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	<title> - FIGHTING FOR FAIRNESS: EXAMINING LEGISLATION TO CONFRONT WORKPLACE DISCRIMINATION</title>
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	[House Hearing, 117 Congress]
	[From the U.S. Government Publishing Office]


	FIGHTING FOR FAIRNESS: EXAMINING
	LEGISLATION TO CONFRONT
	WORKPLACE DISCRIMINATION

	=======================================================================

	JOINT HEARING

	BEFORE THE

	SUBCOMMITTEE ON
	CIVIL RIGHTS AND
	HUMAN SERVICES

	AND THE

	SUBCOMMITTEE ON
	WORKFORCE PROTECTIONS

	OF THE

	COMMITTEE ON EDUCATION AND LABOR
	U.S. HOUSE OF REPRESENTATIVES

	ONE HUNDRED SEVENTEENTH CONGRESS

	FIRST SESSION

	__________

	HEARING HELD IN WASHINGTON, DC, MARCH 18, 2021

	__________

	Serial No. 117-3

	__________

	Printed for the use of the Committee on Education and Labor

	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

	Available via: edlabor.house.gov or www.govinfo.gov

	__________

	U.S. GOVERNMENT PUBLISHING OFFICE
	43-871 PDF WASHINGTON : 2022

	-----------------------------------------------------------------------------------


	COMMITTEE ON EDUCATION AND LABOR

	ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

	RAUL M. GRIJALVA, Arizona VIRGINIA FOXX, North Carolina,
	JOE COURTNEY, Connecticut Ranking Member
	GREGORIO KILILI CAMACHO SABLAN, JOE WILSON, South Carolina
	Northern Mariana Islands GLENN THOMPSON, Pennsylvania
	FREDERICA S. WILSON, Florida TIM WALBERG, Michigan
	SUZANNE BONAMICI, Oregon GLENN GROTHMAN, Wisconsin
	MARK TAKANO, California ELISE M. STEFANIK, New York
	ALMA S. ADAMS, North Carolina RICK W. ALLEN, Georgia
	MARK De SAULNIER, California JIM BANKS, Indiana
	DONALD NORCROSS, New Jersey JAMES COMER, Kentucky
	PRAMILA JAYAPAL, Washington RUSS FULCHER, Idaho
	JOSEPH D. MORELLE, New York FRED KELLER, Pennsylvania
	SUSAN WILD, Pennsylvania GREGORY F. MURPHY, North Carolina
	LUCY Mc BATH, Georgia MARIANNETTE MILLER-MEEKS, Iowa
	JAHANA HAYES, Connecticut BURGESS OWENS, Utah
	ANDY LEVIN, Michigan BOB GOOD, Virginia
	ILHAN OMAR, Minnesota LISA C. Mc CLAIN, Michigan
	HALEY M. STEVENS, Michigan DIANA HARSHBARGER, Tennessee
	TERESA LEGER FERNANDEZ, New Mexico MARY E. MILLER, Illinois
	MONDAIRE JONES, New York VICTORIA SPARTZ, Indiana
	KATHY E. MANNING, North Carolina SCOTT FITZGERALD, Wisconsin
	FRANK J. MRVAN, Indiana MADISON CAWTHORN, North Carolina
	JAMAAL BOWMAN, New York, Vice-Chair MICHELLE STEEL, California
	MARK POCAN, Wisconsin Vacancy
	JOAQUIN CASTRO, Texas Vacancy
	MIKIE SHERRILL, New Jersey
	JOHN A. YARMUTH, Kentucky
	ADRIANO ESPAILLAT, New York
	KWEISI MFUME, Maryland

	Veronique Pluviose, Staff Director
	Cyrus Artz, Minority Staff Director
	------
	SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES

	SUZANNE BONAMICI, Oregon, Chairwoman

	ALMA S. ADAMS, North Carolina RUSS FULCHER, Idaho, Ranking
	JAHANA HAYES, Connecticut Member
	TERESA LEGER FERNANDEZ, New Mexico GLENN THOMPSON, Pennsylvania
	FRANK J. MRVAN, Indiana LISA C. Mc CLAIN, Michigan
	JAMAAL BOWMAN, New York VICTORIA SPARTZ, Indiana
	KWEISI MFUME, Maryland SCOTT FITZGERALD, Wisconsin
	ROBERT C. ``BOBBY'' SCOTT, Virginia VIRGINIA FOXX, North Carolina (ex
	(ex officio) officio)

	SUBCOMMITTEE ON WORKFORCE PROTECTIONS

	ALMA S. ADAMS, North Carolina, Chairwoman

	MARK TAKANO, California FRED KELLER, Pennsylvania,
	DONALD NORCROSS,New Jersey Ranking Member
	PRAMILA JAYAPAL, Washington ELISE M. STEFANIK, New York
	ILHAN OMAR, Minnesota MARIANNETTE MILLER-MEEKS, Iowa
	HALEY M. STEVENS, Michigan BURGESS OWENS, Utah
	MONDAIRE JONES, New York BOB GOOD, Virginia
	JOHN A. YARMUTH, Kentucky MADISON CAWTHORN, North Carolina
	ROBERT C. ``BOBBY'' SCOTT, Virginia MICHELLE STEEL, California
	VIRGINIA FOXX, North Carolina (ex
	officio)


	C O N T E N T S

	----------
	Page

	Hearing held on March 18, 2021................................... 1

	Statement of Members:
	Bonamici, Hon. Suzanne, Chairwoman, Subcommittee on Civil
	Rights
	and Human Services......................................... 1
	Prepared statement of.................................... 5
	Adams, Hon. Alma S., Chairwoman, Subcommittee on Workforce
	Protections................................................ 6
	Prepared statement of.................................... 7
	Fulcher, Hon. Russ, Ranking Member, Subcommittee on Civil
	Rights
	and Human Services......................................... 8
	Prepared statement of.................................... 9
	Keller, Hon. Fred, Ranking Member, Subcommittee on Workforce
	Protections................................................ 10
	Prepared statement of.................................... 11

	Statement of Witnesses:
	Bakst, Dina, Co-Founder and Co-President of A Better Balance. 24
	Prepared statement of.................................... 26
	Goss Graves, Fatima, President and CEO of the National
	Women's Law Center......................................... 92
	Prepared statement of.................................... 95
	McCann, Laurie, Senior Attorney with AARP Foundation......... 12
	Prepared statement of.................................... 14
	Olson, Camille, Esq., Partner, Seyfarth Shaw LLP............. 52
	Prepared statement of.................................... 54

	Additional Submissions:
	Chairwoman Bonamici:
	Letter in support of the PWFA from Leading Private-Sector

	Employers dated March 15, 2021......................... 151
	Letter in support of the PWFA dated March 15, 2021....... 153
	Letter from Working IDEAL................................ 160
	Chairwoman Adams:
	Letter from The Center for WorkLife Law.................. 168
	Letter from the NETWORK Lobby for Catholic Social Justice 174
	Letter in support of the PUMP for Working Mothers Act
	dated
	March 18, 2021......................................... 176
	Letter in support of the PFA dated February 3, 2021...... 179
	Prepared statement of Nikia Sankofa, Executive Director
	of the
	U.S. Breastfeeding Committee........................... 184
	Bowman, Hon. Jamaal, a Representative in Congress from the
	State of New York:
	Letter from the Consortium for Citizens with Disablities. 191
	Foxx, Hon. Virginia, a Representative in Congress from the
	State of North Carolina:
	Letter from Littler Workplace Policy Institute........... 193
	Hayes, Hon. Jahana, a Representative in Congress from the
	State of Connecticut:
	Letter from the Equal Rights Advocates................... 197
	Jones, Hon. Mondaire, a Representative in Congress from the
	State of New York:
	Letter from the American Association of University Women. 200
	Leger Fernandez, Hon. Teresa, a Representative in Congress
	from the State of New Mexico:
	Letter from the National Partnership for Women & Families 202
	Prepared statement from Physicians for Reproductive
	Health................................................. 207
	Stevens, Hon. Haley M., a Representative in Congress from the
	State of Michigan:
	Letter from the NETWORK Lobby for Catholic Social Justice 209
	Questions submitted for the record by:
	Chairwoman Adams......................................... 215
	Omar, Hon. Ilhan, a Representative in Congress from the
	State of
	Minnesota



	Scott, Hon. Robert C. "Bobby", a Representative in
	Congress from the State of Virginia.................... 215
	Spartz, Hon. Victoria, a Representative in Congress from
	the State of Indiana................................... 245
	Responses to questions submitted for the record by:
	Ms. Bakst................................................ 212
	Ms. Goss Graves.......................................... 214
	Ms. Olson................................................ 245


	FIGHTING FOR FAIRNESS: EXAMINING
	LEGISLATION TO CONFRONT
	WORKPLACE DISCRIMINATION

	----------


	Thursday, March 18, 2021

	House of Representatives,
	Subcommittee on Civil Rights and Human Services,
	Subcommittee on Workforce Protections,
	Committee on Education and Labor,
	Washington, DC.
	The subcommittees met, pursuant to notice, at 10:15 a.m.
	via Zoom, Hon. Suzanne Bonamici (Chairwoman of the Subcommittee
	on Civil Rights and Human Services) presiding.
	Present: Representatives Bonamici, Adams, Scott, Norcross,
	Hayes, Stevens, Leger Fernandez, Jones, Mrvan, Bowman, Yarmuth,
	Mfume, Fulcher, Keller, Thompson, Stefanik, Miller-Meeks, Good,
	McClain, Fitzgerald, Cawthorn, and Foxx.
	Staff present: Tylease Alli, Chief Clerk; Phoebe Ball,
	Disability Counsel; Ilana Brunner, General Counsel; David
	Dailey, Counsel to the Chairman; Ijeoma Egekeze, Professional
	Staff; Alison Hard, Professional Staff; Sheila Havenner,
	Director of Information Technology; Eli Hovland, Policy
	Associate; Carrie Hughes, Director of Health and Human
	Services; Eunice Ikene, Labor Policy Advisor; Ariel Jona,
	Policy Associate; Andre Lindsay, Policy Associate; Richard
	Miller, Director of Labor Policy; Max Moore, Staff Assistant;
	Mariah Mowbray, Clerk/Special Assistant to the Staff Director;
	Udochi Onwubiko, Labor Policy Counsel; Kayla Pennebecker, Staff
	Assistant; Veronique Pluviose, Staff Director; Carolyn Ronis,
	Civil Rights Counsel; Theresa Thompson, Professional Staff;
	Banyon Vassar, Deputy Director of Information Technology; Cyrus
	Artz, Minority Staff Director; Courtney Butcher, Minority
	Director of Member Services and Coalitions; Rob Green, Minority
	Director of Workforce Policy; Georgie Littlefair, Minority
	Legislative Assistant; John Martin, Minority Workforce Policy
	Counsel; Hannah Matesic, Minority Director of Operations;
	Carlton Norwood, Minority Press Secretary; and John
	Witherspoon, Minority Professional Staff Member.
	Chairwoman Bonamici. The Joint Hearing of the Subcommittee
	on Civil Rights and Human Services and the Subcommittee on
	Workforce Protections will come to order. Welcome everyone. I
	note that a quorum is present. The subcommittees are meeting
	today to hear testimony on Fighting for Fairness, Examining
	Legislation to Confront Workplace Discrimination.
	This is an entirely remote hearing. All microphones will be
	kept muted as a general rule to avoid unnecessary background
	noise. Members and witnesses will be responsible for unmuting
	themselves when they are recognized to speak, or when they wish
	to seek recognition.
	I also ask that Members please identify themselves before
	the speak. Members should keep their cameras on while in the
	proceeding. Members shall be considered present in the
	proceeding when they are visible on camera, and they shall be
	considered not present when they are not visible on camera. The
	only exception to this is if they are experiencing technical
	difficulty, and inform the committee staff of such difficulty.
	If any Member experiences technical difficulties during the
	hearing you should stay connected on the platform, make sure
	you are muted, and use your phone to immediately call the
	committee's IT Director whose number was provided in advance.
	Should the Chair experience technical difficulty, or need to
	step away to vote on the floor, Dr. Adams is Chair of the
	Subcommittee on Workforce Protections, or another majority
	Member of one of the subcommittees if she's not available is
	hereby authorized to assume the gavel in the Chair's absence.
	This is again, an entirely remote meeting. And as such the
	committee's hearing room is officially closed. Members who
	choose to sit with their individual devices in the hearing room
	must wear headphones to avoid feedback, echoes and distortion
	resulting from more than one person on the software platform
	sitting in the same room.
	Members are also expected to adhere to social distancing,
	and safe healthcare guidelines including the use of masks, hand
	sanitizer and wiping down their areas, before and after their
	presence in the hearing room. In order to ensure that the
	committee's five-minute rule is adhered to, staff will be
	keeping track of time using the committee's field timer.
	The field timer will appear in its own thumbnail picture
	and will be named 001_timer. There will not be a one-minute
	remaining warning. The field timer will sound its audio alarm
	when time is up. Members and witnesses are asked to wrap up
	promptly when their time has expired.
	A roll call is not necessary to establish a quorum in
	official proceedings conducted remotely or with remote
	participation, but the committee has made it a practice
	whenever there is an official proceeding with remote
	participation for the clerk to call the roll to help make clear
	who is present at the start of the proceeding.
	Members should say their name before announcing they are
	present. This helps the Clerk, and also helps those watching
	the platform and the livestream who may experience a few
	seconds delay.
	At this time, I ask the Clerk to call the roll.
	The Clerk. Chairwoman Bonamici?
	Chairwoman Bonamici. Present.
	The Clerk. Chairwoman Adams?
	Chairwoman Adams. Present.
	The Clerk. Mr. Scott?
	Mr. Scott. Present.
	The Clerk. Mr. Takano?
	[No response.]
	The Clerk. Mr. Norcross?
	[No response.]
	The Clerk. Ms. Jayapal?
	[No response.]
	The Clerk. Mrs. Hayes?
	Mrs. Hayes. Present.
	The Clerk. Ms. Omar?
	[No response.]
	The Clerk. Ms. Stevens?
	[No response.]
	The Clerk. Ms. Leger Fernandez?
	[No response.]
	The Clerk. Mr. Jones?
	Mr. Jones. Present.
	The Clerk. Mr. Mrvan?
	Mr. Mrvan. Present.
	The Clerk. Mr. Bowman?
	Mr. Bowman. Present.
	The Clerk. Mr. Yarmuth?
	Mr. Yarmuth. Present.
	The Clerk. Mr. Mfume?
	[No response.]
	The Clerk. Ranking Member Fulcher?
	Mr. Fulcher. Fulcher here.
	The Clerk. Ranking Member Keller?
	Mr. Keller. Keller is here.
	The Clerk. Mr. Thompson?
	Mr. Thompson. Mr. Thompson is here.
	The Clerk. Ms. Stefanik?
	Ms. Stefanik. Present.
	The Clerk. Mrs. Miller-Meeks?
	[No response.]
	The Clerk. Mr. Owens?
	[No response.]
	The Clerk. Mr. Good?
	Mr. Good. Good is here.
	The Clerk. Mrs. McClain?
	[No response.]
	The Clerk. Mrs. Spartz?
	[No response.]
	The Clerk. Mr. Fitzgerald?
	Mr. Fitzgerald. I'm here.
	The Clerk. Mr. Cawthorn?
	Mr. Cawthorn. I am present thank you.
	The Clerk. Mrs. Steel?
	[No response.]
	The Clerk. Chairwoman Bonamici that concludes the roll
	call.
	Chairwoman Bonamici. Thank you very much.
	Mr. Norcross. Don Norcross is here Madam Chairwoman.
	Chairwoman Bonamici. Did somebody seek to be recognized?
	Mr. Norcross. Donald Norcross. I am present.
	Chairwoman Bonamici. Thank you, Mr. Norcross. Pursuant to
	Committee Rule 8(c), opening statements are limited to the
	subcommittee Chairs and Ranking Members. This allows us to hear
	from our witnesses sooner and provides all Members with
	adequate time to ask questions.
	I recognize myself now for the purpose of making an opening
	Statement.
	Every worker should be able to earn a living free from
	discrimination. But unfortunately, many women, people of color,
	older workers, workers with disabilities, and LGBTQ workers
	still experience persisted discrimination in the workplace,
	including pay disparities, limited opportunities, and
	harassment.
	Today's hearing will examine four legislative solutions to
	protect workers from various forms of workplace discrimination.
	The Pregnant Workers Fairness Act, the Protecting Older Workers
	Against Discrimination Act, the Paycheck Fairness Act, and the
	Providing Urgent Maternal Protections for Nursing Mothers Act.
	Women are on the front lines of the Coronavirus pandemic as
	essential workers, risking their lives every day to provide for
	our communities. At the same time, women are being forced out
	of the labor market.
	In September 2020, four times more women left the labor
	force than men. The experiences of women of color are even
	harsher. As a mom and a policymaker, I know how important it is
	to protect the economic security of pregnant workers and
	working families.
	It is unacceptable that in 2021 pregnant workers can still
	be forced to choose between a healthy pregnancy, or a paycheck.
	One simple accommodation, such as providing seating, water, and
	bathroom breaks, would allow them to stay safe on the job
	during their pregnancy.
	The Pregnant Workers Fairness Act clearly establishes
	nationwide a pregnant worker's right to reasonable
	accommodations and guarantees that pregnant workers can seek
	those accommodations without facing discrimination or
	retaliation in the workplace.
	It is a long overdue fix to the inadequate patchwork of
	protections under existing law. This bipartisan bill passed the
	House with overwhelming support in the 116th Congress, and I
	welcome the opportunity to work with my Republican colleagues
	to move this bill forward in a bipartisan manner again this
	year.
	Pregnant workers are not the only workers facing
	discrimination on the job. Older workers are also vulnerable to
	workplace discrimination and have become increasingly
	vulnerable to discrimination during the COVID-19 pandemic.
	Congress recognized the need to protect older workers from
	discrimination when in 1967 it enacted the Age Discrimination
	and Employment Act. But the Supreme Court severely eroded those
	protections in 2009 through its 5-4 decision in Gross v. FBL
	Financial Services.
	In that case the court imposed a higher burden of proof
	than courts have previously required for age discrimination
	cases, and because of the court's opinion in Gross, workers
	must now prove that age discrimination was the sole motivating
	cause for their employer's adverse action, rather than just a
	motivating factor in their employer's adverse action.
	The Protecting Older Workers Against Discrimination Act is
	a bipartisan legislative fix that would restore the pre-2009
	standard in age discrimination claims, thereby aligning the
	burden of proof with the same standards for proving
	discrimination based on sex, race, religion, and national
	origin.
	Congress passed this bill with bipartisan support last
	Congress, and just this morning I joined Chairman Scott and
	Congressman Davis in reintroducing it.
	Finally, I'd like to voice my strong support for the two
	other bipartisan bills under discussion today. The Paycheck
	Fairness Act, which this subcommittee and the Workforce
	Protection Subcommittee, also enthusiastically advanced last
	Congress, and the PUMP Act, which I know Chairwoman Adams will
	cover in detail.
	The four bills we are discussing today take important steps
	toward workplace gender equity, healthy pregnancies, and
	improving the economic security of all workers. I thank the
	witnesses for their time today and I yield to the Ranking
	Member Mr. Fulcher for his opening Statement.
	[The statement of Chairwoman Bonamici follows:]

