[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
PAYCHECK FAIRNESS ACT (H.R. 7):
EQUAL PAY FOR EQUAL WORK
=======================================================================
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 SIXTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, FEBRUARY 13, 2019
__________
Serial No. 116-4
__________
Printed for the use of the Committee on Education and Labor
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: www.govinfo.gov
or
Committee address: https://edlabor.house.gov
__________
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COMMITTEE ON EDUCATION AND LABOR
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
Susan A. Davis, California Virginia Foxx, North Carolina,
Raul M. Grijalva, Arizona Ranking Member
Joe Courtney, Connecticut David P. Roe, Tennessee
Marcia L. Fudge, Ohio Glenn Thompson, Pennsylvania
Gregorio Kilili Camacho Sablan, Tim Walberg, Michigan
Northern Mariana Islands Brett Guthrie, Kentucky
Frederica S. Wilson, Florida Bradley Byrne, Alabama
Suzanne Bonamici, Oregon Glenn Grothman, Wisconsin
Mark Takano, California Elise M. Stefanik, New York
Alma S. Adams, North Carolina Rick W. Allen, Georgia
Mark DeSaulnier, California Francis Rooney, Florida
Donald Norcross, New Jersey Lloyd Smucker, Pennsylvania
Pramila Jayapal, Washington Jim Banks, Indiana
Joseph D. Morelle, New York Mark Walker, North Carolina
Susan Wild, Pennsylvania James Comer, Kentucky
Josh Harder, California Ben Cline, Virginia
Lucy McBath, Georgia Russ Fulcher, Idaho
Kim Schrier, Washington Van Taylor, Texas
Lauren Underwood, Illinois Steve Watkins, Kansas
Jahana Hayes, Connecticut Ron Wright, Texas
Donna E. Shalala, Florida Daniel Meuser, Pennsylvania
Andy Levin, Michigan* William R. Timmons, IV, South
Ilhan Omar, Minnesota Carolina
David J. Trone, Maryland Dusty Johnson, South Dakota
Haley M. Stevens, Michigan
Susie Lee, Nevada
Lori Trahan, Massachusetts
Joaquin Castro, Texas
* Vice-Chair
Veronique Pluviose, Staff Director
Brandon Renz, Minority Staff Director
------
SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES
SUZANNE BONAMICI, OREGON, Chairwoman
Raul M. Grijalva, Arizona James Comer, Kentucky,
Marcia L. Fudge, Ohio Ranking Member
Kim Schrier, Washington Glenn ``GT'' Thompson,
Jahana Hayes, Connecticut Pennsylvania
David Trone, Maryland Elise M. Stefanik, New York
Susie Lee, Nevada Dusty Johnson, South Dakota
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
ALMA S. ADAMS, North Carolina, Chairwoman
Mark DeSaulnier, California Bradley Byrne, Alabama,
Mark Takano, California Ranking Member
Pramila Jayapal, Washington Francis Rooney, Florida
Susan Wild, Pennsylvania Mark Walker, North Carolina
Lucy McBath, Georgia Ben Cline, Virginia
Ilhan Omar, Minnesota Ron Wright, Texas
Haley M. Stevens, Michigan
C O N T E N T S
----------
Page
Hearing held on February 13, 2019................................ 1
Statement of Members:
Adams, Hon. Alma S., Chairwoman, Subcommittee on Workforce
Protections................................................ 5
Prepared statement of.................................... 27
Bonamici, Hon. Suzanne, Chairwoman, Subcommittee on Civil
Rights and Human Services.................................. 1
Prepared statement of.................................... 3
Byrne, Hon. Bradley, Ranking Member, Subcommittee on
Workforce Protections...................................... 27
Prepared statement of.................................... 28
Comer, Hon. James, Ranking Member, Subcommittee on Civil
Rights and Human Services.................................. 4
Prepared statement of.................................... 4
Statement of Witnesses:
DeLauro, Hon. Rosa L., a Representative in Congress from the
State of Connecticut....................................... 30
Prepared statement of.................................... 33
Holmes Norton, Hon. Eleanor, a Representative in Congress
from Washington, DC........................................ 41
Prepared statement of.................................... 43
Beyer, Jr., Hon. Donald S., a Representative in Congress from
the State of Virginia...................................... 45
Prepared statement of.................................... 47
Goss Graves, Ms. Fatima, President and CEO, National Women's
Law Center................................................. 51
Prepared statement of.................................... 54
Olson, Ms. Camille, Partner, Seyfarth Shaw LLP............... 80
Prepared statement of.................................... 82
Rowe-Finkbeiner, Ms. Kristin, CEO/Executive Director,
MomsRising................................................. 110
Prepared statement of.................................... 112
Yang, Ms. Jenny R., Partner, Working Ideal................... 120
Prepared statement of.................................... 122
Additional Submissions:
Chairwoman Bonamici:
Letter dated April 14, 2017, the Office of Legal Counsel. 172
Letter dated February 11, 2019........................... 175
Letter dated August 29, 2017, from the Office of
Information and Regulatory Affairs..................... 182
Foxx, Hon. Virginia, a Representative in Congress from the
State of North Carolina:
Chart: U.S. Equal Employment Opportunity Commission
Charge Statistics (Charges filed with EEOC) FY 1997
Through FY2017......................................... 184
Chart: U.S. Equal Employment Opportunity Commission
(EEOC) Litigation Statistics, FY 1997 Through FY 2017.. 185
Questions submitted for the record by:
Chairwoman Adams
Chairwoman Bonamici
Scott, Hon. Robert C. ``Bobby'', a Representative in
Congress from the State of Virginia.................... 192
Responses to questions submitted for the record by:
Ms. Gross Graves......................................... 193
Ms. Kristin Rowe-Finkbeiner.............................. 199
Ms. Yang................................................. 205
PAYCHECK FAIRNESS ACT (H.R. 7): EQUAL PAY FOR EQUAL WORK
----------
Wednesday, February 13, 2019
House of Representatives
Committee on Education and Labor,
Subcommittee on Civil Rights and Human Services
Joint with
Subcommittee on Workforce Protections
Washington, DC.
----------
The subcommittees met, pursuant to notice, at 10:23 a.m.,
in room 2175, Rayburn House Office Building. Hon. Suzanne
Bonamici [chairwoman of the Subcommittee on Civil Rights and
Human Services] presiding.
Present: Representatives Bonamici, Adams, Takano,
DeSaulnier, Jayapal, Wild, McBath, Schrier, Hayes, Omar, Trone,
Stevens, Lee, Comer, Byrne, Thompson, Stefanik, Walker, Wright,
and Johnson.
Also present: Representatives Shalala, Underwood, Scott,
and Foxx.
Staff present: Tylease Alli, Chief Clerk; Nekea Brown,
Deputy Clerk; Ilana Brunner, General Counsel; David Dailey,
Senior Counsel; Carrie Hughes, Director of Health and Human
Services; Eli Hovland, Staff Assistant; Eunice Ikene, Labor
Policy Advisor; Stephanie Lalle, Deputy Communications
Director; Andre Lindsay, Staff Assistant; Richard Miller,
Director of Labor Policy; Max Moore, Office Aide; Udochi
Onwubiko, Labor Policy Counsel; Veronique Pluviose, Staff
Director; Carolyn Ronis, Civil Rights Counsel; Banyon Vassar,
Deputy Director of Information Technology; Katelyn Walker,
Counsel; Cyrus Artz, Minority Parliamentarian, Marty Boughton,
Minority Press Secretary; Courtney Butcher, Minority Coalitions
and Member Services Coordinator; Rob Green, Minority Director
of Workforce Policy; John Martin, Minority Workforce Policy
Counsel; Sarah Martin, Minority Professional Staff Member;
Hannah Matesic, Minority Legislative Operations Manager; Kelley
McNabb, Minority Communications Director; Brandon Renz,
Minority Staff Director; Ben Ridder, Minority Legislative
Assistant; Meredith Schellin, Minority Deputy Press Secretary
and Digital Advisor; and Heather Wadyka, Minority Staff
Assistant.
Chairwoman BONAMICI. The joint subcommittees on Civil
Rights and Human Services and Workforce Protections come to
order. Welcome, everyone. I note that a quorum is present. I
ask unanimous consent that Ms. Underwood of Illinois and Ms.
Shalala of Florida be permitted to participate in today's
hearing with the understanding that their questions will come
only after members of the Civil Rights and Human Services and
Workforce Protections Subcommittees on both sides of the aisle
who are present have had an opportunity to question the
witnesses. Seeing no objection.
The subcommittees are meeting today in a legislative
hearing to hear testimony on H.R. 7, the Paycheck Fairness Act.
Pursuant to committee rule 7C opening Statements are limited to
the chairs and ranking members. I recognize myself now for the
purpose of making an opening Statement.
In 1963, President Kennedy signed the Equal Pay Act and our
country enshrined into law a fundamental concept. Equal pay for
equal work, regardless of sex. Because of this landmark law,
Title VII of the Civil Rights Act of 1964, and more recently,
the Lilly Ledbetter Fair Pay Act, we have made tremendous
progress in reducing inequities for women in the workplace.
Unfortunately, loopholes and insufficient enforcement have
allowed wage discrimination to persist. The Equal Pay Act has
been law for more than half a century, but in 2019 equal pay
for equal work is not always a reality.
Today, women earn, on average, 80 cents on the dollar
compared to white men in substantially equal jobs. The wage gap
is even worse for women of color. For example, black women earn
an average of 61 cents on the dollar, native women earn an
average of 58 cents on the dollar, and Latina women earn an
average of 53 cents on the dollar compared to white men in
substantially equal jobs.
The wage gap persists in nearly every line of work,
regardless of education, experience, occupation, industry, or
job title. This has severe consequences for the lives of
working women and families and for our economy.
The lack of easily accessible data on wages makes
discrimination difficult to detect, let alone prevent. Even
when wage discrimination is discovered, working women still
face significant barriers to meet the heavy burden of proof for
holding employers accountable for discrimination.
Not only is it difficult to prove a pay disparity between
employees, identifying an employee of the opposite sex in an
equal position who is paid more in the exact same physical
location can be impossible in many situations. This is even
more challenging when information about wages and pay raises is
often kept secret, and in many cases, even barred from being
shared between coworkers.
The roadblocks to enforcing pay equity help explain why pay
inequity still exists for women, even with the Equal Pay Act.
Several States have acted to address pay inequities, including
bipartisan efforts in my own home State of Oregon, but it is
time for Congress to address persistent wage discrimination
nationwide.
Today's legislative hearing will focus on H.R. 7, the
Paycheck Fairness Act, a proposal to confront and eliminate
loopholes that allow for gender-based wage discrimination.
The Paycheck Fairness Act would require employers to prove
that a pay disparity exists for legitimate reasons. It would
ban retaliation against workers who discuss their wages and
allow more workers to participate in class action lawsuits
against systemic pay discrimination.
It would prohibit employers from seeking the salary history
of prospective employees, which despite ongoing legal disputes,
is in line with existing precedent. The bill would also develop
wage data collection systems and provide assistance to
businesses to improve equal pay practices.
With this legislation we have the opportunity to disrupt a
national cycle of discriminatory pay that keeps too many women
and families in poverty. And we have the opportunity to finally
make equal pay for equal work a reality by passing the Paycheck
Fairness Act.
Thank you, and I now recognize the distinguished Ranking
Member of the Civil Rights and Human Services Committee, Mr.
Comer, for the purpose of making an opening statement.
[The information referred to follows:]
Prepared Statement of Hon. Suzanne Bonamici, Chairwoman, Subcommittee
on Civil Rights and Human Services
In 1963, President Kennedy signed the Equal Pay Act and our country
enshrined into law a fundamental concept: ``equal pay for equal work,
regardless of sex.'' Because of this landmark law, Title VII of the
Civil Rights Act of 1964, and more recently, the Lilly Ledbetter Fair
Pay Act, we have made tremendous progress in reducing inequities for
women in the workplace.
Unfortunately, loopholes and insufficient enforcement have allowed
wage discrimination to persist. The Equal Pay Act has been law for more
than a half century, but in 2019 equal pay for equal work is not always
a reality.
Today, women earn, on average, 80 cents on the dollar compared to
white men in substantially equal jobs. The wage gap is even worse for
women of color. For example, Black women earn an average of 61 cents on
the dollar, Native women earn an average of 58 cents on the dollar, and
Latina women earn an average of 53 cents on the dollar compared to
white men in substantially equal jobs. The wage gap persists in nearly
every line of work, regardless of education, experience, occupation,
industry, or job title. This has severe consequences for the lives of
working women and families and for our economy.
The lack of easily accessible data on wages makes discrimination
difficult to detect, let alone prevent. Even when wage discrimination
is discovered, working women still face significant barriers to meet
the heavy burden of proof for holding employers accountable for
discrimination. Not only is it difficult to prove a pay disparity
between employees, identifying an employee of the opposite sex in an
equal position who is paid more in the exact same physical location can
be impossible in many situations. This is even more challenging when
information about wages and pay raises is often kept secret, and in
many cases, even barred from being shared between coworkers.
The roadblocks to enforcing pay equity help explain why pay
inequity still exists for women even with the Equal Pay Act. Several
States have acted to address pay inequities, including bipartisan
efforts in my home State of Oregon, but it is time for Congress to
address persistent wage discrimination nationwide. Today's legislative
hearing will focus on H.R. 7, the Paycheck Fairness Act, a proposal to
confront and eliminate loopholes that allow for gender-based wage
discrimination.
The Paycheck Fairness Act would require employers to prove that a
pay disparity exists for legitimate reasons. It would ban retaliation
against workers who discuss their wages and allow more workers to
participate in class action lawsuits against systemic pay
discrimination. It would prohibit employers from seeking the salary
history of prospective employees, which despite ongoing legal disputes,
is in line with existing precedent. The bill would also develop wage
data collection systems and provide assistance to businesses to improve
equal pay practices.
With this legislation we have the opportunity to disrupt a national
cycle of discriminatory pay that keeps too many women and families in
poverty. And we have the opportunity to finally make equal pay for
equal work a reality by passing the Paycheck Fairness Act.
Thank you and I now yield to the Ranking Member, Mr. Comer.
______
Mr. COMER. Thank you, Madame Chair. Women deserve equal pay
for equal work. In 1963, Congress amended the Fair Labor
Standards Act with the Equal Pay Act, making it illegal to pay
different wages to employees of the opposite sex for equal
work.
The following year, Congress approved the Civil Rights Act
of 1964 which made it illegal for employers to discriminate
based on race, color, national origin, religion, and sex. These
laws marked a seismic shift in the United States as we affirmed
as a nation that discrimination cannot have a place in America.
We learned the hard way that change this significant cannot and
does not happen overnight. But the fact remains that while some
bad bosses may have blurred the lines over the past several
decades when it comes to fairness, the law has not been on
their side.
Economic studies conducted by government and private
entities alike have consistently demonstrated that women tend
to make better choices about managing work life demands than
men. If employees of different sexes are going to do the same
work, they are entitled to the same pay.
The American work force is comprised of more women than
ever before, 74.9 million women. Of the 2.8 million jobs
created in the past year, more than 58 percent have been filled
by women. The number of women-owned employer firms continues to
rise and census data shows that women own about one in five
employer businesses nationwide.
This contribution to the American work force is profound
and it must be celebrated. All women deserve fairness and
dignity as they seek greater options and opportunities in their
respective careers.
Republicans are committed to that future and we will
continue to focus on strengthening economic policies that
affirm the bedrock principle of equal pay for equal work.
Unfortunately, the legislation which is the focus of today's
hearing has many shortcomings in this regard and does not help
the people its authors want you to think it does.
I look forward to the dialog with our witnesses today and,
Madame Chair, I yield back.
[The information referred to follows:]
Prepared Statement of Hon. James Comer, Ranking Member, Subcommittee on
Civil Rights and Human Services
Women deserve equal pay for equal work. In 1963, Congress amended
the Fair
Labor Standards Act with the Equal Pay Act, making it illegal to
pay different wages to employees of the opposite sex for equal work.
The following year, Congress approved the Civil Rights Act of 1964,
which made it illegal for employers to discriminate based on race,
color, national origin, religion, and sex.
These laws marked a seismic shift in the United States as we
affirmed as a nation that discrimination cannot have a place in
America. We learned the hard way that change this significant cannot
and does not happen overnight. But the fact remains that while some bad
bosses may have blurred the lines over the past several decades when it
comes to fairness, the law has not been on their side.
Economic studies conducted by government and private entities alike
have consistently demonstrated that women tend to make better choices
about managing work-life demands than men. If employees of different
sexes are doing the same work, they are entitled to the same pay.
The American work force is comprised of more women than ever before
74.9 million women. Of the 2.8 million jobs created in the past year,
more than 58 percent have been filled by women. The number of women-
owned employer firms continues to rise, and Census data shows that
women own about 1 in 5 employer businesses nationwide.
This contribution to the American workforce is profound, and it
must be celebrated. All women deserve fairness and dignity as they seek
greater options and opportunities in their respective careers.
