I
106TH CONGRESS
1ST SESSION
H. R. 2397
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 HOUSE OF REPRESENTATIVES
JUNE 30, 1999
Ms. DELAURO (for herself, Mr. GEPHARDT, Ms. NORTON, Mr. COSTELLO, Mr.
GEJDENSON, Mrs. MALONEY of New York, Ms. PELOSI, Mrs. LOWEY,
Ms. KILPATRICK, Mr. GEORGE MILLER of California, Mr. OLVER, Ms.
KAPTUR, Mr. FROST, Mr. BRADY of Pennsylvania, Mr. STARK, Ms.
MILLENDER-MCDONALD, Mr. NADLER, Ms. WOOLSEY, Mr. SERRANO,
Mr. SANDERS, Mr. MCGOVERN, Mr. MCNULTY, Ms. SCHAKOWSKY, Ms.
JACKSON-LEE of Texas, Mrs. TAUSCHER, Mr. LUTHER, Mr. LANTOS,
Ms. ROYBAL-ALLARD, Mr. ALLEN, Mrs. THURMAN, Mr. MALONEY of
Connecticut, Mr. KUCINICH, Mr. BALDACCI, Mr. WEYGAND, Mr. BROWN
of Ohio, Mr. MEEHAN, Ms. ESHOO, Mrs. MINK of Hawaii, Mr. UNDER-
WOOD, Mr. BONIOR, Mr. SHOWS, Mrs. JONES of Ohio, Mrs. CLAYTON,
Mr. KENNEDY of Rhode Island, Mr. MCDERMOTT, Mr. BROWN of Cali-
fornia, Ms. MCKINNEY, Mr. WYNN, Mr. WAXMAN, Mr. ANDREWS, Mr.
WEINER, Ms. EDDIE BERNICE JOHNSON of Texas, Ms. SLAUGHTER, Mr.
LAMPSON, Mr. HOEFFEL, Mr. DAVIS of Illinois, Mr. KILDEE, Mr. FORD,
Mr. CROWLEY, Mr. INSLEE, Mr. SHERMAN, Mr. MARKEY, Mr. ROTHMAN,
Mr. STRICKLAND, Mr. BORSKI, Mr. PHELPS, Mr. COYNE, Mr. HOYER,
Mr. BERMAN, Mr. FALEOMAVAEGA, Mr. RANGEL, Mr. SANDLIN, Mr.
CONYERS, Mr. PALLONE, Ms. LEE, Mr. PASTOR, Ms. BROWN of Florida,
Mr. BLAGOJEVICH, Mr. FRANK of Massachusetts, Mrs. CAPPS, Mr.
VENTO, Ms. CARSON, Mr. MOORE, Mr. CUMMINGS, Mr. MATSUI, Mr.
KLECZKA, Ms. BERKLEY, Mr. CAPUANO, Mr. SNYDER, Mr. FILNER, Mr.
THOMPSON of Mississippi, Mrs. MCCARTHY of New York, Mr. FARR of
California, Mr. RODRIGUEZ, Mr. ENGEL, Mr. TIERNEY, Mr. BAIRD, Mr.
GONZALEZ, Mr. LARSON, Ms. HOOLEY of Oregon, Mrs. MEEK of Florida,
Ms. WATERS, Mr. BARRETT of Wisconsin, Mrs. CHRISTENSEN, Mr. HIN-
CHEY, Ms. BALDWIN, Mr. OBERSTAR, Mr. LEVIN, Mr. WATT of North
Carolina, Mr. UDALL of New Mexico, Mr. GUTIERREZ, Mr. HOLT, Mr.
WU, Mr. ABERCROMBIE, Mr. HASTINGS of Florida, Ms. SANCHEZ, Mr.
RUSH, Mr. DEUTSCH, Ms. LOFGREN, and Mr. CLYBURN) 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 provide
more effective remedies to victims of discrimination in
the payment of wages on the basis of sex, 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
‘‘Paycheck Fairness Act ’’.
(b) REFERENCE.—Whenever in this Act (other than
in section 8) an amendment or repeal is expressed in terms
of an amendment to, or repeal of, a section or other provi-
sion, the reference shall be considered to be made to a
section or other provision of the Fair Labor Standards Act
of 1938.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Women have entered the workforce in
record numbers.
(2) Even in the 1990’s, women earn signifi-
cantly lower pay than men for work on jobs that re-
quire equal skill, effort, and responsibility and that
are performed under similar working conditions.
These pay disparities exist in both the private and
governmental sectors. In many instances, the pay
disparities can only be due to continued intentional
discrimination or the lingering effects of past dis-
crimination.