	Statement of Hon. Suzanne Bonamici, Chairwoman, Subcommittee on Civil
	Rights and Human Services

	Every worker should be able to earn a living free from
	discrimination, but unfortunately, many women, people of color, older
	workers, workers with disabilities, and LGBTQ workers still experience
	persistent discrimination in the workplace including, pay disparities,
	limited opportunities, and harassment. Today's hearing will examine
	four legislative solutions to protect workers from various forms of
	workplace discrimination, including: the Pregnant Workers Fairness Act,
	the Protecting Older Workers Against Discrimination Act, the Paycheck
	Fairness Act, and the Providing Urgent Maternal Protections for Nursing
	Mothers Act.
	Women are on the frontlines of the coronavirus pandemic as
	essential workers, risking their lives every day to provide for our
	communities. At the same time, women are being forced out of the labor
	market. In September 2020, four times more women left the labor force
	than men. The experiences of women of color are even harsher.
	As a mom and a policymaker, I know how important it is to protect
	the economic security of pregnant workers and working families. It is
	unacceptable that in 2021, pregnant workers can still be forced to
	choose a healthy pregnancy or a paycheck when simple accommodations--
	such as providing seating, water, and bathroom breaks--would allow them
	stay safe on the job during their pregnancy.
	The Pregnant Workers Fairness Act clearly establishes nationwide a
	pregnant worker's right to reasonable accommodations and guarantees
	that pregnant workers can seek those accommodations without facing
	discrimination or retaliation in the workplace. It is a long overdue
	fix to the inadequate patchwork of protections under existing law. This
	bipartisan bill passed the House with overwhelming support in the 116th
	Congress, and I welcome the opportunity to work with my Republican
	colleagues to move this bill forward in a bipartisan manner again this
	year.
	Pregnant workers are not the only workers facing discrimination on
	the job. Older workers are also vulnerable to workplace discrimination
	and have become increasingly vulnerable to discrimination during the
	COVID-19 pandemic.
	Congress recognized the need to protect older workers from
	discrimination when in 1967 it enacted the Age Discrimination in
	Employment Act. The Supreme Court severely eroded those protections in
	2009, however, through its 5-4 decision in Gross v. FBL Financial
	Services, Inc. In that case the court imposed a higher burden of proof
	than courts had previously required for age discrimination cases.
	Because of the Court's opinion in Gross, workers must now prove that
	age discrimination was the sole motivating cause for their employer's
	adverse action, rather than just a motivating factor in their
	employer's adverse action.
	The Protecting Older Workers Against Discrimination Act is a
	bipartisan legislative fix that would restore the pre-2009 standard in
	age discrimination claims, thereby aligning the burden of proof with
	the same standards for proving discrimination based on sex, race,
	religion, and national origin. Congress passed this bill with
	bipartisan support last Congress, and just this morning I joined
	Chairman Scott and Congressman Davis in reintroducing it.
	Finally, I would like to voice my strong support for the two other
	bipartisan bills under discussion today: the Paycheck Fairness Act,
	which this Subcommittee and the Workforce Protections Subcommittee also
	enthusiastically advanced last Congress. And the PUMP Act, which I know
	Chairwoman Adams will cover in detail. The four bills we are discussing
	today take important steps toward workplace gender equity, healthy
	pregnancies, and improving the economic security of all workers.
	I want to thank all the witnesses for their time today, and I yield
	to the Ranking Member, Mr. Fulcher for his opening Statement.
	______

	Mr. Fulcher your sound is not clear, so we'll give you just
	a moment to see if we can hear you clearly. Mr. Fulcher would
	you like to try again? OK I recognize Mr. Fulcher. You have
	five minutes for your opening Statement. Mr. Fulcher it's still
	not clear. In the interest of time I'm going to go to
	Chairwoman Adams and then come right back to you and that will
	give you five minutes to work on your sound.
	I recognize Chairwoman Adams for five minutes for your
	opening Statement.
	Chairwoman Adams. Thank you, Madam Chair. In addition to
	the Pregnant Worker's Fairness Act, and Protecting Older
	Workers Against Discrimination Act, today's hearing will also
	examine the Paycheck Fairness Act, and the PUMP for Nursing
	Mothers Act, both of which are partially, or fully under the
	jurisdiction of the Subcommittee on Workforce Protections.
	These bills address issues of basic fairness for women in
	the workplace. Today women earn on an average 82 cents on the
	dollar compared to white men. The wage gap is even worse for
	women of color. For example, black women earn an average of 63
	cents on the dollar, Native women earn average of 60 cents on
	the dollar, and Latino women earn an average of 55 cents on the
	dollar compared to white men.
	The wage gap persists in nearly every line of work,
	regardless of education, experience, occupation, industry, or
	job title, and that's unacceptable. From the North Carolina
	House to the U.S. House for three decades, I've been fighting
	to close the gender wage gap.
	Fifty-eight years have passed since the Equal Pay Act was
	enacted, and it's been 10 years since President Obama signed
	into law the Lilly Ledbetter Fair Pay Act, yet the promise of
	equal pay for equal work remains unfulfilled, or unfilled--
	unfulfilled excuse me.
	The Paycheck Fairness Act is an opportunity for Congress to
	strengthen the Equal Pay Act, bolster the rights of working
	women, and put an end to the gender-based wage disparity once
	and for all. The Paycheck Fairness Act would require employers
	to prove that a pay disparity exists for legitimate reasons,
	ban retaliation against workers who discuss their wages, allow
	more workers to participate in class action lawsuits against
	systemic pay discrimination, prohibit employers from seeking
	the salary history of perspective employees, and develop a wage
	data collection system.
	And provide a system to businesses to improve equal pay
	practices. The House passed this legislation with support of
	seven House Republicans in the 116th Congress, and we look
	forward to passing it again this year.
	Nursing workers are in need of protections in the
	workplace, to be able to maintain breast feeding when they
	return to work. More than 10 years ago the Break Time for
	Nursing Mothers Act was enacted, requiring employers to provide
	eligible nursing workers with unpaid break time, and a clean
	private space to pump.
	Unfortunately, gaps in the law limit the number of workers
	entitled to these protections, and our workers can hold their
	employers accountable when they violate these requirements. The
	PUMP for Nursing Mothers Act is a bipartisan bill that closes
	gaps that excluded nearly nine million employees who are
	exempted from overtime protections.
	The bill also ensures nursing workers have access to
	appropriate remedies when their employees fail to provide break
	time and appropriate pumping space. It also clarifies that if
	an employee is not completely relieved of duty during a break,
	that time is considered hours worked for the purposes of
	minimum wage and overtime requirements.
	Every worker who chooses to nurse understands the
	importance of being able to express breast milk, and the severe
	health consequences of failing to do so. This legislation is a
	simple improvement to existing law that will have a meaningful
	impact on nursing workers across the country.
	I strongly support all four bills under discussion today,
	and I will now yield back to you Madam Chair.
	[The statement of Chairwoman Adams follows:]

	Statement of Hon. Alma S. Adams, Chairwoman, Subcommittee on Workforce
	Protections

	In addition to the Pregnant Workers Fairness Act and the Protecting
	Older Workers Against Discrimination Act, today's hearing will also
	examine the Paycheck Fairness Act and the PUMP for Nursing Mothers Act,
	both of which are partially or fully under the jurisdiction of the
	subcommittee on Workforce Protections.
	These bills address issues of basic fairness for women in the
	workplace.
	Today, women earn, on average, 82 cents on the dollar compared to
	all men. The wage gap is even worse for women of color. For example,
	Black women earn an average of 63 cents on the dollar, Native women
	earn an average of 60 cents on the dollar, and Latina women earn an
	average of 55 cents on the dollar compared to white men. The wage gap
	persists in nearly every line of work, regardless of education,
	experience, occupation, industry, or job title.
	That is unacceptable. From the North Carolina House to the U.S.
	House, for three decades, I have been fighting to close the gender wage
	gap.
	Fifty-eight years have passed since the Equal Pay Act was enacted,
	and it's been ten years since President Obama signed into law the Lilly
	Ledbetter Fair Pay Act, yet the promise of equal pay for equal work
	remains unfulfilled.
	The Paycheck Fairness Act is an opportunity for Congress to
	strengthen the Equal Pay Act, bolster the rights of working women, and
	put an end to the gender-based wage disparity once and for all.
	The Paycheck Fairness Act would:

	<bullet> Require employers to prove that a pay disparity exists for
	legitimate reasons;

	<bullet> Ban retaliation against workers who discuss their wages;

	<bullet> Allow more workers to participate in class action lawsuits
	against systemic pay discrimination;

	<bullet> Prohibit employers from relying on the salary history of
	prospective employees; and

	<bullet> Develop wage data collection systems and provide assistance
	to businesses to improve equal pay practices.

	The House passed this legislation with support of 7 House
	Republicans in the 116th Congress, and we look forward to passing it
	again his year.
	Nursing workers also need protections in the workplace to be able
	to maintain breastfeeding when they return to work.
	More than ten years ago, the Break Time for Nursing Mothers Act was
	enacted, requiring employers to provide eligible nursing workers with
	unpaid break time and a clean, private space to pump. Unfortunately,
	gaps in the law limit the number of workers entitled to these
	protections and how workers can hold their employers accountable when
	they violate these requirements.
	The PUMP for Nursing Mothers Act is a bipartisan bill that closes
	gaps that excluded nearly 9 million employees who are exempted from
	overtime protections. The bill also ensures nursing workers have access
	to appropriate remedies when their employers fail to provide break time
	and appropriate pumping space. It also clarifies that, if an employee
	is not completely relieved of duty during a break, that time is
	considered hours worked for the purposes of minimum wage and overtime
	requirements.
	Every worker who chooses to nurse understands the importance of
	being able to express breast milk and the severe health consequences of
	failing to do so. This legislation is a simple improvement to existing
	law that will have a meaningful impact on nursing workers across the
	country.
	I strongly support all four bills under discussion today and I will
	now yield to the Ranking Member, Mr. Keller.
	______

	Chairwoman Bonamici. Thank you, Chair Adams, and I now
	recognize Ranking Member Fulcher for five minutes for your
	opening Statement.
	Mr. Fulcher. Thank you, Madam Chair. I think I understand
	now how some of our remote students feel with their struggles
	in learning remotely. Thank you to all of our witnesses for
	joining us here today. Thank you again Madam Chair.
	We all agree that discrimination in America's workplace is
	wrong and should not be tolerated. That's why there are laws
	prohibiting such egregious behavior. And while the reported
	intent behind this legislation is admiral, good intentions
	don't always bring good policy.
	Good policy comes from thorough examination and bipartisan
	collaboration. This hearing is far from thorough as we are
	considering all at once four separate and distinct bills that
	make significant changes to very important laws.
	It's also not bipartisan. If my colleagues across the aisle
	were truly interested in bipartisan collaboration on these
	bills, they would have allowed more than one Republican witness
	to testify. This will not result in a fair or adequate
	examination of the underlying issues, and it certainly misses
	the mark regarding today's hearing title ``Fighting for
	Fairness.''
	Although today's hearing will cover a number of bills, I'll
	comment on one bill that is particularly troubling. The so-
	called Protecting Older Workers from Discrimination Act is just
	another empty promise wrapped in a convenient title. There's no
	evidence of data that suggests this bill is needed.
	It's already against the law to discriminate in the
	workplace because of an individual's age. Congress has enacted
	significant laws prohibiting the employment discrimination,
	including the Age Discrimination Employment Act, the Americas
	with Disabilities Act, and Rehabilitation Act, and the Civil
	Rights Act.
	Additionally, employment trends for older workers are
	positive in recent decades. In 2019 older workers earn 7
	percent more than the median income for all workers compared to
	20 years ago when older workers earned 23 percent less than the
	median for all workers.
	In Idaho today, workers 45 to 64 are earning 19.6 percent
	more than all workers in the State. This trend is expected to
	continue as we recover economically from COVID-19. The only
	parties likely to win if the bill is enacted into law are the
	trial lawyers. The bill will increase frivolous legal claims
	against business owners, thereby taking away valuable resources
	from efforts to prevent harassment and discrimination.
	The bill disregards current law. Real world workplace
	solutions, and Supreme Court precedent ultimately rewarding
	trial lawyers at the expense of older Americans. I thank the
	witnesses for being here today. I hope as Members of this
	Committee we'll be able to work together in the future on real
	solutions to real problems. Madam Chair I yield back.
	[The statement of Ranking Member Fulcher follows:]

	Statement of Hon. Russ Fulcher, Ranking Member, Subcommittee on Civil
	Rights and Human Services

	Republicans and Democrats agree that discrimination in any form is
	wrong. It should not be tolerated in America's workplaces. That's why
	there are laws prohibiting such egregious behavior. And while the
	purported intent behind the legislation before us is admirable, good
	intentions don't always bring good policy.
	Good policy comes from thorough examination and bipartisan
	collaboration. This hearing is far from thorough, as we are considering
	all at once, four separate and distinct bills that make significant
	changes to very important laws.
	It's also not bipartisan. If Democrats were truly interested in
	bipartisan collaboration on these bills, they would have allowed more
	than ONE Republican witness to testify. This will not result in a fair
	or adequate examination of the underlying issues and certainly misses
	the mark regarding today's hearing title `fighting for fairness.'
	Although today's hearing will cover a number of bills, I'll comment
	on one bill that is particularly troubling. The so-called Protecting
	Older Workers Against Discrimination Act is just another empty promise
	from Democrats wrapped in a convenient title.
	There is no evidence or data that suggests this bill is needed. It
	is already against the law to discriminate in the workplace because of
	an individual's age. Congress has enacted significant laws prohibiting
	employment discrimination, including the Age Discrimination in
	Employment Act, the Americans with Disabilities Act, the Rehabilitation
	Act, and the Civil Rights Act.
	Additionally, employment trends for older workers are positive in
	recent decades. In 2018, older workers earned 7 percent more than the
	median income for all workers, compared to 20 years ago when older
	workers earned 23 percent less than the median for all workers. In
	Idaho today, workers 45 to 64 years old are earning 19.6 percent more
	than all workers in the State. This trend is expected to continue as we
	recover economically from COVID-19.
	The only parties who will `win,' in nearly all cases if the bill is
	enacted into law, are trial lawyers. The bill will also increase
	frivolous legal claims against business owners. These undeserving
	claims will take valuable resources away from efforts to prevent
	harassment and discrimination.
	This bill being pushed by Democrats disregards current law, real-
	world workplace situations, and Supreme Court precedent; ultimately
	rewarding trial lawyers at the expense of older Americans.
	I thank the witnesses for being here today. I hope as Members of
	this Committee, we will be able to work together in the future on real
	solutions to real problems instead of gifting trial lawyers a payout
	under the guise of `protecting' older workers. I yield back.
	______

