[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1650 Introduced in Senate (IS)]


104th CONGRESS
  2d Session
                                S. 1650

       To amend the Fair Labor Standards Act of 1938 to prohibit 
  discrimination in the payment of wages on account of sex, race, or 
                national origin, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 28, 1996

Mr. Harkin (for himself, Mr. Kerry, Mr. Simon, Mr. Leahy, Ms. Mikulski, 
and Mr. Inouye) introduced the following bill; which was read twice and 
         referred to the Committee on Labor and Human Resources

_______________________________________________________________________

                                 A BILL


 
       To amend the Fair Labor Standards Act of 1938 to prohibit 
  discrimination in the payment of wages on account of sex, race, or 
                national origin, 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 AND REFERENCE.

    (a) Short Title.--This Act may be cited as the ``Fair Pay Act of 
1995''.
    (b) Reference.--Except as provided in section 8, whenever in this 
Act an amendment or repeal is expressed in terms of an amendment to, or 
repeal of, a section or other provision, the reference shall be 
considered to be made to a section or other provision of the Fair Labor 
Standards Act of 1938.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Wage differentials exist between equivalent jobs 
        segregated by sex, race, and national origin in Government 
        employment and in industries engaged in commerce or in the 
        production of goods for commerce:
            (2) The existence of such wage differentials--
                    (A) depresses wages and living standards for 
                employees necessary for their health and efficiency;
                    (B) prevents the maximum utilization of the 
                available labor resources;
                    (C) tends to cause labor disputes, thereby 
                burdening, affecting, and obstructing commerce;
                    (D) burdens commerce and the free flow of goods in 
                commerce; and
                    (E) constitutes an unfair method of competition.
            (3) Discrimination in hiring and promotion has played a 
        role in maintaining a segregated work force.
            (4) Many women and people of color work in occupations 
        dominated by individuals of their same sex, race, and national 
        origin.
            (5)(A) A General Accounting Office analysis of wages in the 
        civil service of the State of Washington found that in 1985 of 
        the 44 jobs studied that paid less than the average of all 
        equivalent jobs, approximately 39 percent were female-dominated 
        and approximately 16 percent were male dominated.
            (B) A study of wages in Minnesota using 1990 Decennial 
        Census data found that 75 percent of the wage differential 
        between white and non-white workers was unexplained and may be 
        a result of discrimination.
            (6) Section 6(d) of the Fair Labor Standards Act of 1938 
        prohibits discrimination in compensation for ``equal work'' on 
        the basis of sex.
            (7) Title VII of the Civil Rights Act of 1964 prohibits 
        discrimination in compensation because of race, color, 
        religion, national origin, and sex. The United States Supreme 
        Court, in its decision in County of Washington v. Gunther, 452 
        U.S. 161 (1981), held that title VII's prohibition against 
        discrimination in compensation also applies to jobs which do 
        not constitute ``equal work'' as defined in section 6(d) of the 
        Fair Labor Standards Act of 1938. Decisions of lower courts, 
        however, have demonstrated that further clarification of 
        existing legislation is necessary in order effectively to carry 
        out the intent of Congress to implement the Supreme Court's 
        holding in its Gunther decision.
            (8) Artificial barriers to the elimination of 
        discrimination in compensation based upon sex, race, and 
        national origin continue to exist more than 3 decades after the 
        passage of section 6(d) of the Fair Labor Standards Act of 1938 
        and the Civil Rights Act of 1964. Elimination of such barriers 
        would have positive effects, including--
                    (A) providing a solution to problems in the economy 
                created by discriminating wage differentials;
                    (B) substantially reducing the number of working 
                women and people of color earning low wages, thereby 
                reducing the dependence on public assistance; and
                    (C) promoting stable families by enabling working 
                family members to earn a fair rate of pay.

SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS.