Republicans are committed to that future, and we will continue to
focus on strengthening economic policies that affirm the bedrock
principle of equal pay for equal work. Unfortunately, the legislation
which is the focus of today's hearing has many shortcomings in this
regard and does not help the people its authors want you to think it
does. I look forward to the dialog with our witnesses today.
______
Chairwoman BONAMICI. Thank you, Mr. Comer. And I now
recognize the distinguished chairwoman of the Workforce
Protections Subcommittee, Ms. Adams, for the purpose of making
an opening statement.
Ms. ADAMS. Thank you very much and good morning. I want to
share my appreciation to Chairwoman Bonamici, Ranking Members
Byrne and Comer, and to all of the witnesses who have joined us
here today for this important discussion. Thank you all for
being here.
It takes the average woman an additional 91 days, three
additional months, to earn what her male peers earned in 2018
and that is unacceptable.
From the North Carolina House to the U.S. House, for 3
decades I have been fighting to close gender and gender-based
wage gaps. Today, I guess I feel a little bit like Fannie Lou
Hamer. Sick and tired of being sick and tired of the ongoing
inequality.
Fifty-six years have passed since we signed the Equal Pay
Act into law and it has been 10 years since President Obama
signed into law the Lilly Ledbetter Fair Pay Act. But today in
my district in North Carolina, women still only make about 82
cents for every dollar a man makes. And nationally, the
statistic is even worse, 80 cents for every dollar.
Women of color are even less likely to make as much as a
man working the same job. Black women earn only 63 cents for
every dollar a man makes.
When women are shortchanged our children, our families, our
economy, all shortchanged. In fact, it shortchanges us about
$500 billion dollars a year.
And that is why as the new chair of the Subcommittee on
Workforce Protections, I am proud to host the subcommittee's
first hearing on addressing persistent gender-based wage
discrimination through the Paycheck Fairness Act. Because we
can no longer wait while every day women across the Nation are
deprived of equal wages for equal work. Time is up for that.
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 gender-based wage disparity once and
for all. It is the right thing to do because it is right. It is
always right to do what is right.
And so at this time, I ask unanimous consent to introduce
for the record four letters all in support of the Paycheck
Fairness Act. One from the National Partnership for Women and
Families, one from the American Bar Association, one from the
American Association of University Women, and the other from
the National Women's Law Center.
I look forward to our discussion today--without objection,
Madame Chair, I am sorry. And I look forward to our discussion
today and yield to Ranking Member, Mr. Byrne, for the purpose
of making an opening statement.
[The information referred to follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Hon. Alma S. Adams, Chairwoman, Subcommittee on
Workforce Protections
Good morning. I want to share my appreciation to Chairwoman
Bonamici, Ranking Members Byrne and Comer, and to the witnesses who
have joined us here today for this important discussion.
Thank you for being here today.
It takes the average woman an additional 91 days--three additional
months--to earn what her male peers earned in 2018.
That is unacceptable.
From the North Carolina House to the U.S. House, for 3 decades, I
have been fighting to close gender and gender-based wage gaps.
Today, I feel like Fannie Lou Hamer Sick and tired of being sick
and tired of this ongoing inequality.
Fifty-six years have passed since we signed the Equal Pay Act into
law.
And it's been 10 years since President Obama signed into law the
Lilly Ledbetter Fair Pay Act.
But today in my District in North Carolina, women still only make
about 82 cents for every dollar a man makes.
And nationally, that statistic is even worse 80 cents for every
dollar.
Women of color are even less likely to make as much as a man
working the same job.
Black women earn only 63 cents for every dollar a man makes.
When women are shortchanged our children, families and our economy
are shortchanged.
In fact, it shortchanges us 500 billion dollars annually.
That's why, as the new chair of the Subcommittee on Workforce
Protections, I am proud to co-host the subcommittee's first hearing on
addressing persistent gender-based wage discrimination through the
Paycheck Fairness Act.
We can no longer wait while, every day, women across the Nation are
deprived of equal wages for equal work.
Time's up for that.
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 gender-based wage disparity once and for all.
It's the right thing to do because it's right!
At this time, I ask unanimous consent to introduce for the record
four letters all in support of the Paycheck Fairness Act.
One from the National Partnership for Women & Families, one from
the American Bar Association, one from the American Association of
University Women, and one from the National Women's Law Center.
I look forward to our discussion today and yield to the Ranking
Member, Mr. Byrne.
______
Chairwoman BONAMICI. Thank you, Madame Chairwoman. I now
recognize the distinguished Ranking Member of the Workforce
Protections Subcommittee, Mr. Byrne for the purpose of making
an opening Statement.
Mr. BYRNE. Thank you, Madame Chairman. Women deserve equal
pay for equal work. Congress affirmed this value with the Equal
Pay Act of 1963, which made it illegal to pay different wages
to employees of the opposite sex for equal work.
Everyone in this room must continue to uphold and defend
this important principle but the legislation under discussion
today, the so-called Paycheck Fairness Act is the wrong
approach to ensure that current equal pay protections are
fortified. It may come as a surprise to some that the Paycheck
Fairness act offers no new protections against pay
discrimination.
Let me repeat that. The legislation under discussion today
offers no new protections against pay discrimination. Instead,
H.R. 7 imposes a one-size-fits-all mandate for one of the most
varied and complex work forces in the world.
Rather than allowing for informed discussion, the Paycheck
Fairness Act strictly limits communication between employers
and employees on key hiring decisions. Under this bill, the
burdens laid on the backs of employers and the lack of clarity
for employees are simply unworkable.
The Paycheck Fairness Act is not designed to protect women.
It is a false promise that rates opportunities and advantages
for lawyers and not for working women. Instead of treating sex
discrimination charges with the seriousness they deserve, the
Paycheck Fairness Act will make it easier for lawyers to pursue
lawsuits of questionable validity for the purpose of syphoning
off unlimited pay days from settlements and jury awards, lining
their own pockets and dragging women through tedious, never
ending legal dramas.
Now I know my fair share of lawyers, having previously
practiced law myself. Many of them are great men and women
working on behalf of their clients but many of them are also
all about the bottom line. And let me tell you, the Paycheck
Fairness Act would be a cash cow for lawyers working on a
contingency fee basis, some of whom get 40 percent or more of
the award.
The changes to the Equal Pay Act in H.R. 7 will also make
it extraordinarily difficult, if not impossible, for employers
to defend against pay discrimination suits even when pay
differences are the results of legitimate factors like
experience, education, and performance.
There remain bad actors in the world that engage in pay
discrimination. It is repugnant and it is illegal and those bad
actors must be held accountable. But if we open the gates to
limitless, frivolous lawsuits, we do a disservice to genuine
victims seeking justice against offending employers. The best
way we can create opportunities for all American workers,
especially working women, is through strong economic policy. We
know women are reaping the benefits of the present strong
economy. More than half the jobs created in the last year have
gone to women. Those women and the next generation of women in
the work force deserve more than empty promises and deceptively
named bills. And I yield back.
[The information referred to follows:]
Prepared Statement of Hon. Bradley Byrne, Ranking Member, Subcommittee
on Workforce Protections
Women deserve equal pay for equal work. Congress affirmed this
value with the Equal Pay Act of 1963, which made it illegal to pay
different wages to employees of the opposite sex for equal work.
Everyone in this room must continue to uphold and defend this important
principle, but the legislation under discussion today, the so--called
Paycheck Fairness Act, is the wrong approach to ensure that current
equal pay protections are fortified.
It may come as a surprise to some that the Paycheck Fairness Act
offers no new protections against pay discrimination. Let me repeat
that: the legislation under discussion today offers no new protections
against pay discrimination.
Instead, H.R. 7 imposes a ``one-size-fits-all'' mandate to one of
the most varied and complex work forces in the world. Rather than
allowing for informed discussions, the
Paycheck Fairness Act strictly limits communication between
employers and employees on key hiring decisions. Under this bill, the
burdens laid on the backs of employers and the lack of clarity for
employees are simply unworkable.
The Paycheck Fairness Act is not designed to protect women it is a
false promise that creates opportunities and advantages for lawyers not
for working women.
Instead of treating sex discrimination charges with the seriousness
they deserve, the Paycheck Fairness Act will make it easier for lawyers
to pursue lawsuits 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 dramas.
Now, I know my fair share of lawyers, having previously practiced
law myself. Many of them are great men and women working on behalf of
their clients. But many of them are also all about the bottom line. And
let me tell you, the Paycheck Fairness Act would be a cash cow for
lawyers working on a contingency fee basis, some of whom get 40 percent
or more of the award.
The changes to the Equal Pay Act in H.R. 7 will also make it
extraordinarily difficult, if not impossible, for employers to defend
against pay discrimination suits, even when pay differences are the
result of legitimate factors like experience, education, and
performance.
There remain bad actors in the world that engage in pay
discrimination. It's repugnant and illegal, and those bad actors must
be held accountable. But if we open the gates to limitless frivolous
lawsuits, we do a disservice to genuine victims seeking justice against
offending employers.
The best way we can create opportunities for all American workers,
especially working women, is through strong economic policy. We know
women are reaping the benefits of this strong economy. More than half
the jobs created in the last year have gone to women. Those women and
the next generation of women in the workforce deserve more than empty
promises and deceptively named bills.
______
Chairwoman BONAMICI. Thank you, Mr. Byrne. 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 work format by 5
p.m. on February 26, 2019. I will now introduce the witnesses
for our member panel.
Mr. BYRNE. Madame Chairwoman?
Chairwoman BONAMICI. Yes, Mr. Byrne.
Mr. BYRNE. I have a parliamentary inquiry.
Chairwoman BONAMICI. The gentleman from Alabama will State
his parliamentary inquiry.
Mr. BYRNE. Madame Chairwoman, while I appreciate the
purpose of this member panel and certainly the distinguished
members on it, I would like to point out that under the
Democrat majority just last week at the Judiciary Committee, a
colleague from our side of the aisle, Mr. Scalise, was denied
the opportunity to testify before that committee despite having
direct experience perspective on the topic being discussed.
So again, while I am always willing to listen to my
colleagues, I think it is a bit of a double standard by the
majority to deny a member the right to testify where they
disagree what that member only allow--only to allow other
members to testify when they happen to agree with them.
Can the Chairwoman explain why under the parliamentary
customs of the house, members of the majority are being allowed
to speak today but members of the minority were not allowed to
speak last week at the Judiciary Committee?
Chairwoman BONAMICI. I cannot speak to what transpired in
the judiciary committee. I can only speak to what transpired in
the process of planning for this hearing. The majority and
minority staff exchanged witness names on February 10, 3 days
ago. Minority staff never requested or even expressed interest
in having a minority member testify. If they had we would have
granted that request.
I will now move to introductions of the witnesses on our
member panel. Representative Rosa DeLauro is the author of H.R.
7, the Paycheck Fairness Act. She represents Connecticut's 3d
congressional District. She has long fought for America's
working women and families. Representative DeLauro has led the
effort in Congress to ensure equal pay for equal work, all
employees' access to paid sick days and all workers access to
paid family and medical leave.
Representative Eleanor Holmes Norton is in her 15th term as
the Congresswoman for the District of Columbia. Before her
congressional service, President Jimmy Carter appointed her to
serve as the first woman to chair the U.S. Equal Employment
Opportunity Commission. In Congress, she has been a civil
rights and feminist leader.
Congressman Don Beyer is serving his third term as the U.S.
representative from Virginia's 8th district. He was the
lieutenant Governor for Virginia from 1990 to 1998 and was
Ambassador to Switzerland and Liechtenstein under President
Obama. Representative Beyer has spent four decades building his
family business in northern Virginia.
Briefly some instructions to our witnesses which you
probably already know. For the record, we appreciate all of the
witnesses being here today and look forward to your testimony.
Let me remind the witnesses that we have read your written
Statements. They will appear in full in the hearing record.
Pursuant to committee rule 7d and committee practice, each of
you is asked to limit your oral presentation to a 5 minute
summary of your written Statement.
Before you begin your testimony, please remember to press
the button on the microphone in front of you so it will turn on
and we can hear you. As you begin to speak, the light in front
of you will turn green. After 4 minutes, the light will turn
yellow to signal you have 1 minute remaining. When the lights
turn red your 5 minutes have expired.
I will first recognize Representative DeLauro.
STATEMENT OF THE HONORABLE ROSA L. DELAURO, MEMBER OF CONGRESS,
U.S. HOUSE OF REPRESENTATIVES
Ms. DELAURO. Thank you very much, Madame Chair. I am so
pleased to be here this morning and to be with my colleagues,
Congresswoman Eleanor Holmes Norton and Congressman Beyer. I
want to say a thank you to Chairman Bobby Scott, as well as
Subcommittee Chair on Civil Rights and Human Services, Suzanne
Bonamici, and Subcommittee Chair on Workforce Protections, Alma
Adams.
Let me recognize the Ranking Member of the full committee,
Virginia Foxx, as well subcommittee Ranking Members James
Comer, Bradley Byrne, and all of the members of the committee
for welcoming us here this morning.
I might just anecdotally tell you that it was some 12 years
ago, in April 2007, where Congresswoman Norton and myself
testified before the Education and Labor subcommittee on this
topic of paycheck fairness. Also to tell you that we twice
passed the Paycheck Fairness Bill in the House of
Representatives in 2008 and 2009. And we are now here again and
we anticipate that we will be able to once again pass the
Paycheck Fairness Bill in the House of Representatives.
For more than two decades, we have pushed, we have battled
to strengthen the Equal Pay Act of 1963. We launched side by
side into the fray to elevate paid discrimination to emphasize
how central its impact is to working families.
I cannot tell you how difficult it has been to break
through on something so simple. Men and women in the same job
deserve the same pay. Now the issue and the environment have
collided. The House of Representatives just welcomed a diverse
class in its history, the most diverse class including the most
female members ever and equal pay is at the center of the
discourse.
The Paycheck Fairness Act would toughen remedies in the
Equal Pay Act of 1963 giving America's working women the
opportunity to fight against wage discrimination, receive the
paycheck that they should have earned.
Whether through Equal Pay Act or Title VII, current law
makes it difficult for women to proceed with equal pay cases
even if a case proceeds and women are awarded a legal victory,
the damages are often insubstantial, providing women with
little compensation and employers with little deterrent from
practicing future wage discrimination.
Some claim the wage gap is a myth. Women continue to earn
20 percent less than men, on average, according to census data.
Women of color, African American women 61 cents. Latinas make
only 53 cents on the dollar when compared to white, non-
Hispanic men.
We need to recognize the lack of pay equity translates into
less income toward calculating pension, retirement, and in some
cases Social Security.
The fact is that 60 years after President Eisenhower called
for equal legislation and more than 55 years after President
Kennedy signed the Equal Pay Act, pay discrimination is still
very much a reality in our country. In 2017, there were 25,605
charges of unlawful, sex-based pay discrimination with the U.S.
Equal Employment Opportunity Commission and 99--996 Equal Pay
Act charges.
Of course, by now, we are all familiar with the case of
Lilly
Ledbetter and the Supreme Court decision that closed the
court room door to all women. But we reopened that door with
the Lilly Ledbetter Fair Pay Act but the underlying issue, of
pay
Discrimination remains. It is systemic. It is
discriminatory. It is a barrier. And just as our country has
done to bring down other discriminatory barriers, we must see--
use the collective power of the American people, in the form of
the U.S. Congress, to ensure women have the power to gain
economic security for themselves and their families.
Under the Paycheck Fairness Act, any employee can sue for
compensatory and punitive damages without facing the arbitrary
caps they face under Title V--under Title VII.
It protects employees from retaliation for sharing salary
information with their co-workers, with some exemptions. It
establishes a grant initiative to provide negotiation skills
training programs for girls and women.
What it does not do. It does not eliminate key employer
defenses against claims of discrimination. It makes clear that
when an employer states that its pay scale is informed by a
``factor other than sex,'' that it must actually be true, not
just an excuse to continue discriminatory practices.
H.R. 7 merely restores Congress's intent, which has been
undermined by court interpretations over the years allowing
employers to escape liability in cases in which their decisions
were, in fact, based on sex.
I thank the Committee for this opportunity to testify and
for addressing this critical issue. When President Kennedy
signed the Equal Pay Act over 55 years ago, he said and let me
quote, ``Add to our laws another structure basic to democracy
and affirm our determination that when women enter the labor
force they will find equality in their pay envelope.'' We have
the opportunity to make good on that promise that presidents of
both parties have made. Let us seize that opportunity.
I thank the Chair and I thank the committee for allowing me
to speak this morning.
[The statement of Ms. DeLauro follows:]
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Chairwoman BONAMICI. Thank you very much, Representative
DeLauro. I now recognize Representative Eleanor Holmes Norton.
STATEMENT OF THE HONORABLE ELEANOR HOLMES NORTON, MEMBER OF
CONGRESS, U.S. HOUSE OF REPRESENTATIVES
Ms. HOLMES NORTON. Thank you chairwoman Chair Bonamici,
Chairwoman Adams, Ranking Member Comer, Ranking Member Byrne. I
appreciate the opportunity to testify on H.R. 7. I will try to
summarize my testimony.
