paragraph (3), the Equal Employment Oppor23 tunity Commission may prescribe by general rule sim24 plified reports for employers for whom the Equal Employ25 ment Opportunity Commission finds that because of the 
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1 size of the employers a detailed report would be unduly 

2 burdensome.’’. 

3 SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSIST4 ANCE PROGRAM; REPORT TO CONGRESS. 

5 Section 4(d) (29 U.S.C. 204(d)) is amended by add6 ing at the end the following: 

7 ‘‘(4) The Equal Employment Opportunity Commis8 sion shall conduct studies and provide information and 

9 technical assistance to employers, labor organizations, and 

10 the general public concerning effective means available to 

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

12 rate discrimination between employees performing work in 

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

14 Such studies, information, and technical assistance shall 

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

16 section to eliminate such discrimination. In order to 

17 achieve the objectives of such section, the Equal Employ18 ment Opportunity Commission shall carry on a continuing 

19 program of research, education, and technical assistance 

20 including— 

21 ‘‘(A) conducting and promoting research with 

22 the intent of developing means to expeditiously cor23 rect the wage rate differentials described in section 

24 6(h); 
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1 ‘‘(B) publishing and otherwise making available 

2 to employers, labor organizations, professional asso3 ciations, educational institutions, the various media 

4 of communication, and the general public the find5 ings of studies and other materials for promoting 

6 compliance with section 6(h); 

7 ‘‘(C) sponsoring and assisting State and com8 munity informational and educational programs; and 

9 ‘‘(D) providing technical assistance to employ10 ers, labor organizations, professional associations 

11 and other interested persons on means of achieving 

12 and maintaining compliance with the provisions of 

13 section 6(h). 

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

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

16 evaluation and appraisal regarding the implementation of 

17 section 6(h).’’. 

18 SEC. 8. CONFORMING AMENDMENTS. 

19 (a) CONGRESSIONAL EMPLOYEES.— 

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

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

22 1313(a)(1)) is amended— 

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

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

25 (d), and (h) of section 6’’; and 
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1 (B) by striking ‘‘206 (a)(1) and (d)’’ and 

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

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

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

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

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

7 (b) EXECUTIVE BRANCH EMPLOYEES.— 

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

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

10 Presidential and Executive Office Accountability Act 

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

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

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

14 section 6’’. 

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

16 amended by inserting before the period the fol17 lowing: ‘‘or, in an appropriate case, under section 

18 16(f) of such Act’’. 

19 SEC. 9. EFFECTIVE DATE. 

20 The amendments made by this Act shall take effect 

21 1 year after the date of enactment of this Act.

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