I 
109TH CONGRESS 
1ST SESSION H. R. 1697 
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 19, 2005 
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 AND REFERENCE. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Fair Pay Act of 2005’’. 
(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
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.
(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 2000 study conducted by the Census Bu-
reau of 400 fields that employed 10,000 full-time, 
year-round workers found that women were able to 
earn at least as much as men in just 5 fields: haz-
ardous material removal, telecommunications line in-
stallation and repair, meeting and convention plan-
ning, food preparation, and construction trade as-
sistant work. 
(6) In 2004, an Institute for Women’s Policy 
Research analysis of data collected in the Current 
Population Survey by the Bureau of Labor Statistics 
found that women were paid only 76 cents for every 
dollar that a man is paid. 
(7) Section 6(d) of the Fair Labor Standards 
Act of 1938 (29 U.S.C. 206(d)) prohibits discrimi-
nation in compensation for ‘‘equal work’’ on the 
basis of sex. 
(8) Title VII of the Civil Rights Act of 1964 
(42 U.S.C. 2000e et seq.) prohibits discrimination in
compensation because of race, color, religion, na-
tional origin, and sex. The Supreme Court, in its de-
cision in County of Washington v. Gunther, 452 
U.S. 161 (1981), held that title VII’s prohibition 
against discrimination in compensation also applies 
to jobs that do not constitute ‘‘equal work’’ as de-
fined in section 6(d) of the Fair Labor Standards 
Act of 1938 (29 U.S.C. 206(d)). Decisions of lower 
courts, however, have demonstrated that further 
clarification of existing legislation is necessary in 
order effectively to carry out the intent of Congress 
to implement the Supreme Court’s holding in its 
Gunther decision. 
(9) Artificial barriers to the elimination of dis-
crimination in compensation based upon sex, race, 
and national origin continue to exist more than 3 
decades after the passage of section 6(d) of the Fair 
Labor Standards Act of 1938 (29 U.S.C. 206(d)) 
and the Civil Rights Act of 1964. Elimination of 
such barriers would have positive effects, includ-
ing— 
(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 
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 
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. 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 
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 6(h)’’. 
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 
new paragraphs: 
‘‘(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) of the 
Fair Labor Standards Act of 1938 (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 
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) of the 
Fair Labor Standards Act of 1938 (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-
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 vio-
lation of section 6(h), the court shall, in addition to any 
other remedies awarded to the prevailing plaintiff or plain-
tiffs, 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) TECHNICAL AMENDMENT.—Section 11(c) (29 
U.S.C. 211(c)) is amended by inserting ‘‘(1)’’ after ‘‘(c)’’. 
(b) RECORDS.—Section 11(c) (as amended by sub-
section (a)) is further amended by adding at the end the 
following: 
‘‘(2)(A) Every employer subject to section 6(h) shall 
preserve records that document and support the method, 
system, 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).’’. 
(c) SMALL BUSINESS EXEMPTIONS.—Section 11(c) 
(as amended by subsections (a) and (b)) is further amend-
ed by adding at the end the following: 
‘‘(B)(i) Every employer subject to section 6(h) that 
has 25 or more employees on any date during the first 
or second year after the effective date of this paragraph, 
or 15 or more employees on any date during any subse-
quent year after such second year, shall, in accordance 
with regulations promulgated by the Equal Employment 
Opportunity Commission under subparagraph (F), pre-
pare and submit to the Equal Employment Opportunity 
Commission for the year involved a report signed by the 
president, treasurer, or corresponding principal officer, of 
the employer that includes information that discloses the 
wage rates paid to employees of the employer in each clas-
sification, position, or job title, or to employees in other
wage groups employed by the employer, including informa-
tion with respect to the sex, race, and national origin of 
employees at each wage rate in each classification, posi-
tion, job title, or other wage group.’’. 
(d) PROTECTION
OF
CONFIDENTIALITY.—Section 
11(c) (as amended by subsections (a) through (c)) is fur-
ther amended by adding at the end the following: 
‘‘(ii) The rules and regulations promulgated by the 
Equal Employment Opportunity Commission under sub-
paragraph (F), relating to the form of such a report, shall 
include requirements to protect the confidentiality of em-
ployees, including a requirement that the report shall not 
contain the name of any individual employee.’’. 
(e) USE; INSPECTIONS; EXAMINATIONS; REGULA-
TIONS.—Section 11(c) (as amended by subsections (a) 
through (d)) is further amended by adding at the end the 
following: 
‘‘(C) The Equal Employment Opportunity Commis-
sion may publish any information and data that the Equal 
Employment Opportunity Commission obtains pursuant to 
the provisions of subparagraph (B). The Equal Employ-
ment Opportunity Commission may use the information 
and data for statistical and research purposes, and com-
pile and publish such studies, analyses, reports, and sur-
veys based on the information and data as the Equal Em-
ployment Opportunity Commission may consider appro-
priate. 
‘‘(D) 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 subpara-
graph (B). 
‘‘(E) 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 subparagraph (B) to any 
person upon payment of a charge based upon the cost of 
the service. 
‘‘(F) The Equal Employment Opportunity Commis-
sion shall issue rules and regulations prescribing the form 
and content of reports required to be submitted under sub-
paragraph (B) and such other reasonable rules and regu-
lations as the Equal Employment Opportunity Commis-
sion may find necessary to prevent the circumvention or 
evasion of such reporting requirements. In exercising the 
authority of the Equal Employment Opportunity Commis-
sion under subparagraph (B), the Equal Employment Op-
portunity 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— 
‘‘(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.— 
(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, is amended by striking ‘‘sub-
sections (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’’. 
SEC. 9. EFFECTIVE DATE. 
The amendments made by this Act shall take effect 
1 year after the date of enactment of this Act. 
Æ