	Chairwoman Adams. Thank you very much Ranking Member
	Fulcher and I now recognize the Ranking Member of the
	Subcommittee on Workforce Protections, Mr. Keller, for the
	purposes of making an opening Statement.
	Mr. Keller. Thank you to both of our Chairwomen, Ranking
	Member Fulcher and to all our witnesses for joining us today.
	I'd first like to associate myself with the remarks made by
	Ranking Member Fulcher about the structure of the hearing
	unfolding here today.
	Only allowing the minority to invite one witness for a
	legislative hearing covering four different bills, is far from
	unifying, and will not result in a thorough bipartisan
	examination of the important topics before us. I'd like to
	comment specifically on one of the bills being discussed today,
	H.R. 7. Equal work deserves equal pay, regardless of the sex of
	the employee.
	In America this is the law. Paying women less than men for
	equal work is wrong and illegal. If employers are doing so,
	they are wrong, and they are breaking the law. No one here
	disagrees with that fact. That's why Congress enacted the Equal
	Pay Act of 1963, which made it illegal to pay different wages
	to women for equal work.
	The following year Congress enacted even broader,
	nondiscrimination laws making it illegal for employers to
	discriminate because of race, color, national origin, religion
	and sex, in Title VII of the Civil Rights Act. These landmark
	laws are important affirmation of who we are and what we
	believe as a country, that workplace discrimination is
	repugnant and illegal, and quite frankly, discrimination of any
	kind in our country is unacceptable.
	H.R. 7, the so-called Paycheck Fairness Act is a false
	promise that creates opportunities and advantages for trial
	lawyers, not for working women. Instead of treating sex
	discrimination charges with the seriousness they deserve, the
	Paycheck Fairness Act is designed to make it easier for trial
	lawyers to bring more suits of questionable validity for the
	purpose of siphoning off unlimited pay days from settlements
	and jury awards, lining their own pockets and dragging women
	through tedious, never-ending legal turmoil.
	The Paycheck Fairness Act offers no new or meaningful
	protections against pay discrimination, rather it dramatically
	limits the ability of employers to defend themselves against
	claims of discrimination based on pay disparities that result
	from legitimate factors.
	Just 2 months ago the women's labor force participation
	rate hit a 33 year low, the lowest it's been since 1988. At a
	time when women are leaving the work force in droves, largely
	due to COVID-19, and lengthy school closures, the last thing we
	should be doing is dragging working women through never-ending
	legal turmoil while making it easier for trial lawyers to score
	unlimited pay days.
	All employees should be valued for their recognizable
	contributions to the American work force and economy. Instead
	of working on redundant laws to line the trial lawyer's
	pockets, this committee should be focused on policies that
	foster individual freedom, innovation, and progressive economic
	policies so all workers and jobseekers have opportunities to
	achieve life-long success. Thank you and I yield back.
	[The statement of Ranking Member Keller follows:]

	Statement of Hon. Fred Keller, Ranking Member, Subcommittee on
	Workforce Protections

	Thank you, to both of our Chairwomen, Ranking Member Fulcher, and
	to all our witnesses for joining us today.
	I'd first like to associate myself with the remarks made by Ranking
	Member Fulcher about the structure of the hearing unfolding here today.
	Only allowing the minority to invite one witness for a `legislative'
	hearing covering four different bills is far from `unifying' and will
	not result in a thorough, bipartisan examination of the important
	topics before us.
	I'd like to comment specifically on one of the bills being
	discussed today, H.R. 7. Equal work deserves equal pay, regardless of
	the sex of the employee. In America, this is the law. Paying women less
	than men for equal work is wrong and illegal. Employers who continue to
	do so are wrong and they are breaking the law. No one here disagrees
	with that fact.
	That's why Congress enacted the Equal Pay Act of 1963, which made
	it illegal to pay different wages to women for equal work. The
	following year, Congress enacted even broader nondiscrimination laws,
	making it illegal for employers to discriminate because of race, color,
	national origin, religion, and sex in Title VII of the Civil Rights
	Act.
	These landmark laws are an important affirmation of who we are and
	what we believe as a country: that workplace discrimination is
	repugnant and illegal.
	H.R. 7, the so-called Paycheck Fairness Act, is a false promise
	that creates opportunities and advantages for trial lawyers-not for
	working women. Instead of treating sex discrimination charges with the
	seriousness they deserve, the `Paycheck Fairness' Act is designed to
	make it easier for trial lawyers to bring more suits of questionable
	validity for the purpose of siphoning off unlimited paydays from
	settlements and jury awards, lining their own pockets and dragging
	women through tedious, never-ending legal turmoil.
	The `Paycheck Fairness' Act offers no new or meaningful protections
	against pay discrimination. Rather, it dramatically limits the ability
	of employers to defend against claims of discrimination based on pay
	disparities that result from legitimate factors.
	Just two months ago, the women's labor force participation rate hit
	a 33-year low, the lowest it's been since 1988. At a time when women
	are leaving the work force in droves, largely due to COVID-19 and
	lengthy school closures, the last thing we should be doing is dragging
	working women through never-ending legal turmoil while making it easier
	for trial lawyers to score unlimited paydays.
	All employees should be valued for their recognizable contributions
	to the American work force and economy. Instead of working to line
	trial lawyers' pockets, this Committee should be focused on polices
	that foster individual freedom, innovation, and pro-growth economic
	policies so all workers and job seekers have opportunities to achieve
	life-long success.
	______

	Chairwoman Bonamici. Thank you Ranking Member Keller.
	Without objection all other Members who wish to insert written
	Statements into the record may do so by submitting them to the
	Committee Clerk electronically in Microsoft Word format by 5
	p.m. on April 1, 2021.
	I will now introduce the witnesses. Ms. Laurie McCann is a
	Senior Attorney with AARP Foundation Litigation. Her principle
	responsibilities include litigation and amicus curiae
	participation for AARP on a broad range of age discrimination
	and other employment issues. McCann is a noted speaker on the
	Aging Workforce.
	Ms. Dina Bakst is Co-Founder and Co-President of A Better
	Balance, a leading national legal advocacy organization
	headquartered in New York City. A Better Balance is dedicated
	to advancing the rights of working families, promoting fairness
	in the workplace, and helping workers across the economic
	spectrum care for themselves and their families without risking
	their economic security.
	Ms. Camille Olson is a partner in the law firm Seyfarth
	Shaw LLP. Since 2013 Ms. Olson has served as Chairperson of the
	United States Chamber of Commerce's Equal Employment
	Opportunity EEO Subcommittee. She has represented companies
	nationwide in all areas of litigation.
	Ms. Fatima Goss Graves is the President and CEO of the
	National Women's Law Center. Ms. Goss Graves has served in
	numerous roles at the National Women's Law Center for more than
	a decade, and has a distinguished track record working across a
	broad set of issues central to women's lives, including income
	security, health and reproductive rights, education access, and
	workplace justice.
	We appreciate the witnesses for participating today, and we
	look forward to your testimony. Let me remind the witnesses
	that we have read your witness Statements and they will appear
	in full in the hearing record. Pursuant to Committee Rule 8(d)
	and committee practice, you are each asked to limit your oral
	presentation to a five-minute summary of your written
	Statement. I also wanted to remind the witnesses that pursuant
	to Title 18 of the U.S. Code, Section 1001, it is illegal to
	knowingly and willfully falsify any Statement, representation,
	writing, document, or material fact presented to Congress or
	otherwise conceal or cover up a material fact. During your
	testimony, staff will be keeping track of the time and will use
	a chime to signal when one minute is left and when time is up
	entirely. They will sound a short chime when there is one
	minute left and a longer chime when time is up. Please be
	attentive to the time and wrap up when your time is over and
	then re-mute your system. If you experience any technical
	difficulties during your testimony or later in the hearing,
	please stay connected on the platform, make sure you are muted
	and use your phone to immediately call the committee's IT
	director, whose number been provided in advance. We will let
	all the witnesses make their presentations before we move to
	Member questions, and when answering a question, please
	remember to unmute your microphone. I will first recognize Ms.
	McCann.

	STATEMENT OF LAURIE McCANN, SENIOR ATTORNEY WITH AARP
	FOUNDATION, WASHINGTON DC

	Ms. McCann. Chairs Adam and Bonamici, Ranking Members
	Fulcher and Keller and Members of the committee. On behalf of
	our nearly 38 million members, and all older Americans, AARP
	thanks you for inviting us to testify concerning the need to
	confront workplace discrimination, and the role The Protecting
	Older Workers Against Discrimination Act would play in doing
	so.
	For older individuals, age discrimination is the most
	significant barrier to both getting and staying employed. The
	COVID-19 pandemic has only amplified age discrimination. High
	and persistent unemployment, compounded by the health risks of
	COVID-19 threatens the retirement security of older workers,
	especially women over the age of 55.
	A key reason age discrimination remains stubbornly
	persistent is because ageism in our culture remains stubbornly
	entrenched, quite possibly ageism is one of the last acceptable
	forms of prejudice in our society.
	Too often courts fail to interpret the Age Discrimination
	Employment Act as a remedial civil rights statute which then
	results in its protections being weakened. Perhaps the worst
	example of the increasingly cramped reading of the ADEA by the
	courts is Gross versus FBL Financial Services, a more than 10
	year-old Supreme Court decision and the impetus of the POWADA
	legislation.
	Not long after the decision I accompanied Jack Gross as he
	visited Members of this body to encourage passage of the very
	same legislation we are discussing today.
	Mr. Gross's employer underwent a merger after he had had a
	successful 30 year career. Older workers who did not accept a
	buyout were demoted and replaced by younger workers.
	Jack went to court and a jury awarded him about $47,000.00
	in lost compensation. So when his case was appealed to the
	Supreme Court, the court rules that the ADEA requires a much
	stricter showing of causation than other forms of
	discrimination.
	It was no longer enough to prove that age was one of the
	motivating factors behind an employer's conduct, the court
	rules that older workers must prove that age was a decision but
	for cause for the employer's actions.
	The Gross decision has made it far more difficult for older
	workers to get their day in court, and even more difficult to
	prevail. I just explained how in Jack's own case, he won under
	the motivating factor framework, but after the Supreme Court
	changed the rules and required him to retry his case under the
	new higher standards, he lost, despite having proven the same
	facts with the same parties in the same court as before.
	In another case from Jack's home State of Iowa, an older
	employer brought an age discrimination case both under the ADEA
	and the Iowa Civil Rights Act. Under the ADEA Gross's but for
	standard governed, but under the Iowa State law workers need
	only show that discrimination was a motivating factor in the
	adverse treatment.
	A single court applying the different standards to the very
	same set of facts reached opposite conclusions. The worker lost
	her ADEA case due to Gross, but her State law claim survived.
	The Gross decision has sent a terrible message to employers
	and the court, that age discrimination isn't as wrong as other
	forms of discrimination, that some age discrimination is OK, as
	long as the employer can point to other lawful motives that may
	have also played a role, employers will escape liability
	altogether.
	In this manner the Gross decision undermined Congress's
	mandate for how they expected the ADEA to be enforced, that age
	discrimination would play no role in employment decision.
	POWADA does not expand civil rights, it has long been a
	bipartisan straightforward restoration of the standard that was
	in effect before 2009.
	Discrimination is discrimination, and POWADA clarified
	Congress's intent that no amount of unlawful discrimination in
	the workplace is acceptable. Congress should pass POWADA as
	soon as possible. Thank you again for inviting AARP to testify.
	[The prepared Statement of Ms. McCann follows:]

	Prepared statement of Laurie McCann
	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


	Chairwoman Bonamici. Thank you for your testimony, and we
	will now hear from Ms. Bakst. Ms. Bakst you are recognized for
	five minutes for your testimony.

	STATEMENT OF DINA BAKST, CO-FOUNDER AND CO-PRESIDENT OF A
	BETTER BALANCE

	Ms. Bakst. Thank you to the chairs, Ranking Members, and
	distinguished Members of the subcommittee for the opportunity
	to testify today in support of the Pregnant Workers Fairness
	Act, and the PUMP for Nursing Mothers Act.
	A Better Balance is a national legal advocacy organization
	dedicated to advancing justice so workers can care for
	themselves and their loved ones without risking their economic
	security. We founded A Better Balance 15 years ago because we
	recognized that a lack of fair and supportive workplace laws
	and policies, the care crisis, was disproportionately harming
	women, especially black and Latino mothers in low-wage jobs.
	This bias and inflexibility often kicks in when women
	become pregnant, and then snowballs until lasting economic
	disadvantage. We call this the pregnancy penalty, and since day
	one A Better Balance has recognized it as a key barrier to
	gender equality in America.
	We've heard from thousands of women in both the public and
	private sector on our free legal help line who have experienced
	the harsh blow of the pregnancy penalty. Armanda Legros, a
	mother on Long Island who was forced out of her job at an
	armored truck company because her employer would not
	accommodate her lifting restriction.
	Without an income she struggled to feed her newborn and her
	young child. As she told the Senate Help Committee in 2014
	``Once my baby arrived, just putting food on the table for him
	and my 4 year old was a challenge. I was forced to use water in
	his cereal at times because I could not afford milk.''
	Years later we're still hearing the same stories of
	pregnant women who are fired, or forced out instead of being
	granted temporary, reasonable accommodations. This time it's
	with a global pandemic in the backdrop that has forced millions
	of women to risk their health, or leave the workplace, with a
	lack of paid leave and childcare exacerbating these challenges.
	At the height of the pandemic we heard from Tasia, a
	pregnant retail worker in Missouri who called us because a
	store's water fountain was shut down due to COVID-19 safety
	concerns. To avoid dehydration, which can lead to significant
	health consequences during pregnancy, she asked her manager if
	she could keep a water bottle behind the counter. He refused.
	Worried about the health of her pregnancy she left her job.
	Sarah, a healthcare worker in Kansas, resorted to pumping milk
	in her car just once a day after her boss disparaged her for
	pumping at work. She frequently became engorged and suffered
	from painful clogged milk ducts. Her milk supply dropped.
	This took place in spite of the fact that at least of her
	coworkers regularly took smoke groups multiple times a day.
	Why, nearly 10 years later was Tasia in the same position as
	Armanda? Why didn't Sarah have any recourse when she needed to
	pump?
	Why have we heard from hundreds more women in the same
	exact position? The answer is gaps in the law itself. Neither
	the Pregnancy Discrimination Act, nor the Americans With
	Disabilities Act provide an explicit right for pregnant workers
	with no limitations, and need accommodations to maintain a
	healthy pregnancy?
	In our 2019 report, long overdue, we found that pregnant
	workers are losing two-thirds of their pregnancy accommodation
	cases because the 2015 Supreme Court case, Young versus UPS,
	laid out an overly complicated burdensome standard requiring
	pregnant workers to jump through legal hoops and prove
	discrimination to get something as simple as a water bottle.
	This standard is unfair and a barrier to justice,
	especially for black and Latino women in low-wage, inflexible
	and physically demanding jobs who need timely accommodations to
	protect their health and their paycheck. Alternatively, the
	Americans With Disabilities Act covers those with disabilities,
	but a worker with a routine pregnancy who needs an
	accommodation to prevent a complication is completely out of
	luck.
	The Pregnant Worker Fairness Act would finally put an end
	to the second class treatment and ensure that pregnant workers
	have an affirmative right to workplace accommodations. I was
	honored to testify in this legislation in October 2019, which
	passed in the House this past September with overwhelming
	bipartisan support, in the midst of a global pandemic and
	[inaudible] session.
	There is simply no reason for it not to pass again without
	delay. The 2010 Breaktime for Nursing Mothers Law is also
	falling well short due to broad exclusions and weak enforcement
	mechanisms. Due to where the law is placed in the Fair Labor
	Standards Act, nearly 9 million women of child-bearing age are
	excluded from the law's protections.
	Those who are covered have no effective remedy for
	violations of the law. One Federal judge put it best, calling
	the Breaktime Law's remedy ``toothless'', and the law's
	incentive to terminate a breastfeeding worker, rather than
	accommodate her, ``an absurdity.''
	Extensive research shows that breastfeeding has immense
	benefits for mothers and children from preventing breast cancer
	in moms, to preventing obesity and asthma in children. While
	most women start out breastfeeding, the numbers sharply drop as
	time goes on.
	This is often because women lack the workplace supports to
	continue breastfeeding. The PUMP Act will change that by
	closing gaps in the law, and finally guaranteeing fair
	treatment to nursing mothers. As Armanda told the Senate Help
	Committee, having a baby should not mean losing your job. It
	should not lead to fear and financial dire straits.
	In 2021 women in America should not be forced to choose
	between becoming a mother and earning a paycheck. Passage of
	these critical measures is long overdue. Thank you.
	[The prepared Statement of Ms. Bakst follows:]

	Prepared statement of Dina Bakst
	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

	Chairwoman Bonamici. Thank you for your testimony and next
	we will hear from Ms. Olson. Ms. Olson you are recognized for
	five minutes for your testimony.

