IIB 
110TH CONGRESS 
2D SESSION 
H. R. 1338 
IN THE SENATE OF THE UNITED STATES 
AUGUST 1, 2008 
Received; read twice and referred to the Committee on Health, Education, 
Labor, and Pensions 
AN ACT 
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, 
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SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Paycheck Fairness 
Act’’. 
SEC. 2. FINDINGS. 
Congress finds the following: 
(1) Women have entered the workforce in 
record numbers over the past 50 years. 
(2) Despite the enactment of the Equal Pay Act 
in 1963, many women continue to earn significantly 
lower pay than men for equal work. These pay dis-
parities 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 discrimination. 
(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) undermines women’s retirement secu-
rity, which is often based on earnings while in 
the workforce; 
(C) prevents the optimum utilization of 
available labor resources; 
(D) has been spread and perpetuated, 
through commerce and the channels and instru-
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mentalities of commerce, among the workers of 
the several States; 
(E) burdens commerce and the free flow of 
goods in commerce; 
(F) constitutes an unfair method of com-
petition in commerce; 
(G) leads to labor disputes burdening and 
obstructing commerce and the free flow of 
goods in commerce; 
(H) interferes with the orderly and fair 
marketing of goods in commerce; and 
(I) in many instances, may deprive workers 
of equal protection on the basis of sex in viola-
tion 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 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) These barriers have resulted, in significant 
part, because the Equal Pay Act has not worked as 
Congress originally intended. Improvements and 
modifications to the law are necessary to ensure that 
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the Act provides effective protection to those subject 
to pay discrimination on the basis of their sex. 
(C) 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; 
(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) ensuring equal protection pursuant to 
Congress’ power to enforce the 5th and 14th 
amendments. 
(5) The Department of Labor and the Equal 
Employment Opportunity Commission have impor-
tant and unique responsibilities to help ensure that 
women receive equal pay for equal work. 
(6) The Department of Labor is responsible 
for— 
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(A) collecting and making publicly avail-
able information about women’s pay; 
(B) ensuring that companies receiving 
Federal contracts comply with anti-discrimina-
tion affirmative action requirements of Execu-
tive Order 11246 (relating to equal employment 
opportunity); 
(C) disseminating information about wom-
en’s rights in the workplace; 
(D) helping women who have been victims 
of pay discrimination obtain a remedy; and 
(E) being proactive in investigating and 
prosecuting equal pay violations, especially sys-
temic violations, and in enforcing all of its man-
dates. 
(7) The Equal Employment Opportunity Com-
mission is the primary enforcement agency for 
claims made under the Equal Pay Act, and issues 
regulations and guidance on appropriate interpreta-
tions of the law. 
(8) With a stronger commitment by the Depart-
ment of Labor and the Equal Employment Oppor-
tunity Commission to their responsibilities, increased 
information about the provisions added by the Equal 
Pay Act of 1963, wage data, and more effective rem-
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edies, women will be better able to recognize and en-
force their rights. 
(9) 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) BONA-FIDE FACTOR DEFENSE AND MODIFICA-
TION OF SAME ESTABLISHMENT REQUIREMENT.—Section 
6(d)(1) of the Fair Labor Standards Act of 1938 (29 
U.S.C. 206(d)(1)) is amended— 
(1) by striking ‘‘No employer having’’ and in-
serting ‘‘(A) No employer having’’; 
(2) by striking ‘‘any other factor other than 
sex’’ and inserting ‘‘a bona fide factor other than 
sex, such as education, training, or experience’’; and 
(3) by inserting at the end the following: 
‘‘(B) The bona fide factor defense described in sub-
paragraph (A)(v) shall apply only if the employer dem-
onstrates that such factor (i) is not based upon or derived 
from a sex-based differential in compensation; (ii) is job- 
related with respect to the position in question; and (iii) 
is consistent with business necessity. Such defense shall 
not apply where the employee demonstrates that an alter-
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native employment practice exists that would serve the 
same business purpose without producing such differential 
and that the employer has refused to adopt such alter-
native practice. 
‘‘(C) For purposes of subparagraph (A), employees 
shall be deemed to work in the same establishment if the 
employees work for the same employer at workplaces lo-
cated in the same county or similar political subdivision 
of a State. The preceding sentence shall not be construed 
as limiting broader applications of the term ‘establish-
ment’ consistent with rules prescribed or guidance issued 
by the Equal Opportunity Employment Commission.’’. 