I especially welcome H.R. 7 as it bears on my own work when
I chaired the EEOC and moved jurisdiction of the Equal Pay Act
under a reorganization under President Carter from the Labor
Department to the EEOC so that like statutes could be more
easily enforced under the same agency.
The Equal Pay Act was the first of the great Civil Rights
Acts. And we are way overdue in bringing it up to date and
strengthening it as the DeLauro bill does. It--we--this bill
makes it easier for complainants to participate in a class
challenging pay discrimination.
Now pay discrimination should--class members should once a
complainant files should include all who probably make the same
or relatively the same amounts of money. That would be a more
efficient way to enforce the Equal Pay Act. I appreciate that
it improves Labor Department's ability to enforce the EPA
through the Office of Federal Contract Compliance.
I particularly appreciate that my good friend, this--the
champion of this bill, Representative DeLauro has included my
Pay Equity Act for all in H.R. 7.
This act does something that I think most of us don't even,
may not even recognize to be discrimination. Some of us may do
it ourselves. That is to ask an applicant for his or her
employment history. Even though many employers may not intend
to discriminate, the effect almost surely is to discriminate
when you consider where women are and often people of color are
in the workplace.
Evidence shows that the historically disadvantaged groups
often start out with unfair and artificially low wages,
compared with their white male counterparts. Imagine how this
discrimination then is compounded from job to job since you
can't build on the salary you should have made because you
didn't make the salary you were entitled to in the first place.
Job offers should be based on an applicant's skill, merit,
not on salary history. This bill, my own bill would allow the
assessment of penalties against employers who ask salary and
act on salary as a way of considering salary and hiring. We
know what is true because of the verified as studies.
To cite one, a recent study showed that when employers were
not allowed to ask the salary history the employee earned 9
percent more than when the employer was allowed to ask that
history. I believe this is one of the major reasons for the
stubborn gap that we have not been able to move much between
the wages of men and women.
The H.R. 7 would also direct the EEOC to collect data on
salaries based on a number of criteria including sex. What? We
didn't know until now what the difference was based on sex
because we didn't have the data? Everything I did at EEOC
depended on the data, most often with class actions where
having the data you can bring actions that involve large
numbers of people once there is a remedy.
The fact that we have not had the relevant data on sex may
be one reason why women and minorities have made more progress
in getting jobs than in equal pay once they have those jobs.
I very much appreciate the priority, Madame Chair, that you
have given to this long overdue bill.
[The statement of Ms. Holmes Norton follows:]
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Chairwoman BONAMICI. Thank you very much for your
testimony, Representative. I now recognize Representative Don
Beyer from Virginia.
STATEMENT OF THE HONORABLE DONALD S. BEYER, JR., MEMBER OF
CONGRESS, U.S. HOUSE OF REPRESENTATIVES
Mr. BEYER. Thank you Chairman Bonamici, Chairman Adams,
Ranking Member Comer, Ranking Member Byrne. Thank you very much
for inviting me to participate in this important discussion on
equal pay for equal work.
We know when women succeed, America succeeds. Women are
running in unprecedented numbers, they are marching in
unprecedented numbers, and they are winning in unprecedented
numbers, with I think 131 women now in Congress.
And I am incredibly grateful to play a supportive role in
this effort that Rosa DeLauro and Eleanor Holmes Norton have
been pursuing for decades.
My priority is women's empowerment and the elevation of
women's voices and concerns. We have made progress. The Lily
Ledbetter Fair Pay Act, the Survivors' Bill of Rights Act, but
there is still much more to do because persistent pay gaps
exist in the U.S. work force that correlate specifically with
sex, race, and ethnicity.
Unequal pay for unequal work--for equal work exists over a
spectrum of jobs, regardless of educational level, regardless
of geographic location. Economists have found that 62 percent
of the wage gap can be explained by three factors. Experience,
industry, and occupation, but the remaining 38 percent cannot
be explained by such differences.
Although Federal law specifically prohibits compensating
men and women differently for the same work, the law must be
strengthened. The effective enrollment of this mandate is
impeded by a lack of sufficiently robust and reliable data on
compensation, including data by sex and race.
Just this weekend, we spent time with our middle daughter
who is a senior front end web designer manager. She likes to
emphasize that last word. And so she is a woman who codes. And
she had just discovered to her dismay that her male
counterparts were making money for doing exactly the same job.
It is this lack of data that acts as a barrier to closing the
persistent pay gap for women and people of color.
As a business owner and an employer, I understand the value
of data because the aphorism is you can't manage what you don't
measure. We like to think we are driven by data. Data exposes
trends in hiring, paying and promoting employees, which can
inform the appropriate interventions. Data can reveal sex in
racially segregated jobs, or a lack of women or people of color
in upper management, and disparate salaries, benefits, or
bonuses.
Literally it can arm businesses with the information that
they need to remedy unjustified pay gaps. It can wake many of
us up who are leading businesses to understand what is
happening within our own work force and it can provide a lens
to examine the intersectionality of issues that can contribute
to wage gaps.
Since the enactment of the Civil Rights Act in 1964, the
EEOC has been empowered to collect employment data to identify
these discriminatory employment patterns based on race, gender,
and national origin. And for over 50 years, companies have used
the EEO-1 form to report this important demographic data.
So as we look to ensure true paycheck fairness, it is only
natural that we ask the EEOC to improve upon its system of data
collection and help with wage data to identify wage
disparities. Only then will businesses have the tools to better
identify, correct, and eliminate illegal wage disparities.
You know, in business we are constantly thinking about how
we can innovate, provide a better product, keep or create an
ever better culture. Guaranteeing that men and women receive
equal pay for equal work is a principle rooted in our Nation's
commitment to equality and fairness.
The Paycheck Fairness Act has been introduced in every
Congress since the 105th. The time has come to pass this
legislation. Today is an important day for us to move forward
together, for us to make that difference we all know is needed
for us to break through for change.
Thank you Madame Chair, I yield back.
[The statement of Mr. Beyer follows:]
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Chairwoman BONAMICI. Thank you very much Congresswoman
DeLauro, Congresswoman Holmes Norton and Congressman Beyer. As
we transition to the next panel, which we will do immediately,
I want to remind my colleagues that pursuant to committee
practice materials for submission for the hearing record must
be submitted to the committee clerk within 14 days following
the last day of the hearing, preferably in Microsoft Word
format. The materially submitted must address the subject
matter of the haring. Only a member of the committee or an
invited witness may submit materials for inclusion in 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. Please recognize that years from
now the link might no longer work.
Again I want to thank the witnesses for their participation
today. What we have learned is very valuable. We will now seat
the second panel. Thank you for joining us. I will now
introduce our witnesses for the second panel.
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 of working across
a broad set of issues central to women's live including income
security, health and reproductive rights, education, access and
workplace justice.
Ms. Camille Olson is a partner at 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.
I am pleased to recognize my colleague Ms. Pramila Jayapal
to briefly introduce Ms. Kristin Rowe-Finkbeiner.
Ms. JAYAPAL. Thank you so much, Madame Chair, for this
opportunity. It is my great honor to introduce Kristin Rowe-
Finkbeiner who is the Executive Director and CEO and the
cofounder of Moms Rising who is joining me or joining us from
my home State of Washington.
We are so proud of the work that Moms Rising has done not
just in Washington State but around the country. Kristin has
been deeply involved in grassroots engagement and policy
analysis for more than 2 decades and Moms Rising now has over 1
million members and works to increase family economic security,
to decrease discrimination against women and mothers and to
build a nation where businesses and families can thrive.
Thank you so much for joining us and we are--you continue
to make us proud in Washington.
Chairwoman BONAMICI. Thank you Rep Jayapal. Now I want to
introduce Ms. Jenny Yang. She served as the Chair of the U.S.
Equal Employment Opportunity Commission or EEOC from 2014 to
2017 and as a member of the commission from 2013 to 2018. She
is currently a partner with Working Ideal which advises
employers on building inclusive work places, recruiting diverse
talent and ensuring fair pay. She is also a fellow at the Urban
Institute where she examines the impact of changing workplace
structures on low wage workers. Prior to her time at the
Commission she spent 15 years litigating equal pay and other
discrimination cases on behalf of employees.
We appreciate all the witnesses for being here today. We
look forward to your testimony. Let me remind the witnesses
that we have read your written Statements and they will appear
in full in the hearing record.
Pursuant to committee rule 7D and committee practice, each
of you is asked to limit your oral presentation to a 5 minute
summary of your written Statement. Let me remind the witnesses
that pursuant to Title 18 of the U.S. Code, Section 1011--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.
Before you begin your testimony, please remember to press
the button on the microphone in front of you so it can turn on
and all members can hear you and as you begin to speak, the
light in front of you will turn green. After 4 minutes the
light will turn yellow to signal that you have 1 minute
remaining. When the light turns red, your 5 minutes have
expired and we ask that you wrap up.
We will let the entire panel make their presentations
before we move to member questions. When answering a question
also please remember to turn on your microphone. I will first
recognize Ms. Goss Graves for your testimony.
STATEMENT OF FATIMA GOSS GRAVES, PRESIDENT AND CEO, NATIONAL
WOMEN'S LAW CENTER
Ms. GOSS GRAVES. Thank you, Chair Bonamici, Chair Adams,
Ranking Member Comer, Ranking Member Byrne, Chair Scott and
Ranking Member Foxx, and all the members of the committee.
Thank you for the opportunity to submit testimony today. I am
Fatima Goss Graves, President and CEO of the National Women's
Law center.
It has been a decade since Congress passed the Lilly
Ledbetter Fair Pay Act and in that time, the push for equal pay
across this country has only increased. And Congress
unfortunately has failed to keep up.
States and cities have responded accordingly by attempting
to fill the gaps in Federal law. Since 2016, 6 States have
prohibited employers from relying on prior salary history,
information from job candidates in order to set their new
salaries. Three have tightened legal loopholes that allow
employers to justify paying women less for equal work.
And because pay discrimination is so often cloaked in
secrecy and seldom obvious to the person who is actually
directly affected, States and localities across this country
have taken measures in recent years to bring pay practices into
the light through pay data reporting requirements and laws
protecting employees' rights to talk about how much they make
with each other.
In fact, 18 States and the District of Colombia have
enacted provisions to stop employers from retaliating against
employees who discuss their own pay with each other. Corporate
leaders have also recognized that equal pay just makes business
sense. More than 100 major companies took the White House Equal
Pay Pledge and companies from Excentra to Gap to Raytheon and
many more have followed through by instituting measures to
identify and close pay gaps.
And the push for equal pay doesn't stop at the U.S. borders
with United Kingdom being one of the companies that has
recently found that public and private employers in the UK, its
250 employers or more are more required to annually publish the
difference between the average pay of their male and their
female employees. This new requirement has already prompted
companies to outline action plans for how they are going to
reduce their and address their pay gaps.
But in the face of this giant cultural shift that has added
new urgency to calls for equal pay around this country,
Congress still has failed to act. And it is not enough for some
States to pass laws or for some employers to do the right thing
or for global corporations to fill indirect pressure because of
laws in other countries are stronger.
Every woman in this country, especially the black women and
Latinas and native women who experience the most yawning pay
gaps deserves robust, baseline, equal pay protections in a
Federal law that actually work. So we are talking about a
gender wage gap that has not dramatically changed over the last
decade and that follows women into retirement.
It is a gap that means Latinas lose over the course of a 40
years career over $1 million compared to white non-Hispanic
men. That is really life changing money. And it is the sort of
money that has the potential to transform opportunities for
individuals and for families and for communities.
So you will hear from some skeptics that the wage gap is
just about women's choices or that it is impossible to actually
abandon practices that have meant again and again that women
make less over time or that more than 50 years after the Equal
Pay Act was passed there is no need to update our kind of
ineffective laws but I just believe that we can do better.
It is time to match the seriousness of the women in this
country who are calling for change. The Paycheck Fairness Act
is a part of a response to this urgent call to shift the ways
of doing business that have persistently devalued women's work.
The bill promotes pay transparency by borrowing retaliation
against workers who voluntarily discuss or disclose their own
wages and requires employees to report paid data to the EEOC.
It prohibits employers from relying on salary history to set
pay when hiring new employees so that pay discrimination
doesn't follow women and people of color from job to job and
employers are paying based on the job not based on the fact
that women and people of color tend to generally make less. And
it closes loopholes that have allowed employers to pay women
less than men for the same work without a legitimate business
justification related to the job. And it ensures women can
receive the same robust remedies for sex based pay
discrimination that are currently available to those who are
subjected to race and ethnicity discrimination under other
laws.
So by updating our equal pay laws to reflect our reality
today, the Equal Pay Act could be the sort of statute that
would really advance equity and dignity for women at work. So
thank you for the opportunity to testify today. As you said my
full testimony is in--will be submitted for the record and I
look forward to any questions.
[The statement of Ms. Goss Graves follows:]
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Chairwoman BONAMICI. Thank you for your testimony. I now
recognize Ms. Olson for your testimony.
STATEMENT OF CAMILLE OLSON, PARTNER, SEYFARTH SHAW LLP
Ms. OLSON. Good morning Subcommittee members. As an
employment attorney at Seyfarth Shaw, I work with companies
nationwide analyzing compensation practices to ensure that pay
differences between employees performing equal work are job
related. I have also litigated nationwide numerous cases
analyzing and alleging violations of Title VII, the Equal Pay
Act, and State equal pay laws.
My written testimony describes opportunities to strengthen
the Equal Pay Act. It also details a number of significant
concerns that I have with H.R. 7. I would like to share three
of those opportunities and those concerns with you today. H.R.
7 presumes that the reported wage gap and all employee current
pay rates result from employer discrimination and rewrites
existing legal requirements, remedies and class action
procedures contained in the Equal Pay Act. Specifically, H.R. 7
effectively eliminates the factor other than sex defense,
prohibits an employer from seeking or relying on an applicant's
current pay when extending a job offer, and imposes unlimited
compensatory and punitive damages while inserting a more
attorney-friendly class action device among other amendments
described in my written testimony. First, H.R. 7 de facto
eliminates the factor other than sex defense. Under the Equal
Pay Act, most courts currently require the employer prove that
any pay difference is job-related. If the employer cannot do
so, the plaintiff prevails. A plaintiff is not required to make
any showing of discriminatory intent under the Equal Pay Act.
Under H.R. 7, an employer would be required to prove with
respect to every pay differential between employees not only
that the reason was job-related but also that it paid one
employee more because it was a business necessity, that the
business necessity necessarily covered 100 percent of the pay
difference, and that business necessity was not derived by a
sex-based differential in compensation.
And even if an employer does that, it still loses if years
later a plaintiff's attorney identifies an alternative
employment practice that would have served the same purpose
without a wage difference.
But what if the alternative offered in litigation is less
efficient, more costly, or an unproven alternative on a time-
sensitive project that needs--needed immediate staffing? Is the
employer's proven business necessity now rejected? Under H.R.
7, the answer is yes.
Similarly, H.R. 7 requires employers to ignore an
employee's competitive job offer unless it can prove that the
higher competitive wage offer is not the result of historical
wage discrimination by the other employer. This is an
impossible burden and it would require the employer to prove
the other employers wage rate was not set discriminatorily.
Second, under H.R. 7, employers must ignore an applicant's
current pay when making an offer. If it doesn't, it is a per se
violation of Federal law. Few applicants leave their current
job for a lesser paying job and current pay provides valuable
information regarding a candidate's actual experience,
performance or expertise.
The EEOC's compensation manual describes justifiable
reasons for considering an applicant's prior salary. H.R. 7
keeps both sides in the dark about the expectations that each
party has regarding pay to--at the job at issue.
Third, H.R. 7's expansion of available damages and class
actions under the Equal Pay Act is unwarranted. H.R. 7's
unlimited compensatory and punitive damages far exceed remedies
available under Title VII and are in addition to the
significant penalties that already exist.
In addition, the changes to the class action methodology
would significantly expand the class size because employees
would be required to opt out of the--to opt in--to opt out of
the class as opposed to opt in.
Despite these Stated concerns, there are opportunities to
improve the Equal Pay Act. For example, adding language that
expressly States that pay differences between workers
performing the same work must be based on job-related measures
providing employees with an express protection within the Equal
Pay Act against relation and finally providing employers what
incentives to engage in voluntary, self-critical compensation
analyses that encourage self-evaluation to eliminate any
unjustified pay discrepancies without the need for litigation.
In summary, H.R. 7 is based on false premises and is
unworkable as a practical and legal matter.
Subcommittee members, thank you for the opportunity to
share some of these concerns and opportunities with you today.
[The statement of Ms. Olson follows:]
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Chairwoman BONAMICI. Thank you for your testimony. I next
recognize Ms. Rowe-Finkbeiner for your testimony.
STATEMENT OF KRISTIN ROWE-FINKBEINER, CEO/EXECUTIVE DIRECTOR,
MOMS RISING
Ms. ROWE-FINKBEINER. Thank you Chairs Bonamici and Adams
and thank you also--
Chairwoman BONAMICI. Please press your microphone button.
