Wage Equity Act of 2021
Bill: H.R.2491 | Sponsor: Rep. Stefanik, Elise M. (R-NY)
Policy area: Labor and Employment

Summary:
Wage Equity Act of 2021
This bill addresses workplace wage discrimination based on sex.
Specifically, it limits the acceptable reasons for wage disparities based on sex to legitimate business-related factors unrelated to sex. It	also protects from liability for such discrimination those employers who conduct a job and wage analysis audit to identify wage disparities and take reasonable steps to remedy any such disparities.
Further, the bill prohibits employers from relying on, or requesting, the wage history of a prospective employee for hiring and wage determination purposes unless it is voluntarily provided by the prospective employee. Employers generally may not prohibit employees from inquiring about, or discussing, wage information concerning another employee or from requesting information from an employer about wage differentials.
Finally, the bill permits the Department of Labor to establish a grant program for negotiation skills education for women and girls. It also requires the Government Accountability Office to study and report on the causes and effects of sex-based wage disparities.

To amend the Fair Labor Standards Act of 1938 to enhance provisions 
        related to wage discrimination, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be referred to as the ``Wage Equity Act of 2021''.

SEC. 2. FINDINGS.

            (1) In 1963, Congress passed on a bipartisan basis the 
        Equal Pay Act of 1963 to prohibit discrimination on account of 
        sex in the payment of wages for equal work performed by 
        employees for employers engaged in commerce or in the 
        production of goods for commerce.
            (2) Following the passage of such Act, in 1964, Congress 
        passed on a bipartisan basis the Civil Rights Act of 1964. 
        Since the passage of both the Equal Pay Act of 1963 and the 
        Civil Rights Act of 1964, women have made significant strides, 
        both in the workforce and in their educational pursuits.
            (3) Prior to the COVID-19 pandemic, there were over 
        77,000,000 women in the workforce, the most in American 
        history. Of the 2,000,000 jobs created in 2019, 53 percent went 
        to women. This follows a trend that has been rising for some 
        time. Women are graduating from college at a higher rate than 
        their male counter parts, making up 61 percent of all college 
        degrees conferred in 2018. Additionally, according to a recent 
        survey of working women, more than half are their family's 
        primary breadwinner.
            (4) The COVID-19 pandemic has had a significant impact on 
        working women, resulting in over 2 million women leaving the 
        workforce since February 2020.
            (5) Despite these advances there is still concern among the 
        American public that gender-based wage discrimination has not 
        been eliminated.

SEC. 3. CLARIFYING SEX-BASED DISCRIMINATION PROHIBITION.

    Section 6(d)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 
206(d)(1)) is amended by inserting ``bona fide business-related'' after 
``any other''.

SEC. 4. JOB AND WAGE ANALYSIS.

    Section 16 of the Fair Labor Standards Act of 1938 (29 U.S.C. 216) 
is amended by adding at the end the following:
    ``(f)(1) An employer shall not be liable in an action brought 
against the employer for a violation of section 6(d) if--
    ``(A) during the period beginning on the date that is 3 years 
before the date on which the action is brought and ending on the date 
that is 1 day before the date on which the action is brought, such 
employer completes a job and wage analysis audit to determine whether 
there are differentials in wage rates among such employees that may 
violate section 6(d);
    ``(B) such employer takes reasonable steps to remedy any such 
differentials;
    ``(C) such job and wage analysis audit is conducted and such 
reasonable steps are taken in good faith to investigate whether any 
such differentials exist; and
    ``(D) such audit is reasonable in detail and scope with respect to 
the size of the employer.
    ``(2) A job and wage analysis audit under this section and remedial 
action taken in response to the findings of such audit--
            ``(A) may only be admissible by the employer for the 
        purposes of showing--
                    ``(i) such audit was conducted; and
                    ``(ii) such reasonable steps were taken; and
            ``(B) shall not be discoverable or admissible for any other 
        purpose in any claim against the employer.
    ``(3) An employer who has not completed a job and wage analysis 
audit under this subsection shall not be subject to a negative or 
adverse inference as a result of not having completed such audit.
    ``(4) An employer who has completed a job and wage analysis audit 
that does not meet the requirements of subparagraph (D) of paragraph 
(1) but otherwise meets the requirements of such paragraph shall not be 
liable for liquidated damages under section 16(b).
    ``(5) In this section--
            ``(A) the term `job and wage analysis audit' means an audit 
        conducted by the employer for the purpose of identifying wage 
        disparities among employees on the basis of sex; and
            ``(B) the term `reasonable steps', with respect to 
        differentials in wages among employees that may violate section 
        6(d), means steps that are reasonable to address such 
        differentials taking into account--
                    ``(i) the amount of time that has passed since the 
                date on which the audit was initiated;
                    ``(ii) the nature and degree of progress resulting 
                from such reasonable steps toward compliance with 
                section 6(d) compared to the number of employees with 
                respect to whom a violation may exist and the amount of 
                the wage rate differentials among such employees; and
                    ``(iii) the size and resources of the employer.''.

