I 
113TH CONGRESS 
1ST SESSION 
H. R. 438 
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 
JANUARY 29, 2013 
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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Fair Pay Act of 2013’’. 
(b) REFERENCE.—Except as provided in section 8, 
whenever in this Act an amendment or repeal is expressed 
in terms of an amendment to, or repeal of, a section or 
other provision, the reference shall be considered to be 
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made to a section or other provision of the Fair Labor 
Standards Act of 1938 (29 U.S.C. 201 et seq.). 
SEC. 2. FINDINGS. 
Congress finds the following: 
(1) Wage rate differentials exist between equiv-
alent jobs segregated by sex, race, and national ori-
gin in Government employment and in industries en-
gaged in commerce or in the production of goods for 
commerce. 
(2) The existence of such wage rate differen-
tials— 
(A) depresses wages and living standards 
for employees necessary for their health and ef-
ficiency; 
(B) prevents the maximum utilization of 
the available labor resources; 
(C) tends to cause labor disputes, thereby 
burdening, affecting, and obstructing com-
merce; 
(D) burdens commerce and the free flow of 
goods in commerce; and 
(E) constitutes an unfair method of com-
petition. 
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(3) Discrimination in hiring and promotion has 
played a role in maintaining a segregated work 
force. 
(4) Many women and people of color work in 
occupations dominated by individuals of their same 
sex, race, and national origin. 
(5)(A) In 2009, a woman in the United States 
working in a full-time, year-round job earned 77 
cents for every dollar earned by a man working in 
a full-time, year-round job. 
(B) A 2007 study found that—even when ac-
counting for key factors generally known to influ-
ence earnings such as race, educational attainment, 
and experience—nearly half (49.3 percent) of the 
pay gap can be explained by differences in the indus-
tries and occupations that men and women work in, 
and 41 percent of the pay gap cannot be accounted 
for but may be partially explained by discrimination 
in the workplace. 
(6) Section 6(d) of the Fair Labor Standards 
Act of 1938 prohibits discrimination in compensa-
tion for ‘‘equal work’’ on the basis of sex. 
(7) Artificial barriers to the elimination of dis-
crimination in compensation based upon sex, race, 
and national origin continue to exist more than 4 
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decades after the passage of section 6(d) of the Fair 
Labor Standards Act of 1938, the Equal Pay Act of 
1963, and the Civil Rights Act of 1964 (42 U.S.C. 
2000a et seq.). Elimination of such barriers would 
have positive effects, including— 
(A) providing a solution to problems in the 
economy created by discrimination through 
wage rate differentials; 
(B) substantially reducing the number of 
working women and people of color earning low 
wages, thereby reducing the dependence on pub-
lic assistance; and 
(C) promoting stable families by enabling 
working family members to earn a fair rate of 
pay. 
SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS. 
(a) AMENDMENT.—Section 6 (29 U.S.C. 206) is 
amended by adding at the end the following: 
‘‘(h)(1)(A) Except as provided in subparagraph (B), 
no employer having employees subject to any provision of 
this section shall discriminate, within any establishment 
in which such employees are employed, between employees 
on the basis of sex, race, or national origin by paying 
wages to employees in such establishment in a job that 
is dominated by employees of a particular sex, race, or 
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national origin at a rate less than the rate at which the 
employer pays wages to employees in such establishment 
in another job that is dominated by employees of the oppo-
site sex or of a different race or national origin, respec-
tively, for work on equivalent jobs. 
‘‘(B) Nothing in subparagraph (A) shall prohibit the 
payment of different wage rates to employees where such 
payment is made pursuant to— 
‘‘(i) a seniority system; 
‘‘(ii) a merit system; 
‘‘(iii) a system that measures earnings by quan-
tity or quality of production; or 
‘‘(iv) a differential based on a bona fide factor 
other than sex, race, or national origin, such as edu-
cation, training, or experience, except that this 
clause shall apply only if— 
‘‘(I) the employer demonstrates that— 
‘‘(aa) such factor— 
‘‘(AA) is job-related with respect 
to the position in question; or 
‘‘(BB) furthers a legitimate busi-
ness purpose, except that this item 
shall not apply if the employee dem-
onstrates that an alternative employ-
ment practice exists that would serve 
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the same business purpose without 
producing such differential and that 
the employer has refused to adopt 
such alternative practice; and 
‘‘(bb) such factor was actually applied 
and used reasonably in light of the as-
serted justification; and 
‘‘(II) upon the employer succeeding under 
subclause (I), the employee fails to demonstrate 
that the differential produced by the reliance of 
the employer on such factor is itself the result 
of discrimination on the basis of sex, race, or 
national origin by the employer. 