(3) The existence of such pay disparities—
(A) depresses the wages of working fami-
lies who rely on the wages of all members of the
family to make ends meet;
(B) prevents the optimum utilization of
available labor resources;
(C) has been spread and perpetuated,
through commerce and the channels and instru-
mentalities of commerce, among the workers of
the several States;
(D) burdens commerce and the free flow of
goods in commerce;
(E) constitutes an unfair method of com-
petition in commerce;
(F) leads to labor disputes burdening and
obstructing commerce and the free flow of
goods in commerce;
(G) interferes with the orderly and fair
marketing of goods in commerce; and
(H) in many instances, may deprive work-
ers of equal protection on the basis of sex in
violation of the 5th and 14th amendments.
(4)(A) Artificial barriers to the elimination of
discrimination in the payment of wages on the basis
of sex continue to exist more than 3 decades after
the enactment of the Fair Labor Standards Act of
1938 (29 U.S.C. 201 et seq.) and the Civil Rights
Act of 1964 (42 U.S.C. 2000a et seq.).
(B) Elimination of such barriers would have
positive effects, including—
(i) providing a solution to problems in the
economy created by unfair pay disparities;
(ii) substantially reducing the number of
working women earning unfairly low wages,
thereby reducing the dependence on public as-
sistance; and
(iii) promoting stable families by enabling
all family members to earn a fair rate of pay;
(iv) remedying the effects of past discrimi-
nation on the basis of sex and ensuring that in
the future workers are afforded equal protection
on the basis of sex; and
(v) in the private sector, ensuring equal
protection pursuant to Congress’ power to en-
force the 5th and 14th amendments.
(5) With increased information about the provi-
sions added by the Equal Pay Act of 1963 and gen-
eralized wage data, along with more effective rem-
edies, women will be better able to recognize and en-
force their rights to equal pay for work on jobs that
require equal skill, effort, and responsibility and that
are performed under similar working conditions.
(6) Certain employers have already made great
strides in eradicating unfair pay disparities in the
workplace and their achievements should be recog-
nized.
SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY RE-
QUIREMENTS.
(a) REQUIRED DEMONSTRATION FOR AFFIRMATIVE
DEFENSE.—Section 6(d)(1) (29 U.S.C. 206(d)(1)) is
amended by striking ‘‘(iv) a differential’’ and all that fol-
lows through the period and inserting the following: ‘‘(iv)
a differential based on a bona fide factor other than sex,
such as education, 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 business
purpose, except that this item shall not
apply where the employee demonstrates
that an alternative employment practice
exists that would serve the same business
purpose without producing such differen-
tial 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 asserted jus-
tification; and
‘‘(II) if the employer makes the demonstration
described in subclause (I), the employee fails to dem-
onstrate that the differential produced by the reli-
ance of the employer on the factor described in such
subclause is the result of discrimination on the basis
of sex by the employer.
An employer that is not otherwise in compliance with this
paragraph may not reduce the wages of any employee in
order to achieve such compliance.’’.
(b) APPLICATION OF PROVISIONS.—Section 6(d) (29
U.S.C. 206(d)) is amended by adding at the end the fol-
lowing:
‘‘(5) The provisions of this subsection shall apply to
applicants for employment if such applicants, upon em-
ployment by the employer applied to, would be subject to
any other subsection of this section.’’.
(c) ELIMINATION
OF ESTABLISHMENT REQUIRE-
MENT.—Section 6(d)(1) (29 U.S.C. 206(d)(1)) is
amended—
(1) by striking ‘‘, within any establishment in
which such employees are employed,’’; and
(2) by striking ‘‘such establishment’’ each place
it appears.
(d) NONRETALIATION PROVISION.—Section 15(a)(3)
(29 U.S.C. 215(a)(3)) is amended—
(1) by striking ‘‘employee’’ the first place it ap-
pears and inserting ‘‘employee (or applicant for em-
ployment in the case of an applicant described in
section 6(d)(5))’’;
(2) by inserting ‘‘(or applicant)’’ after ‘‘em-
ployee’’ the second place it appears;
(3) by striking ‘‘or has’’ each place it appears
and inserting ‘‘has’’; and
(4) by inserting before the semicolon the fol-
lowing: ‘‘, has inquired about, discussed, or other-
wise disclosed the wages of the employee or another
employee, or because the employee (or applicant) has
made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, hearing,
or action under section 6(d)’’.
ability prescribed in any of the preceding sen-
tences of this subsection’’; and
(B) by inserting before the period the fol-
lowing: ‘‘, including expert fees’’.
