[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 788 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 788

       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

                             April 12, 2011

 Mr. Harkin (for himself, Mr. Leahy, Mr. Kerry, Mr. Akaka, Mrs. Boxer, 
Mrs. Murray, Mr. Lautenberg, and Mr. Merkley) 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 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.

    (a) Short Title.--This Act may be cited as the ``Fair Pay Act of 
2011''.
    (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 (29 U.S.C. 201 et seq.).

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Wage rate 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 rate 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) In 2009, a woman in the United States working in a 
        full-time, year-round job earned 77 cents for every dollar 
        earned by a man working in a full-time, year-round job.
            (B) A 2007 study found that--even when accounting for key 
        factors generally known to influence earnings such as race, 
        educational attainment, and experience--nearly half (49.3 
        percent) of the pay gap can be explained by differences in the 
        industries and occupations that men and women work in, and 41 
        percent of the pay gap cannot be accounted for but may be 
        partially explained by discrimination in the workplace.
            (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) Artificial barriers to the elimination of 
        discrimination in compensation based upon sex, race, and 
        national origin continue to exist more than 4 decades after the 
        passage of section 6(d) of the Fair Labor Standards Act of 
        1938, the Equal Pay Act of 1963, and the Civil Rights Act of 
        1964 (42 U.S.C. 2000a et seq.). Elimination of such barriers 
        would have positive effects, including--
                    (A) providing a solution to problems in the economy 
                created by discrimination through wage rate 
                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:
    ``(h)(1)(A) Except as provided in subparagraph (B), no employer 
having employees subject to any provision 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.
    ``(B) Nothing in subparagraph (A) shall prohibit the payment of 
different wage rates to employees where such payment is made pursuant 
to--
            ``(i) a seniority system;
            ``(ii) a merit system;
            ``(iii) a system that measures earnings by quantity or 
        quality of production; or
            ``(iv) a differential based on a bona fide factor other 
        than sex, race, or national origin, 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 if 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, race, or national origin by the 
                employer.
    ``(C) 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 
for purposes of subparagraph (B)(iv). Such guidelines shall not include 
a list of such jobs.
    ``(D) 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 that 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) 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 that 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 (h)''.

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:
            ``(6) to discriminate against any individual because such 
        individual has opposed any act or practice made unlawful by 
        section 6(h) or because such individual made a charge, 
        testified, assisted, or participated in any manner in an 
        investigation, proceeding, or hearing to enforce section 6(h); 
        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(h).''.

SEC. 5. REMEDIES.

    (a) Enhanced Penalties.--Section 16(b) (29 U.S.C. 216(b)) is 
amended--
            (1) by inserting after the first sentence the following: 
        ``Any employer who violates subsection (d) or (h) of section 6 
        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'', by striking 
        ``No employees'' and inserting ``Except with respect to class 
        actions brought under subsection (f), no employee'';
            (4) in the sentence beginning ``The court in'', 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
            (5) by striking ``section 15(a)(3)'' each place it occurs 
        and inserting ``paragraphs (3), (6), and (7) of section 
        15(a)''.
    (b) Action by Secretary.--Section 16(c) (29 U.S.C. 216(c)) is 
amended--
            (1) in the first sentence--
                    (A) by inserting ``or, in the case of a violation 
                of subsection (d) or (h) of section 6, 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 subsection 
        (d) or (h) of section 6, additional compensatory or punitive 
        damages''; and
            (3) in the third sentence, by striking ``the first 
        sentence'' and inserting ``the first or second sentence''.
    (c) Fees.--Section 16 (29 U.S.C. 216) is amended by adding at the 
end the following:
    ``(f) In any action brought under this section for a violation of 
section 6(h), 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.''.

SEC. 6. RECORDS.