‘‘(C) The Equal Employment Opportunity Commis-
sion shall issue guidelines specifying criteria for deter-
mining whether a job is dominated by employees of a par-
ticular sex, race, or national origin for purposes of sub-
paragraph (B)(iv). Such guidelines shall not include a list 
of such jobs. 
‘‘(D) An employer who is paying a wage rate differen-
tial in violation of subparagraph (A) shall not, in order 
to comply with the provisions of such subparagraph, re-
duce the wage rate of any employee. 
‘‘(2) No labor organization or its agents representing 
employees of an employer having employees subject to any 
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provision of this section shall cause or attempt to cause 
such an employer to discriminate against an employee in 
violation of paragraph (1)(A). 
‘‘(3) For purposes of administration and enforcement 
of this subsection, any amounts owing to any employee 
that have been withheld in violation of paragraph (1)(A) 
shall be deemed to be unpaid minimum wages or unpaid 
overtime compensation under this section or section 7. 
‘‘(4) In this subsection: 
‘‘(A) The term ‘labor organization’ means any 
organization of any kind, or any agency or employee 
representation committee or plan, in which employ-
ees participate and that exists for the purpose, in 
whole or in part, of dealing with employers con-
cerning grievances, labor disputes, wages, rates of 
pay, hours of employment, or conditions of work. 
‘‘(B) The term ‘equivalent jobs’ means jobs that 
may be dissimilar, but whose requirements are 
equivalent, when viewed as a composite of skills, ef-
fort, responsibility, and working conditions.’’. 
(b) CONFORMING AMENDMENT.—Section 13(a) (29 
U.S.C. 213(a)) is amended in the matter before paragraph 
(1) by striking ‘‘section 6(d)’’ and inserting ‘‘sections 6 
(d) and (h)’’. 
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SEC. 4. PROHIBITED ACTS. 
Section 15(a) (29 U.S.C. 215(a)) is amended— 
(1) by striking the period at the end of para-
graph (5) and inserting a semicolon; and 
(2) by adding after paragraph (5) the following: 
‘‘(6) to discriminate against any individual be-
cause such individual has opposed any act or prac-
tice made unlawful by section 6(h) or because such 
individual made a charge, testified, assisted, or par-
ticipated in any manner in an investigation, pro-
ceeding, or hearing to enforce section 6(h); or 
‘‘(7) to discharge or in any other manner dis-
criminate against, coerce, intimidate, threaten, or 
interfere with any employee or any other person be-
cause the employee inquired about, disclosed, com-
pared, or otherwise discussed the employee’s wages 
or the wages of any other employee, or because the 
employee exercised, enjoyed, aided, or encouraged 
any other person to exercise or enjoy any right 
granted or protected by section 6(h).’’. 
SEC. 5. REMEDIES. 
(a) ENHANCED
PENALTIES.—Section 16(b) (29 
U.S.C. 216(b)) is amended— 
(1) by inserting after the first sentence the fol-
lowing: ‘‘Any employer who violates subsection (d) or 
(h) of section 6 shall additionally be liable for such 
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compensatory or punitive damages as may be appro-
priate, except that the United States shall not be lia-
ble for punitive damages.’’; 
(2) in the sentence beginning ‘‘An action to’’, 
by striking ‘‘either of the preceding sentences’’ and 
inserting ‘‘any of the preceding sentences of this 
subsection’’; 
(3) in the sentence beginning ‘‘No employees’’, 
by striking ‘‘No employees’’ and inserting ‘‘Except 
with respect to class actions brought under sub-
section (f), no employee’’; 
(4) in the sentence beginning ‘‘The court in’’, 
by striking ‘‘in such action’’ and inserting ‘‘in any 
action brought to recover the liability prescribed in 
any of the preceding sentences of this subsection’’; 
and 
(5) by striking ‘‘section 15(a)(3)’’ each place it 
occurs and inserting ‘‘paragraphs (3), (6), and (7) 
of section 15(a)’’. 