Ms. ROWE-FINKBEINER. Oops, sorry. Thank you to Chairs
Bonamici and Adams and thank you also to Ranking Members Comer
and Byrne for the opportunity to speak today. At Moms Rising,
an organization with over a million members including members
in every state in the Nation, we regularly hear from women who
are experiencing unfair pay, who fear retaliation in the
workplaces and therefore cannot speak up. And who need the
protection the Paycheck Fairness Act would provide including
freedom from retaliation, making it easier to come together to
collectively challenge pay discrimination and end to the use of
prior salary histories to set current salaries and the
additional protections provided that would move us closer to
pay parity.
Stories like this one from Laura. Laura and her husband met
at Columbia University and graduated with the same degree. They
both got jobs at the same agency in the exact same position.
However, she was paid $5,000 less than he was. When Laura asked
the agency about the discrepancy, she was told to accept the
pay or they would give the job to someone else. Laura is not
alone.
More women are graduating from college than men right now
but after only 1 year in the labor force, women are making less
money. Unfair pay and the fear of losing wages you depend on in
retaliation for speaking out is much too common. That is why
not only directly prohibiting retaliation but also making it
easier to come together to collectively challenge pay
discrimination is vitally important.
Let me tell you too about Felicia. Felicia experienced
blatant wage discrimination while working at a technical
support center for a large retail corporation. Felicia was
hired to work the exact same job as her brother in law and
discovered she was being paid about $4 less an hour to do the
same work. She went on to find out that all the male employees
were also making more in the same job and as it turned out, the
women were making less.
Felicia is not alone either. And her experience
demonstrates why preventing retaliation against employees who
discuss their wages with other employees is critical. As well
as why prior earning history should never be used to set
current earning rates because that compounds unfair pay over
time, takes money out of women pockets and out of our economy
and significantly increases poverty.
But this isn't just about Laura or Felicia. This is about
the women of America, our families, our economy and our
children's future. It is time. Our county has changed but our
public policies haven't kept up. Women became half of the paid
labor force for the first time in the last decade. Three
quarters of moms are now in the labor force, more than half of
whom are the primary bread winner. Yet women are experiencing
unfair pay every day with moms and women of color experiencing
the highest levels of wage and hiring discrimination.
Keep in mind, that a full 81 percent of women become
mothers which means this double wage hit and sometimes triple
wage hit if you're a mother of color, is impacting the vast
majority of women in our Nation.
Take Valerie, a mom who discovered her male coworker who
was hired on the same day with the same title was being paid
substantially more even though she had more duties and
responsibilities. Valerie went to the owner to request equal
pay. She was told because her coworker was married and male he
needed a higher income. Valerie pointed out that since he was
married and had a wife also working outside the home he
actually had two incomes while she only had one. Her boss was
cordial but adamant. She had no choice but to live with it. The
sad truth is that right now dads are getting wage boosts and
moms are getting pay cuts.
The other sad truth is that being a mom is now a greater
predictor of wage and hiring discrimination than being a woman.
Our country which claims to love, adore, and respect motherhood
pays women with children just 71 cents to every dollar it pays
dads. And moms of color as well as single moms and moms in low
wage work experience increased wage hits on top of that.
Subconscious, negative assumptions are hurting women, children,
businesses and our economy. This is an urgent matter.
Wage hiring and advancement discrimination is happening
every day despite numerous studies showing businesses tend to
make higher profits with women in leadership and that better
decisions are made with diverse decisionmakers.
For instance, a study of all Fortune 500 companies found
higher levels of women in leadership correlated with higher
profits.
It's time to stop treating women unfairly in the United
States of America. It's time for women to be able to join
together, to be able to share information and to demand that
current pay not be set by past pay without fear of retaliation.
It's time to pass the Paycheck Fairness Act. Thank you.
[The statement of Ms. Rowe-Finkbeiner follows:]
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Chairwoman BONAMICI. Thank you for your testimony. I now
recognize Ms. Yang for your testimony.
STATEMENT OF JENNY YANG, PARTNER, WORKING IDEAL
Ms. YANG. Members of the committee, thank you for the
opportunity to testify today. For over 50 years, pay
discrimination has been illegal but our existing laws have not
lived up to their promise. The Paycheck Fairness Act provides a
balanced, workable and much needed approach to better combat
pay discrimination.
While my testimony today is informed by my experience at
the EEOC and litigating cases on behalf of workers, it is also
informed by my experience at Working Ideal where we advise
employers on building inclusive workplaces, recruiting diverse
talent and ensuring fair pay. And while I'm a Fellow with the
Urban Institute, examining the changing workplace, my views
here today are my own and should not be attributed to these
organizations, their boards or funders.
To illustrate some of the challenges workers face under
existing law, I would like to share one case that has stuck
with me from my time at the EEOC. Margaret Thibodaux Woody was
an adjunct professor who Houston Community College hired for
one of two open faculty positions. The man hired for the second
position had the same degree, from the same university and
similar work experience.
Initially the college offered them both the same starting
salary. When Margaret tried to negotiate she was told she could
not. Yet the male candidate was permitted to negotiate a salary
$10,000 higher. When Margaret learned of this and approached
human resources, she was told nothing could be done. Indeed,
her supervisor urged her to rely on her husband's salary for
additional income.
In addition, Margaret alleged she faced retaliation,
receiving a lower performance evaluation and unfair discipline.
The District Court dismissed her case and the EEOC filed a
friend of the court brief in support of her appeal. Although
the 5th Circuit rejected Margaret's retaliation claim, it
reinStated her pay claim. This was 6 years after she began work
at the college.
Unfortunately, experiences like Margaret's are all too
common. Her fight for equal pay highlights three broad themes
that underscore the need for the Paycheck Fairness Act.
First, the lack of clarity in existing law has created
unjustifiable barrier for workers.
Second, a culture of pay secrecy hides the problem.
And third, employers need greater incentives to evaluate
their pay practices.
First, courts have interpreted the Equal Pay Act in ways
that have made it extraordinarily difficult for employees. The
EPA provides employers with a defense where disparities are
based on a factor other than sex. This has become an expansive
catch all under which some courts have allowed employers to
rely on arbitrary and often discriminatory considerations.
The Paycheck Fairness Act would make clear that an employer
must rely on a reason that actually relates to the job as a
business necessity. In addition, the Act would prohibit
employees from relying on prior salary to set pay.
As we saw with Margaret's experience, if a new employer
were to rely on her prior college salary which was $10,000 less
than a man performing the same job, that new employer would
carry forward past discrimination. The Paycheck Fairness Act
also takes an important step to clarify when workers can
compare jobs within any establishment.
Some courts have interrupted this provision of the Equal
Pay Act in a manner that is out of step with the realities of
today's work place by limiting comparisons to a single brick
and mortar facility. The Paycheck Fairness Act ensures that
employees can challenge discrimination that extends to at least
the county or similar subdivision when they perform equal work
at different locations.
Second, the culture of secrecy has surrounded pay which has
kept employees from learning about pay disparities. The Act
addresses this in two ways. Although existing law provides
limited protections for workers who discuss pay, the Paycheck
Fairness Act would provide a coherent set of rules to protect
employees from retaliation.
The Act also directs EEOC to collect pay from employers.
During my tenure as chair, the agency moved forward to collect
summary pay data, a vital tool to better identify
discrimination and strengthen enforcement. The current
administration abruptly halted this data collection. Reporting
pay data provides a catalyst for employers to review their pay
practices and make necessary corrections.
Finally, the Paycheck Fairness Act provides much needed
incentives for compliance.
In closing, to ensure that the promise of equal pay becomes
a reality, our laws must change. Thank you.
[The statement of Ms. Yang follows:]
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Chairwoman BONAMICI. Thank you for your testimony. Now we
are going to move to member questions and under committee rule
8A, we will be under the 5 minute rule. As chair I will go
first followed by the ranking member of the Civil Rights and
Human Services Committee, Mr. Comer and then the chair of the
Workforce Protections Committee, Ms. Adams and the ranking
member of the Workforce Protections Subcommittee, Mr. Byrne and
then the chair of the full committee, Mr. Scott. And then we
will move to members.
I now recognize myself for 5 minutes for the purpose of
questioning the witnesses.
Ms. GOSS GRAVES. in your testimony you discussed data that
demonstrates pay discrimination as a significant cause of the
gender wage gap for women, especially women of color. And you
mentioned that women with caregiving responsibilities face
persistent discrimination in the work place resulting in lower
wages. Yet pay discrimination remains difficult to detect.
Provisions in the Paycheck Fairness Act would require the EEOC
and the Department of Labor to collect information from
employers on compensation disaggregated by sex, race, and
nationality. How would these provisions help detect
discrimination and how would detecting this discrimination
affect the lives of working families?
Ms. GOSS GRAVES. So we basically have two problems. One is
a transparency problem because workers who are experiencing pay
discrimination very rarely know that is the case. And we also
don't have the right incentives in place.
And so the idea is if an employer is collecting and then
reporting that data to the EEOC, the first thing that it's
going to do is going to look to make sure that if there are
problems it's going to address it. It is unlikely that it is
going to hand over to the EEOC data that reflects that--the
ongoing case of discrimination. So it gives them a chance and
an opportunity to do the right thing first.
But it also gives the EEOC the opportunity to have more
effective enforcement which is especially important because of
the high rates of retaliation that come to people who try to
exercise their rights whether it is around pay discrimination
or any other form of discrimination.
Chairwoman BONAMICI. Thank you. Ms. Yang, in your testimony
you discussed the reporting burden on workers facing pay
discrimination which combined with the lack of sufficient
remedies leads to under reporting. You also mentioned when you
were at the EEOC you worked on updating the guidance on
retaliation. In what ways are the Equal Pay Act, Title VII of
the Civil Rights Act and the National Labor Relations Act
insufficient to provide workers with the rights and tools they
need and how would the Paycheck Fairness Act help address
systemic pay discrimination and provide relief to workers
affected?
Ms. YANG. Thank you for that question. Currently, under
Federal law, there is a limited protections for employees who
discuss pay. Under the Title VII anti-retaliation provision,
that discussion needs to be considered protected activity
opposing or participating in an investigation.
The Paycheck Fairness Act provides one consistent and
coherent standard that everyone can understand. So workers will
not be afraid to share information that is vitally needed to
identify pay discrimination.
Chairwoman BONAMICI. Thank you. And this is a question for
both Ms. Goss Graves and Ms. Yang. In her testimony, Ms. Olson
cites a District Court decision in the Chamber of Commerce for
Greater Philadelphia v. City of Philadelphia case as evidence
that prohibiting employers from asking workers about salary
history is an unconstitutional impairment of fair speech,
excuse me, free speech.
Ms. Goss Graves and Ms. Yang, do you know the status of
this case and in your opinion after having worked in this field
for a long time, was the case correctly decided and does the
prohibition on asking about salary history prior to an offer of
employment in the Paycheck Fairness Act raise constitutional
concerns?
Ms. GOSS GRAVES. I don't think that the Paycheck Fairness
Act raises conditional concerns. First, that District Court
decision itself said that relying on salary history, having a
provision that says you can't rely on salary history itself
doesn't raise constitutional concerns.
I have to say that case is right now on appeal and I think
the district court got the second part of it wrong where they
said it did raise constitutional concerns to ask, to prohibit
people from asking about salary information. This is sort of a
common thing in Federal law where the underlying provision, you
know, say the ADA, where the underlying provision is that you
can't discriminate based on disability, you also can't go
around asking people if you are disabled.
And the reason is so that people can when they are making
those employment decisions be really clear that they're not
actually back door violating the law as well.
Chairwoman BONAMICI. Ms. Yang, do you agree with that
analogy?
Ms. YANG. I agree with that and it is quite common under
many of our Federal laws to have prohibitions for asking about
certain information, such as our Disability and Genetic
Nondiscrimination Acts which explicitly prohibit certain pre-
employment inquiries.
Chairwoman BONAMICI. Terrific. And I did want to followup
on the rest of my question to Ms. Goss Graves about how the
Paycheck Fairness Act would affect especially families. I am
about to run out of time so I am going to ask you, I know some
of it is in your written testimony to perhaps followup on that
at another opportunity.
I would like to request unanimous consent to enter into the
record a letter from a coalition of many stakeholders
highlighting the importance of passing the Paycheck Fairness
Act to address pay discrimination.
And because I want to be a good role model and stick to my
time, I am going to yield back and recognize Ranking Member
Comer for 5 minutes for the purpose of questioning the
witnesses.
Mr. COMER. Thank you, Madame Chair. Ms. Olson, thank you
for your testimony. As you have noted, private-sector
businesses do not have rigid pay scales like the Federal
Government has for civil servants. And most businesses today do
not have hundreds of jobs that are exactly the same as a
factory may have had 100 years ago or even 50 years ago.
Based on your experience advising businesses on
compensation issues, would the provisions relating to business
necessity in H.R. 7 be workable and effective in today's
vibrant and changing economy? And can you provide examples to
support your view?
Chairwoman BONAMICI. Please turn on your microphone.
Ms. OLSON. Thank you very much for your question. The
concept of business necessity as applied in H.R. 7 is
unworkable and it is an impossibly high standard to meet. It
says basically that a job-related or business-related factor
has to be judged against if you didn't do it, what? There is no
specific definition here. But what?
If you didn't do that, if you didn't pay the worker more,
would the business continue without the employee being hired?
Without the employee being retained? The fact that there are so
many different variables that are job-related and support
differences in qualifications and experience in production, in
contributions and also in the ability to retain employees who
may get competitive offers from others requires employers to be
able to respond to those to motivate, to retain, to reward
employees.
And to do so with respect to factors that are job-related,
which is what the majority of courts say and what the statute
really requires based on the statutory construction of the way
it is drafted is a standard that is workable and does not allow
pay discrimination to be inserted. But instead, if an employer
is required to say I have got to prove it is a business
necessity not just related to the job, how do I do that? And
even if I do that, I've got to explain that business necessity
covers 100 percent of any difference.
And if in litigation later, a plaintiff's lawyer said well,
did you consider this particular example of another way that
you could have done it? For example, raising the pay of all
employees, if that was financially feasible. Is that an example
that an employer then would have to face a jury with in
connection with that issue? What will it really leave employers
doing? Really not making distinctions. Employees lose.
Employees with different, with better, with higher
qualifications that relate to the job they're performing aren't
going to be rewarded for those things.
Mr. COMER. Ms. Olson, I noted H.R. 7's mandate that
businesses provide employee pay data to the EEOC. Among other
concerns, I have little confidence in the Federal Government's
ability to keep this data confidential and I worry that workers
privacy would be breached.
Do you share these concerns? Can you also comment on how
large a burden it would be for employers to submit hiring,
termination, and promotion data in addition to pay data, all
disaggregated by sex, race, and national origin. Is this
provision necessary and practical or do the bill's sponsors
have other motivations in mind?
Ms. OLSON. I can't really speak to the motivations on these
particular issues but what I can speak to is what burden it
would be and the lack of the benefit and the concerns I have
with respect to the confidentiality.
With respect to the issue of burden, employers don't
collect today. There is no Federal law or record keeping
requirement that they collect information regarding the
national origin of employees. So this is an entirely new
obligation based on a law related to sex discrimination and I
didn't see any directives that relate to the issues of
including national origin and race-related to this issue.
In addition, employers don't collect in a digitized or well
documented way necessarily the promotions in their systems that
relate to pay differences. So that would be a complete review
and trying to reorder and restructure the way their own record
keeping is done. And unless an employer is a Federal
contractor, they're not required to keep information regarding
terminations. So those are all new record keeping requirements
that at this point have no limits in H.R. 7 and there are no
descriptions of the privacy or confidentiality protections that
would be applied.
And let me just mention, H.R. 7 describes generally that
the data collected will be disaggregated data. Does that mean
by employee? Or does that mean by group? We don't know from
H.R. 7. And I would just tell you that the privacy and
confidentiality concerns if in fact it is by employee are even
more significant.
Mr. COMER. Thank you. Madame Chair, I yield back.
Chairwoman BONAMICI. Thank you. I now recognize Chairwoman
Adams, the chair of the Workforce Protections Subcommittee for
5 minutes for the purpose of questioning the witnesses.
Ms. ADAMS. Thank you, Chairwoman Bonamici, and thank you
all of your testimony. Ms. Yang, in your testimony you stated
that reliance on salary history and setting starting pay also
runs the risk of perpetuating past discrimination that occurred
in previous jobs. Can you expound on this a little bit?
Ms. YANG. Yes. Thank you. That's a very important question,
Congresswoman. The problem that we have seen is that
historically where employers rely on past salary they can be
carrying forward past discrimination as in the situation of
Margaret's that I shared with you before. It can be in fact
both discriminatory as well as arbitrary what prior employers
may pay individuals.
For example, if in a particular field, women tend to work
in the public interest, social sector and they are moving into
the private sector, women would be at a lower salary in a
previous job. In fact, they may have had more experience
because they had a lower budget and were actually doing more.