    (a) Amendment.--Section 6 (29 U.S.C. 206) is amended by adding at 
the end the following:
    ``(g)(1)(A)(i) Except as provided in clause (ii), no employer 
having employees subject to any provisions of this section shall 
discriminate, within any establishment in which such employees are 
employed, between employees on the basis of sex, race, or national 
origin by paying wages to employees in such establishment in a job that 
is dominated by employees of a particular sex, race, or national origin 
at a rate less than the rate at which the employer pays wages to 
employees in such establishment in another job that is dominated by 
employees of the opposite sex or of a different race or national 
origin, respectively, for work on equivalent jobs.
    ``(ii) Nothing in clause (i) shall prohibit the payment of 
different wages to employees where such payment is made pursuant to--
            ``(I) a seniority system;
            ``(II) a merit system; or
            ``(III) a system that measures earnings by quantity or 
        quality of production.
    ``(iii) The Equal Employment Opportunity Commission shall issue 
guidelines specifying criteria for determining whether a job is 
dominated by employees of a particular sex, race, or national origin. 
Such regulations shall not include a list of such jobs.
    ``(B) An employer who is paying a wage rate differential in 
violation of subparagraph (A) shall not, in order to comply with the 
provisions of such subparagraph, reduce the wage rate of any employee.
    ``(2) No labor organization or its agents representing employees of 
an employer having employees subject to any provision of this section 
shall cause or attempt to cause such an employer to discriminate 
against an employee in violation of paragraph (1)(A).
    ``(3) For purposes of administration and enforcement of this 
subsection, any amounts owing to any employee which have been withheld 
in violation of paragraph (1)(A) shall be deemed to be unpaid minimum 
wages or unpaid overtime compensation under this section or section 7.
    ``(4) As used in this subsection:
            ``(A) The term `labor organization' means any organization 
        of any kind, or any agency or employee representation committee 
        or plan, in which employees participate and which exists for 
        the purpose, in whole or in part, of dealing with employers 
        concerning grievances, labor disputes, wages, rates of pay, 
        hours of employment, or conditions of work.
            ``(B) The term `equivalent jobs' means jobs that may be 
        dissimilar, but whose requirements are equivalent, when viewed 
        as a composite of skills, effort, responsibility, and working 
        conditions.''.
    (b) Conforming Amendment.--Section 13(a) (29 U.S.C. 213(a)) is 
amended in the matter before paragraph (1) by striking ``section 6(d)'' 
and inserting ``sections 6(d) and 6(g)''.

SEC. 4. PROHIBITED ACTS.

    Section 15(a) (29 U.S.C. 215(a)) is amended--
            (1) by striking the period at the end of paragraph (5) and 
        inserting a semicolon; and
            (2) by adding after paragraph (5) the following new 
        paragraphs:
            ``(6) to discriminate against any individual because such 
        individual has opposed any act or practice made unlawful by 
        section 6(g) or because such individual made a charge, 
        testified, assisted, or participated in any manner in an 
        investigation, proceeding, or hearing under section 6(g); or
            ``(7) to discharge or in any other manner discriminate 
        against, coerce, intimidate, threaten, or interfere with any 
        employee or any other person because the employee inquired 
        about, disclosed, compared, or otherwise discussed the 
        employee's wages or the wages of any other employee, or because 
        the employee exercised, enjoyed, aided, or encouraged any other 
        person to exercise or enjoy any right granted or protected by 
        section 6(g).''.

SEC. 5. REMEDIES.

    Section 16 (29 U.S.C. 216) is amended--
            (1) by adding at the end the following:
    ``(f) In any action brought under this section for violation of 
section 6(g), the court shall, in addition to any other remedies 
awarded to the prevailing plaintiff or plaintiffs, allow expert fees as 
part of the costs. Any such action may be maintained as a class action 
as provided by the Federal Rules of Civil Procedure.'';
            (2) in subsection (b), by striking ``section 15(a)(3)'' 
        each place it occurs and inserting ``paragraphs (3), (6), and 
        (7) of section 15(a)''; and
            (3) in the fourth sentence of subsection (b), by striking 
        ``No employees'' and inserting ``Except with respect to class 
        actions brought under subsection (f), no employees''.

SEC. 6. RECORDS.

