S. 77
A BILL
Be it enacted by the Senate and
House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the
`Paycheck Fairness Act'.
Congress makes the following
findings:
(1) Women have entered the
workforce in record numbers.
(2) Even today, women earn
significantly lower pay than men for work on jobs that require equal skill,
effort, and responsibility and that are performed under similar working
conditions. These pay disparities exist in both the private and governmental
sectors. In many instances, the pay disparities can only be due to continued
intentional discrimination or the lingering effects of past discrimination.
(3) The existence of such pay
disparities--
(A) depresses the wages of working
families who rely on the wages of all members of the family to make ends meet;
(B) prevents the optimum
utilization of available labor resources;
(C) has been spread and
perpetuated, through commerce and the channels and instrumentalities of
commerce, among the workers of the several States;
(D) burdens commerce and the free
flow of goods in commerce;
(E) constitutes an unfair method
of competition in commerce;
(F) leads to labor disputes
burdening and obstructing commerce and the free flow of goods in commerce;
(G) interferes with the orderly
and fair marketing of goods in commerce; and
(H) in many instances, may deprive
workers of equal protection on the basis of sex in violation of the 5th and
14th amendments.
(4)(A) Artificial barriers to the
elimination of discrimination in the payment of wages on the basis of sex
continue to exist more than 3 decades after the enactment of the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.) and the Civil Rights Act of 1964
(42 U.S.C. 2000a et seq.).
(B) Elimination of such barriers
would have positive effects, including--
(i) providing a solution to
problems in the economy created by unfair pay disparities;
(ii) substantially reducing the
number of working women earning unfairly low wages, thereby reducing the
dependence on public assistance; and
(iii) promoting stable families by
enabling all family members to earn a fair rate of pay;
(iv) remedying the effects of past
discrimination on the basis of sex and ensuring that in the future workers are
afforded equal protection on the basis of sex; and
(v) ensuring equal protection
pursuant to Congress' power to enforce the 5th and 14th amendments.
(5) With increased information
about the provisions added by the Equal Pay Act of 1963 and wage data, along
with more effective remedies, women will be better able to recognize and
enforce their rights to equal pay for work on jobs that require equal skill,
effort, and responsibility and that are performed under similar working
conditions.
(6) Certain employers have already
made great strides in eradicating unfair pay disparities in the workplace and
their achievements should be recognized.
(a) REQUIRED DEMONSTRATION FOR
AFFIRMATIVE DEFENSE- Section 6(d)(1) of the Fair Labor Standards Act of 1938
(29 U.S.C. 206(d)(1)) is amended by striking `(iv) a differential' and all that
follows through the period and inserting the following: `(iv) a differential
based on a bona fide factor other than sex, such as education, training or experience,
except that this clause shall apply only if--
`(I) the employer demonstrates
that--
`(aa) such factor--
`(bb) such factor was actually
applied and used reasonably in light of the asserted justification; and
`(II) upon the employer succeeding
under subclause I, the employee fails to
demonstrate
that the differential produced by the reliance of the employer on such factor
is itself the result of discrimination on the basis of sex by the employer.
`An employer that is not otherwise
in compliance with this paragraph may not reduce the wages of any employee in
order to achieve such compliance.'.
(b) APPLICATION OF PROVISIONS-
Section 6(d)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)(1))
is amended by adding at the end the following: `The provisions of this
subsection shall apply to applicants for employment if such applicants, upon
employment by the employer, would be subject to any provisions of this
section.'.
(c) ELIMINATION OF ESTABLISHMENT
REQUIREMENT- Section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C.
206(d)) is amended--
(1) by striking `, within any
establishment in which such employees are employed,'; and
(2) by striking `in such
establishment' each place it appears.