But, in moving to that new private sector job, a man coming
from private sector may be paid more even though they are
performing the same work of an equal skill and responsibility.
So that's what this Paycheck Fairness Act provision really is
intended to root out.
Ms. ADAMS. Thank you. Ms. Olson agreed with the district
court's decision in the Philadelphia case that banning an
employer from asking about salary history is unconstitutional.
However, Ms. Olson disagreed with the court's decision that
employers should be prohibited from relying on pay history when
determining pay. Once asked, you know, how can one be sure that
an employer isn't relying on salary history when determining
salary? Ms. Yang?
Ms. YANG. Well, the employer with the Paycheck Fairness
Act, the employer would not be permitted to ask for that
information or utilize that information. And there are many
more ways for employers to set starting pay that is actually
based on the work being performed and that is the ultimate goal
of the Equal Pay Act and the Paycheck Fairness Act.
And that, the starting salary is where we see the most
significant disparities that get perpetuated through time so
that is a very important part to make sure employers are really
carefully checking assumptions, stereotypes that may be in
their process and ensuring that it is truly job related.
Ms. ADAMS. Thank you. 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 bonafide job related factor such as education,
training or experience that is consistent with a business
necessity. Can you give us examples of how this business
defense has historically been applied in ways that perpetuate
gender based wage discrimination?
Ms. GOSS GRAVES. So what has happened in some of the cases
is that some courts have allowed employers to have vague
references to the market to point to the fact that the guy was
a better negotiator so that's why--or perceived as a better
negotiator so that's why they paid them more. Or relying on the
fact that the woman made less in the past to sort of salary
match, to match that past salary and saying that's why we are
paying them more. You know, those sorts of justifications or
any old reason as long as they're not saying sex, you know, so
it has become this giant loophole in the law.
And so what the Paycheck Fairness Act would really do is
ask two different questions. So, you know, one is the reason
that you're offering actually related to the job? Are you
pointing to something to pay them more that actually is not
related to the job? And then second, is it something that you
actually need to do or is there some alternatives that would
work better?
So perhaps you had been salary matching and as your way
because that was your way of assessing the market but there is
lots of ways to assess the market. There is standardized things
that give you information about the assessing the market. There
is Glass Door, there's Pay Scale, there is a lot more than
salary matching to assess your market.
So it really requires an employer to think hard about am I
paying someone fairly and am I paying them for the job that I'm
actually asking them to do. So you actually make the Equal Pay
Act's promise of equal pay a reality.
Ms. ADAMS. Yes. Ms. Olson suggests that employers should be
given incentives like the elimination of liquidated damages for
conducting self-audits to address pay inequities. Why is this
insufficient in your mind, in your thinking?
Ms. GOSS GRAVES. You know, its--we are more than 50 years
after Congress said we should start paying people equally for
the same work so, you know, the idea that we need incentives to
comply with a law that is 5 decades old is a little bit
troubling when people have been harmed along the way in all
these many decades.
Ms. ADAMS. Thank you very much. Madame Chairman, I am going
to yield back, I am out of time.
Chairwoman BONAMICI. Thank you very much, Congresswoman
Adams. And I now recognize the ranking member of the Workforce
Protections Subcommittee, Mr. Byrne, for 5 minutes for
questioning the witnesses.
Mr. BYRNE. Thank you, Madame Chair. Ms. Olson, I really
appreciate your being here today. You are recognized among the
labor and employment bar in the United States of America as one
of our leaders. You have bene participating in this area since
1983. You were one of the first women to practice in this area
so you bring a wealth of experience spanning many years and I
appreciate your vantage point on it. You know, we all want to
see equal pay for equal work. But as Federal policymakers up
here in Congress, our question is what is the best way to
achieve that? So we have this proposed bill, H.R. 7, in front
of us which I know you are familiar with. And I want you to use
your experience, many years of experience in equal pay cases
and discuss whether the new remedies and the new class action
provisions in that bill will actually achieve the outcome we
all want to achieve. And I also want you to address if you will
your own experience in this area and what you think it will do
to both employers and employees. Press the button.
Ms. OLSON. Thank you very much. First of all, let me talk
about the current Equal Pay Act. Even in--with reference to the
cases that were described today by other witnesses, you heard
them describe those cases worked. The cases continued. They
were sent back.
The law today does not say an employer can just articulate
a reason, any reason, a reason they don't consistently apply, a
reason that's really not related to a job. The employer has the
burden of proof under the Equal Pay Act. It is different than
Title VII. It's much harder in that sense. And the burden of
proof is to demonstrate a consistent bona fide job-related
factor as being used.
And in cases that are cited in my testimony and some that
were cited today by others, the courts looked at that proof and
said it's not enough to just articulate something that you're
not consistently applying. That's not bona fide. And it's not
enough if it's not directly related to the job. You've got to
show a nexus that matters.
In terms of the issues of what's currently available to an
employee who files a claim under the Equal Pay Act? You've got
back pay, injunctive release and relief in terms of front pay,
double damages in terms of the back pay, attorney's fees,
costs, interest, a much longer statute of limitations. The
limitations in Title VII is 300 days. Under the Equal Pay Act
it goes back 3 years if there is a willful violation.
So the employer who may have not been found to have ever
discriminated on the basis of someone's sex but just can't
explain the entire difference in terms of the differences in
pay, could be held to unlimited punitive and compensatory
damages. That's a windfall for plaintiff's lawyers and will not
allow--I know from my experience in litigating these cases,
these cases to be resolved because of the endless, limitless
potential for damages as opposed to the realities of what you
are looking at. So that's one point.
And then on the issue of class actions and I litigate class
actions around the country. The class action mechanism that
currently exists here is the same one that exists for wage and
hour laws in our country. The same on that exists for the age
discrimination claims that are brought and its one that in my
experience moves much faster for the employee who is aggrieved
because conditional certification benefits plaintiffs,
employees in the cases and the way it is currently being done
because conditional certification under the Equal Pay Act is a
very low standard to be certified.
So almost immediately in these cases, notices are sent out
to employees, all employees saying who wants to opt in? Who
wants to be part of this case? If you do, all you have to do is
sign this form and you're part of it and you move very quickly
to the merits and trying to resolve the issue. What H.R. 7
would do is it completely changes that to a rule 23 situation
where you're going to debate for years whether those standards
are appropriate and then if so look at mass groups of data for
employees who never signed a form, who never said they wanted
to be part of it but didn't affirmatively opt out on a court
document that they were given.
Mr. BYRNE. Very quickly, speak to the Chamber of Commerce
v. Greater Philadelphia case. Would it apply to H.R. 7? If so
what would it do?
Ms. OLSON. It absolutely would. It is on appeal to the
Third Circuit that's absolutely correct. But part, there are
part--the part of H.R. 7 that has the same flaw that was
recognized by the court in Philadelphia is the part that says
an employer can't ask.
Mr. BYRNE. So it is a free speech issue.
Ms. OLSON. Absolutely. It's unconstitutional.
Mr. BYRNE. Thank you. I yield back, Madame Chairman.
Ms. ADAMS. Thank you, Mr. Byrne. At this time I want to
recognize the chair of the committee on education and labor Mr.
Scott for 5 minutes.
Mr. SCOTT. Thank you, Madame Chair. Ms. Yang, in terms of
EEOC pay data, what is reported now and what would be reported
under the bill?
Ms. YANG. Thank you, Chairman Scott. The EEOC has for over
50 years collected data from employers with 100 or more
employee's on--based on race, gender, ethnicity and job
category to understand the total demographics of the workplace
by a particular job.
What the EEOC moved forward to do with the pay data
collection was to strengthen that reporting so the agency would
have a much more effective tool to identify potential pay
disparities that the agency could then use its resources more
effectively to investigate.
And to answer the earlier point, the agency has robust
confidentially and security protocol in place and the
information that would be collected is in the aggregate. So it
is not an individual persons pay information, it is just the
total number of women for example in a particular job category
with that pay.
Mr. SCOTT. And how logistically difficult would it be to
provide this information?
Ms. YANG. We had an extensive process while I was chair of
the EEOC with public comment. Two rounds of public comment. We
also conducted our own pilot looking at these issues and heard
from many sources. And we found that the burden on--what we
worked to do is to minimize the burden of employers while also
ensuring the pay data is useful for the agency's enforcement
purposes.
And I do believe the proposal of the EEOC move forward with
struck a reasonable balance that imposed not a significant
burden on employers.
Mr. SCOTT. Thank you. And we have talked about class
actions, Ms. Yang. What is the present law on class actions and
how does the bill change it and why is that important?
Ms. YANG. Thank you for that question. My understanding is
the bill will actually strengthen workers protections by giving
them the choice to choose either the collective action
provision that currently exists or to utilize the more modern
rule 23 procedure that applies to virtually all other types of
claims in Federal court.
And the challenge with existing law is under the collective
action opt in procedure, it requires employees to file a notice
with the court which can be very difficult for employees to do
because of fear of retaliation or at the time they're required
to file they may not have any information about how their pay
compares to other people and they may not be comfortable filing
that on record with the court. As a result you often see
perhaps 20 percent of all eligible women opting into the case.
In contrast, a rule 23 class action allows the class to be
certified and gives individuals an opportunity to opt out
later. The problem with currently law is that it is often much
less expensive for employers to just wait, to not look at their
pay and then if they're found responsible for discrimination
just to fix it later because the penalties are insufficient.
And it shouldn't pay to discriminate but unfortunately under
our current law it does.
Mr. SCOTT. Thank you. And there is a change in damages
allowed under the bill. How would damages in present law under
the Equal Pay Act different for gender cases than the race,
religion, national origin?
Ms. YANG. The Equal Pay Act covers discrimination only
based on gender. It provides the ability to get back pay. So
the difference typically between the pay a woman received
compared to the pay a comparable male received. And so in the
cases were you can show there were willful actions, there is
the opportunity to get higher damages but it is still quite
limited.
So what the Paycheck Fairness Act does is provide
meaningful remedies that will actually compensate workers for
the full spectrum of harms that they suffer and that includes
compensatory damages, expenses that may have been incurred due
to having to search for a new job or medical expenses related
to distress from the experience.
Mr. SCOTT. How does that compare for cases involving race
discrimination, religion or national origin?
Ms. YANG. So there a number of protections under Title VII.
Title VII prohibits discrimination based on race, ethnicity,
national origin and it provides compensatory and punitive
damages. There are statutory caps that have not been adjusted
so those are well behind where they should be.
And you also have the reconstruction era statutes including
section 1981 that prohibits discrimination in contracting that
provides a full scope of damages for compensatory damages as
well as punitive damages without a statutory cap for
intentional discrimination based on race and ethnicity but
there is no comparable provision based on gender.
Mr. SCOTT. And so this bill would just conform gender
discrimination recovery to other cases?
Ms. YANG. Yes. So this bill will fill that gap by ensuring
that women who are facing pay discrimination have a full scope
of relief.
Ms. ADAMS. Thank you. I would like to recognize the
gentlelady from New York, Ms. Stefanik for 5 minutes.
Ms. STEFANIK. Thank you, Chairwoman Adams, and thank you to
all of our witnesses today for your thoughtful testimony. Women
deserve equal pay for equal work and in the United States, this
is the law of the land.
Since 1963, it has been illegal to pay different wages to
employees of the opposite sex for equal work. Additionally,
Title VII of the Civil Rights Act codified nondiscrimination
rules for employment, making it illegal to discriminate
including through wages based on race, color, national origin,
religion, or sex.
The good news is that we have a strong story to tell of
women's empowerment in today's economy. The number of women
working in America is at a historic high of 74.9 million and of
the 2.8 million jobs created last year, nearly 60 percent went
to women. We know that women are graduating college at higher
rates than men and are increasingly their family's primary
breadwinners.
Let me reiterate my support of equal pay for equal work and
voice my desire to strengthen this principle. To do this we
must understand what is actually happening. If you account for
factors such as hours worked over week, rate of leaving the
labor force, specific industry occupation and length of time
out of the work force, the wage gap shrinks but it is not
completely eliminated. We must focus on closing this remaining
gap.
My concern with H.R. 7 is not with the overall goal, which
I strongly support, but with how it goes about achieving this
goal. I am concerned that aspects of H.R. 7 appear to be
prioritizing trial lawyers and in some cases it makes it more
difficult for business that are acting in good faith to rectify
past wrongs and prevent future pay disparity. Despite these
concerns, I want to lay out the principles of H.R. 7 that I
strongly support although I have some concerns about the
current drafting.
The principles I support are the following. I support the
principle of allowing a job applicant to negotiate on the
merits of themselves without being saddled by previous salary
history. I support the principle of enforcing non-retaliation
for pay disclosure by employees. I support the concept of
providing workplace negotiation skills training to women.
In addition to these principles, I support policies that I
believe will help close this remaining wage gap and we can look
at particular Governors who have effectively passed bipartisan
legislation. I want to build on those current laws and I want
to ask a few questions to Ms. Olson.
Ms. Olson, you discussed that today's employees are looking
for flexibility in employment and that increasingly means
alternative forms of compensation outside of traditional wages.
Could you elaborate on the potential benefits that allowing
businesses to have protection for alternative compensation
models would have?
Ms. OLSON. Absolutely. It allows it to, you know, in sum
attract, motivate, and retain in the work force longer men and
women all who may have unique needs, that may not all be
compensation-based, it may be based on other benefits of their
working life as well as their personal life and that is not a
male, female issue. That's just a worker issue today.
And in terms of that employers are doing along those lines,
is they're looking not just to have different types of payments
in terms of wages and other elements of compensation but also
different benefit plans and different opportunities in terms of
leave and other issues.
And what employers are doing with respect to their own pay
audits is really, you know, many, many things. One being really
looking at a lot of the data that is used. It's not necessarily
digitized. Making sure that they do audits and it creates
systems so that they actually can go back and be able to
account for what are the differences in pay, reviewing it, also
reviewing starting pay against what have you been paying people
in those jobs that are in the work force that haven't moved?
Don't just pay the new people who are coming in because the
market is high and people who have been with you for a number
of years so there is a holistic view of pay that's being done
across workplaces today.
Ms. STEFANIK. I want to followup on that, Ms. Olson. As you
just did in your testimony point out that many businesses are
looking internally to review their pay practices. And
specifically in your opening statement, you discussed certain
state laws that incentivize employers to self-audit their pay
systems. Can you elaborate on that and why that is a successful
model to close this remaining wage gap?
Ms. OLSON. Yes. It really is successful. A number of
employers unfortunately are concerned that their own
individual, self-critical analyses or views and the way they
categorize for statistical reasons different jobs and
individuals, et cetera, could be used against them later. No
good deed by trial lawyers who say well, you categorized it
that way without maybe the benefit of all the information so if
an employer has to build their audit model toward is this going
to be subject to legal challenge or is it perfect in terms of
that way, it's just so costly. You are using third-party
statisticians and a lot of outside consultants to do that.
Whereas, if instead an employer in good faith reviews their
pay systems and also take and this is what these laws are
saying. Take good faith efforts for purposes of that looking at
what they have found and taking steps to eliminate pay
differences that there ought to be one, a privilege with
respect to that so it can't be used against them later and the
question isn't did they come to the right answer, but did they
do a diligent analysis and in good faith make good faith
decisions with respect to it. It will encourage people.
I definitely can represent that to this--these
subcommittees. It will encourage more employers to do these
audits, to make these changes voluntarily and quickly.
Ms. STEFANIK. Thank you. Thank you for the flexibility on
the time, I yield back.
Ms. ADAMS. Thank you. I recognize now the gentlelady from
Pennsylvania, Ms. Wild, for 5 minutes.
Ms. WILD. Thank you very much, Madame Chairwoman. Greetings
to all of you. By way of background, before I arrived here in
Congress just a couple of months ago, I was a litigator for 35
years and have been on both sides of these kinds of disputes. I
have represented employers and employees who are claiming an
injury in the nature of some form of discrimination. So this
testimony has been captivating for me and I read all of your
testimoneys with great interests.
As a litigator, I was always most interested in making sure
that there was a level playing field in the courtroom and that
my client, whichever side my client might have been on, was not
walking into a court room with the deck stacked against him or
her or it, depending upon the case. And that to me seems to be
one of the most important criteria for this type of statute.
So I, my questions are--come--are coming from that angle.
So let me start with you, Ms. Olson. I wanted to ask you, have
you ever represented an employee who has claimed to be injured
by way of discrimination?
Ms. OLSON. I have always practiced at business law firms
that have represented employers with respect to these issues
but also represent them pre-litigation where I view my role as
coming to the right decision on behalf of that employer and
analyzing all the facts. Not as a person who is defending a
position that has been taken, but determining whether in fact
there is any evidence of discrimination and I view that as my
role pre litigation and during litigation.
Ms. WILD. And when you are in the litigation situation is
it fair to say that you have always been there on behalf of
companies or corporations?
Ms. OLSON. That's absolutely true.
Ms. WILD. OK. Your clients have a vested interest in this
legislation, sit hat fair to say?