	STATEMENT OF CAMILLE OLSON, ESQ., PARTNER, SEYFARTH SHAW LLP

	Ms. Olson. Thank you. Good morning subcommittee Members. As
	an employment attorney at Seyfarth Shaw, I work with companies
	nationwide to ensure they maintain legally compliant employment
	policies and practices. I've also litigated numerous cases
	alleging violations of Title XII, the ADA, the ADEA and the
	Equal Pay Act.
	My written testimony contains my analysis of the four
	pieces of legislation under consideration. Today I will discuss
	a number of significant concerns with the Paycheck Fairness Act
	and POWADA. I will also discuss opportunities to strengthen the
	Equal Pay Act.
	First, with respect to the Paycheck Fairness Act, I'd like
	to share three of those opportunities and concerns now. H.R. 7
	presume all employee pay rates result from employer
	discrimination and rewrites existing legal standards, remedies,
	and class action procedures contained in the Equal Pay Act.
	First H.R. 7 effectively eliminates the factor other than
	sex defense. Under the Equal Pay Act, most courts currently
	require an employer to prove that any pay difference is
	business or job related. If the employer cannot do so, the
	Plaintiff prevails without any showing of discriminatory intent
	under the Equal Pay Act.
	Under H.R. 7, an employer would also be required to prove
	with respect to every pay differential, not only that the
	reason was business or job related, but also that it paid
	differently because of a business necessity, that the business
	necessity explain 100 percent of any pay difference, and the
	business necessity was not derived from a sex-based
	differential in compensation.
	Even if an employer meets these high burdens, it still
	loses. If years later a litigant identifies an alternative
	employment practice that would have serve the same purpose
	without a wage difference. But what if the alternative offered
	in litigation is when implemented less efficient, more costly,
	or an unproven alternative in a time sensitive project that
	needed immediate staffing.
	Is the employer's proven business necessity now rejected?
	Under H.R. 7 the answer is yes. Similarly, H.R. 7 would require
	employers to ignore an employee's competitive job offer, or
	salary expectations unless it can prove that the higher
	competitive wage offer, or salary expectation is not the result
	of historical wage discrimination by prior or other employers.
	This by definition, is an impossible burden.
	Second, H.R. 7 goes too far by prohibiting an employer from
	considering prior salary information volunteered by the
	applicant at the outset of the application process. The
	majority of courts of appeals recognize justifiable reasons for
	considering an applicant's prior salary as a factor other than
	sex.
	Third, H.R. 7's expansion of available remedies and class
	action procedures under the Equal Pay Act is unwarranted. For
	example, H.R. 7's unlimited compensatory and punitive damages
	far exceed the available remedies under Title VII and are in
	addition to significant penalties that already exist under the
	Equal Pay Act.
	Despite these Stated concerns, there are opportunities to
	improve the Equal Pay Act. For example, adding language that
	expressly States the pay differential between workers
	performing the same work must be based on business or job-
	related reasons. Providing employees with an express protection
	against retaliation from engaging in reasonable activities
	related to a good faith belief that an unlawful wage disparity
	may exist.
	And providing employers with incentives to engage in
	voluntary self-critical jobs and compensation analysis. Moving
	on to one other bill before you today POWADA, I must note it is
	not legislation designed to strengthen the ADEA or the rights
	of older workers, notwithstanding its title.
	Instead it attempts to import into the ADEA, the ADA, the
	Rehab Act, and Title VII for retaliation purposes the concept
	of mixed motive discrimination. But a mixed motive theory does
	not provide workers under any statute with any job-related
	monetary or injunctive relief. It is a run at the U.S. victory
	for a worker. It only provides for attorney's fees.
	And for all the reasons discussed from my testimony, a
	mixed motive theory is inappropriate to apply to these statutes
	or for determining retaliation under Title VII. Subcommittee
	Members thank you for the opportunity to share my perspective
	with you today.
	[The prepared Statement of Ms. Olson follows:]

	Prepared statement of Camille Olson
	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

	Chairwoman Bonamici. Thank you for your testimony. And
	finally, we'll hear from Ms. Goss Graves. Ms. Goss Graves
	you're recognized for five minutes for your testimony.

	STATEMENT OF FATIMA GOSS GRAVES, PRESIDENT AND CEO OF THE
	NATIONAL WOMEN'S LAW CENTER

	Ms. Goss Graves. Thank you Chair Bonamici, Chair Adams,
	Ranking Member Fulcher, Ranking Member Keller, and Chair Scott
	and Ranking Member Foxx, and all the Members of the committee
	for the opportunity to submit this testimony today on the
	Paycheck Fairness Act and the Pregnant Workers Fairness Act.
	I'm Fatima Goss Graves, President and CEO at the National
	Women's Law Center. This hearing on workplace fairness really
	couldn't come at a more critical time. Women, and particularly
	women of color, have been bearing the brunt of the pandemic and
	economic recession, as essential workers who are risking their
	lives for minimum wage, and too low wages, as those who have
	disproportionately born the devastation of job losses and those
	who are shouldering the majority of responsibility of
	caregiving without necessary supports.
	In many ways the last year has only heightened the
	importance of proactive efforts to address gender waste gaps
	and discrimination. Workers are more desperate to keep a
	paycheck at any cost. They are less willing to uncover and
	challenge discrimination and workplace abuses, and often face
	retaliation for doing so.
	Again, the pandemic is also likely to deepen the challenges
	women already faced in hiring and promotion and advancement.
	And at the same time workers have fewer resources to formally
	challenge this discrimination. We know that there is a pay gap
	across occupations including front line workers. It amounts to
	about 10,000 per year with even higher losses for women of
	color.
	That gap means that Latinos lose well over a million over
	their lifetime compared to white non-Hispanic men. COVID-19
	also has brought home the many ways pregnant workers are
	already left unprotected on the job. Pregnant workers are doing
	essential work, and frontline jobs like home health aides and
	nursing assistant jobs are physically demanding and come with
	even greater risk during COVID.
	No one should have to choose between a paycheck and a
	healthy pregnancy. But without a clear Federal standard many
	pregnant workers will continue to be denied accommodations and
	pushed out of work. And we've already heard today the point
	that discrimination is already against the law. That's of
	course the case, and now for five plus decades.
	But the truth is we know that the ways that our laws aren't
	working and allow discrimination to continue to persist. States
	have moved forward because Congress has not. We have thirty
	States and the District of Columbia have passed bills, or
	issued executive orders to explicitly grant pregnant employees,
	or certain categories of pregnant employees the right to
	reasonable accommodations at work.
	On equal pay we've seen a similar movement. Since 2016
	we've had fourteen States plus several localities prohibit
	employers from relying on prior salary information to set new
	salaries. And new research shows that these laws are working to
	narrow gender and racial wage gaps and increase wages for women
	and black workers.
	Multiple States have tightened legal loopholes that allowed
	employers to justify paying women less for equal work. In
	addition, pay discrimination because it's often cooped in
	secrecy and seldom obvious to the person directly affected.
	States and localities around the country are taking measures in
	recent years to bring paid practices into the light.
	Nineteen States passed laws protecting employee's rights to
	talk about how much they make. Three States have passed laws
	requiring businesses to provide salary information to
	applicants during the hiring process, and States, including
	California and New Jersey have enacted pay date of recording
	requirements.
	Globally we've seen movement too. In Europe we've seen
	legislation requiring analysis and reporting of compensation
	data, and public disclosure of wage gaps. And research shows
	the positive effects of these mandates on driving employer pay
	analysis and closing dates gap.
	But it's not enough for States to pass laws, and it's not
	enough for global corporations to feel any direct pressure to
	address their U.S. pay practices because of other countries
	like the U.K. And it's also not enough for some employers to
	voluntarily take steps to close the wage gaps, although we have
	been heartened to see that happen.
	This country deserves robust baseline protections in our
	Federal law that actually work. So the Paycheck Fairness Act is
	definitely part of this response. When it bars retaliation and
	gets workers who talk about pay and requires employers to
	report pay data, that's promoting both transparency and
	compliance.
	When it prohibits employers from relying on salary history
	to set new pay, it prevents pay discrimination from following
	people from job to job. When it closed the loopholes in the
	law, it actually ensures that our pay discrimination laws work,
	and ensures women can receive the same robust remedies for sex-
	based pay discrimination.
	We just believe we can't build back an economy that works
	for everyone without ensuring all women can work with the
	quality, safety, and dignity. Thank you for the opportunity to
	testimony, and my full written testimony is submitted for the
	record. I look forward to any questions.
	[The prepared Statement of Ms. Goss Graves follows:]

	Prepared statement of Fatima Goss Graves
	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