(d) NONRETALIATION PROVISION-
Section 15(a)(3) of the Fair Labor Standards Act of 1938 (29 U.S.C. 215(a)(3))
is amended--
(1) by striking `or has' each
place it appears and inserting `has'; and
(2) by inserting before the
semicolon the following: `, or has inquired about, discussed, or otherwise
disclosed the wages of the employee or another employee, or because the
employee (or applicant) has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, hearing, or action under section
6(d)'.
(e) ENHANCED PENALTIES- Section
16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)) is amended--
(1) by inserting after the first
sentence the following: `Any employer who violates section 6(d) shall
additionally be liable for such compensatory or punitive damages as may be
appropriate, except that the United States shall not be liable for punitive
damages.';
(2) in the sentence beginning `An
action to', by striking `either of the preceding sentences' and inserting `any
of the preceding sentences of this subsection';
(3) in the sentence beginning `No
employees shall', by striking `No employees' and inserting `Except with respect
to class actions brought to enforce section 6(d), no employee';
(4) by inserting after the
sentence referred to in paragraph (3), the following: `Notwithstanding any
other provision of Federal law, any action brought to enforce section 6(d) may
be maintained as a class action as provided by the Federal Rules of Civil
Procedure.'; and
(5) in the sentence beginning `The
court in'--
(A) by striking `in such action'
and inserting `in any action brought to recover the liability prescribed in any
of the preceding sentences of this subsection'; and
(B) by inserting before the period
the following: `, including expert fees'.
(f) ACTION BY SECRETARY- Section
16(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(c)) is amended--
(1) in the first sentence--
(A) by inserting `or, in the case
of a violation of section 6(d), additional compensatory or punitive damages,'
before `and the agreement'; and
(B) by inserting before the period
the following: `, or such compensatory or punitive damages, as appropriate';
(2) in the second sentence, by
inserting before the period the following: `and, in the case of a violation of
section 6(d), additional compensatory or punitive damages';
(3) in the third sentence, by
striking `the first sentence' and inserting `the first or second sentence'; and
(4) in the last sentence--
(A) by striking `commenced in the
case' and inserting `commenced--
`(1) in the case';
(B) by striking the period and
inserting `; or'; and
(C) by adding at the end the
following:
`(2) in the case of a class action
brought to enforce section 6(d), on the date on which the individual becomes a
party plaintiff to the class action'.
The Equal Employment Opportunity
Commission and the Office of Federal Contract Compliance Programs, subject to
the availability of funds appropriated under section 9(b), shall provide
training to Commission employees and affected individuals and entities on
matters involving discrimination in the payment of wages.
The Secretary of Labor shall
conduct studies and provide information to employers, labor organizations, and
the general public concerning the means available to eliminate pay disparities
between men and women, including--
(1) conducting and promoting
research to develop the means to correct expeditiously the conditions leading
to the pay disparities;
(2) publishing and otherwise
making available to employers, labor organizations, professional associations,
educational institutions, the media, and the
general
public the findings resulting from studies and other materials, relating to
eliminating the pay disparities;
(3) sponsoring and assisting State
and community informational and educational programs;
(4) providing information to
employers, labor organizations, professional associations, and other interested
persons on the means of eliminating the pay disparities;
(5) recognizing and promoting the
achievements of employers, labor organizations, and professional
associations
that have worked to eliminate the pay disparities; and
(6) convening a national summit to
discuss, and consider approaches for rectifying, the pay disparities.
(a) GUIDELINES-
(1) IN GENERAL- The Secretary of
Labor shall develop guidelines to enable employers to evaluate job categories
based on objective criteria such as
educational
requirements, skill requirements, independence, working conditions, and
responsibility, including decisionmaking responsibility and de facto
supervisory responsibility.
(2) USE- The guidelines developed
under paragraph (1) shall be designed to enable employers voluntarily to
compare wages paid for different jobs to determine if the pay scales involved
adequately and fairly reflect the educational requirements, skill requirements,
independence, working conditions, and responsibility for each such job with the
goal of eliminating unfair pay disparities between occupations traditionally
dominated by men or women.