Ms. OLSON. I don't know what you mean by vested interest. I
believe every American has a vested interest in making sure
that we get this right.
Ms. WILD. Well, is it fair to say that the vast majority of
your clients would not be happy if this legislation was passed?
Ms. OLSON. I don't believe the vast majority of Americans
would benefit from this legislation--
Ms. WILD. OK, well lets stick with my question. OK. Your
clients, let's just talk about your clients. Is it fair to say
that most of them would be very unhappy if this legislation was
passed?
Ms. OLSON. You know, I can't answer for them. I haven't
asked them that question. I don't believe the legislation works
in today's workplace so my opinion is that I don't believe that
it would be beneficial to any small, medium, or large employer.
Ms. WILD. And you believe that the current State of the law
provides for a level playing field, don't you? You've stated in
your written testimony that plaintiffs already take advantage
of the system by filing discrimination charges, therefore the
Equal Pay Act must be enough.
Ms. OLSON. I haven't said that the Equal Pay Act is enough.
I provided three examples of improvements or enhancements to
the Equal Pay Act that I believed would enhance it.
Ms. WILD. OK. Would you agree with me, the data that we
have received from the EEOC indicate that employees filed
almost 85,000 charges of discrimination in 2017 and the EEOC
legal staff filed just 184 merit lawsuits alleging
discrimination. Does that sound about right to you?
Ms. OLSON. It absolutely does.
Ms. WILD. OK. And you believe that the rest of those
charges that were not accepted by the EEOC evidence some sort
of what, frivolous claims, unwarranted claims?
Ms. OLSON. No. No. That, the charges that are filed, many
of them continue in investigation, many of them are resolved
through settlements and others are dismissed for lack of
substantial evidence as found by the EEOC investigators.
Ms. WILD. All right. But you would agree then that just
point 2 percent of claims are actually prosecuted by the EEOC.
Yes? Say yes or no.
Ms. OLSON. The answer to that is yes.
Ms. WILD. OK. I would like to move on to Ms. Yang if I may.
Ms. Yang, can you address the concern articulated by my
colleague on the other side of the aisle that the Paycheck
Fairness Act will open the floodgates for litigation by
providing for uncapped punitive and compensatory damages, even
where there is no showing of intentional discrimination?
Ms. YANG. Yes. I know that there is out of time but if I
have time, I'm happy to answer that question. I think it's
important to for us all to step back for a moment and recognize
the rigorous prima facie case that a worker needs to establish
to even get to the point of the defense.
Courts have required employees not just to show a pay
difference between a man and a woman but to show that those
jobs are substantially equal in terms of their skill, in terms
of their responsibility, in terms of their effort. And that is
a rigorous standard to meet.
Employees also need to show that they're working under
similar working conditions. So it is only after the employee
has shown all of these things which is actually higher than the
Title VII burden of proof on a worker under the similarly
situated standard. Right. It is only after you have shown that
the employer gets to try to put forward this affirmative
defense.
And it is appropriate to require that defense is business--
a business necessity because the employee has already shown
that they're doing the same work. So if the employer is going
to justify paying one gender less than the other, it needs to
be able to explain a sound businesses reason for doing that.
Courts have been interpreting that standard of business
necessity since 1971 in Griggs Duke--Griggs v. Duke Power case
and in 1991 it was codified in the Civil Rights Act of 1991
which amended Title VII. So it is a well-established standard.
Ms. WILD. Thank you, Ms. Yang. And if I just may, I know we
are over time, but I, the trial lawyers are the ones that help
the employees who claim to be aggrieved, is that right?
Ms. YANG. Absolutely. This Paycheck Fairness Act is about
helping workers. Anyone who says this law is working now is not
appreciating how much risk employees take on to come forward to
sue their employers, to litigate for years and years, to have
courts deciding that biased factors justify a pay disparity,
right. Even if some courts are getting it right, that is a real
hardship for those workers who have to go through that process.
Ms. WILD. Thank you, Ms. Yang. Than you, Madame Chairwoman,
for your indulgence.
Chairwoman BONAMICI. Indeed. I next recognize the ranking
member of the full committee, Representative Foxx from North
Carolina for her questions.
Ms. FOXX. Thank you very much, Madame Chair. I thank the
witnesses for being here today and for your testimony on a very
important issue for women and all workers across the country.
It's a topic of discussion today.
Pay discrimination based on sex is illegal and should not
be tolerated. I also strongly agree with previous statements
made today that women deserve equal pay for equal work.
Ms. Olson, the Equal Pay Act in Title VII of the Civil
Rights Act prohibit pay discrimination on the basis of sex and
equal pay for equal work and have been the law of the land for
55 years. From your significant experience in studying this
issue and from your legal work in this area, are employers
mindful of their legal responsibility not to pay different
wages based on the sex of the employee? What steps do
businesses of all size take to ensure they're not
discriminating based on sex and how much workers are paid?
Ms. OLSON. Thank you. In my experience employers have a
deep commitment to ensuring their compensation systems
effectively attract, motivate, reward, and retain employees
while complying with applicable laws that you've described.
Complexities exist because job related factors such as
seniority, work performance, prior experience, relevant
credentials, competitive offers, and other job-related factors
exist between employees who perform the same work.
Some of those are quantitative. Some of those are
qualitative issues. Some of those are contained by their nature
in HRIS systems. Some of those are not.
So what employers are doing today in terms of taking good
faith efforts to comply, I mentioned the conduction of pay
audits. That is happening across the country. They are also
doing individual employee-level adjustments in connection with
those audits. I also mentioned they're reviewing all starting
pay decisions in comparison to other pay within the work force.
There is also something that I'll describe as the information
gap and employers are trying to change that to make sure that
they have documented and even digitized in their work force its
information regarding what are the variables that are changing
and affecting pay. They're educating and developing managers
regarding legitimate business reasons that are to be used with
respect to particular issues. They're building new compensation
structures with ladders within those particular jobs to make
sure that everybody understands that maybe a difference in
experience or performance is what is putting you in a ladder
going up that relates to the pay you're getting. Those are some
of the things that employers are doing.
Ms. FOXX. Thank you. Ms. Olson, H.R. 7 directs the EEOC for
the first time ever to collect employee pay data from employers
broken down by the sex, race, and national origin of each
employee. This provision is a reprise of the rejected Obama
Administration proposal to add pay data to the EEO-1 report,
which I raised concerns about when it was under reviewed by
OMB.
The Obama proposal would have increased the data fields
provided by employers in each EEO report 20fold from 180 to
3,660. That is an astonishing figure.
At the time it was also estimated that adding the employee
pay data to the EEO-1 would bring the overall cost to employers
would have to bear to approximately 700 million annually.
Ms. Olson, do you agree that requiring additional employer
reporting to the Federal Government involving employee pay data
would not only create huge compliance costs but it will also
raise significant privacy and confidentiality concerns for
workers and business alike and if so can you expand on these
and any other concerns with this mandate?
Ms. OLSON. Thank you, Representative Foxx. I can and I
actually was one of those witnesses that testified before the
EEOC with respect to the expanded EEO-1 and also relied on
specific survey and economic data regarding the actual burden
that employers reported that expanded pay data that you
described would really impose with a complete lack of utility
or benefit.
And let me just give you an example. That form would have
required for example a hospital to provide data with respect to
men and women within the position of profession without regard
to what job they held. They might be a pharmacist, they might
be a lawyer, they might be a doctor, they might be a nurse. But
if there were any differences generally between pay between men
and women within that category without regard to the job they
held, that would be used. That's the kind of information that
has no utility. That kind of information I just described.
In terms of the burdens, the burden initially estimated by
the EEOC when it was introduced was about 5 million. After our
testimony, the EEOC increased the burden and said, you know
what, I might have been wrong. Maybe it was about 20 million.
And the data that we collected showed that it was at least 700
million, the number that you used.
And in terms of privacy concerns, the EEOC's response to
those issues which was required under the Paperwork Reduction
Act, was that we will get to that.
Ms. FOXX. Thank you. Madame Chairman, I didn't have time to
ask a question about the Harvard University study on
Massachusetts Bay Transportation but I would like to enter that
into the record.
Chairwoman BONAMICI. Without objection.
Ms. FOXX. Thank you, Madame chairman. Thank you for your
indulgence.
Chairwoman BONAMICI. Indeed. I now recognize Representative
McBath from Georgia for 5 minutes for her questions.
Ms. MCBATH. Thank you to the chairs for holding this
hearing today and I would like to thank the witnesses for being
here and for your prepared testimoneys and remarks. I am proud
to be an original cosponsor of the Paycheck Fairness Act and I
think most of us can agree that every American should earn
equal pay for equal work.
As of January 2019, the median annual wage for women and
men in the 6th District of Georgia where I reside was $53,351
and $75,837 respectively. That amounts to a $22,000 difference.
This gender gap is most clear. And I am glad the Paycheck
Fairness Act would address this issue.
Not only would this legislation help women in Georgia, this
will also help families across the Nation. I would like to
learn a little bit more about the impact of the gender pay gap
and so, Ms. Graves, could you please answer this question for
me? What impact does education level, whether that be high
schools, secondary or posts secondary have on the gender pay
gap?
Ms. GOSS GRAVES. Thank you, Congresswoman. One of the
things that has been studied and studied again is whether or
not it is possible to totally eliminate the gender pay gap if
you control for things like education level, if you control for
things like geography, if you control for unionization, you
know, a range of things.
And although the pay gap does shrink when you control for
education level, it's just impossible to eliminate no matter
how much you control for it. There is a large portion of it
that remains unexplained and likely due to discrimination. And
one of the reasons that we know that is that there is a number
of studies that have followed people right out of college, AUW
has a study like that where they have looked at people straight
out of college, I mean, within a year of graduating from
college even when same major still a pay gap.
Ms. MCBATH. Well, thank you. Could you also speak to what
impact paid family and medical leave has on the gender pay gap?
Ms. GOSS GRAVES. One of the things that we know is that the
pay gap is due to discrimination in the same job but it is also
due to other things like the fact that there is a, what we like
to call a care giver penalty. And so those, the full suite of
solutions to really finally make sure that we don't have a
situation where Latinas are losing a million over the course of
their lifetime or $22,000 in Georgia 6 is going to include
things like Paycheck Fairness Act but it's also going to
include things like finally having a national paid family and
medical leave program so passing things like the Family Act
will make a difference.
Actually waging--raising wages so that we for the first
time in over a decade raised the minimum wage, right, and have
one fair wage. All of those things will help to contribute to
lowering the pay gaps so that we do not have a situation like
we had in the last decade where we have barely budged.
Ms. MCBATH. OK. Thank you. Well, also very struck by the
section of the bill that would establish and run grant programs
to carry out negotiation skills training programs for girls and
for women. So, Ms. Goss Graves, could you expand on the impact
this will have on the gender pay gap as well?
Ms. GOSS GRAVES. I mean, one of the things that we know is
that a lot of employers rely on negotiation as a part of their
salary setting process. And study after study has shown that
the problem is that when employers see men and women who
negotiate differently, right. When men negotiate they kind of
like it. When women try to negotiate it turns out they don't
think they do so well. So some of that is bias and stereotypes
and stereotyping.
But one of the things that Paycheck Fairness Act would
actually do is give women more tools, give people tools so that
they understand how they will be perceived when they negotiate.
Ms. MCBATH. Thank you so much. I yield back my time.
Chairwoman BONAMICI. Thank you, representative, and before
I recognize the next member for questions, I request unanimous
consent to submit for the record a letter from Virginia Lipnic
to Donald McIntosh, Kimberly Esserly dated May 25, 2017 with
the subject Responses to the Chamber in EEAC critics of the
EEO-1 pay data collection. And a letter from Virginia Lipnic to
Peggy Mastroianni, legal counsel, titled EEOC's response to
EEAC's argument that relevant circumstances have changed after
OMB's approval of the EEO-1 report.
In that letter which was recently discovered in response to
a FOIA request from the ACLU, Ms. Mastroianni in fact informed
Ms. Lipnic that there were in fact no significant change in
relevant circumstances that would provide OMB with an
independent basis to reconsider and issued a stay. Without
objection.
And I now recognize Mr. Johnson from South Dakota for 5
minutes for your questions.
Mr. JOHNSON. Madame Chair, thanks so much. I will start by
stating the obvious that equal pay for equal work is just and
it is appropriate. I'm proud that it's the law of the land
under the Equal Pay Act. That pride doesn't blind my eyes to
the fact that there are opportunities for improvement, of
course and that is where I would like to start. Ms. Olson, you
referenced in your testimony and also alluded to under
questioning by Ms. Wild some areas for improvement.
And I guess the one that I want to learn a little bit more
about is you talking about making sure that the required--there
is a requirement that the pay differential is linked to some
job-related or site-related factor. I assume that would add to
the predictability and the clarity and the common-sense
application of the Equal Pay Act but it would like you to teach
me a little bit more about that.
Ms. OLSON. Thanks very much for your question. Yes, the
currently the Equal Pay Act language says any other factor
after a list of job-related factors, many of them that have
been talked about today, and any other factor other than sex.
That language based on principles of statutory construction and
the majority of circuit courts that have looked at it have said
that well that other factor has got to be job related. But
there have been a couple of courts that have said well, it's
got to be uniformly implied and it's got to be the real reason
but I don't know if it necessarily has to be job-related.
That's a very, very small minority view.
Employers look to both development and education of
managers who do interviews and also human resource executives
that they make sure that their decisions are based on what is
often times called LBRs. Legitimate business reasons. And
that's really what the courts have looked to and inserting that
so that there is no question. It's absolutely expressed in the
statute and I believe would be welcome and it is appropriate.
Mr. JOHNSON. So give me some sense now it seems as though
maybe the prevailing set of case law has kind of moved away
from illegitimate business reasons, right. I mean, give me some
sense of what may--
Ms. OLSON. Just--
Mr. JOHNSON. Go ahead, sorry.
Ms. OLSON. You know, I'm sorry. So I think I understand
your question. It's not that an illegitimate business reason
was ever appropriate. See, to go back to what the Equal Pay Act
is, it's a strict liability statute and the only employment
discrimination statute in the United States that says show me a
difference in pay between two people doing the same thing. You
don't have to prove discrimination. Just show me a difference
in pay and employer--you don't have the burden of production in
the law. You have the burden of persuasion. You have to not
articulate a legitimate business reason, you've got to prove
it. That's what the Equal Pay Act currently says.
And so here, examples would be job performance. Examples
would be experience that would be relevant. But relevant
experience isn't something that's usually documented and
digitized in a system, it's something you learn from talking to
someone or was on their resume.
So emphasizing that those job related reasons are the ones
and only the only ones that you can rely on is something that I
think will also further the proactive employer actions that I
have described in terms of what we all want which is equal pay
for equal work.
Mr. JOHNSON. That is very illuminating, thank you. Yes, I
want to shift a little bit to retaliation and that is
prohibited by the National Labor Relations Act. But I want to
get a sense of how the law today around this equal pay issue
differs from that and then how the proposed legislation would
deal from the National Labor Relations Act.
Ms. OLSON. OK, thank you very much. And it's not just the
National Labor Relations Act. There are many, many statues and
I have city them in my written testimony including Title VII
that says you can't be retaliated against for discussing. It's
not just participating or opposing a pay practice and if you go
to the EEOC website today, you'll see the long list which I
have included in my testimony of all the different type of
discussion actions that are, that the EEOC has listed as
protected under existing law.
So you've got Title VII you've got other non-discrimination
like GINA for example. You've got the National Labor Relations
Act that protect reasonable actions taken by employees to--for
an appropriate purpose for learning, for discovering, for
trying to understand is there a difference. What the--what H.R.
7 does, it says anybody can talk about anybody's pay with no
restraints, not for a reasonable purpose, the purpose in terms
of furthering equal pay, any reason.
So you could just post everybody's name and pay rate on
social media. And if somebody did that, an employer couldn't
take action against them? That's what currently H.R. 7 would
allow.
Mr. JOHNSON. Thank you very much. Thanks for your courtesy,
Madame Chair. I yield back what time I don't have.
Chairwoman BONAMICI. Thank you, Representative. I now
recognize Representative Dr. Schrier from Washington for her
questions.
Ms. SCHRIER. Thank you. Thank you, Ms. Chairman, and thank
you to all of our witnesses. I just, I am very grateful for you
coming and I am excited about hearing more about pay equality.
This--just this morning I as the first pediatrician in Congress
had the opportunity to meet with a whole bunch of groups who
all advocate for the welfare of children whether that is
education, healthcare, you name it.
And a question came up that was about the intersectionality
really between poverty and food insecurity and housing
insecurity, education, healthcare, school outcomes, even
kindergarten readiness and as--and we all in that room
understood that.
And so my question is to you, Ms. Rowe-Finkbeiner, about is
there such an advocate for moms if you could talk about poverty
in homes where there is a single working mom and what Paycheck
Fairness Act would do to change the living situations and the
ultimate outcomes for those families and for the kids.