SEC. 5. WAGE HISTORY; DISCUSSION OF WAGES.

    (a) In General.--The Fair Labor Standards Act of 1938 (29 U.S.C. 
201 et seq.) is amended by inserting after section 7 the following new 
section:

``SEC. 8. PROVISIONS RELATING TO WAGE HISTORY AND DISCUSSION OF WAGE.

    ``(a) Requirements and Prohibitions Relating to Wage History.--It 
shall be an unlawful practice for a person after the date of enactment 
of the Wage Equity Act of 2021--
            ``(1) to rely on the wage history of a prospective 
        employee--
                    ``(A) in considering the prospective employee for 
                employment, including by requiring that the wage 
                history of a prospective employee satisfies minimum or 
                maximum criteria as a condition of being considered for 
                employment; or
                    ``(B) in determining the rate of wage for such 
                prospective employee; or
            ``(2) to seek, or to require a prospective employee to 
        disclose, the wage history of such prospective employee.
    ``(b) Voluntary Disclosure Exceptions.--
            ``(1) In general.--Subsection (a)(1) shall not apply with 
        respect to a prospective employee who voluntarily discloses the 
        wage history of such prospective employee.
            ``(2) Wage history verification.--Notwithstanding 
        subsection (a)(2), a person may take actions necessary to 
        verify the wage history of a prospective employee if such wage 
        history is voluntarily disclosed to the person by such 
        prospective employee.
    ``(c) Prior Inquiries.--Subsection (a) shall not apply with respect 
to the wage history of an employee acquired by an employer before the 
date of enactment of the Wage Equity Act of 2021, including a current 
employee's wage history with another employer that was requested and 
used to set an employee's starting wage before such date and which is 
embedded in an employee's pay and pay increases after such date.
    ``(d) Prohibitions Relating to Discussion of Wages.--Subject to 
subsection (c), it shall be an unlawful practice for an employer--
            ``(1) to prohibit an employee from inquiring about, 
        discussing, or disclosing the wage of--
                    ``(A) the employee; or
                    ``(B) any other employee of the employer if such 
                employee has voluntarily disclosed the wage of such 
                employee;
            ``(2) to prohibit an employee from requesting from the 
        employer an explanation of differentials in compensation among 
        employees; or
            ``(3) to take an adverse employment action against an 
        employee for--
                    ``(A) conduct described under paragraphs (1) or 
                (2); or
                    ``(B) encouraging employees to engage in conduct 
                described in such paragraphs.
    ``(e) Limitations Relating to Discussion of Wages.--
            ``(1) Time and place limitations.--An employer may impose 
        reasonable time, place, and manner limitations on conduct 
        described under subsection (c) if such limitations are written 
        and available to each employee.
            ``(2) Involuntary disclosure.--An employer may prohibit an 
        employee from discussing the wages of any other employee if 
        such other employee did not voluntarily disclose such wages to 
        the employee discussing such wages.
    ``(f) Pay Expectation Conversation.--Nothing in this section shall 
be construed to prevent a person from--
            ``(1) inquiring about the pay expectations of a prospective 
        employee; or
            ``(2) providing information to such employee about the 
        compensation and benefits offered in relation to the 
        position.''.
    (b) Definitions.--Section 2 of the Fair Labor Standards Act of 1938 
(29 U.S.C. 202) is amended by adding at the end the following:
    ``(z) the term `prospective employee' means an individual who took 
an affirmative step to seek employment with a person and who is not 
currently employed by such person, a parent, subsidiary, predecessor, 
or related company of such person, or an employer connected by a 
purchase agreement with such person; and
    ``(aa) the term `wage history' means the wages paid to the 
prospective employee by the prospective employee's current employer or 
any previous employer of such employee.''.
    (c) Retaliation.--Section 15(a)(3) of the Fair Labor Standards Act 
of 1938 (29 U.S.C. 215(a)(3)) is amended--
            (1) by inserting ``or prospective employee'' after ``any 
        employee''; and
            (2) by inserting ``or prospective employee'' after ``such 
        employee''.
    (d) Penalty.--
            (1) In general.--Section 16(b) of the Fair Labor Standards 
        Act of 1938 (29 U.S.C. 216(b)) is amended by inserting ``Any 
        person who violates the provisions of section 8 with respect to 
        an employee or prospective employee shall be liable to such 
        employee in an amount equal to the difference between the 
        amount that the employee or prospective employee would have 
        received but for such violation and the amount received by such 
        employee or prospective employee, and an additional equal 
        amount as liquidated damages.'' after ``tips unlawfully kept by 
        the employer, and in an additional equal amount as liquidated 
        damages.''.
            (2) Civil monetary penalty.--Section 16(e)(2) of the Fair 
        Labor Standards Act of 1938 (29 U.S.C. 216(e)(2)) is amended by 
        striking ``6 and 7'' and inserting ``6, 7, and 8''.