	Chairwoman Bonamici. Thank you for your testimony.
	Under Committee Rule 9(a), we will now question witnesses
	under the five-minute rule. After the Chairs and Ranking
	Members, I will recognize Members of both subcommittees in the
	order of their seniority on the full committee.
	Again, to make sure that the Members' five-minute rule is
	adhered to the staff will be keeping track of time and the
	timer will sound when the time has expired. Please be attentive
	to the time and wrap up when your time is over and then re-mute
	your microphone.
	And as chair, I recognize myself for five minutes.
	We have discussed how reasonable accommodations do not need
	to be, nor are they typically complicated or costly. But when
	pregnant workers do not have access to the accommodations they
	need, they are forced to choose between their financial
	security and their pregnancy, and the results can be
	devastating.
	Ms. Bakst can you describe which pregnant workers are most
	negatively affected by the lack of a reasonable accommodation?
	Ms. Bakst. Absolutely, thank you. So, the pregnant workers
	who are most negatively affected are women in low-age
	inflexible and physically demanding jobs, disproportionately
	black and Latino women who work in both the private and State
	employers.
	Many low-income workers can't work from home. Millions
	remain in the work force with women of color disproportionately
	represented in frontline, often low-wage jobs such as fast
	food, retail, home health, and State police officers, where
	they continue to fact structural biases that prevent them from
	caring for themselves and their loved ones, and maintaining
	their economic security.
	When a low-income pregnant worker loses her income, she
	doesn't have access to job protective leave, too often doesn't
	have access to fall back on, so she spirals into deeper
	economic trouble with lasting economic and health consequences.
	We've seen workers who've lost their health insurance, forcing
	them to delay or avoid critical pre or post-natal care.
	Or leaving them with crippling medical bills. Others like
	Armanda struggling to feed their families, or others wind up
	homeless. Some prospects of promotion, advancement and
	retirement savings also disappear, especially as it becomes
	more difficult to re-enter the work force after becoming a
	mother, exacerbating their gender wage gap, and many mothers
	falling deeper into poverty.
	Preserving pregnant workers economic security is especially
	important at a time when the COVID-19 pandemic has
	disproportionately again for women of color and low-wage jobs,
	with many experts suggesting that it could take years to undo
	the economic damage.
	And many will have experienced long-term hits to their
	careers, earnings, and retirement security. While the PWFA was
	needed before the pandemic, it has taken on a new urgency as a
	critical measure to keep women health and attached to the work
	force.
	Chairwoman Bonamici. Thank you Ms. Bakst. I know you
	mentioned a bit in your oral testimony, but can you briefly
	talk about what kind of health complications can arise when
	pregnant workers don't have a reasonable accommodation? And I
	do want to allow time for another question, so if you could be
	brief thanks.
	Ms. Bakst. Sure. Look, pregnancy accommodations are a
	crucial tool to address our Nation's maternal and infant health
	crisis right. Just I'll never forget a pregnant cashier who
	fainted and collapsed on the retail floor due to dehydration
	because her employer wouldn't let her carry a water bottle.
	A former client, Tasha Morell in Tennessee, was forced to
	continue heavy lifting while pregnant and working in a factory
	and wound up miscarrying. And just this past year one court
	held that a pregnant worker with complications including
	preeclampsia, was unprotected, and not entitled to
	accommodations because she didn't have a disability.
	This is absurd. These accommodations are low-cost, often
	with low or no cost, but with high impact having to prevent
	miscarriage, pre-term birth, low birth weight, preeclampsia,
	birth defects, and the racial disparities and maternal health
	outcomes are truly just staggering.
	Chairwoman Bonamici. Thank you very much. And I'm going to
	have to move on, and I know that my home State of Oregon has
	passed at the State level, similar legislation, which was
	broadly supported, including by the business community because
	it's given them certainty about what they need to do to
	accommodate pregnant workers.
	So, my home State of Oregon has one of the most rapidly
	aging populations in the country, and I've heard from workers
	particularly in the technology industry who have been dismissed
	or denied employment because of their age.
	But investigations by the U.S. Equal Employment Opportunity
	Commission often take years to complete, and age discrimination
	is as we heard in the testimony often very challenging to
	prove. So, Ms. McCann, can you explain how the change in the
	standard of proof in the 2009 Gross decision, and I note that
	Mr. Jack Gross was with us when we had a hearing on this in the
	last Congress.
	How has that adversely affected age discrimination in
	employment claims? And are ADEA claims more difficult to prove
	after the Gross decision, and if so, how? And there's not a lot
	of time left if you could be brief.
	Ms. McCann. Sure. So, I think there's three ways that it's
	negatively impacted age claims. One as I said, it sends a
	message to the courts that age discrimination is not as wrong,
	and that translates into bad decisions. In the mixed motive
	framework, once the age discrimination Plaintiff is able to
	prove that there age did motivate the employer's actions, they
	cannot prevail unless they are also able to prove that another
	factor did not influence the adverse decision, which is an
	almost impossible task for the older worker.
	Chairwoman Bonamici. And Ms. McCann, I'm sorry but I have
	to set a good example and cut myself off because I'm out of
	time, but I look forward to continuing the conversation. I'm
	sure you will get other questions.
	Ms. McCann. Understood OK.
	Chairwoman Bonamici. And I now recognize Ranking Member
	Fulcher for the purpose of questioning the witnesses for five
	minutes.
	Mr. Fulcher. Thank you, Madam Chair. I've got a question
	for Ms. Olson if I may. I just want to touch on what I think
	could be a significant real-world application here. So, Ms.
	Olson thank you for your testimony.
	When Congress considers a piece of legislation, I believe
	we should be absolutely clear about how the legislation would
	affect the American people, and when it comes to protecting
	Older Workers Against Discrimination Act, my experience tells
	me that most workers filing lawsuits, even if successful, will
	not likely recover any damages, but their attorneys will be
	awarded costs and fees. Is that your sense with this?
	Ms. Olson. Thank you for your question. And the answer is
	yes. It's not just my sense, and it's not just the majority. No
	worker under a mixed motive theory, whether it's brought under
	Title VII, the Age Discrimination Employment Act, or any other
	act, receives any monetary remedy.
	That is why you don't see many of the mixed motives cases
	that are brought, so to amend the Age Discrimination Employment
	Act, or any of the other acts that are at issue here with the
	language from POWADA, is going to do nothing to help workers.
	That's true today. That's true today under Title VII in
	terms of mixed motive that's available for certain types of
	causes of action, and that would be true tomorrow with respect
	to older workers. And if I just might note. If you look after
	the Gross decision in 2009, 10 years after it, the average
	percentage of EEOC charges that are age case, age charges, 21
	percent.
	The ten years prior to Gross it was 22 percent, virtually
	the same. Since Gross I have counted at least twenty-two
	different Court of Appeals decisions that have granted summary
	judgment under the Gross standard for Plaintiff, or reverse
	summary judgment for Defendant, saying the ultimate question of
	whether the Plaintiff's termination was a result of age must go
	to a jury.
	So, I don't see the need, and I don't see the benefits.
	Most importantly, under POWADA, for a mixed motive theory in
	either the Age Act, or any other statute that's considered
	under POWADA.
	Mr. Fulcher. Ms. Olson thank you for that. You mentioned
	mixed motive claims, and so my next question is kind of two
	stage, but it brings that in. In 2013 the Supreme Court ruled
	that mixed motive claims are not allowed in Title VII
	retaliation cases.
	And retaliation cases are especially ill-suited to include
	mixed motive claims. So from a policy perspective could you
	explain if and why the court's 2013 decision was sensible, and
	also this is the second part of the question, based on your
	experience as a litigator, what concerns would you have in
	allowing mixed motive claims in these retaliation cases?
	Ms. Olson. Thanks for your question. The concern I have is
	limitless, never-ending litigation that's going to go beyond
	summary judgment but will not result in an award for anybody in
	terms of a worker alleging retaliation.
	In terms of why it's not suited, why mixed motive isn't
	suited for retaliation claims, it's because the mixed motive
	says if a person--if retaliation, or an element of retaliation,
	such as the engaging in a protected activity is 1 percent, it's
	in the room. It's in the air. It's relevant.
	It was close in time the protected activity that was
	engaged in. That becomes part of a potential motive for a jury
	to determine, even if everybody agrees that the reason the
	employer took the action was not for retaliatory basis. Even
	so, even if everyone agrees that the reason was a good reason,
	it was not retaliation, the fact that the prima facia case in a
	retaliation claim includes the fact that the Plaintiff engaged
	in a protected activity, sometime close in time, that leads you
	to a potential jury verdict, and a potential result that again
	is not going to benefit the worker because they get no monetary
	damages.
	They get no employment injunctive relief for themselves,
	even if their lawyers win that case.
	Mr. Fulcher. OK Ms. Olson, just thank you for that. I could
	do about 10 more questions but thank you for your answers. I've
	run out of my time. You were very clear on this, and I greatly
	appreciate your testimony. Madam Chair I yield back.
	Chairwoman Bonamici. Thank you, Ranking Member Fulcher. I
	next recognize Chair Adams for five minutes for your questions.
	Chairwoman Adams. Thank you, Madam, Chair, and thank you to
	all the witnesses for your testimony. Ms. Goss Graves, the
	Paycheck Fairness Act clarifies that if an employer justifies
	pay disparity based on a factor other than sex, such defense
	must be based on a bona fide job related factor, such as
	education, training or experience that is consistent with
	business necessity.
	So, can you give us examples of how this business defense
	has historically been applied in ways that perpetuate gender-
	based waves of discrimination?
	Ms. Goss Graves. Sure. The first thing I just want to
	remind everyone is that there are already defenses embedded in
	the Equal Pay Act that go beyond the factor of sex. So, we're
	not talking about thinks like experience or education, or
	different specific skills. Those are listed out specifically.
	What we're talking about is the factor other than sex, and
	there what we have seen is some employers pointing to vague
	notions of the market, or the ability to negotiate more, even
	though there's all of this research that shows that women are
	often penalized when they negotiate. They are considered to be
	too mean or bossy when they engage in behavior that's
	considered typically male behavior.
	Or sometimes, people just point to the fact that men make
	more in the market. And so, what the factor other than sex
	defense would do is tighten the number of reasons and
	justifications for people paying people who were basically
	doing the same thing, different salaries.
	Chairwoman Adams. So, Ms. Olson claims that H.R. 7 pushes
	the EPA to heights that would essentially obliterate the other
	factor, other than sex affirmative defense, out of the statute.
	Is this the case?
	Ms. Goss Graves. It certainly does not, but it does
	actually require a legitimate business justification, and
	require that it be tested. It's not enough for an employer to
	just say here's a business justification. It's important for
	that justification to be tested so that you don't have someone
	doing something that basically is a proxy for sex
	discrimination.
	Otherwise, the factor other than sex, would continue to be
	such a large loophole it swallows the whole requirement that
	you pay people equal wages for doing equal jobs.
	Chairwoman Adams. Thank you. Ms. Bakst I've heard some
	concerning reports of workers who are currently eligible for
	breastfeeding protections being denied accommodations during
	the pandemic. Why are workplace accommodations for nursing
	mothers to pump breastmilk even more important now during the
	pandemic as workplaces reopen?
	Ms. Bakst. Sorry about that.
	Chairwoman Adams. Oh, that's all right, go ahead.
	Ms. Bakst. That's right. And at A Better Balance we've also
	heard concerning reports as well where the pandemic seems to be
	used as an excuse by some employers to dodge their legal
	responsibilities to breastfeeding employees, even when
	providing breaktime and space is no harder than it was before.
	It is essential that employers follow the law, and provide
	breaktime and space to their breastfeeding employees during the
	pandemic because hundreds of thousands of women have left the
	work force as a result of caregiving responsibilities and
	pregnancy discrimination, providing support for new mothers is
	critical to helping women get back into the workplace.
	The pandemic has laid bare the systemic barriers that
	prevent women from staying in the workplace and thriving.
	Breaktime and space are part of a broader range of solutions.
	We need to support mothers so they can work and care for their
	families without risking their economic security.
	Chairwoman Adams. Thank you, ma'am. Madam Chair I yield
	back.
	Chairwoman Bonamici. Thank you, Chair Adams. I next
	recognize Ranking Member Keller for five minutes for your
	questions.
	Mr. Keller. Thank you, Madam Chair. Ms. Olson I want to
	thank you and all the other witnesses for your testimony, but
	under H.R. 7 to defend against a claim of pay discrimination,
	an employer must show the pay differential is a business
	necessity, even after showing this, the employer defense does
	not apply if the Plaintiff can demonstrate an alternative
	business practice would not result in a pay differential.
	Do you agree the business necessity requirement in H.R. 7
	is unworkable, and makes it nearly impossible for a business
	owner to defend against a pay discrimination claim?
	Ms. Olson. Unequivocally, it does make it impossible. It is
	unworkable. And I really have to correct the record on the last
	couple of questions and answers. Business necessity is not
	currently part of the Equal Pay Act, and in addition experience
	and special skills are not enumerated factors in the Equal Pay
	Act, notwithstanding what's been said in this hearing.
	The only factors that are enumerated are seniority, merit
	and productivity, and other factors similar to those other than
	sex.
	Mr. Keller. Thank you. I appreciate that. Also, you State
	in your testimony Ms. Olson employers of all sizes need clear
	guidance and predictable outcomes when applying the law to
	their employment policies and practices. In your view, does
	H.R. 7 provide clear guidance and predictability?
	Ms. Olson. It absolutely does not, and I would tell you
	that if you look at my testimony which is quite detailed, that
	I included 9 different examples on pages 9 through 14 of
	specific real-life cases where an employer could not show
	business necessity.
	Ms. Graves just mentioned that the business is required to
	test. So, if a business determines that it is going to pay more
	for an applicant because of their years of experience, or their
	seniority at another employer, which they believe is relevant
	to the job, how is that tested?
	Business necessity has never been part of the Equal Pay
	Act. Job related and business related has always been part of
	the factors other than sex, as all the Court of Appeals that
	I've cited in my testimony have noted, and that's how employers
	are in fact understanding the Equal Pay Act, and applying their
	pay practices.
	What is business related? That employers know. What is a
	business necessity? It's not defined. It's nothing defined by
	any witness here. It's not defined by any court cases, and as I
	described in my testimony, does that mean the business can't
	live without it? How does an employer show when an applicant
	says, ``I won't become employed unless my pay is $1.00 more an
	hour because I've got five more years of experience, or I've
	got more education than someone.
	Those are factors that fall under the factors other than
	sex affirmative defense. How does an employer show that to
	business necessity? And even if they can they lose if later on
	in litigation a litigant says what? You could have made up the
	difference by increasing everybody's pay.
	What the Paycheck Fairness does in terms of business
	necessity and the other unworkable changes to the Equal Pay
	Act, is it disadvantages all workers who have higher
	qualifications, and seek, and employers believe justifiably,
	have qualifications that relate to their business and the job,
	and want to pay them for that.
	Mr. Keller. Thank you. That answered actually the questions
	I had regarding experience and other business-related factors,
	education, productivity, job skills. But I have another
	question Ms. Olson. H.R. 7 provides for unlimited compensatory
	and punitive damages, and it also expands class action lawsuits
	for pay discrimination claims.
	Will these provisions address pay discrimination in the
	workplace, or will they merely encourage costly litigation that
	will benefit trial lawyers?
	Ms. Olson. There's no question that changing the class
	action procedure under the current Equal Pay Act from a
	collective action to a Rule 23 class action will slow recovery,
	will slow the course of litigation, will not allow the
	litigants to actually focus on--and the difference is currently
	under the Equal Pay Act, if a collective action is brought,
	which is a class action procedure, the court sends out a notice
	to all potential workers and says, do you want to be part of
	this?
	And if so, just send back in a form. Anybody who sends back
	in a form then is part of it, and you focus on that group of
	individuals to determine whether the case will be settled, or
	it will be litigated, but on real facts.
	In a Rule 23 class action it is my day to day experience
	that employers spend hundreds of thousands of dollars, if not
	millions of dollars on class certification, procedural
	arguments that take years to be resolved before anyone ever
	gets the resolution.
	And in terms of unlimited compensatory and punitive
	damages, remember the Equal Pay Act is a strict liability. You
	don't have to prove intentional discrimination. It already
	allows double damages. It allows Plaintiffs to go back 3 years
	of willful, as opposed to 300 days for a charge of
	discrimination under Title VII.
	These damages are greater and different than any other
	damages we see in any discrimination law and are unnecessary
	under the Equal Pay Act.
	Mr. Keller. Thank you. I appreciate that and I yield back.
	Chairwoman Bonamici. Thank you, Ranking Member Keller. And
	next we have the Chairman of the Full Committee on Education
	Leader, Mr. Scott from Virginia you're recognized for five
	minutes for your questions.
	Mr. Scott. Thank you. First, I'd like to ask Ms. Goss
	Graves, we've heard a lot of confusing things about the
	Paycheck Fairness Act. Can you tell me what the differences are
	in recovery now and what the differences in recovery and
	process would be if the bill would pass?
	Ms. Goss Graves. Right now, under the Equal Pay Act you are
	allowed to get back pay for 2 years. And in particular types of
	conduct, sometimes that amount can be doubled. If you're
	talking about a low-wage worker, what that means effectively is
	that the amount that they can recover under the Equal Pay Act
	might not actually cover their actual costs from experiencing
	pay discrimination.
	Under Title VII of the Civil Rights Act, damages have been
	capped, and not adjusted at any point in time in over three
	decades. And so, what that actually means is that if someone is
	bringing a pay discrimination claim, their damages are
	arbitrarily limited. They don't actually match what they have
	experienced.
	Mr. Scott. And how does the Paycheck Fairness Act fix that?
	Ms. Goss Graves. So, what the Paycheck Fairness Act would
	do is allow people to recover the full amount of their damages,
	the full amount that they are injured. And so, I just wanted to
	correct one thing. You know the use of the term unlimited
	doesn't actually apply.
	The limit is actually your injury, so it is never
	unlimited.
	Mr. Scott. And how is that compared to other forms of
	discrimination?
	Ms. Goss Graves. Well one of the differences is that if you
	were bringing a race-based claim, there is an alternative
	outside of the Civil Rights Act by being able to bring a claim
	under Section 1981.
	And so right now there's this weird conundrum where for
	sex-based pay discrimination claims you have this sort of
	limit, and you don't have a current similar vehicle similar to
	1981.
	Mr. Scott. What's wrong with asking about salary history?
	Ms. Goss Graves. So, here's the thing about salary history.
	The reason, it's less about asking, but it's really how you're
	going to use it right? The reason why employers want to ask
	about salary history is because they want to match salaries. If
	you were making $100,000.00 in your last job, you should make
	$100,000.00 in your next job.
	But the truth of the matter is we know that women start off
	making less from the earliest points in their career. So,
	setting your new salary on the salary you might have made at
	the last job is a way to guarantee that you never get out of