(f) 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 section 6(d), additional compensatory or
punitive damages,’’ before ‘‘and the agree-
ment’’; 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 section 6(d), additional compensatory or pu-
nitive damages’’;
(3) in the third sentence, by striking ‘‘the first
sentence’’ and inserting ‘‘the first or second sen-
tence’’; and
(4) in the last sentence—
(A) by striking ‘‘commenced in the case’’
and inserting ‘‘commenced—
‘‘(1) in the case’’;
(B) by striking the period and inserting ‘‘:
or’’; and
(C) by adding at the end the following:
‘‘(2) in the case of a class action brought to en-
force section 6(d), on the date on which the indi-
vidual becomes a party plaintiff to the class action.’’.
SEC. 4. TRAINING.
The Equal Employment Opportunity Commission
and the Office of Federal Contract Compliance Programs,
subject to the availability of funds appropriated under sec-
tion 9(b), shall provide training to Commission employees
and affected individuals and entities on matters involving
discrimination in the payment of wages.
SEC. 5. RESEARCH, EDUCATION, AND OUTREACH.
The Secretary of Labor shall conduct studies and
provide information to employers, labor organizations, and
the general public concerning the means available to elimi-
nate pay disparities between men and women, including—
(1) conducting and promoting research to de-
velop the means to correct expeditiously the condi-
tions leading to the pay disparities;
(2) publishing and otherwise making available
to employers, labor organizations, professional asso-
ciations, educational institutions, the media, and the
general public the findings resulting from studies
and other materials, relating to eliminating the pay
disparities;
(3) sponsoring and assisting State and commu-
nity informational and educational programs;
(4) providing information to employers, labor
organizations, professional associations, and other
interested persons on the means of eliminating the
pay disparities;
(5) recognizing and promoting the achievements
of employers, labor organizations, and professional
associations that have worked to eliminate the pay
disparities; and
(6) convening a national summit to discuss, and
consider approaches for rectifying, the pay dispari-
ties.
SEC. 6. TECHNICAL ASSISTANCE AND EMPLOYER RECOGNI-
TION PROGRAM.
(a) GUIDELINES.—
(1) IN GENERAL.—The Secretary of Labor shall
develop guidelines to enable employers to evaluate
job categories based on objective criteria such as
educational requirements, skill requirements, inde-
pendence, working conditions, and responsibility, in-
cluding decisionmaking responsibility and de facto
supervisory responsibility.
(2) USE.—The guidelines developed under
paragraph (1) shall be designed to enable employers
voluntarily to compare wages paid for different jobs
to determine if the pay scales involved adequately
and fairly reflect the educational requirements, skill
requirements, independence, working conditions, and
responsibility for each such job with the goal of
eliminating unfair pay disparities between occupa-
tions traditionally dominated by men or women.
(3) PUBLICATION.—The guidelines shall be de-
veloped under paragraph (1) and published in the
Federal Register not later than 180 days after the
date of enactment of this Act.
(b) EMPLOYER RECOGNITION.—
(1) PURPOSE.—It is the purpose of this sub-
section to emphasize the importance of, encourage
the improvement of, and recognize the excellence of
employer efforts to pay wages to women that reflect
the real value of the contributions of such women to
the workplace.
(2) IN GENERAL.—To carry out the purpose of
this subsection, the Secretary of Labor shall estab-
lish a program under which the Secretary shall pro-
vide for the recognition of employers who, pursuant
to a voluntary job evaluation conducted by the em-
ployer, adjust their wage scales (such adjustments
shall not include the lowering of wages paid to men)
using the guidelines developed under subsection (a)
to ensure that women are paid fairly in comparison
to men.
(3) TECHNICAL ASSISTANCE.—The Secretary of
Labor may provide technical assistance to assist an
employer in carrying out an evaluation under para-
graph (2).
(c) REGULATIONS.—The Secretary of Labor shall
promulgate such rules and regulations as may be nec-
essary to carry out this section.
SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR
PAY EQUITY IN THE WORKPLACE.
(a) IN GENERAL.—There is established the Robert
Reich National Award for Pay Equity in the Workplace,
which shall be evidenced by a medal bearing the inscrip-
tion ‘‘Robert Reich National Award for Pay Equity in the
Workplace’’. The medal shall be of such design and mate-
rials, and bear such additional inscriptions, as the Sec-
retary of Labor may prescribe.
(b) CRITERIA FOR QUALIFICATION.—To qualify to
receive an award under this section a business shall—
(1) submit a written application to the Sec-
retary of Labor, at such time, in such manner, and