(b) ACTION
BY SECRETARY.—Section 16(c) (29 
U.S.C. 216(c)) is amended— 
(1) in the first sentence— 
(A) by inserting ‘‘or, in the case of a viola-
tion of subsection (d) or (h) of section 6, addi-
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tional compensatory or punitive damages,’’ be-
fore ‘‘and the agreement’’; and 
(B) by inserting before the period the fol-
lowing: ‘‘, or such compensatory or punitive 
damages, as appropriate’’; 
(2) in the second sentence, by inserting before 
the period the following: ‘‘and, in the case of a viola-
tion of subsection (d) or (h) of section 6, additional 
compensatory or punitive damages’’; and 
(3) in the third sentence, by striking ‘‘the first 
sentence’’ and inserting ‘‘the first or second sen-
tence’’. 
(c) FEES.—Section 16 (29 U.S.C. 216) is amended 
by adding at the end the following: 
‘‘(f) In any action brought under this section for a 
violation of section 6(h), the court shall, in addition to 
any other remedies awarded to the prevailing plaintiff or 
plaintiffs, allow expert fees as part of the costs. Any such 
action may be maintained as a class action as provided 
by the Federal Rules of Civil Procedure.’’. 
SEC. 6. RECORDS. 
(a) RECORDS.—Section 11(c) (29 U.S.C. 211(c)) is 
amended— 
(1) by inserting ‘‘(1)’’ after ‘‘(c)’’; and 
(2) by adding at the end the following: 
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‘‘(2) Every employer subject to section 6(h) shall pre-
serve records that document and support the method, sys-
tem, calculations, and other bases used by the employer 
in establishing, adjusting, and determining the wage rates 
paid to the employees of the employer. Every employer 
subject to section 6(h) shall preserve such records for such 
periods of time, and shall make such reports from the 
records to the Equal Employment Opportunity Commis-
sion, as shall be prescribed by the Equal Employment Op-
portunity Commission by regulation or order as necessary 
or appropriate for the enforcement of the provisions of sec-
tion 6(h) or any regulation promulgated pursuant to sec-
tion 6(h).’’. 
(b) SMALL BUSINESS EXEMPTIONS.—Section 11(c) 
(as amended by subsection (a)) is further amended by 
adding at the end the following: 
‘‘(3) Every employer subject to section 6(h) that has 
25 or more employees on any date during the first or sec-
ond year after the effective date of this paragraph, or 15 
or more employees on any date during any subsequent 
year after such second year, shall, in accordance with reg-
ulations promulgated by the Equal Employment Oppor-
tunity Commission under paragraph (8), prepare and sub-
mit to the Equal Employment Opportunity Commission 
for the year involved a report signed by the president, 
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treasurer, or corresponding principal officer, of the em-
ployer that includes information that discloses the wage 
rates paid to employees of the employer in each classifica-
tion, position, or job title, or to employees in other wage 
groups employed by the employer, including information 
with respect to the sex, race, and national origin of em-
ployees at each wage rate in each classification, position, 
job title, or other wage group.’’. 
(c) PROTECTION
OF
CONFIDENTIALITY.—Section 
11(c) (as amended by subsections (a) and (b)) is further 
amended by adding at the end the following: 
‘‘(4) The rules and regulations promulgated by the 
Equal Employment Opportunity Commission under para-
graph (8), relating to the form of such a report, shall in-
clude requirements to protect the confidentiality of em-
ployees, including a requirement that the report shall not 
contain the name of any individual employee.’’. 
(d) USE; INSPECTIONS; EXAMINATION; REGULA-
TIONS.—Section 11(c) (as amended by subsections (a) 
through (c)) is further amended by adding at the end the 
following: 
‘‘(5) The Equal Employment Opportunity Commis-
sion may publish any information and data that the Equal 
Employment Opportunity Commission obtains pursuant to 
the provisions of paragraph (3). The Equal Employment 
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Opportunity Commission may use the information and 
data for statistical and research purposes, and compile 
and publish such studies, analyses, reports, and surveys 
based on the information and data as the Equal Employ-
ment Opportunity Commission may consider appropriate. 
‘‘(6) In order to carry out the purposes of this Act, 
the Equal Employment Opportunity Commission shall by 
regulation make reasonable provision for the inspection 
and examination by any person of the information and 
data contained in any report submitted to the Equal Em-
ployment Opportunity Commission pursuant to paragraph 
(3). 