	the cycle of making unfair pay.
	Mr. Scott. And we've heard about the employer having to
	prove that once you've shows the difference in salary, the
	employer has to prove that there is a non-gender reason for the
	differential. It seems to me that an employee can't possibly
	know what's wrong with requiring the employer to show--after
	you show him the difference, the employer is the only one that
	knows why there's a difference.
	Ms. Goss Graves. I mean basically all of the salary
	information lies in the hands really of the employer. The
	employer knows why they're paying people doing the same thing
	different wages. What we want to do is put the incentive so
	that the employer pays people correctly the first time.
	That's what we're trying to incentivize here. And I just
	wanted to correct one thing, because I don't want to confuse
	the committee, and I'm happy to give a longer written response.
	And that is so currently under the Equal Pay Act you were
	right, it's seniority. I was using experience as a shorthand.
	The Paycheck Fairness Act makes very clear as examples
	around education, experience, and skill. I have yet to hear the
	example that is not an example that you wouldn't want to test
	and probe further, for paying people doing the same thing
	different wages.
	And these ideas from employers really do have to be tested
	in some way.
	Mr. Scott. Thank you. Ms. McCann have you heard anything
	about the POWADA that you wanted to respond to?
	Ms. McCann. Yes, thank you. I think Ms. Olson's testimony
	ignores three important facts. One, that Congress has
	determined that any amount of discrimination is too much. And
	that the goal of civil rights protections is not more
	litigation, it's less discrimination.
	And although she makes a lot of the fact of in a mixed
	motive case the victim does not receive back pay or
	reinstatement, she ignores the fact that the injunctive relief
	and declaratory relief that is available to a successful mixed
	motive Plaintiff goes a long way in deterring future
	violations.
	And that there are two goals to every civil rights statute.
	One is compensation, but the other is deterring future
	violations. And what POWADA recognizes is that no age
	discrimination, no amount of discrimination should be
	tolerated. Thank you for the opportunity.
	Mr. Scott. Thank you. Yield back.
	Chairwoman Bonamici. Thank you, Mr. Chairman. Next, we're
	going to recognize Mr. Thompson from Pennsylvania for five
	minutes for your questions.
	Mr. Thompson. Chairwoman, thank you very much. Thank you,
	Ms. Olson, for being here today to you know discuss these
	issues. I would say it would have been nice to see a more
	balance of witnesses. Just for the record I agree with Ranking
	Member Keller on that. If we're going to pursue bipartisan
	solutions, we need to have everybody at the table, so.
	But thank you Ms. Olson for being here today to discuss
	these important issues. As you know two Federal laws currently
	prohibit discrimination wages, and the terms and conditions of
	employment based on sex. Thus, equal pay for equal work is
	already required by Federal law.
	Now I was reading your testimony, you mentioned how much
	time and effort businesses put in to determining workers
	various pay levels which they must do to recruit and retain
	high quality workers. All said, that's the responsibility, the
	duty of the employer.
	So, my first question in your experience does it help a
	business succeed and thrive to pay a worker more or less
	depending on their gender?
	Ms. Olson. It hurts everyone. And that's why employers in
	my experience, not only don't do that, the vast majority don't,
	but they take, they have a deep commitment to ensuring that all
	workers are paid appropriately with respect to jobs and
	business related factors that relate to the work that they are
	doing.
	There's absolutely no benefit. What are some of the
	deterrents to doing it besides litigation? Motivating your
	employees, ensuring that you have retention of your workers,
	and ensuring that the morale of workers who work together in
	teams more than they ever did, whether it's virtually or side
	by side, are able to do so productively, and in a way that
	fosters usually a joint or team effort.
	So, there's absolutely no motivation to doing so, and there
	would be no reason to do so.
	Mr. Thompson. So, you really touched on with your response
	also identifying the importance of offering appropriate
	compensation to all employees right, to be able to have that as
	much as qualified and trained, but reliable work force.
	Ms. Olson. Yes, it's absolutely correct Congressman.
	Without doing that you know this is a very mobile work force.
	People move from job to job more than they ever did in the
	history of the American workplace.
	And today employers spend an enormous amount of effort to
	not just conduct pay audits, but to also review starting pay
	decisions and the impact of a hot job market on existing long-
	term employees, to make sure that there aren't inconsistencies
	that perhaps should be addressed.
	Things that are differences in pay based on business or
	job-related factors, but nevertheless employers are saying I
	want to make sure that we've got this. They're also doing a lot
	on the information gap. A lot of the issue here relates to how
	do we capture, digitize, memorialize, pay decisions and factors
	to make sure they can be identified and explained?
	The Paycheck Fairness Act goes far beyond that. What it is
	does is it says I want you to test every reason. I want you to
	tell me and prove that you had to pay that worker more for that
	extra experience. That you had to pay that worker more for that
	extra education, or for the seniority of another employer, or
	that you had to hire that employee because they told you they
	wouldn't take the job unless they were paid more than what you
	were offering.
	And you've got to show the business necessity. You've got
	to not only show that, but you've got to show that you didn't
	have the ability to perhaps raise everybody's wages to that
	level. How does an employer do that and compete in the
	marketplace for workers?
	It can't. You know, you heard some of the other witnesses
	today talk about employer need to test. How do you test when an
	applicant comes to you and says I understand you're offering,
	let's just say $50,000.00 a year for this position? But my
	qualifications are higher. I'm making more today, and I have
	this special expertise.
	How does an employer test that that meets a business
	necessity standard to pay that worker more than somebody who is
	a current employee? What's going to happen? That worker is not
	going to get the extra pay offered to them, everyone is going
	to suffer.
	Mr. Thompson. Thank you, Ms. Olson. You're really focused
	on I think what the motivation incentives for employers really
	to compensate their employees well and how important that is.
	So, thank you very much. Madam Chair I yield back.
	Chairwoman Bonamici. Thank you, Mr. Thompson. Our next
	representative is Representative Hayes from Connecticut for
	five minutes for your questions.
	Ms. Hayes. Thank you, Madam, Chair, and thank you for
	holding this very important hearing today. Madam Chair I'd like
	to submit a document from the Equal Rights Advocates in support
	of the Paycheck Fairness Act for the record.
	Chairwoman Bonamici. Without objection.
	Ms. Hayes. Thank you. My questions today really speak to
	the Pregnant Workers Fairness Act. I've spoken at other
	hearings before about my time in the classroom during my
	pregnancy where I needed unscheduled bathroom breaks, which
	seems like a reasonable accommodation, but when you are in a
	building and you need another teacher, or another faculty
	member to come and relieve you so that you can go to the
	bathroom it becomes an unnecessary hardship.
	I've seen so many of my colleagues in the profession suffer
	with urinary tract infections, or long-term urinary retention
	problems, and other complications caused by what seems like
	just an accommodation that people can reasonably--that
	employers can reasonably make.
	So, this is something that we all have to be intentional
	about, and make sure that we are working to promote those kinds
	of practices. Because when you're in a building with 1,400
	kids, it's not very easy to just walk out of your assigned
	post, or your classroom to use the bathroom.
	My questions today are for Ms. Bakst. You know women across
	the country still face the impossible choice, risk your
	paycheck or your employment. You shouldn't have to take time
	off from work just because you need to be able to use the
	bathroom.
	So, Ms. Bakst can you provide us with the economic
	consequences experienced by employees when they are denied a
	reasonable accommodation, or perhaps pushed out of a job
	prematurely because those accommodations cannot be met?
	Ms. Bakst. Sorry yes, certainly. So you know it is, it's
	truly hard to believe that in 2021 that you know pregnant
	workers are routinely still being denied bathroom breaks and
	water bottles, and are forced to choose between maintaining a
	healthy pregnancy and earning a paycheck.
	And what we've seen over and over and over again, the
	profound health and economic consequences of this decision. It
	seems so simple. Oh, it's just you know, this discreet period
	of time. It's not. It lasts, it spirals. We call--it snowballs
	into lasting devastating economic consequences for women.
	It pushes too many women deeper into poverty because they
	are losing their paychecks in a moment that they, you know, so
	many women when they get pushed out, they say I tried to
	reapply for a job. Who is going to hire me?
	Then, you know, they're a new mother and they've been
	detached from the work force and finding a job is incredibly,
	you know, they face heightened challenges. And so, these
	economic consequences force them to really risk their ability
	to support their families, put a you know, a roof over their
	head, put food on the table, have adequate supports that they
	need.
	And all because they simply needed to maintain their health
	during their pregnancy. And this is--it's unacceptable, and as
	you said you know we've worked in almost 30 States. Similar
	laws are on the books in 30 States. It's been recognized as you
	know, a no-brainer essentially as this modest accommodation can
	go such a long way to help women stay healthy and attached to
	the work force.
	Ms. Hayes. Thank you. I heard similar stories about that
	from women across my State. In one incident we had a
	firefighter who was placed on an unrequested, unpaid leave
	because of her pregnancy, despite her--she wanted to work. She
	tried to make every available, make suggestions, and try to
	work with the employer, and she was just denied and placed on
	an unrequested leave.
	Also, in my district back in 2008, we had six low-wage
	black women who were working in a warehouse that suffered a
	miscarriage, despite asking for reasonable accommodations and
	providing the necessary, the required documentation from their
	medical provider.
	So, these cases demonstrate for me that the current law is
	not sufficient to protect pregnant workers from harm. Ms. Bakst
	can you help us to understand why bringing a pregnancy related
	reasonable accommodation claim under the Americans With
	Disability Acts existing legal standard is insufficient for
	preventing pregnancy discrimination?
	Ms. Bakst. Absolutely. Sorry. So absolutely. So, there are
	two main problems with the Americans Disability Act. This is an
	important law that guarantees reasonable accommodations for
	workers with disabilities. The problems here are first of all
	pregnancy is not recognized as a disability under the Americans
	With Disabilities Act.
	So, for pregnant workers who are not disabled yet, right,
	who have a pregnancy with a health need to prevent
	complications, they're forced out. They have no luck. And the
	second is most pregnancy related complications are not
	recognized as ADA eligible accommodations.
	Preeclampsia, high-risk----
	Ms. Hayes. Ms. Bakst, I'm sorry. I want to continue but it
	looks like my time has run out, but you said something that
	from your words, from your mouth to God's ears, pregnancy is
	not a disability. With that Madam Chair I yield back.
	Chairwoman Bonamici. Thank you representative. And if Ms.
	Bakst could submit the rest of the answer in writing unless
	somebody asks. Next, we're going to go to Representative
	Stefanik from New York. You're recognized for five minutes for
	your questions.
	Ms. Stefanik. Thank you, chairwoman. Ms. Olson, you suggest
	providing employers incentives to engage in voluntary self-
	evaluations to proactively identify and address any pay
	disparities attributed to the sex of employees. How widespread
	are compensation self-evaluations, and are there reasons they
	are not more prevalent?
	Ms. Olson. Thank you for your question. They are becoming
	more widespread. They are not prevalent Congresswoman Stefanik,
	and one of the deterrents that employers have to engaging in
	them is the uncertain status that self-critical analyses have
	under the law in terms of discoverability, and that's one of
	the problems, and that's one of the issues.
	And so yes, more and more employers engage in these audits.
	These audits are usually ones that require that decisions that
	are important to assist in analyzing not just pay, but also the
	jobs and whether the jobs should be compared, and then
	identifying relevant factors.
	Ms. Stefanik. So, let me ask you this. Let's look at a
	State that does have that at the State level. Massachusetts law
	encourages proactive self-evaluations by providing employers a
	safe harbor if they conduct good faith evaluations and take
	concrete steps to eliminate any pay disparities.
	Do you believe that expanding this model will lead
	employers across the country to use self-evaluation and improve
	their compensation practices?
	Ms. Olson. The answer is simple and straightforward yes. It
	definitely will, and I can speak from experience in working
	with employers those that do it and would have a lot more
	certainty, and would do it even more robustly if they had that
	certainty in terms of the audits, and that proactive reason--
	additional reason to do them.
	And those that aren't doing them now or aren't doing them
	as frequently would do them more often. There's no question
	about that, because the benefit would be so clear, and the
	outlines of any risks they're not having a risk of doing the
	audit in terms of privilege would be right in front of them and
	they could weigh it clearly and move forward with the audit, so
	absolutely.
	Ms. Stefanik. My next question is on strengthening the
	existing prohibition on sex-based discrimination. You made
	several recommendations to improve current law under the Equal
	Pay Act. One of those recommendations is to add a clear
	requirement that a pay differential must be business related
	which is consistent with the majority of U.S. Circuit Courts of
	Appeals have held.
	How would this change strengthen the Equal Pay Act, and
	provide predictability and clarity for employers and workers?
	Ms. Olson. It would strengthen the Equal Pay Act and
	provide clarity by being written into the statute. As I said in
	my testimony, the majority of Courts of Appeals, but not all,
	already attach that requirement to the statutory language
	factor other than sex.
	This would make it universal. It would make it so that this
	would not be something that people were litigating over, and
	this would provide clear definition because a factor other than
	sex, that is job or business related, is something that is a
	standard that employers clearly can understand and use,
	business necessity isn't.
	Ms. Stefanik. And then I want to ask about the wage history
	issue which is important. In your testimony you discuss various
	scenarios where H.R. 7's outright prohibition on considering a
	perspective employer's higher salary can actually function to
	disadvantage job applicants including women.
	Do these same concerns exist if perspective employees are
	empowered to share their prior salary at any point during the
	hiring process and employers are permitted to act on this
	information when voluntarily provided?
	Ms. Olson. So that's a great question. So, the answer is it
	depends if the Equal Pay Act is not amended to include business
	necessity, then an employer can act on a voluntarily shared job
	expectation or wage expectation without concern.
	But if that were appropriate under the Equal Pay Act as
	amended, but the employer still had to show business necessity
	and that you know it was not just a business necessity, but it
	was also the least impactful in terms of the opposite sex, I'm
	not sure that job expectations of an applicant can ever be
	considered at any stage of the process as the Paycheck Fairness
	Act is written.
	Without business necessity yes. It absolutely can be.
	Ms. Stefanik. Thank you, Ms. Olson. My time is expired.
	Yield back.
	Chairwoman Bonamici. Thank you. And I now recognize
	Representative Stevens from Michigan for five minutes for your
	questions.
	Ms. Stevens. Thank you so much and thank you for this
	important hearing. There are about 4.2 million women between
	the ages of 19 and 25 who are covered as dependents on a
	parent's employer sponsored health plan. And my understanding
	is that insurance companies in the large group market and self-
	insured employer plans are currently exempt from Federal
	requirements that guarantee dependents have coverage of crucial
	health services such as labor, delivery, and maternity care.
	Ms. Goss Graves.do you think you could explain this
	loophole, and how it relates to the intersection between the
	Affordable Care Act and the Pregnancy Discrimination Act?
	Ms. Goss Graves. You know you are right that there is this
	terrible loophole. When a non-spouse dependent is denied
	maternity coverage on an employee's health plan, that has been
	held not to violate the Pregnancy Discrimination Act because as
	the theory goes it represents sex discrimination against the
	dependent, not against the employee.
	And the Pregnancy Discrimination Act only protects
	employees from sex discrimination. It doesn't protect their
	dependents. And so you are correct that insurance companies,
	both in the large group market, and who are self-insured
	employer plans, are exempt from covering maternity care as an
	essential benefit, but they may be required to provide
	dependent maternity coverage under Section 1557 of the
	Affordable Care Act, which bans discrimination in healthcare
	programs and activities that receive Federal funds.
	So that is for some piece, that might be through a range of
	legislation that have attempted to address this loophole on
	dependent coverage, and the gap is not acceptable for sure.
	Ms. Stevens. Yes. And then let's also just give you an
	opportunity if you don't mind to respond to some of the claims
	that Ms. Olson has made regarding the Paycheck Fairness Act for
	you Ms. Goss Graves.
	Ms. Goss Graves. Well I'd like to remind people that pay is
	one of those things where that is cloaked in a lot of secrecy.
	All of the information nearly is lying with the employer. And
	employees typically don't have a reason for knowing that they
	are making less at all, or certainly why they are making less.
	And so, employers have all the information in addition to
	having the decisionmaking power. So, while I totally agree that
	the incentives should be that they want to pay people right the
	first time, and pay equally, there is lots of business case
	reasons for doing so. They just don't always do it.
	And I wanted to get if I have a minute, to give a couple
	more examples of the types of things we see in fact, other than
	sex, that we are worried about. You know, you might have an
	employer arguing that they're paying someone more because they
	have potential, or because they see something in that man, or
	something else that is vague and not specific.
	Those are the types of things that you really want to be
	sure are vetted and don't become just another proxy for sex.
	And there's a reason that the Paycheck Fairness Act lists very
	specifically things like education and experience because those
	are typical things that are totally fine to pay different wages
	for as long as they are actually themselves aren't sex-based
	reasons.
	So, if you don't usually pay differently for experience,
	you shouldn't just because you're now in a certain situation
	dealing with a woman and you want to pay her. You know that's
	the only additional type of vetting that would be important.
	Ms. Stevens. Great thank you. And Madam Chair I'd also like
	to enter to the record a letter from the Network Lobby for
	Catholic Social Justice in support of the Pregnant Workers
	Fairness Act.
	Chairwoman Bonamici. Without objection.
	Ms. Stevens. Thank you. And with one minute remaining, Ms.
	Bakst I just wanted to quickly ask you why pregnant workers
	have struggled to get accommodations under the ADA?
	Ms. Bakst. Yes again, I mean it's just pregnancy is not a
	disability. And pregnancy related at the ADA was expanded in
	2008, the Americans With Disabilities Amendment Act, and there
	was a lot of you know, hope that more pregnant workers with
	complications would be covered under that law.
	And you know many have been covered under that law, but too
	many have been left out because courts are saying your
	complications are not serious enough to warrant accommodations.
	So, I mean crazy like hypos are core cases that women with
	severe bleeding you know, all sorts of health conditions, and
	courts are saying sorry you don't qualify for ADA coverage, and
	that's absurd.
	Ms. Stevens. Thank you so much and I yield back. Thanks
	Madam Chair.
	Chairwoman Bonamici. Thank you. I next recognize
	Representative from Iowa for five minutes for your questions.
	Ms. Miller-Meeks. Thank you so much Madam Chairwoman. Thank
	you to all the panelists for being here. Ms. Olson my question
	is directed to you from my own personal experience. I'm
	currently a physician, but I've had you know numerous jobs as I
	paid myself through nursing school, my masters in education,
	collaborating that with the military.
	I had two pregnancies, very healthy pregnancies thank
	goodness, which I did one during an internship, one during a