Ms. ROWE-FINKBEINER. Thank you for the question. It is a
good one. Right now, in the United States of America when we
are looking at women's wages and what is happening with women,
we have to take a step back and look at what is happening with
pay equality.
So right now, over 90 percent of people who are women are
making less than $75,000 a year and half of those people who
are women are making less than $30,000 a year. Single moms are
experiencing the most extreme wage hits. They are making around
55 cents to a man's dollar. And so when we look at what happens
with families, we look at what happens with our economy, we see
a tremendous problem.
If women had pay parity, we would drop poverty in families
by 50 percent. This is huge. This is needed. This is necessary.
1 in 5 children in our country right now are experiencing food
scarcity due to family economic limitations and family
structure has changed. I want to say that again. Family
structure has changed.
A Johns Hopkins University study found that 57 percent of
births to millennials were to single mothers. So when we are
looking at what happens with the confluence of the wage hit, of
what is happening with parenting, of what is happening with
children, what is happening with our country, we have to get to
pay parity. And we have to get to pay parity because it helps
businesses.
Again, remember when we have more women in leadership,
businesses thrive. It helps families. When we pull families out
of poverty, we have children becoming the leaders of tomorrow.
It helps women because when we are actually having enough to
spend, we then in turn help our economy.
I want to step back. I love your big question because I
always shave big answers but I want to step back and remind
people that women make three quarters of consumer purchasing
decisions. An economy that is 72 percent of our GPD is based on
consumer spending. So when we have women having such extreme
pay hits, we have extreme harms to our children's health to our
economy and to women. And this is a really big deal to solve so
I'm so excited that we are all here today to solve it and to
finally, finally, finally pass the Paycheck Fairness Act. Thank
you for your question.
Ms. SCHRIER. Thank you. I may have another one for either
you or for Ms. Goss Graves. You can battle this one out.
So this is a personal story that I have for the past many
years enjoyed, I think, pay parity because as a pediatrician,
my pay was based mostly on my productivity and here I have
equal pay.
But I have to tell you that coming out of residency, I was
so excited to earn more than $4 an hour that when I was offered
my first job, that is right. When I was offered my first job I
just immediately accepted. It didn't, it never occurred to me
to negotiate. That was what was offered and that is what I
would accept.
So I just have to ask a bit about to either one of you,
about the negotiation skills training and what that looks like
and how that helps and, you know, do you have any empiric
evidence on what kind of gap that could make up for women who
are just entering a first job?
Ms. GOSS GRAVES. The negotiation training is important
because it is going to give people more tools and remind them
to ask and to ask for more for sure. But it is also just
important to remind people that we can't fully negotiate our
way out of pay discrimination and so it is a piece of a broader
approach that ends the many, many practices that employers are
giving. You know, I would say that, you know, your employer who
set your first salary perhaps far too low probably takes some
responsibility there too especially if there was someone doing
exactly what you were doing but making a lot more.
Ms. SCHRIER. I will never know the answer to that question.
Thank you very much.
Chairwoman BONAMICI. Thank you, representative. I next
recognize Representative Hayes from Connecticut for her
questions.
Ms. HAYES. Thank you, Madame chair. Actually I am going to
yield my time to my colleague, Congresswoman Susan Wild.
Chairwoman BONAMICI. Representative Wild.
Ms. WILD. Thank you, Congresswoman, for yielding your time
to me. I am going to continue with my theme of leveling the
playing field and I want to elaborate on the last comment that
I made after Ms. Yang testified in response to my question.
My experience over 30 plus years of being a litigator, most
of which by the way, Ms. Olson, was on the defense side,
meaning I represented the companies or people who were being
sued by somebody represented by a trial lawyer and for anybody
who doesn't know, trial lawyer is commonly used to refer to
lawyers who represent plaintiffs. But in my experience, far
from being the villains, almost every trial lawyer I
encountered was the only hope for a plaintiff who was
unsophisticated, didn't understand the law and had no hope of a
legal claim without the expertise of his or her lawyer.
Our legal system is dependent on having lawyers who will
help individuals, who are unsophisticated in the law or who do
not know their legal rights. So for instance, when my colleague
on the other side of the aisle, Mr. Johnson, was talking about
retaliation being forbidden and Ms. Olson was engaging in the
dialog with him, the only way an employee would be able to
pursue a claim of retaliation is with the benefit of a trial
lawyer to help him or her.
So with that said, I am going to ask Ms. Rowe-Finkbeiner,
in your testimony you shared an interesting perspective and we
are going to shift gears a little bit to class actions. As you
may have ascertained I like to get into the weeds on this legal
stuff. But I would like--I was drawn to your testimony on why
it is important to amend the Equal Pay Act to change the class
action to be an opt out standard similar to the standard under
Title VII and under rule 23 of the Federal Rules of Civil
Procedure. From the perspective of the women that you have
engaged with, why is it important for them to be able to band
together in such actions? And maybe you could just explain that
a little bit for those who aren't familiar with the opt out
standard.
Ms. ROWE-FINKBEINER. Well, we need to remember again who is
being impacted the most by unfair pay to your question which is
low income women. The lower your income, and three quarters of
minimum wage workers are women, the more significant you are
going to be impacted by wage gaps.
And so for lower wage women workers, automatic inclusion in
class action lawsuits is vitally important. Because it is also
in those job positions that you are most vulnerable to
retaliation.
The moms of America that we hear from every day are telling
us their story about their unfair pay. They're telling each
other their story about unfair pay. But they are absolutely
afraid to step forward and talk to their employer or to take
action or to much less afford an attorney. And this is very
important because if we don't have this inclusion, if we can't
stand together, then women have to stand up by themselves and
say I am experiencing unfair pay.
And let me tell you, that does not go well. We hear from
the moms of America what happens when they stand up and they
lose their jobs or they're told, you know, it's this or the
highway. And so we hear that again and again and again and so
what that says is that the current law is not sufficient. What
is happening right now is not sufficient.
We have right now experiences where we have moms with equal
resumes on pieces of paper, not actually in person, getting
hired 80 percent less of the time that non moms. So current law
is not sufficient. We need to be able to band together, we need
to be able to protect women from retaliation and the way to
protect women from retaliation is to have an inclusive group
rising together and that's absolutely needed as shown by the
horrifyingly horrible pay gap data that we see right now today.
Ms. WILD. And just to be perfectly clear, opt out would
mean that they would be included in the class unless they chose
to opt out if they were discriminated against, is that correct?
Ms. ROWE-FINKBEINER. I want to defer to Ms. Yang who is an
attorney.
Ms. WILD. OK. And I am going to ask Ms. Yang a question
anyway so she can address it in response to this. Prior to your
time at the EEOC, you spent 15 years litigating equal pay and
other discrimination cases on behalf of employees. And
litigation is obviously very expensive, especially with the
threat of the prevailing party recovering attorney's fees. And
that often scares off aggrieved workers. Is that your--would
you agree with that?
Ms. YANG. Yes.
Ms. WILD. OK. Could you discuss please how in your
experience employers use the prevailing party doctrine to
extort or deter aggrieved workers claims and how the Paycheck
Fairness Act levels the playing field on that issue. And it--
Ms. YANG. And people--
Ms. WILD [continuing]. at the same time perhaps you could
address the question that I asked.
Chairwoman BONAMICI. And before you answer, Ms. Yang, the
time has expired and the hour is late so I am going to ask you
to submit that response to the record because we still have
other members who have not yet asked their questions.
Ms. WILD. Thank you and I apologize--
Ms. YANG. Sure.
Ms. WILD [continuing]. Madame Chairman.
Chairwoman BONAMICI. Nope, no worries. Certainly the
response can be submitted for the record.
Ms. YANG. Certainly I will do that.
Chairwoman BONAMICI. I next recognize Representative
Stevens from Michigan for her questions.
Ms. STEVENS. Thank you so much and thank you to our
distinguished panel today for testifying and sharing your
expertise on this critical topic around wage disparities and
gender wage disparities.
As somebody who has spent their career in work force
development and STEM education and particularly girls STEM
education, I couldn't think of a more pertinent topic for our
new Congress in this historic moment, 100 years from when women
got the right to vote to now having the most number of females
serving in the body that we bring this topic to the fore and
this legislation to the floor of the U.S. Congress.
And so my first question is for Ms. Goss Graves around the
value of work and the value of human driven work. And in
particular, in your testimony Ms. Goss Graves, you talked about
60 percent of employees in the private sector report that
discussing their wages is either prohibited or discouraged. Why
is that the case? How do these policies inhibit workers from
adjudicating pay discrimination claims?
Ms. GOSS GRAVES. So pay is, there is a lot of secrecy
already around pay even before you add on punitive pay polices
that some employers put in place. So if an employee puts a
policy in place that says if you talk about your wages with
each other, if you report what you are making to anyone, you
can be fired or you're violating a rule in some way, it means
that people are less likely to do it at all.
That's what happened with Lilly Ledbetter. That's why 20
years went by and she didn't know that she was making so much
less than everybody around her. You know, so for those work
places, what you have seen now is some employees really saying
I'm ready to talk to people about what I'm making because right
now all of the pay information lies in the hands of an
employer.
Ms. STEVENS. Well, and we have also seen that we are at
some of the lowest levels in union participation and in union
organizing and I am wondering depending on your knowledge if
you could kind of comment a little bit around the importance of
being able to collectively bargain and to have it, having a
strong labor unionizing presence in the work place.
Ms. GOSS GRAVES. I mean, one of the things that we know is
that union workplaces have lower pay gaps. Right. Have smaller
pay gaps. So we know that part of the effect of unionization is
having both more transparency around wages and inability to
have some collective shifts.
It doesn't eliminate it entirely, right. You still need
more. But it is some protection in the fact that we have seen a
tax on unions just at the same time that we have seen a wage
gap not really budge in so many years is really related.
I just want to raise one more point that I forgot to raise
earlier. You know, the anti-retaliation provision in the
Paycheck Fairness Act, it not require that workers go around
saying their wages, right. It is just that you can't be
penalized if you are talking about your wages. There's a big
difference there.
Ms. STEVENS. Yes, great. Well, we are certainly here for
the working families of this country and the working men and
women and to make their lives better. And to protect their tax
payer dollars and what is going into their pocket versus what
is not. and, Ms. Rowe-Finkbeiner, I was wondering if you could
answer quickly for me what is the wage gap between working
mothers and working fathers and if you could just delineate
between single working moms if you have it and single working
fathers and married mothers versus married fathers.
Ms. ROWE-FINKBEINER. That's an excellent question. Moms are
making 71 cents to every dollar that dads make and then when
you look at what is happening with moms of color, they're
experiencing increased and significant wage hits on top of
that. And so when we look at the impact of that on the family,
we see that we have children significantly suffering as well as
moms and families.
Ms. STEVENS. Yes. And why--so just if you could shed a
little bit of light from your vantage and your background. Why
is it important to encourage negotiating skills and training
programs for women and girls as the Paycheck Fairness Act does?
Why is it also important that we remedy the flaws in the Equal
Pay Act?
Ms. ROWE-FINKBEINER. It's absolutely essential that we
eliminate the flaws so that our economy, our families and our
businesses can thrive. And I just want to go back to what is
happening with moms. Why are we experiencing these wage gaps,
what is happening with women, what is happening with women of
color? And there are a lot of implicit bias decisions happening
over and over and over again. And training can help shine a
bright light on that and eradicate that.
So we need things like the Paycheck Fairness Act. We also
need to move forward a stronger infrastructure for working
families in the United States of America. That includes passing
the Family Act which was introduced yesterday. Passing the
Healthy Families Act which is sick days. Making sure childcare
is more affordable. Childcare costs more than college in the
United States of America right now. Making sure that you have a
livable wage for every one including tipped workers.
So we need to move forward an infrastructure that is strong
for families that includes the Paycheck Fairness Act and that
allows our tax payer dollars to be well spent.
One of the things I didn't mention is that TANF dollars
would be significantly decreased if we have pay parity. So we
see that if we have pay parity we will save tax payer dollars.
Businesses will be happy, I'll be happy. Women will be happy.
And everybody will celebrate. So we really hope that you pass
the Paycheck Fairness Act yesterday.
Ms. STEVENS. Fabulous. Well, just as I am about to yield
back the remainder of my time, I will reemphasize how important
and vital your voices are here today. Thank you.
Chairwoman BONAMICI. Thank you representative. Now I
recognize Representative Omar from Minnesota for her 5 minutes.
Ms. OMAR. Thank you, Chairwoman. Happiness and prosperity
for all is a really exciting conversation to be part of. I am
grateful to all of your for being here and for being part of
this critical conversation that will move us toward getting
prosperity for all.
Ms. GOSS GRAVES.it is great to see you. I know that you
brought intersectionality into your testimony and in it, you
address that the pay gaps actually greater for women of color.
The statistics you shared in increased pay gap for black,
Latino, Native American women were quite shocking. 61 cents to
the dollar for black women, 53 cents for Latinos and 58 cents
for Native American women.
Clearly the pay gap is compounded by racial gap. And it
should be obvious to all of us that this is the--this is a
problem that extends beyond the work place. You see the impact
everywhere you look in our society. Women of color are less
likely to have quality of healthcare coverage, a little more
than 20 percent of households of color experience hunger and at
some point, that doubles the rate of white households.
When it comes to planning for the future, working women of
color are much less likely to have access to employer sponsored
retirement plan. And home ownership rates among people of color
are also comparatively low. In fact in Minneapolis, the city
that I represent was listed as having the widest gap when
looking at white and black home ownership rates last year.
Minneapolis in Minnesota is also one of the most segregated
and, you know, when it comes to the racial disparity gap is
among the highest. So I ask you, do you agree that the gender
gap is not only holding us back as black women but amplifying
racial inequalities?
Ms. GOSS GRAVES. I mean, there is no question. You know, I
wake up thinking about this. The idea that black women make
only 61 percent of white man's wages, that is an issue for
them, yes. It's an issue for their whole families and black
women are more likely to be sole or co-bread winners so it is
an issue automatically. Their salaries is for them but it's
also for their families and its entire communities. It ties to
whether or not people have healthcare, it ties to whether or
not people are really able to actually afford the childcare
they need to work in the jobs that they need. It ties to
whether or not communities can be collectively stable and
really thrive.
So we, you know, it is dealing with this issue which is a
fundamental issue of discrimination but it is a fundamental
issues of economic security and justice more broadly.
Ms. OMAR. And so when we are addressing equality in this
country, this is right as an immigrant, as a refugee, all I
heard about was the access to justice and equality in the
United States.
But it seems like we often forget to address that in our
policies. And so by implementing this, how do you see that it
will systematically change the way we see ourselves as equal
members of society?
Ms. GOSS GRAVES. You know, when Congress first passed the
Equal Pay Act, that's really what they were saying. They were
saying if you are doing the same job you deserve to be paid the
same wage. And what we have learned over the last 5 decades is
we did not go far enough. Our law wasn't effective enough.
So part of what passing the Paycheck Fairness Act right now
would do, is send a really loud signal not just to employers
about their conduct and the requirement that they pay people
the first time, but really to women in this country and
especially women of color in this country that they are seen,
that they are and that their right to be able to work with
dignity and with equity is a core value to this country and to
this Congress.
Ms. OMAR. Because, you know, I know that we have talked
about this before, empowerment really isn't about just saying,
right, that we deserve access to equal things but it's also
about removing the barriers that allow us not to be empowered
and to be equalized in society.
So I thank you all for your testimony and appreciate this
critical conversation we are having and bringing prosperity for
all. Thank you.
Chairwoman BONAMICI. Thank you, representative. I now
recognize Representative Trone from Maryland for 5 minutes for
his questions.
Mr. TRONE. I thank you very much, I appreciate you coming
out. Mrs. Goss Graves, we heard earlier from Congressman Don
Beyer at the first, on the first panel that pay equity makes
good business sense and that makes all the sense in the world
to me.
But investing in policies that ensure equity between women,
men and women is simply good for business. Companies that hire
and retain retains key. More women gain a competitive edge,
diversity of thought leads to better problems solving, better
ideas, better decisions. Basically better results. That's a win
for everybody.
So what are some other factors that make pay equity you
think good for business? Now we are talking a lot about team
member but on the other side also.
Ms. GOSS GRAVES. One of the things that happened a decade
ago when this Congress passed the Ledbetter Fair Pay Act is
that new attention and awareness to equal pay happened as well.
And so now people are thinking about it and concerned about it
and employers know that in order to recruit and retain top
talent, they have to be paying fair wages. And so that is an
important incentive that is out there and that is driving some
employers.
That's why 100, more than 100 employers signed the White
House Equal Pay Pledge. It's why you have seen some people not
just do pay audit but then announce the results, right. They've
said I just wanted to tell everyone that I have looked, I have
done an audit and we pay fairly because they know that
consumers care about it and that the people they are trying to
recruit and retain care about it.
And I wish that you could always just legislate for like
the handful of employers who are going to, you know, do the
right thing and only be motivated by those things. I think what
is happening right now is some employer are making decisions
that are not good for business, they are not good for workers
by lowering discrimination to thrive.