‘‘(7) The Equal Employment Opportunity Commis-
sion shall by regulation provide for the furnishing of copies 
of reports submitted to the Equal Employment Oppor-
tunity Commission pursuant to paragraph (3) to any per-
son upon payment of a charge based upon the cost of the 
service. 
‘‘(8) The Equal Employment Opportunity Commis-
sion shall issue rules and regulations prescribing the form 
and content of reports required to be submitted under 
paragraph (3) and such other reasonable rules and regula-
tions as the Equal Employment Opportunity Commission 
may find necessary to prevent the circumvention or eva-
sion of such reporting requirements. In exercising the au-
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thority of the Equal Employment Opportunity Commis-
sion under paragraph (3), the Equal Employment Oppor-
tunity Commission may prescribe by general rule sim-
plified reports for employers for whom the Equal Employ-
ment Opportunity Commission finds that because of the 
size of the employers a detailed report would be unduly 
burdensome.’’. 
SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSIST-
ANCE PROGRAM; REPORT TO CONGRESS. 
Section 4(d) (29 U.S.C. 204(d)) is amended by add-
ing at the end the following: 
‘‘(4) The Equal Employment Opportunity Commis-
sion shall conduct studies and provide information and 
technical assistance to employers, labor organizations, and 
the general public concerning effective means available to 
implement the provisions of section 6(h) prohibiting wage 
rate discrimination between employees performing work in 
equivalent jobs on the basis of sex, race, or national origin. 
Such studies, information, and technical assistance shall 
be based on and include reference to the objectives of such 
section to eliminate such discrimination. In order to 
achieve the objectives of such section, the Equal Employ-
ment Opportunity Commission shall carry on a continuing 
program of research, education, and technical assistance 
including— 
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‘‘(A) conducting and promoting research with 
the intent of developing means to expeditiously cor-
rect the wage rate differentials described in section 
6(h); 
‘‘(B) publishing and otherwise making available 
to employers, labor organizations, professional asso-
ciations, educational institutions, the various media 
of communication, and the general public the find-
ings of studies and other materials for promoting 
compliance with section 6(h); 
‘‘(C) sponsoring and assisting State and com-
munity informational and educational programs; and 
‘‘(D) providing technical assistance to employ-
ers, labor organizations, professional associations 
and other interested persons on means of achieving 
and maintaining compliance with the provisions of 
section 6(h). 
‘‘(5) The report submitted biennially by the Secretary 
to Congress under paragraph (1) shall include a separate 
evaluation and appraisal regarding the implementation of 
section 6(h).’’. 
SEC. 8. CONFORMING AMENDMENTS. 
(a) CONGRESSIONAL EMPLOYEES.— 
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(1) APPLICATION.—Section 203(a)(1) of the 
Congressional Accountability Act of 1995 (2 U.S.C. 
1313(a)(1)) is amended— 
(A) by striking ‘‘subsections (a)(1) and (d) 
of section 6’’ and inserting ‘‘subsections (a)(1), 
(d), and (h) of section 6’’; and 
(B) by striking ‘‘206 (a)(1) and (d)’’ and 
inserting ‘‘206 (a)(1), (d), and (h)’’. 
(2) REMEDIES.—Section 203(b) of such Act (2 
U.S.C. 1313(b)) is amended by inserting before the 
period the following: ‘‘or, in an appropriate case, 
under section 16(f) of such Act (29 U.S.C. 216(f))’’. 
(b) EXECUTIVE BRANCH EMPLOYEES.— 
(1) APPLICATION.—Section 413(a)(1) of title 3, 
United States Code, as added by section 2(a) of the 
Presidential and Executive Office Accountability Act 
(Public Law 104–331; 110 Stat. 4053), is amended 
by striking ‘‘subsections (a)(1) and (d) of section 6’’ 
and inserting ‘‘subsections (a)(1), (d), and (h) of 
section 6’’. 
(2) REMEDIES.—Section 413(b) of such title is 
amended by inserting before the period the fol-
lowing: ‘‘or, in an appropriate case, under section 
16(f) of such Act’’. 
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SEC. 9. EFFECTIVE DATE. 
The amendments made by this Act shall take effect 
1 year after the date of enactment of this Act. 
Æ 
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