	residency, breastfed and pumped for both of those children up
	until about 18 months.
	And so, in medicine there are differences in pay scale that
	has been brought up before between women and men, but when you
	look at the factors it's specialty hours and leave. And so, my
	question is there was a Harvard University Scholars published
	in 2018, a study on best bus and train operators working for
	the Massachusetts Bay Transportation Authority, and I think
	this was eluded to earlier.
	All the employees in the study were covered by the same
	collective bargaining agreements, working under the same
	seniority system. The study found that this caused male
	operators, the wage difference excuse me, of 11 cents gap was
	found my male operators taking fewer unpaid hours and choosing
	to work more overtime.
	And if briefly, if you can say in your experience working
	with issues related on compensation, are the Harvard studies'
	findings relevant to the debate on H.R. 7?
	Ms. Olson. Thank you for your question. And what I would
	say to that is there's no question that certain job related
	factors that relate specifically to experience and expertise,
	and some of the other factors that were discussed today, are
	related to differences in pay, and that those are factors that
	are considered because they're job or business related.
	Other facts that aren't job or business related are not
	currently allowed under the Equal Pay Act and would not be and
	should not be part of compensation systems and in my experience
	they are not.
	Ms. Miller-Meeks. And how would H.R. 7 how would that
	impact like bonuses or recruitment bonuses, or you know,
	recruiting and hiring somebody from another company, you know,
	if these stipulations are in place and paying somebody a higher
	wage each time that you're looking at bringing an employee on,
	or giving a bonus, you have to look at all these other factors
	and wages.
	Ms. Olson. The difficulty with H.R. 7 is it basically says
	look at the job they're hired to do. Pay everyone the same.
	Because if you differentiate based on hire or better
	qualifications or experience, or education, or something
	special about their background, or the fact that they tell you
	they will not come to your employment unless you pay them more
	than what you originally offered in your starting pay.
	You're not going to be able to prove that that was a
	business necessity.
	Ms. Miller-Meeks. Thank you so much.
	Ms. Olson. And courts don't serve as super personnel
	department to second guess every employer's decision with
	respect to pay. So, if I'm an employer, what am I going to do?
	Am I going to give bonuses? Am I going to pay people
	differently? If I do so, I'm just going to let myself open to
	endless litigation at whose detriment? Those employees who
	actually have special skills, who actually have special
	expertise who bring something extra that is worth paying for.
	Ms. Miller-Meeks. And to that end H.R. 7 directs the
	Department of Labor's Office of Federal Contract Compliance
	Programs to implement a survey of all non-construction Federal
	contractors to pay, collect pay data and other employment-
	related data, including hiring, termination and promotion data.
	And given our previous question, should we also not have
	data on leave, unpaid or paid, family leave, hours worked
	overtime, loan repayment, length of service, seniority, and you
	can feel free to answer that. And if there's time Ms. Goss I
	would love to have your input also. And with that I'll yield my
	time after you have answered, thank you so much.
	Ms. Olson. I would just say very quickly that the kind of
	data that's being requested goes far beyond any of the--under
	H.R. 7, goes far beyond the Equal Pay Act, and its specific
	goals. It also was Stated that employers don't currently
	collect promotion data. Data of national origin. And in terms
	of your question to be able to really understand what are
	making the differences in pay?
	Are they legitimate business-related or job-related
	factors? You can't really get that in the kind of two-page form
	that the government is talking about implementing in H.R. 7. It
	would be useless. It would have no utility. And that's what the
	EEOC found when it collected the 2017 and 2018 EEO one
	component to data.
	Chairwoman Bonamici. The time has expired, so I'm going to
	go next to Representative Leger Fernandez for five minutes for
	your questions.
	Ms. Leger Fernandez. Thank you Chairs Bonamici and Adams
	and thank you to the witnesses for joining us today. You know
	we're here today to talk about fairness or perhaps we should
	say a lack of fairness. And you know it strikes me that the
	testimony provided for legislators would you know, lawmakers
	must hear, which is how has the existing law failed to achieve
	its goals, and how can we fix those gaps, right? That's our
	job.
	And I must admit the examples provided by the witnesses are
	compelling. And the data is compelling. Women carried the brunt
	of job losses during the pandemic, losing a net 5.4 million
	jobs. And we need to make it easier for women to get back to
	work, including pregnant women.
	I liked the point that was made earlier that States are
	moving in the right direction, including my State of New
	Mexico, which passed the Pregnant Woman Accommodation Act with
	bipartisan support last year but all women in every State must
	have similar protection.
	So, Ms. Bakst, explain again how the Pregnant Workers
	Fairness Act will ensure that Latina women especially don't
	have to choose between their health and job security.
	Ms. Bakst. Yes thank you for the question. And as I pointed
	out earlier you know this is still disproportionately impacts
	women of color, and Latina women especially right. And you know
	we heard earlier that the wage gap for Latina women is you know
	the most pronounced of any of the wage gaps that we have heard
	earlier.
	And part of that I believe has to do with it's a multi,
	there are many reasons for the wage gap, but discrimination is
	part of that. And when pregnant women are pushed off the job
	because they have to be forced to choose between following
	doctor's orders and protecting their health, and risking their
	jobs, you know, they are going to suffer profound health, you
	know, and economic consequences.
	Latino women are often the times of jobs that are
	congregated are often, put them in that position, right? These
	are jobs that are often less safe, you know, more physically
	demanding, and so the nature of those jobs require an
	affirmative accommodation protection to help them protect their
	paycheck and maintain their health.
	Ms. Leger Fernandez. So, in some senses these are the
	essential workers that we're giving lots of thanks to these
	days, and what we're asking in this law is to give more than
	thanks, but actually respect and accommodation. Chair Bonamici
	I'd ask unanimous consent to submit two items into the record.
	The first is a letter from the National Partnership for Women
	and Families in support of all the bills before us. The second
	is testimony from Physicians for Reproductive Health in support
	of the Pregnant Workers Fairness Act.
	Chairwoman Bonamici. Without objection.
	Ms. Leger Fernandez. OK. So, for every dollar paid to white
	men, Latino women earn only 55 cents, and Native American women
	earn only 60 cents right. They have the latest of the equal pay
	days in the year. Ms. Goss Graves, in your testimony you
	pointed out that 60 percent of workers in the private sector
	nationally are either forbidden, or strongly discouraged from
	discussing their pay with their colleagues.
	You were talking about this a bit earlier, but can you
	explain a little bit more why that is the case, and what, why
	Congress must act to protect workers from retaliation in
	discussing their pay with their coworkers.
	Ms. Goss Graves. Well despite the fact that we have laws
	like the National Labors Relations Act, some employers just
	maintain policies that say that you can't talk about your wages
	to anyone, to your coworkers, and that you can't make inquiries
	even about wages.
	And so, what that means is that employees are left in the
	dark. And it's a thing that I think isn't good for
	organizations, because I think you'll have some employees
	guessing about where they stand, assuming that they're being
	paid less because they are operating without any information.
	So the Paycheck Fairness Act would prohibit these sorts of
	retaliatory bands where people are told, and sometimes made to
	sign documents that say you won't talk about your wages, and
	there will be a penalty if you do.
	Ms. Leger Fernandez. So, the issue of full disclosure is
	good for everybody is what you're saying. I wanted to see if
	you wanted to take some time. We ran out of time to answer the
	question about data. We have a few seconds left.
	Ms. Goss Graves. Sure. Thank you for that. Because that's
	you know, sunshine is a good disinfectant, and that's one of
	the reasons to provide that data. It will make our civil rights
	enforcement agencies stronger. It will enable them to identify
	trends, sectors that seem like outliers, and sometimes
	employers that seem like outliers.
	But it also I think will be important for employers.
	Sometimes employers might think they were doing the right
	thing, but actually doing an analysis, taking a look allows
	them to make a correction, the sort of corrections that I think
	Ms. Olson says her clients want to make.
	Ms. Leger Fernandez. Thank you. I yield back.
	Chairwoman Bonamici. Thank you. I now recognize the Ranking
	Member of the full committee, Representative Foxx five minutes
	for your questions.
	Ms. Foxx. Thank you, Madam, Chairwoman, and I thank the
	witnesses for their testimony on these important issues for
	workers around the country. Ms. Olson, from your experience
	studying the issue of compensation and advising clients, are
	employers diligent in fulfilling their legal responsibility not
	to pay different wages because of the sex of the employee?
	And what steps do employers take to ensure they're not
	discriminating in this manner?
	Ms. Olson. Thank you for your question. Here's how I would
	answer it. The vast majority of employers that I work with,
	that I know others are working with on these issues through
	both general groups where we talk and share best practices, are
	all working with employers who have a deep commitment to equal
	pay.
	And that commitment comes not just from the law, but from
	wanting to do the right thing for their employees, which is
	also good for their business. And the kinds of things that
	they're doing, which is a consistent engrained sort of
	practices throughout their workplace include education and
	training and development of managers, tools to assist managers,
	in ensuring that whether they're interviewing a new employee,
	or a potential employee, or whether they're doing a performance
	review which is going to relate to a merit increase
	potentially.
	Those decisions are focused on legitimate business-related
	reasons, not any other reasons that would not be relevant.
	They're also building new career frameworks within their
	compensation system. They're also reviewing their job
	descriptions against job requisitions, against also job
	requirements to make sure there's accuracy and validity in
	terms of what's being done.
	They're also including different stages of a review on a
	regular basis, individual manager decisions as well as overall
	compensation decisions in any year to make sure that in fact
	there aren't inequities that aren't able to be explained by a
	business-related factor other than sex.
	Ms. Foxx. Thank you very much. Your experience is the same
	as mine. Ms. Olson H.R. 7 directs the EEOC to collect this
	employee pay day on many levels, including hiring and
	termination, et cetera. A similar data collection was mandated
	by the Obama Administration, which the EEOC later discontinued.
	Do you agree that requiring this additional reporting of
	the employee pay day to the Federal Government will create
	large compliance costs with doubtful utility in combating pay
	discrimination?
	Ms. Olson. Thank you and the answer is I do. And I do based
	on the analysis that was done at the time of just the subset of
	the information that H.R. 7 would have employer collect. And
	just the subset of it. Just information on pay for example, the
	estimate was 700 million for employers to put in place for
	policies and practices, and changes to the HRIS system.
	The EEOC itself says it had to invest over 5 million
	dollars in changing its own system to be able to accept the
	data, even after it was accepted in 2019, September 2019 for
	2017 and 2018, after review of the data the EEOC determined
	that it really had no benefit or utility.
	So collecting data for data sake in a very high-level,
	without getting into specific job titles, and job functions to
	be able to compare jobs that are actually equal, or
	substantially similar, and then also identifying business-
	related factors without doing that analysis, the data is
	costly, but useless.
	Ms. Foxx. There's a difference between data and
	information. In 2013 Ms. Olson, the Supreme Court in a national
	decision said that in retaliation cases, lessening the
	causation standard could contribute to the filing of frivolous
	claims which would siphon resources from efforts by employers,
	administrative agencies to ``combat workplace discrimination.''
	Do you agree with the Supreme Court's comment on lessening
	the causation standard in retaliation cases? And if so, how
	does this relate to the Protecting Older Workers Against
	Discrimination Act?
	Ms. Olson. The current standards that are present with
	respect to both retaliation under Title VII, as well as the Age
	Discrimination Employment Act, and I see my time is almost up,
	so if I could finish this sentence, is appropriate and has led,
	in my experience, to litigation that has been successful when
	it should be with respect to showing that employers used
	inappropriate factors in terms of their decisionmaking. I don't
	believe a change in the law is necessary or would be helpful to
	workers.
	Ms. Foxx. Thank you very much. I can't see the time, but
	Madam Chair I'll assume that I'm out of time and yield back.
	Chairwoman Bonamici. That is correct. I now recognize
	Representative Jones from New York for five minutes for your
	questions.
	Mr. Jones. Thank you, Madam Chair, and thanks, also to
	Chair Adams for both of your leaderships. The issues raised
	here today impact far too many people in this country.
	According to a study by the Center for American Progress, women
	are the primary sole, or co-bread winners in 64 percent of
	families.
	I was raised by a single mom who worked long hours for low
	pay to provide for our family, so wage and gender issues hit
	especially close to home for me. When I hear about the gender
	and racial pay gap, I think about the hard-working women who,
	like my own mother when I was growing up, have to provide for
	their families.
	In my district, in Westchester and Rockland Counties where
	it is extremely expensive to live, and where low wages are
	therefore particularly burdensome on families, single mothers
	are the sole breadwinners in 13 percent of households. So, Ms.
	Goss Graves, some of my colleagues on the other side of the
	aisle insert that in seeking to correct the injustice of the
	gender wage gap, the Paycheck Fairness Act will actually harm
	business. Can you address this claim?
	Ms. Goss Graves. I actually think that Ms. Olson made the
	case for why paying people fairly is actually a business good.
	It is a thing that will help you retain your talented
	employees. It is a thing that will help you ensure you have
	more diverse rooms.
	But not every employer is there. So, we can't you know, I
	think Congress can't craft laws for the best-minded employer
	that is going to always make the right business decisions. It
	has to craft laws that ensure that the incentives are there for
	people to be paid fairly the first time.
	A really tough thing to accomplish in the area of pay
	because it is so secret, and because all of the information
	lies with the employer, so we can't be in a situation where
	it's just sort of trust us, we got this, we have to be in a
	situation where there is information that our civil rights
	enforcement agencies have, and where employees can have
	conversations about their own pay, something has to give so
	that it can be detected when unfairness is happening.
	Mr. Jones. In short there's no defensible reason to
	maintain the status quo. Data shows that black women typically
	make only 63 percent, excuse me, 63 cents. Latinos only 55
	cents, for every dollar paid to a white man. And it's clear to
	me that we need to strengthen the Equal Pay Act to ensure that
	women, and especially women of color are compensated fairly for
	their work.
	Madam Chair, I ask unanimous consent to enter into the
	record a letter from the American Association of University
	Women urging support for the Paycheck Fairness Act.
	Chairwoman Bonamici. Without objection.
	Mr. Jones. There's no excuse for discrimination of any kind
	in the workplace. That includes age discrimination, which is
	one of the most common, and sadly most accepted forms of
	discrimination in the workplace. This too is personal for me.
	My grandmother had to work well past the age of retirement
	just to pay for the high cost of prescription drugs, and
	medical procedures not fully covered by Medicare, which by the
	way is why we need Medicare for all.
	One of the jobs my grandmother took was as a food service
	worker in the East Ramapo Central School District, a job she
	worked after my grandfather had died of cancer. I shudder to
	think what would have happened had her perspective employer
	determined she was simply too elderly to take the job.
	I represent parts of Westchester and Rockland Counties.
	According to the 2020 census data in my district over 171,000
	of my constituents are seniors. And so, Ms. McCann when an
	individual brings a claim for multiple forms of employment
	discrimination such as gender, race and age, how do courts
	currently sort out the different standards of proofs and
	remedies in cases such as these?
	And does the Protecting Older Workers Against
	Discrimination Act clarify and simply the adjudication of such
	claims?
	Ms. McCann. Yes. Right now confusion reigns when someone
	brings a claim with multiple protective categories, so like an
	older woman like your grandmother, the courts have applied two
	causation standards.
	And in fact some courts have gone so far to say they're not
	going to recognize intersectional claims because the very
	presence of the Title VII claim, the gender claim, means that
	age could not be a but for cause of the discrimination.
	What POWADA would do would replace that confusion with
	uniformity because all of the statutes would have materially
	identical causations standard already, would now be subject to
	the same standard causation standard.
	Mr. Jones. Thank you, Ms. McCann. Madam Chair I yield back.
	Chairwoman Bonamici. Thank you. I now recognize
	Representative Good from Virginia for five minutes for your
	questions.
	Mr. Good. Thank you Chairman and thank you to all of our
	witnesses. You know I think that the four of these acts combine
	together, and it is unfortunate we have to consider them
	together, versus separately, but the acts would better be
	called the Trial Lawyer Fairness Acts, or Protecting Trial
	Lawyer Acts.
	These bills purport to correct problems that are largely
	not existent. They purport to fix issues that have been
	corrected by laws that have been placed for decades. These
	alleged discriminations that we're hearing about were
	eradicated largely before I entered the workplace some 30 plus
	years ago.
	The fact is that most employers, virtually all employers,
	pay the same amount for the same work, for all people when
	considering factors such as experience, skills, performance,
	and other objective job-related criteria.
	And that's true because it's simply required in a
	competitive marketplace, and to try to retain the most talented
	work force for the organization to be as successful as it can
	be, and frankly it is the law now.
	These bills seem to flow from a lack of understanding by
	our majority on the true practices that exist at virtually all
	businesses, and perhaps that's from a lack of business
	experience. I spent nearly 20 years in the corporate world, and
	working through these issues, and applying these issues in a
	fair, non-discriminatory way because I wanted the business and
	my employees to be as successful as possible.
	Or worse yet, this flows from a deliberate intent to be
	dishonest in representing the facts, or just an outright
	hostility toward businesses and employers in general. It's been
	reported that at the close of 2020, 8 million small businesses
	remain closed today because of the extreme government efforts
	to crush the economy through these ridiculous lockdowns,
	shutdowns, and restrictions on businesses.
	The NFIB has reported, in my home State of Virginia, 25
	percent of businesses have closed. And according to Yelp they
	estimate that 60 percent of the businesses that have closed in
	2020 are unlikely rather, to reopen ever again. So, my question
	for Ms. Olson, do you think that these bills that are proposed
	before us today, do you think that these will help these
	businesses to reopen?
	Ms. Olson. Thank you for your question. I appreciate it
	Representative Good. I don't believe that burdening employers
	with the unworkable, and unattainable requirements of the
	Paycheck Fairness Act will help workers in these businesses, or
	any businesses across America, and I strongly oppose it.
	With respect----
	Mr. Good. Excuse me, go ahead continue. No, you continue.
	Ms. Olson. With respect to POWADA I've described in my
	written testimony at length, and in an abbreviated form given
	my five minutes, in my verbal testimony as well, how POWADA is
	not what it represents itself to be. It is not a worker
	friendly statute. It is a trial lawyer friendly statute.
	Under mixed motive cases it is unquestioned that a worker
	will not receive any injunctive relief that will help itself,
	or any monetary relief as a result of a mixed motive case. With