(3) PUBLICATION- The guidelines
shall be developed under paragraph (1) and published in the Federal Register
not later than 180 days after the date of enactment of this Act.
(b) EMPLOYER RECOGNITION-
(1) PURPOSE- It is the purpose of
this subsection to emphasize the importance of, encourage the improvement of,
and recognize the excellence of employer efforts to pay wages to women that
reflect the real value of the contributions of such women to the workplace.
(2) IN GENERAL- To carry out the
purpose of this subsection, the Secretary of Labor shall establish a program
under which the Secretary shall provide for the recognition of employers who,
pursuant to a voluntary job evaluation conducted by the employer, adjust their
wage scales (such adjustments shall not include the lowering of wages paid to
men) using the guidelines developed under subsection (a) to ensure that women
are paid fairly in comparison to men.
(3) TECHNICAL ASSISTANCE- The
Secretary of Labor may provide technical assistance to assist an employer in
carrying out an evaluation under paragraph (2).
(c) REGULATIONS- The Secretary of
Labor shall promulgate such rules and regulations as may be necessary to carry
out this section.
(a) IN GENERAL- There is
established the Alexis Herman National Award for Pay Equity in the Workplace,
which shall be evidenced by a medal bearing the inscription `Alexis Herman
National Award for Pay Equity in the Workplace'. The medal shall be of such design
and materials, and bear such additional inscriptions, as the Secretary of Labor
may prescribe.
(b) CRITERIA FOR QUALIFICATION- To
qualify to receive an award under this section a business shall--
(1) submit a written application
to the Secretary of Labor, at such time, in such manner, and containing such
information as the Secretary may require, including at a minimum information
that demonstrates that the business has made substantial effort to eliminate
pay disparities between men and women, and deserves special recognition as a
consequence; and
(2) meet such additional
requirements and specifications as the Secretary of Labor determines to be
appropriate.
(c) MAKING AND PRESENTATION OF
AWARD-
(1) AWARD- After receiving
recommendations from the Secretary of Labor, the President or the designated
representative of the President shall annually present the award described in
subsection (a) to businesses that meet the qualifications described in subsection
(b).
(2) PRESENTATION- The President or
the designated representative of the President shall present the award under
this section with such ceremonies as the President or the designated
representative of the President may determine to be appropriate.
(d) BUSINESS- In this section, the
term `business' includes--
(1)(A) a corporation, including a
nonprofit corporation;
(B) a partnership;
(C) a professional association;
(D) a labor organization; and
(E) a business entity similar to
an entity described in any of subparagraphs (A) through (D);
(2) an entity carrying out an
education referral program, a training program, such as an apprenticeship or
management training program, or a similar program; and
(3) an entity carrying out a joint
program, formed by a combination of any entities described in paragraph (1) or
(2).
Section 709 of the Civil Rights Act
of 1964 (42 U.S.C. 2000e-8) is amended by adding at the end the following:
`(f)(1) Not later than 18 months
after the date of enactment of this subsection, the Commission shall--
`(A) complete a survey of the data
that is currently available to the Federal Government relating to employee pay
information for use in the enforcement of Federal laws prohibiting pay
discrimination and, in consultation with other relevant Federal agencies,
identify additional data collections that will enhance the enforcement of such
laws; and
`(B) based on the results of the
survey and consultations under subparagraph (A), issue regulations to provide
for the collection of pay information data from employers as described by the
sex, race, and national origin of employees.
`(2) In implementing paragraph (1),
the Commission shall have as its primary consideration the most effective and
efficient means for enhancing the enforcement of Federal laws prohibiting pay
discrimination. For this purpose, the Commission shall consider factors
including the imposition of burdens on employers, the frequency of required
reports (including which employers should be required to prepare reports),
appropriate protections for maintaining data confidentiality, and the most
effective format for the data collection reports.'.
There are authorized to be
appropriated such sums as may be necessary to carry out this Act.