    (a) Technical Amendment.--Section 11(c) (29 U.S.C. 211(c)) is 
amended by inserting ``(1)'' after ``(c)''.
    (b) Records.--Section 11(c) (as amended by subsection (a)) is 
further amended by adding at the end the following:
    ``(2)(A) Every employer subject to section 6(g) shall preserve 
records which document and support the method, system, calculations, 
and other bases used by the employer in establishing, adjusting, and 
determining the wages paid to the employees of the employer. Every 
employer subject to section 6(g) shall preserve such records for such 
periods of time, and shall make such reports therefrom to the Equal 
Employment Opportunity Commission, as shall be prescribed by the Equal 
Employment Opportunity Commission by regulation or order as necessary 
or appropriate for the enforcement of the provisions of section 6(g) or 
any regulations promulgated pursuant to section 6(g).''.
    (c) Small Business Exemptions.--Section 11(c) (as amended by 
subsections (a) and (b)) is further amended by adding at the end the 
following:
    ``(B)(i) Every employer subject to section 6(g) that has 25 or more 
employees on any date during the first or second year after the 
effective date of this paragraph, or 15 or more employees on any date 
during a subsequent year, shall file with the Equal Employment 
Opportunity Commission for the year involved a report signed by the 
president, treasurer, or corresponding principal officer, of the 
employer containing information in such detail as may be necessary to 
accurately disclose the wage or salary rates paid to employees in each 
classification, position, or job title or to employees in other wage or 
salary groups employed by the employer, including information with 
respect to the sex, race, and national origin of employees at each wage 
or salary level in each classification, position, job title, or other 
wage or salary group.''.
    (d) Protection of Confidentiality.--Section 11(c) (as amended by 
subsections (a) through (c)) is further amended by adding at the end 
the following:
    ``(ii) The rules and regulations issued by the Equal Employment 
Opportunity Commission under subparagraph (F), relating to the form of 
such a report, shall include requirements to protect the 
confidentiality of employees, including a requirement that the report 
shall not contain the name of any individual employee.''.
    (e) Use; Inspections; Examinations; Regulations.--Section 11(c) (as 
amended by subsections (a) through (d)) is further amended by adding at 
the end the following:
    ``(C) The Equal Employment Opportunity Commission may publish any 
information and data that the Equal Employment Opportunity Commission 
obtains pursuant to the provisions of subparagraph (B). The Equal 
Employment Opportunity Commission may use the information and data for 
statistical and research purposes, and compile and publish such 
studies, analyses, reports, and surveys based thereon as it may 
consider appropriate.
    ``(D) In order to carry out the purposes of this Act the Equal 
Employment Opportunity Commission shall by regulation make reasonable 
provision for the inspection and examination by any person of the 
information and data contained in any report filed with the Equal 
Employment Opportunity Commission pursuant to subparagraph (B).
    ``(E) The Equal Employment Opportunity Commission shall by 
regulation provide for the furnishing of copies of reports filed with 
the Equal Employment Opportunity Commission pursuant to subparagraph 
(B) to any person upon payment of a charge based upon the cost of the 
service.
    ``(F) The Equal Employment Opportunity Commission shall issue rules 
and regulations prescribing the form and content of reports required to 
be filed under subparagraph (B) and such other reasonable rules and 
regulations as it may find necessary to prevent the circumvention or 
evasion of such reporting requirements. In exercising its authority 
under subparagraph (B), the Equal Employment Opportunity Commission may 
prescribe by general rule simplified reports for employers for whom the 
Equal Employment Opportunity Commission finds that because of the size 
of the employers a detailed report would be unduly burdensome.''.

SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSISTANCE PROGRAM; REPORT 
              TO CONGRESS.

    Section 4(d) (29 U.S.C. 204(d)) is amended by adding at the end the 
following:
    ``(4) The Equal Employment Opportunity Commission shall undertake 
studies and provide information and technical assistance to employers, 
labor organizations, and the general public concerning effective means 
available to implement the provisions of section 6(g) prohibiting wage 
discrimination between employees performing work in equivalent jobs on 
the basis of sex, race, or national origin. Such studies, information, 
and technical assistance shall be based upon and include reference to 
the declared policy of such section to eliminate such discrimination. 
In order to achieve the purposes of such section, the Equal Employment 
Opportunity Commission shall further carry on a continuing program of 
research, education, and technical assistance including--
            ``(A) undertaking and promoting research with the intent of 
        developing means to expeditiously correct the conditions 
        leading to section 6(g);
            ``(B) publishing and otherwise making available to 
        employers, labor organizations, professional associations, 
        educational institutions, the various media of communication, 
        and the general public the findings of studies and other 
        materials for promoting compliance with section 6(g);
            ``(C) sponsoring and assisting State and community 
        informational and educational programs; and
            ``(D) providing technical assistance to employers, labor 
        organizations, professional associations and other interested 
        persons on means of achieving and maintaining compliance with 
        the provisions of section 6(g).
    ``(5) The report submitted annually by the Equal Employment 
Opportunity Commission to Congress pursuant to paragraph (1) shall 
include a separate evaluation and appraisal regarding the 
implementation of section 6(g).''.

SEC. 8. CONFORMING AMENDMENTS.

    (a) Application.--Section 203(a)(1) of the Congressional 
Accountability Act of 1995 (2 U.S.C. 1313(a)(1)) is amended--
            (1) by striking ``subsections (a)(1) and (d) of section 6'' 
        and inserting ``subsections (a)(1), (d), and (g) of section 
        6''; and
            (2) by striking ``206 (a)(1) and (d)'' and inserting ``206 
        (a)(1), (d), and (g)''.
    (b) Remedies.--Section 203(b) of such Act (2 U.S.C. 1313(b)) is 
amended by inserting before the period the following: ``or, in an 
appropriate case, under section 16(f) of such Act (29 U.S.C. 216(f))''.

SEC. 9. EFFECTIVE DATE.

    The amendments made by this Act shall take effect 1 year after the 
date of enactment of this Act.
                                 <all>