	respect to issues that have covered in terms of the Pregnant
	Workers Fairness Act as well as the PUMP Act, I've included my
	commentary with respect to those in my written testimony, and I
	would say that there is unquestioned support for employers to
	provide reasonable accommodations for pregnant workers,
	including nursing mothers.
	There are issues with respect to those various statutes or
	bills that I've described, that I know these committees have
	worked together before on, and to fix certain issues, and I am
	hopeful that that will continue after today in terms of
	ensuring that both pregnant workers and nursing mothers have
	the opportunity to be sure to have reasonable accommodations in
	the workplace.
	Mr. Good. Thank you. When these businesses are unable to
	operate, to reopen, to successfully operate, that discriminates
	against all workers and that eliminates wages for all workers
	in the business's ability to provide for the workers who can
	provide for their families.
	At a time of high unemployment, global economic
	uncertainty, tightening Federal regulations, do we think that
	will stimulate the economy, create jobs, or lead to more
	growth, adding more regulation, more burdensome regulations for
	employers?
	Ms. Olson. It will not lead to more growth in either
	businesses or worker wages, and that's the problem with the
	Paycheck Fairness Act for example.
	Mr. Good. Yes PFA, H.R. 7 that you're referring to, you
	know, it says it requires employers to show that pay
	differential for employees based on experience is a business
	necessity, and it's just really----
	Chairwoman Bonamici. Representative your time has expired.
	Mr. Good. It's incredible to hear the majority talk about
	business necessity with the way that they treated businesses--
	--
	Chairwoman Bonamici. Representative your time has expired.
	Mr. Good. ----in lockdowns and in this hearing today. Thank
	you.
	Chairwoman Bonamici. I'm going to recognize Mr. Bowman from
	New York for five minutes for your questions.
	Mr. Bowman. Thank you, Madam, Chair, and thank you to all
	the witnesses. Ms. Bakst, you discussed the impact that the
	PUMP Act could have for black mothers in particular. As you
	know that black mothers and pregnant women disproportionately
	remain in the work force and face less than accommodating
	workplace environments.
	In your estimation how much of the black maternal health
	crisis might be attributed to the lack of these necessary
	accommodations in the workplace?
	Ms. Bakst. Thank you for the question. You know providing
	accommodations for more specifically, time and space to pump
	breast milk, you know, is one important tool to help black
	women, black mothers, stay healthy and attach to the work
	force, along with the Pregnant Worker Fairness Act which I
	mentioned earlier some of the health impacts, and the
	pronounced impacts that we heard from COVID about the
	likelihood, the higher risk of complications pregnant workers
	face, disproportionately black and Latino women as a result of
	not getting, of developing COVID.
	So, these accommodations in the workplace are critically,
	critically important, especially now, to help them maintain
	their health and hang on to their paychecks.
	Mr. Bowman. Thank you for that. Ms. McCann, you have Stated
	that the EEOC must do more to fight ageism and that ADEA has
	become a second-class civil rights law. Is it the case that
	ADEA provides less protection than other civil rights laws?
	Ms. McCann. Thank you for the question. Well that certainly
	was not Congress's intent when it enacted the ADA, and modeled
	its substantive prohibition, directly on Title VII. In fact,
	Title VII substantive prohibitions were lifted in hoc verba as
	the Supreme Court said from Title VII.
	But what we've seen is over the last couple decades Supreme
	Court cases like Gross and others have whittled away at the
	ADEA's protections and have focused on any small differences
	between the ADA and Title VII to weaken the ADA's protection to
	narrow, to expand its affections and narrow its protection.
	Mr. Bowman. Thank you very much. Ms. Graves, Ms. Olson
	suggests that incentivizing employers to conduct self-audits
	would be enough to address amoral and economically damaging pay
	inequities. Why is this approach insufficient in your opinion?
	Ms. Goss Graves. Well you know so we've had equal pay laws
	for over five decades. It's not a new idea that you can't pay
	people unfair wages. What we are actually trying to do is
	ensure that people, ensure that our civil rights enforcement
	agencies have the sort of information that allow them to be
	effective.
	So, it's an odd idea that you would have a safe harbor for
	an obligation that is over 50 years old, and the other real
	challenge is at the heart of our laws are the individuals who
	were being paid unfairly. So a safe harbor might allow an
	employer to do the right thing going forward, but for that
	individual who's not able to recover, that is a giant deal,
	especially when you're talking about women of color where the
	age gap is so large and so stark.
	Mr. Bowman. Thank you very much. I yield back the rest of
	my time. Thank you.
	Chairwoman Bonamici. Thank you very much. And for
	everyone's awareness we have next Mr. Fitzgerald and then Mr.
	Yarmuth, and then unless other Members return, we will do
	closing Statements. I now recognize Representative Fitzgerald
	for five minutes for your questions.
	Mr. Fitzgerald. Thank you, Madam Chair. Just real briefly,
	I know a lot of the questions have already been asked, but the
	one that--the area that really stands out to me is I mean this
	bill will kill the Christmas bonus. And the Christmas bonus is
	something that's determined in many different ways based on the
	employer. Often times it's kind of a consensus compensation,
	that's based on how the company does throughout the entire
	year.
	And it looks like H.R. 7 would simply stop that practice
	dead in its tracks. And I'm just wondering if Ms. Olson would
	like to comment on that aspect of this bill.
	Ms. Olson. Yes. You're right, you know. Any employer is
	going to be concerned about making any differences in pay
	between employees based on objection and subjective business
	and job-related factors if H.R. 7 were the law.
	Because once you do that, even if you could show it was a
	business necessity, which again I believe is an impossible
	burden, one that's undefined, one that employers are going to
	have to guess as to how to comply with. The employer would also
	have to show that they weren't able to give the highest amount
	of that Christmas bonus to all employees.
	How is that not possible? And if an employer can't show
	that, that they wouldn't have gone bankrupt, what are they to
	do? It's going to eliminate the ability for employers to
	actually make differentiating payments to employees based on
	their individual contributions to the business, and that's not
	what the American economic system is about.
	It's not about what job you have. It's about what job you
	have and what you bring to it.
	Mr. Fitzgerald. Yes Madam Chair a lot of families really
	depend on that Christmas bonus, that end of the year bonus, and
	if this bill takes that off the shelf, I think it's--there's
	going to be a lot of people very upset. I yield back my time.
	Thank you.
	Chairwoman Bonamici. Thank you representative. I now
	recognize Representative Yarmuth for five minutes for your
	questions. Thank you for your patience.
	Mr. Yarmuth. Thank you, Madam Chair. Thanks to all the
	witnesses for your testimony, and my colleagues, for your
	questions. Ms. Bakst, Kentucky has accommodations similar to
	those in the Pregnant Workers Fairness Act, and in the last
	Congress GLI, which is our Greater Louisville Inc., which is
	our Chamber of Commerce, testified in favor of this bill.
	Are you familiar with their testimony? And could you expand
	on, if you are, why they felt this was such an important step
	forward for mothers, perspective mothers?
	Ms. Bakst. Sure. Yes. So, there were a few reasons I recall
	she laid out in her testimony. The first being employee
	retention, right, that this is a tool especially now you know
	to keep women healthy and attached to the work force.
	Clarity in the law right, that you know we have Supreme
	Court standard, Young versus UPS that requires, as I said
	earlier, pregnant workers to jump through hoops to provide
	tremendous confusion for employers.
	We came together you know with a U.S. Chamber in good
	faith, and this is why the Chamber termed, and other business
	groups are supportive of this bill, because it provides clarity
	in the law. And you know running a free legal help line, we
	help women in States with these laws, and we're able to avoid
	litigation and help them stay healthy and on the job.
	And this is a preventative tool, and exactly how the law
	should work.
	Mr. Yarmouth. All right thank. And I think in our case we
	are right on the Ohio River, right across from Indiana. I think
	you said about 30 States now have these accommodations. I don't
	think Indiana had those accommodations, so we had workers going
	back and forth trying to deal with different laws and
	accommodations which is not easy.
	Ms. Bakst. Yes. And for multi-State employers operating in
	Kentucky and Indiana, you need a clear Federal law, right?
	That's why we need a clear Federal law from employers.
	Mr. Yarmouth. And you know I think you know we talked so
	much about desirability of having bipartisanship that in the
	last Congress we had 100 Republicans who actually supported
	this legislation, so it seems that we have a golden opportunity
	to do something that is overwhelmingly bipartisan.
	This community supports, the women's groups support, and I
	think it would be a very significant step forward. Ms. Goss
	Graves, I think your organization provided a lot of the data
	that we've been throwing around today on the disparity in wages
	between white men and black women, white women, Native women,
	and Latina women.
	And if I'm correctly assessing it, it showed that of the
	gaps, so when we're talking about 60 percent, 60 cents on a
	dollar for Latino women to white men, almost 40 percent of that
	gap was basically unattributable to all of the things that
	we've been talking about, and Ms. Olson has been talking about
	with experience and the differences in occupations and so
	forth.
	My question is, and it's kind of off the wall, so I
	apologize for that. You may not have the data. But do you have
	any indication. We know that black women, Latina women, often
	are disproportionately in lower wage jobs in the hospitality
	industry and so forth. Do you have any idea about how much of
	the wage gap would be corrected, or closed by a $15.00 national
	minimum wage?
	Ms. Goss Graves. You know I don't have that statistic
	offhand. What I can tell you though is we've done analyses of
	States that have higher minimum wages, including one fair wage,
	and have found that in those States the gap is smaller.
	Mr. Yarmuth. I was hoping that would be your answer, and I
	think that as we move forward on discussing raising the minimum
	wage, that we take that into account, that this is one of the
	ways that we can help correct some of this wage gap that exists
	between men and women.
	I have no further questions, so Madam Chair I yield back
	the balance of my time.
	Chairwoman Bonamici. Thank you representative Yarmuth.
	Next, we have Representative Cawthorn. You're recognized for
	five minutes for your questions.
	Mr. Cawthorn. Thank you, Madam Chair. It really does mean a
	lot. I appreciate everyone who is on this call. You know I
	think it is absolutely imperative that we as Americans, that
	our employers and our government treat everyone with honor,
	dignity, and respect, treat them all fair, and under the law.
	But I was--let me ask a question of Ms. Olson. Under the
	Equal Pay Act, does a Plaintiff have to prove discriminatory
	intent in order for her to win her case? If not, does this make
	the Equal Pay Act claims easier to prove, and do you have any
	other followup thoughts on that?
	Ms. Olson. You're right Representative. Under the Equal Pay
	Act, it is the only employment discrimination statute that does
	not require a showing of discriminatory intent. As a result,
	it's sometimes referred to as a strict liability statute. In
	addition, unlike the other statutes, under the Equal Pay Act
	the employer bears the burden, and not just production, but
	persuasion.
	All the plaintiff has to show under the Equal Pay Act is
	that they're performing a job that is the same as somebody else
	and that they're paid differently. That's it. No other
	evidence. No other taint or suggestion of discrimination, just
	that they're paid differently, and then all the burden goes to
	the employer.
	Mr. Cawthorn. Well Ms. Olson thank you very much for your
	answer. Let me do one followup question on that. So, in my
	district I know I have a lot of companies who will reward high
	performing workers you know, with end of the year bonuses or
	maybe other incentives.
	Do you believe that H.R. 7 would endanger these kinds of
	payments and rewards? And if that is the case, you know, how do
	these employers work to retain these high-level employees and
	encourage them to work harder than their coworkers?
	Ms. Olson. It absolutely would because any time an employer
	makes a payment to a worker, whether it's a bonus, it's an
	incentive, or it's an increase in pay, or some other benefit,
	that is due to let's just say to that particular individual's
	contributions that are extra, or that are better than another
	worker, and maybe it's because they're a better teammate.
	Maybe because they showed leadership on a particular
	project. Those aren't quantifiable objective factors, and yet
	why would an employer risk all this litigation, and unkept
	punitive and compensatory damages and class actions to reward
	its employees for those good qualities that are exhibited in
	the workplace to help all workers and the business?
	They risk litigation if they do that.
	Mr. Cawthorn. Well you know that's something, especially
	you know, with knowing with the Equal Pay Act, they really
	don't have to prove discriminatory intent or some of the
	litigation they would be facing. I know the district scare a
	lot of the employees in my district, so Ms. Olson I genuinely
	appreciate your expertise and your time. Thank you for coming
	out to our committee and thank you for enlightening myself on
	some of these issues.
	So, everyone thank you very much and Madam Chairman I yield
	back the remainder of my time.
	Chairwoman Bonamici. Thank you and I see no other Members.
	So, we'll move on. I want to remind my colleagues that pursuant
	to committee practice, materials for submission to the hearing
	record must be submitted to the Committee Clerk within 14 days
	following the last day of the hearing, so by close of business
	on April 1 of 2021, preferably in Microsoft Word format.
	The materials submitted must address the subject matter of
	the subject matter of the hearing. Only a Member of the
	subcommittee, or subcommittees, or an invited witness may
	submit materials for inclusion into the hearing record.
	Documents are limited to 50 pages each.
	Documents longer than 50 pages will be incorporated into
	the record via an internet link that you must provide to the
	Committee Clerk within the required timeframe, but please
	recognize that in the future that link may not work.
	Pursuant to House rules and regulations, items for the
	record should be submitted to the Clerk electronically by
	emailing submissions to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="325756535c565e53505d401c5a5753405b5c5541725f535b5e1c5a5d4741571c555d44">[email protected]</a>.
	Member offices are encouraged to submit materials to the inbox
	before the hearing, or during the hearing at the time the
	Member makes the request.
	Again, I want to thank all of our witnesses for their
	participation today. Members of the subcommittees may have some
	additional questions for you. We ask the witnesses to please
	respond to these questions in writing. The hearing record will
	be held open for 14 days to receive these responses, and I
	remind my colleagues that pursuant to committee practice,
	witness questions for the hearing must be submitted to the
	Majority Committee Staff or Committee Clerk within 7 days.
	The questions submitted must address the subject matter of
	the hearing. So, I now want to recognize the distinguished
	Ranking Member of the Subcommittee on Workforce Protections,
	Mr. Keller for a closing Statement.
	Mr. Fulcher. Madam Chair I think Mr. Keller has stepped
	out.
	Chairwoman Bonamici. OK. I don't see Mr. Keller, so I will
	recognize the chair of the Subcommittee on Workforce
	Protection, Dr. Adams for the purpose of making a closing
	Statement.
	Chairwoman Adams. Thank you, Madam Chair. I also want to
	give my thanks again to our witnesses for joining us today.
	Today's hearing confirmed that women across the country
	continue to face discrimination in the workplace on multiple
	fronts. Women, particularly women of color, still face
	persistent gender-based wage discrimination even after 12 years
	of the Better Fair Pay Act, and 58 years of the Equal Pay Act.
	And far too many nursing workers still do not have basic
	protections to ensure that they can take the time at work to
	pump in clean, private spaces. This discrimination has serious
	consequences for our entire economy, particularly as women are
	disproportionately pushed out of the work force during the
	pandemic.
	Simply put, we cannot continue to rob nearly half of our
	Nation's work force of the wages they deserve, force women to
	work far more just to be paid fairly and penalize nursing
	workers. Congress has a moral responsibility to pass the
	Paycheck Fairness Act and the PUMP for Nursing Mothers Act, in
	addition to the Pregnant Workers Fairness Act, and the
	Protecting Older Workers Against Discrimination Act.
	We've got to take action to ensure that basic workplace
	fairness for women and nursing workers and take meaningful
	steps to finally end gender-based workplace discrimination once
	and for all. Madam Chair I yield back and thank you very much.
	Chairwoman Bonamici. Thank you, Chair Adams. And I now
	recognize the distinguished Ranking Member of the Subcommittee
	on Civil Rights and Human Services Mr. Fulcher, for the purpose
	of making a closing Statement.
	Mr. Fulcher. Thank you, Madam Chair, and to the witnesses
	for providing the testimony. I spent two years in the
	workplace, largely as someone who had a lot of employees, and
	so I always learn from these testimonies and I thank you for
	participating.
	Just my brief takeaway. We've already got laws on the books
	that address discrimination in the workplace. Age
	Discrimination and Employment Act, Americans With Disabilities
	Act, The Rehabilitation Act, Civil Rights Act, and employment
	trends for older workers in America are up, both in terms of
	the employment rate and in terms of pay.
	The winners here are the trial lawyers. And I know that my
	colleagues across the aisle really like the trial lawyers, and
	so do I. I like them too, just not quite enough to support
	legislation that otherwise is a solution in search of a
	problem. Madam Chair I yield.
	Chairwoman Bonamici. Thank you very much Ranking Member
	Fulcher. And I, hold on just one moment. There's just one issue
	we're trying to clarify. Hold briefly please. All right. Thank
	you for your patience.
	I would now recognize myself for the purpose of making a
	closing Statement.
	I also want to thank our witnesses for being here, for your
	compelling testimony today. Our discussions confirm that we are
	still a long way from eradicating discrimination in the
	workplace, particularly for women and older Americans, and the
	testimony established that the laws we have on the books are
	not working.
	I do want to note that I request unanimous consent to enter
	a letter into the record from a coalition of stakeholders in
	support of the Pregnant Workers Fairness Act without objection.
	And I also request unanimous consent to enter a letter into the
	record from the business community in support of the Pregnant
	Workers Fairness Act, also without objection.
	I also would like to note that during the opening Statement
	Ranking Member Fulcher you noted that a concern about only
	having one witness. I know we were talking about four bills
	today. I would like to place onto the record that the minority
	did not actually ask for a second witness, and had they done
	that we would have certainly considered that request.
	So today we heard about how pregnant workers across the
	country continue to be denied access to reasonable workplace
	accommodations, despite more than four decades of Federal law
	providing equal treatment on the job.
	We also heard how older workers face unreasonable obstacles
	that prevent them from holding employers accountable for age
	discrimination. It is passed time for Congress to take action
	to make sure that all workers can earn a living without fear of
	discrimination.
	Our discussion today made clear that we must swiftly pass
	the Protective Older Workers Against Discrimination Act to
	restore protections against age discrimination for older
	workers. Put us back to where we were. Restore those
	protections, so people who are discriminated against can get
	relief. And we must pass the Pregnant Workers Fairness Act, so
	pregnant workers do not have to choose between healthy
	pregnancies and their wages.
	These bills, along with the Paycheck Fairness Act and the
	PUMP for Nursing Mothers Act should not be partisan. They
	affect women and people of all parties and all backgrounds.
	Each of us, but disproportionately women of color, and Latin
	women we know that.
	Each of us should agree, now more than ever, we must take
	these bold steps to protect our Nation's most vulnerable
	workers, and make sure that all workers can succeed on the job.
	There being no further business, and I've already noted the
	possibility of additional questions, without objection the
	hearing now stands adjourned. Thank you again.
	[Additional submissions by Chairwoman Bonamici follow:]
	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

	[Whereupon, at 12:40 p.m., the subcommittees were
	adjourned.]

	[all]
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