    (a) Records.--Section 11(c) (29 U.S.C. 211(c)) is amended--
            (1) by inserting ``(1)'' after ``(c)''; and
            (2) by adding at the end the following:
    ``(2) Every employer subject to section 6(h) shall preserve records 
that document and support the method, system, calculations, and other 
bases used by the employer in establishing, adjusting, and determining 
the wage rates paid to the employees of the employer. Every employer 
subject to section 6(h) shall preserve such records for such periods of 
time, and shall make such reports from the records 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(h) or 
any regulation promulgated pursuant to section 6(h).''.
    (b) Small Business Exemptions.--Section 11(c) (as amended by 
subsection (a)) is further amended by adding at the end the following:
    ``(3) Every employer subject to section 6(h) 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 any subsequent year after such second year, shall, in accordance 
with regulations promulgated by the Equal Employment Opportunity 
Commission under paragraph (8), prepare and submit to the Equal 
Employment Opportunity Commission for the year involved a report signed 
by the president, treasurer, or corresponding principal officer, of the 
employer that includes information that discloses the wage rates paid 
to employees of the employer in each classification, position, or job 
title, or to employees in other wage groups employed by the employer, 
including information with respect to the sex, race, and national 
origin of employees at each wage rate in each classification, position, 
job title, or other wage group.''.
    (c) Protection of Confidentiality.--Section 11(c) (as amended by 
subsections (a) and (b)) is further amended by adding at the end the 
following:
    ``(4) The rules and regulations promulgated by the Equal Employment 
Opportunity Commission under paragraph (8), 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.''.
    (d) Use; Inspections; Examination; Regulations.--Section 11(c) (as 
amended by subsections (a) through (c)) is further amended by adding at 
the end the following:
    ``(5) The Equal Employment Opportunity Commission may publish any 
information and data that the Equal Employment Opportunity Commission 
obtains pursuant to the provisions of paragraph (3). 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 on the information and 
data as the Equal Employment Opportunity Commission may consider 
appropriate.
    ``(6) 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 submitted to the Equal 
Employment Opportunity Commission pursuant to paragraph (3).
    ``(7) The Equal Employment Opportunity Commission shall by 
regulation provide for the furnishing of copies of reports submitted to 
the Equal Employment Opportunity Commission pursuant to paragraph (3) 
to any person upon payment of a charge based upon the cost of the 
service.
    ``(8) The Equal Employment Opportunity Commission shall issue rules 
and regulations prescribing the form and content of reports required to 
be submitted under paragraph (3) and such other reasonable rules and 
regulations as the Equal Employment Opportunity Commission may find 
necessary to prevent the circumvention or evasion of such reporting 
requirements. In exercising the authority of the Equal Employment 
Opportunity Commission under paragraph (3), 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 conduct 
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(h) prohibiting wage 
rate 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 on and include 
reference to the objectives of such section to eliminate such 
discrimination. In order to achieve the objectives of such section, the 
Equal Employment Opportunity Commission shall carry on a continuing 
program of research, education, and technical assistance including--
            ``(A) conducting and promoting research with the intent of 
        developing means to expeditiously correct the wage rate 
        differentials described in section 6(h);
            ``(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(h);
            ``(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(h).
    ``(5) The report submitted biennially by the Secretary to Congress 
under paragraph (1) shall include a separate evaluation and appraisal 
regarding the implementation of section 6(h).''.

SEC. 8. CONFORMING AMENDMENTS.

    (a) Congressional Employees.--
            (1) Application.--Section 203(a)(1) of the Congressional 
        Accountability Act of 1995 (2 U.S.C. 1313(a)(1)) is amended--
                    (A) by striking ``subsections (a)(1) and (d) of 
                section 6'' and inserting ``subsections (a)(1), (d), 
                and (h) of section 6''; and
                    (B) by striking ``206 (a)(1) and (d)'' and 
                inserting ``206 (a)(1), (d), and (h)''.
            (2) 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))''.
    (b) Executive Branch Employees.--
            (1) Application.--Section 413(a)(1) of title 3, United 
        States Code, as added by section 2(a) of the Presidential and 
        Executive Office Accountability Act (Public Law 104-331; 110 
        Stat. 4053), is amended by striking ``subsections (a)(1) and 
        (d) of section 6'' and inserting ``subsections (a)(1), (d), and 
        (h) of section 6''.
            (2) Remedies.--Section 413(b) of such title is amended by 
        inserting before the period the following: ``or, in an 
        appropriate case, under section 16(f) of such Act''.

SEC. 9. EFFECTIVE DATE.

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