Mr. TRONE. Excellent. Agreed. Mrs. Yang, no one is arguing
we should allow pay differences based on education training,
experience, Equal Pay Act already allows it. And the Paycheck
Fairness Act would not change that. But the law exists now so
without clarifying that factors other than sex must be job
related, seems to me that could be used as a pretext for
discrimination. Am I wrong about that?
And why is it important that employers use factors other
than sex to be connected to legitimate business reasons?
Ms. YANG. Thank you for that question. You are not wrong.
Currently courts have allowed employers to justify pay
differences between men and women doing substantially the same
work in the same working conditions by reasons including random
decisions as well as reasons that themselves had bias. And we
have heard about some of that today, the ways in which
negotiation can be conducted in a way that actually
disadvantages women. So even when women try to negotiate, they
can face a backlash. You know, she should just be happy she has
this job. Who does she think she is? That is very real for
women in the workplace.
And when we see prior salary relied upon or other sort of
end specified market forces, what you often have is that
individuals who may be people of color, they may be under paid
in the market for a variety of reasons. So you're introducing
those discriminatory factors into the next job as well as
random factors.
And all the Paycheck Fairness Act is trying to do is get
employers to really pay attention to what is the consequences
of the pay system that they set up and are responsible for. So
it's important for employers to actually look at whether the
skills and experiences they're valuing truly are related to the
job because sometimes they're not. And this requires employers
to take that step which they should already be taking, but
unfortunately not often enough. Often it is easy to rely on
legacy practices.
We think we know that this type of personality will be
successful but in fact, when you look at the data and what kind
of prior experience and skills correlated with say your best
sales people, it might tell a very different story than the
system you've set up.
So this really just encourages employer who are in the
better position to understand how their system works, to take
that proactive action and set up fair pay policies rather than
putting the burden on individual workers who are in the last
safe position to address these issues.
Mr. TRONE. Excellent. Thank you. I yield the balance.
Chairwoman BONAMICI. Thank you, representative. I now
recognize Representative Lee from Nevada for 5 minutes for her
questions.
Ms. LEE. Thank you, Chairwoman, for having this hearing and
thank all of the witnesses for being here. I am from Nevada. I
have had a career in helping our most at risk student's
graduate from high school and we have found that the most
significant risk factors for students dropping out is poverty.
I actually sat through a hearing yesterday sort of rivaling
this one in length. I think it actually beat it. I will get
quicker so we can beat it. That focused on investment and
education. A number of my colleague across the aisle
continually raise concerns that despite increased investment in
education our schools still continue to struggle.
A recent study by the National Center for Children and
Poverty found that close to 43 percent of children live in
families with incomes that are insufficient to meet basic
needs. And given that 63 percent of women are in sole bread
winner or co-bread winner in their families, I would like to
ask Ms. Goss Graves, can you comment on how this wage gap
perpetuates inter-generational poverty and ultimately
educational outcomes for students?
Ms. GOSS GRAVES. Well, we know that 1 in 8 women live in
poverty and those numbers look worse for certain groups of
women of color and the ability to have wages that are fair and
that and this long standing wage gap that two have that has not
shrunk in the last decade in any way that is meaningful is
absolutely tied to the ability for people to live out of
poverty I'll say.
And that's especially given the extra penalty that people
who are mothers or people who are caregiving generally face. So
just as people are transitioning into parenthood, as fathers
sometimes get a pay bump, mothers get a pay cut, right. When
there have been studies that show that people view mothers and
value their abilities less and pay them less.
So all of that combined when you add to it the fact that we
are lacking the range of policies that would really make it
possible for people to work and to care and to thrive. It makes
it a real challenge. So the Paycheck Fairness Act is a critical
piece of the range of things that we need to do to reduce those
poverty rates that you've made.
Ms. LEE. Thank you. Ms. Rowe-Finkbeiner, would you add,
like to add anything to that?
Ms. ROWE-FINKBEINER. Yes. I think it is important to look
at what is happening with women and wage hits. And so I
referenced this study that I love a little bit before. I want
to share a little bit more about that because it really shares
what is going on in America.
Cornell University did a study. They had two resumes with
equal job experiences, equal everything and the mom was hired
80 percent less of the time than the non-mom and to Ms. Goss
Graves point, the dad was hired more. The mom for a highly paid
job was offered $11,000 less. The dad was offered $6,000 more.
Right now when we look at the structure of family in
America, the nuclear family is a thing of the past if it ever
even was really a thing. And we know that we have to have the
wages of women to boost our economy, to lift our children and
importantly--now I'm on a roll we have to make sure that our
prior wages aren't used to predict our future wages. And this
is one of the things that is critically important in this bill.
We cannot have our past salary be used for future wages.
Because if we are working our way up, if we are facing an
uphill battle and wages and discrimination and there is massive
hiring and wage discrimination, then that past salary history
being used to predict future history just puts us in a cycle of
poverty.
So that is a key essential part of the Paycheck Fairness
Act that we 150 percent support at Moms Rising and the million
members of Moms Rising are cheering right now just knowing that
you are considering it. Thank you.
Ms. LEE. Thank you. I just want to add in Nevada, if the
wage gap were closed, women could afford 56 more weeks of food
for her family or eight and a half additional months of rent.
Given those statistics, could you comment on what the impact of
closing the wage gap would be on retirement savings and Social
Security? Ms. Rowe.
Ms. ROWE-FINKBEINER. Over a woman's lifetime, depending on
where you are in the pay scale, you're losing $400,000 to $2
million over your lifetime due to the wage gap. This means that
we have a significantly higher number of women who are elderly
living in poverty than men who are elderly living in poverty.
And so if we close the wage gap, it's actually an
intergenerational benefit to women and to our economy and to
our families.
And as we look at what is happening with our country, we
are facing a silver tsunami where we have a massive aging
population and it's time right now to make sure that we close
the wage gap before it is too late. I mean, it is already too
late for many families but it is getting worse not better. And
to the many points that have been raised in this room about is
prior law sufficient, it's absolutely not sufficient. And in
fact, as we are looking at an economy where we have greater and
greater gaps between the very wealthy and everyone else, the
wage gap is becoming a more dire, more emergent situation for
the families of America that we must solve now. So thank you.
Ms. LEE. Thank you. I yield.
Chairwoman BONAMICI. Thank you, representative. I now
recognize Representative Underwood from Illinois for 5 minutes
for her questions.
Ms. UNDERWOOD. Thank you, Madame Chair, for the opportunity
to join this panel and thank you to our witnesses for being
here today. Ms. Goss Graves, I want to thank you and the
National Women's Law Center staff who came by to brief me on
the Paycheck Fairness Act last week in preparation for the
hearing. Thank you for that as well.
The gender pay gap in my district is shockingly bad. For
every dollar that men in Lindenhurst or Sugar Grove or even
Sherwood make, women make 71 cents. And, Ms. Goss Graves and
Ms. Yang, how quickly are we making progress on closing the
gender pay gap?
Ms. GOSS GRAVES. In the last decade we haven't made very
much progress at all. You know, it has inched up like a penny.
You know, and so what we really need is sort of a bit of a shot
in the arm to actually get this going and closing now. So we
are not making the progress we need.
Ms. UNDERWOOD. OK. Ms. Yang, did you have anything to add
to that?
Ms. YANG. I think that one of the important things that we
need to remember about this Paycheck Fairness Act is that right
now we are letting equality be left to chance, right. At the
EEOC we did not hear from the overwhelming majority of people
who were experiencing pay discrimination. You can see the data
in your own district that there are problems but we at the
agency were hearing about things because of happenstance.
Somebody found a paper on a copier that had salary
information. Somebody sent a misdirected email. So we were
relying on happenstance to learn about discrimination. So it
was vital to me at the EEOC that we move forward with the pay
data collection because that would shine a light on the
problems.
And to the point earlier Ms. Olson made about the utility
of the data, we carefully studied. We had a pilot effort, we
had two rounds of public comment to ensure that data would be
useful to the agency. And if you had for example a hospital you
would see that we have pay bands. So doctors would be at the
top higher pay bands. Nurses would be in different pay bands
and the EEOC has decades of experience looking at this data.
We have used it to successfully identify patterns of hiring
discrimination by looking at demographic differences as well as
promotions where often we may see African Americans are hired
only at entry level positions and even though they are the most
qualified for the next level supervisor, you see very different
patterns.
So having that information really is one of the critical
solutions to understanding where pay data exists so that we can
then fix those problems.
Ms. UNDERWOOD. Thank you. In addition to stronger penalties
for gender discrimination at work, we need to offer solutions
and resources that do help working families.
Gender discrimination at work does take many forms
including pay discrimination, sexual misconduct, harassment and
abuse. One of my first actions once I came to Congress was to
pass an amendment to the rules package that helps to prevent
the misuse of non-disclosure agreements for work place
harassment and assault.
I want to talk about measures like secret settlements and
mandatory arbitration that are used to silence victims of
gender discrimination. Ms. Goss Graves, would--could non-
disclosure agreements and mandatory arbitration be used to
silence or pressure victims or pay discrimination and if so how
do we prevent that?
Ms. GOSS GRAVES. Yes, I mean, discrimination thrives in the
dark and that is one of the things that we have seen over the
last year with Me Too going viral and Times Up, we have seen a
lot of attention around the really serious harm of non-
disclosure agreements and forced arbitration and what that has
meant and it makes people feel isolated.
They think that they're the only one who is experiencing
this sort of discrimination and it allows a--an employer who is
doing the wrong thing to continue to do in the dark.
You know, one of the things is, you know, there is a long
standing bill called the Arbitration Fairness Act that would
actually say you can't force people into these secret
settlements. You can't force people into this mandatory type of
arbitration. You know, many people--it's a condition of
employment, right. The idea is like you start this job, you
sign this paperwork and in that paperwork you have no idea you
have signed away all of your rights to be able to have your day
in court so to speak or sometimes tell anyone about the
discrimination that you've experienced. So that has to change.
Ms. UNDERWOOD. Thank you. Yesterday I stood with many of my
Democratic colleagues to introduce the Family Act which would
ensure that workers have access to paid family leave and
medical leave. How would enacting the Family Act affect the
gender wage gap, Ms. Goss Graves?
Ms. GOSS GRAVES. Well, we know that there is a motherhood
and caregiver penalty, right. And one of the things is the
transition to parenthood is that you're already making less and
so many people do not have access to paid family and medical
leave.
So having a national standard that says that people could
actually do what people are doing which is both working and
care and have the time off they need to care for themselves, to
care for their family members in those serious situations is
critical. And we look at it as a suite of issues that need to
happen really all at once.
It is overdue to finally raise wages including tipped
workers, to finally have the paid family and medical leave, to
finally ensure that people who are working aren't experiencing
discrimination in the same job and to have things like access
to child care and other work support so that people can do what
they're doing which is engaging in work and care.
Ms. UNDERWOOD. Thank you so much. Thank you, Madame Chair.
Chairwoman BONAMICI. Thank you, representative. We have now
concluded member questions. 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, preferably in
Microsoft Word format.
The materials submitted must address the subject matter of
the hearing. Only a member of the committee or an invited
witness may submit materials for inclusion in the hearing
record. Documents are limited to 50 pages each and documents
longer than 50 pages will be incorporated into the record via
an internet link that you must provide to the committee clerk
with the required timeframe. Please recognize that years from
now the link may no longer work.
Again, I want to thank the witnesses so much for your
participation today. What we have heard is very valuable.
Members of the committees may have some additional questions
for you. We ask the witness to please respond to those
questions in writing. The hearing record will be held open for
14 days to receive those responses and I remind my colleagues
that pursuant to committee practice, witness questions for the
hearing record 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.
And I now recognize the distinguished ranking member of the
Workforce Protections Subcommittee, Mr. Byrne, for the purpose
of making a closing Statement.
Mr. BYRNE. Thank you, Madame Chairman, and let me
congratulate you on this hearing. You have done an excellent
job and I appreciate your leadership.
Chairwoman BONAMICI. Thank you, representative.
Mr. BYRNE. When I think about this issue, I think about my
grandmother. My grandfather was shot and killed when my mother
was a baby and my grandmother went to work in the early `20's.
Imagine the workplace of the early `20's for a woman. It wasn't
just equal pay, many jobs they wouldn't even let her think
about applying for.
Then my mom had to work too, and she was a bookkeeper. She
may have had marginally better environment than my grandmother
but not much, just to be honest with you.
My wife works. I would say she has a much better
environment than my mother worked in but still as some of you
have talked about today, we haven't gotten to the point where
we have gotten exactly where we needed to go.
But when I think about this most, I think about my two
daughters and my daughter-in-law, all who work and a 2-year-old
granddaughter. And we want for those young women and that
little girl who will grow up to be a young woman, the workplace
where they are paid for the true value of what they provide.
Everybody on this committee wants that. Everybody.
The question is how do we get there? I have just got to say
I have looked at this bill and I have listened to Ms. Olson
with her substantial expertise and it looks like it was written
by and for the plaintiff's layers. That is what it looks like
and I practiced in this area for a long time myself.
I want something that is really going to help women, not
something that is really going help lawyers. And I think if we
work together on this and come up with a bipartisan bill, which
this is not, then we actually could improve the environment for
those young women in my family.
So I hope over the next several months we can do that
important work because at the end of the day we should be about
the people and not about the process. With that I yield back.
Chairwoman BONAMICI. Thank you, Mr. Byrne, and I now
recognize the chairwoman of the Workforce Protections
Subcommittee, Ms. Adams, for the purpose of making a closing
Statement.
Ms. ADAMS. Thank you, Madame Chair, and thank you to our
ranking member as well and to all of you for your testimony and
to all the advocates here in Congress and on the ground working
to ensure equal wages for equal work.
Now throughout this hearing, we have heard how women,
particularly women of color continue to face gender based wage
discrimination even after 10 years of the Lilly Ledbetter Fair
Pay Act and 56 years of the Equal Pay Act.
So it is clear from the discussion today that we have got
to act now. We can't continue to rob $5 billion each year from
nearly half of our Nation's work force, shortchange families
and children by financially penalizing mothers and force women
to work 10 years more or up to 23 years more for women of color
just to be paid fairly.
Congress has an obligation to pass the Paycheck Fairness
Act and end gender based pay discrimination once and for all. I
would remind all of my colleagues on both sides of the aisle
that if you are a member the U.S. House, if you are member of
the Senate, if you are a male or female, we get the same check.
So we need to think about that.
Most of us here have--well, everybody here has had a mom.
You have one or you have had one and most of us or many of us
have had sisters or we have sisters and nieces and daughters
and wives. So I just can't imagine that we would not advocate
for them to be paid less for the same work just because they
are women.
So I want to thank all of you again. I hope that we can
maintain a system where your gender can--does not have to
determine your salary. The discussion today was an important
step toward ending that shameful reality and so I look forward
to helping to shape an America where everyone receives equal
pay for equal work. Thank you. Thank you, Madame Chair, I yield
back.
Chairwoman BONAMICI. Thank you, Representative Adams. I now
recognize the distinguished ranking member of the Civil Rights
and Human Services Subcommittee, Mr. Comer, for the purpose of
making a closing Statement.
Mr. COMER. Thank you, Madame Chair. I want to thank the
witnesses for a good discussion today and I want to thank our
members for asking some really important questions.
Ms. Olson, I especially want you to know how much your
expertise shed light on this bill in particular. This is an
important issue, but this is a legislative hearing. Your
presentation of opportunities and shortcomings was particularly
constructive, so I thank you for that.
I will be brief, but I want to emphasize again that women
are changing the workplace for the better and as the economy
continues to improve, those contributions are going to become
even more important.
Thank you again for being here and, Madame Chair, I yield
back
Chairwoman BONAMICI. Thank you, Mr. Ranking Member. And I
now recognize myself of the purpose of making my closing
Statement. I want to thank the witnesses again for being here
for your valuable contributions.
Today women make up nearly half of our work force. 64
percent of mothers in the United States are either the sole
family breadwinner or a co-bread winner. Their wages pay for
rent, groceries, childcare, healthcare. Closing the wage gap is
an economic imperative. It's good for working families and it
will help lift families out of poverty.
Today's hearing on persistent gender based wage
discrimination addresses the very injustice that is facing
millions of working families. Our witnesses described how
insufficient enforcement and loopholes in the Equal Pay Act and
the Title VII of the Civil Rights Act result in barriers to
detecting wage discrimination and to holding employers
accountable.
We heard how gender wage discrimination has far reaching
and long term effects for our economy, our children and our
families. Most importantly, we heard how Congress can provide
workers with the tools they need to close the gender pay gap
and achieve wage equality by passing the Paycheck Fairness Act.
By addressing the problematic loopholes in current law, by
empowering workers to better detect and combat wage
discrimination and by creating mechanisms for better pay data
transparency we can restore the original intent of the Equal
Pay Act and finally after all these decades make equal pay for
equal work a reality.
There being no further business, without objection, the
committee stands adjourned.
[Additional submissions by Chairwoman Bonamici follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[Whereupon, at 1:04 p.m., the subcommittees were
adjourned.]
[all]