(b) NONRETALIATION PROVISION.—Section 15 of the 
Fair Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)) 
is amended— 
(1) in subsection (a)(3), by striking ‘‘employee 
has filed’’ and all that follows and inserting ‘‘em-
ployee— 
‘‘(A) has made a charge or filed any com-
plaint or instituted or caused to be instituted 
any investigation, proceeding, hearing, or action 
under or related to this Act, including an inves-
tigation conducted by the employer, or has tes-
tified or is planning to testify or has assisted or 
participated in any manner in any such inves-
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tigation, proceeding, hearing or action or in an 
investigation conducted by the employer, or has 
served or is planning to serve on an industry 
Committee; or 
‘‘(B) has inquired about, discussed or dis-
closed the wages of the employee or another 
employee.’’; and 
(2) by adding at the end the following: 
‘‘(c) Subsection (a)(3)(B) shall not apply to instances 
in which an employee who has access to the wage informa-
tion of other employees as a part of such employee’s essen-
tial job functions discloses the wages of such other employ-
ees to individuals who do not otherwise have access to such 
information, unless such disclosure is in response to a 
complaint or charge or in furtherance of an investigation, 
proceeding, hearing, or action under section 6(d) or an 
investigation conducted by the employer. Nothing in this 
subsection shall be construed to limit the rights of an em-
ployee provided under any other provision of law.’’. 
(c) 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 section 6(d) 
shall additionally be liable for such compensatory 
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damages, or, where the employee demonstrates that 
the employer acted with malice or reckless indiffer-
ence, punitive damages as may be appropriate, ex-
cept that the United States shall not be liable 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 
shall’’, by striking ‘‘No employees’’ and inserting 
‘‘Except with respect to class actions brought to en-
force section 6(d), no employee’’; 
(4) by inserting after the sentence referred to 
in paragraph (3), the following: ‘‘Notwithstanding 
any other provision of Federal law, any action 
brought to enforce section 6(d) may be maintained 
as a class action as provided by the Federal Rules 
of Civil Procedure.’’; and 
(5) in the sentence beginning ‘‘The court in’’— 
(A) by striking ‘‘in such action’’ and in-
serting ‘‘in any action brought to recover the li-
ability prescribed in any of the preceding sen-
tences of this subsection’’; and 
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(B) by inserting before the period the fol-
lowing: ‘‘, including expert fees’’. 
(d) 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 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’’; 
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(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 11, shall provide training to Commission employees 
and affected individuals and entities on matters involving 
discrimination in the payment of wages. 
SEC. 5. NEGOTIATION SKILLS TRAINING FOR GIRLS AND 
WOMEN. 
(a) PROGRAM AUTHORIZED.— 
(1) IN
GENERAL.—The Secretary of Labor, 
after consultation with the Secretary of Education, 
is authorized to establish and carry out a grant pro-
gram. 
(2) GRANTS.—In carrying out the program, the 
Secretary of Labor may make grants on a competi-
tive basis to eligible entities, to carry out negotiation 
skills training programs for girls and women. 
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(3) ELIGIBLE ENTITIES.—To be eligible to re-
ceive a grant under this subsection, an entity shall 
be a public agency, such as a State, a local govern-
ment in a metropolitan statistical area (as defined 
by the Office of Management and Budget), a State 
educational agency, or a local educational agency, a 
private nonprofit organization, or a community- 
based organization. 
(4) APPLICATION.—To be eligible to receive a 
grant under this subsection, an entity shall submit 
an application to the Secretary of Labor at such 
time, in such manner, and containing such informa-
tion as the Secretary of Labor may require. 
(5) USE OF FUNDS.—An entity that receives a 
grant under this subsection shall use the funds made 
available through the grant to carry out an effective 
negotiation skills training program that empowers 
girls and women. The training provided through the 
program shall help girls and women strengthen their 
negotiation skills to allow the girls and women to ob-
tain higher salaries and rates of compensation that 
are equal to those paid to similarly-situated male 
employees. 
(b) INCORPORATING TRAINING INTO EXISTING PRO-
GRAMS.—The Secretary of Labor and the Secretary of 
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Education shall issue regulations or policy guidance that 
provides for integrating the negotiation skills training, to 
the extent practicable, into programs authorized under— 
(1) in the case of the Secretary of Education, 
the Elementary and Secondary Education Act of 
1965 (20 U.S.C. 6301 et seq.), the Carl D. Perkins 
Vocational and Technical Education Act of 1998 (20 
U.S.C. 2301 et seq.), the Higher Education Act of 
1965 (20 U.S.C. 1001 et seq.), and other programs 
carried out by the Department of Education that the 
Secretary of Education determines to be appro-
priate; and 
(2) in the case of the Secretary of Labor, the 
Workforce Investment Act of 1998 (29 U.S.C. 2801 
et seq.), and other programs carried out by the De-
partment of Labor that the Secretary of Labor de-
termines to be appropriate. 
(c) REPORT.—Not later than 1 year after the date 
of enactment of this Act, and annually thereafter, the Sec-
retary of Labor and the Secretary of Education shall pre-
pare and submit to Congress a report describing the ac-
tivities conducted under this section and evaluating the ef-
fectiveness of such activities in achieving the purposes of 
this Act. 
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SEC. 6. 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 
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