SEC. 6. NEGOTIATION SKILLS EDUCATION.

    (a) Program Authorized.--
            (1) In general.--The Secretary of Labor, after consultation 
        with the Secretary of Education, is authorized to establish and 
        carry out a grant program.
            (2) Grants.--In carrying out the program under paragraph 
        (1), the Secretary of Labor may make grants on a competitive 
        basis to eligible entities to carry out negotiation skills 
        education programs for the purposes of addressing wage 
        disparities, including through outreach to women and girls.
            (3) Eligible entities.--To be eligible to receive a grant 
        under this subsection, an entity shall be a public agency, such 
        as a State, a local government in a metropolitan statistical 
        area (as defined by the Office of Management and Budget), a 
        State educational agency, or a local educational agency, a 
        private nonprofit organization, or a community-based 
        organization.
            (4) Application.--To be eligible to receive a grant under 
        this subsection, an entity shall submit an application to the 
        Secretary of Labor at such time, in such manner, and containing 
        such information as the Secretary of Labor may require.
            (5) Use of funds.--An entity that receives a grant under 
        this subsection shall use the funds made available through the 
        grant to carry out an effective negotiation skills education 
        program for the purposes described in paragraph (2).
    (b) Incorporating Education Into Existing Programs.--The Secretary 
of Labor and the Secretary of Education shall issue regulations or 
policy guidance that provides for integrating the negotiation skills 
education, to the extent practicable, into programs authorized under--
            (1) in the case of the Secretary of Education, the 
        Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 
        et seq.), the Carl D. Perkins Career and Technical Education 
        Act of 2006 (20 U.S.C. 2301 et seq.), the Higher Education Act 
        of 1965 (20 U.S.C. 1001 et seq.), and other programs carried 
        out by the Department of Education that the Secretary of 
        Education determines to be appropriate; and
            (2) in the case of the Secretary of Labor, the Workforce 
        Innovation and Opportunity Act (29 U.S.C. 3101 et seq.), and 
        other programs carried out by the Department of Labor that the 
        Secretary of Labor determines to be appropriate.
    (c) Report.--Not later than 18 months after the date of enactment 
of this Act, and annually thereafter, the Secretary of Labor, in 
consultation with the Secretary of Education, shall prepare and submit 
to Congress a report describing the activities conducted under this 
section and evaluating the effectiveness of such activities in 
achieving the purposes of this section.

SEC. 7. GAO STUDY.

    The Comptroller General shall, not later than 180 days after the 
date of the enactment of this Act, submit to Congress a study on the 
causes and effects of--
            (1) wage disparities among men and women;
            (2) with respect to employees that leave the workforce for 
        parental reasons (commonly referred to as the ``Manager's 
        Gap''), the impact on wages and opportunity potential; and
            (3) the disparities in negotiation skills among men and 
        women upon entering the workforce.
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