[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 74 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                 S. 74

To amend the Fair Labor Standards Act of 1938 to provide more effective 
 remedies to victims of discrimination in the payment of wages on the 
                 basis of sex, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 19, 1999

  Mr. Daschle (for himself, Mr. Kerry, Mr. Leahy, Ms. Mikulski, Mrs. 
 Murray, Mr. Reid, Mr. Wyden, Mrs. Boxer, Mr. Lautenberg, Mr. Kennedy, 
     Mr. Kerrey, Mr. Durbin, Ms. Landrieu, Mr. Reed, Mr. Robb, Mr. 
 Torricelli, Mr. Breaux, Mr. Wellstone, Mrs. Feinstein, Mr. Hollings, 
  Mr. Dodd, Mr. Akaka, Mr. Feingold, and Mr. Johnson) introduced the 
 following bill; which was read twice and referred to the Committee on 
                 Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
To amend the Fair Labor Standards Act of 1938 to provide more effective 
 remedies to victims of discrimination in the payment of wages on the 
                 basis of sex, 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 cited as the ``Paycheck Fairness Act''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) Women have entered the workforce in record numbers.
            (2) Even in the 1990's, 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.

SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.

    (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--
                                            ``(AA) is job-related with 
                                        respect to the position in 
                                        question; or
                                            ``(BB) furthers a 
                                        legitimate business purpose, 
                                        except that this item shall not 
                                        apply where the employee 
                                        demonstrates that an 
                                        alternative employment practice 
                                        exists that would serve the 
                                        same business purpose without 
                                        producing such differential and 
                                        that the employer has refused 
                                        to adopt such alternative 
                                        practice; and
                                    ``(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''.

SEC. 4. TRAINING.

    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.

SEC. 5. RESEARCH, EDUCATION, AND OUTREACH.

    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.

SEC. 6. TECHNICAL ASSISTANCE AND EMPLOYER RECOGNITION PROGRAM.

    (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.

SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN THE 
              WORKPLACE.

    (a) In General.--There is established the Robert Reich National 
Award for Pay Equity in the Workplace, which shall be evidenced by a 
medal bearing the inscription ``Robert Reich 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).

SEC. 8. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT 
              OPPORTUNITY COMMISSION.

    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.''.

SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as may be 
necessary to carry out this Act.
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