[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                 THE PAYCHECK FAIRNESS ACT (H.R. 1338)

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, JULY 11, 2007

                               __________

                           Serial No. 110-54

                               __________

      Printed for the use of the Committee on Education and Labor


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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Ranking Minority Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Kenny Marchant, Texas
Timothy H. Bishop, New York          Tom Price, Georgia
Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland           Charles W. Boustany, Jr., 
Joe Sestak, Pennsylvania                 Louisiana
David Loebsack, Iowa                 Virginia Foxx, North Carolina
Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New 
Jason Altmire, Pennsylvania              York
John A. Yarmuth, Kentucky            Rob Bishop, Utah
Phil Hare, Illinois                  David Davis, Tennessee
Yvette D. Clarke, New York           Timothy Walberg, Michigan
Joe Courtney, Connecticut            Dean Heller, Nevada
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                   Vic Klatt, Minority Staff Director
                                 ------                                

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                LYNN C. WOOLSEY, California, Chairwoman

Donald M. Payne, New Jersey          Joe Wilson, South Carolina,
Timothy H. Bishop, New York            Ranking Minority Member
Carol Shea-Porter, New Hampshire     Tom Price, Georgia
Phil Hare, Illinois                  John Kline, Minnesota


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on July 11, 2007....................................     1

Statement of Members:
    DeLauro, Hon. Rosa L., a Representative in Congress from the 
      State of Connecticut, prepared statement of................    54
    Wilson, Hon. Joe, ranking minority member, Subcommittee on 
      Workforce Protections......................................     3
        Prepared statement of....................................     4
    Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce 
      Protections................................................     1
        Prepared statement of....................................     3
        Additional material submitted:
            Statement of the American Association of University 
              Women..............................................    56
            Statement of Business and Professional Women/USA.....    60

Statement of Witnesses:
    Greenberger, Marcia D., co-president, National Women's Law 
      Center.....................................................    12
        Prepared statement of....................................    13
    Murphy, Evelyn F., president, WAGE Project...................     6
        Prepared statement of....................................     8
    Olson, Camille, partner, Seyfarth Shaw LLP, on behalf of the 
      U.S. Chamber of Commerce...................................    20
        Prepared statement of....................................    22
    Sellers, Joseph M., Cohen, partner, Milstein, Hausfeld & Toll 
      PLLC.......................................................    36
        Prepared statement of....................................    38


                 THE PAYCHECK FAIRNESS ACT (H.R. 1338)

                              ----------                              


                        Wednesday, July 11, 2007

                     U.S. House of Representatives

                 Subcommittee on Workforce Protections

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:31 a.m., in 
Room 2175, Rayburn House Office Building, Hon. Lynn Woolsey 
[chairwoman of the subcommittee] presiding.
    Present: Representatives Woolsey, Payne, Hare, Wilson, 
Price, and Kline.
    Staff present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Jody Calemine, Labor Policy Deputy 
Director; Lynn Dondis, Senior Policy Advisor for Subcommittee 
on Workforce Protections; Michael Gaffin, Staff Assistant, 
Labor; Jeffrey Hancuff, Staff Assistant, Labor; Brian Kennedy, 
General Counsel; Joe Novotny, Chief Clerk; Megan O'Reilly, 
Labor Policy Advisor; Dray Thorne, Senior Systems 
Administrator; Michele Varnhagen, Labor Policy Director; 
Cameron Coursen, Assistant Communications Director; Rob Gregg, 
Legislative Assistant; Richard Hoar, Professional Staff Member; 
Victor Klatt, Minority Staff Director; Jim Paretti, Minority 
Workforce Policy Counsel; Molly McLaughlin Salmi, Minority 
Deputy Director of Workforce Policy; Ken Serafin, Minority 
Professional Staff Member; Linda Stevens, Minority Chief Clerk/
Assistant to the General Counsel; and Loren Sweatt, Minority 
Professional Staff Member.
    Chairwoman Woolsey [presiding]. A quorum is present. The 
hearing of the Workforce Protection Subcommittee on The 
Paycheck Fairness Act, H.R. 1338, will come to order.
    Pursuant to committee rule 12-A, any member may submit an 
opening statement in writing which will be made part of the 
permanent record.
    I now recognize myself followed by Ranking Member Joe 
Wilson for an opening statement.
    I thank you all for coming. This is going to be a hearing 
on H.R. 1338, the Paycheck Fairness Act, sponsored by 
Representative Rosa DeLauro of Connecticut.
    Representative DeLauro first introduced this bill about 10 
years ago. And she has not stopped working on it from the 
moment she introduced it. And I am proud to be one of the over 
200 co-sponsors of this legislation which strengthens the 
existing Equal Pay Act to ensure that women make equal pay for 
equal work.
    This is important because in the 43 years since the passage 
of the Equal Pay Act, women still make less than men doing the 
same work. In April the full Education and Labor Committee held 
a hearing on equal pay, and our witnesses confirmed this.
    And although most women are in the labor force, including 
70 percent of all moms, on the average, they earn only 77 
percent of their male counterparts. This translates into lost 
income anywhere from $400,000 to $2 million over a lifetime of 
work. This gap exists at the beginning of a woman's career, and 
it grows wider over time.
    Dr. Catherine Hill from the Association of American 
University Women was one of our witnesses at the April hearing. 
She testified that a recently published study conducted by the 
AAUW found that 1 year out of college women make only 80 
percent of what men earn, and that the gap exists in every 
career field and in every occupation.
    The study also found that 10 years later a woman makes only 
69 percent of a man's salary. This study looked at a full range 
of other factors that could explain this difference between men 
and women 10 years down the road and discovered that a full 12 
percent of the gap was attributable to wage discrimination.
    This wage gap is grossly unfair to women. And it affects 
not only their weekly paycheck, but also their prospects at 
retirement.
    Older women are less likely than older men to receive 
pension income. And when they do, they receive one-half the 
benefits that men do. The median income for an older woman is 
about $15,000 a year compared to $29,000 for an older man. And 
70 percent of older adults living in poverty are female.
    But not only is unequal pay bad for women, it is 
particularly bad for their families. Currently the average 
woman's paycheck makes up about one-third of a family's total 
income. And for many families, having a working wife can make 
the difference between being in the middle class or being poor.
    This is even true for single women who are heads of their 
households. They are twice as likely to be in poverty as a 
single dad.
    The goal of the Equal Pay Act to eliminate pay disparities 
for women is more than a laudable goal. However, it has never 
lived up to its full promise. But H.R. 1338, the Paycheck 
Fairness Act, does just that.
    It imposes a stricter burden on an employer who wishes to 
affirmatively defend its actions by citing non-gender reasons 
for the difference in pay between a man and a woman. It expands 
the remedies for victims of pay discrimination beyond back pay 
to compensatory and punitive damage.
    It prohibits employer retaliation if workers share salary 
information with each other. It improves the collection of pay 
information. And it creates a grant program for the 
establishment of negotiation skills, training programs for 
women and girls.
    There is much that we need to do to make workplaces more 
friendly for women and their families. Equal pay is a crucial 
part of that change.
    We have a very distinguished panel of witnesses today who 
will elaborate on this very important bill. And I look forward 
to their testimony.
    Now I yield to Mr. Wilson.
    [The statement of Ms. Woolsey follows:]

        Prepared Statement of Hon. Lynn C. Woolsey, Chairwoman,
                 Subcommittee on Workforce Protections

    Thank you all for coming today for this hearing on H.R. 1338, the 
Paycheck Fairness Act, sponsored by Representative Rose DeLauro of 
Connecticut.
    Representative DeLauro first introduced this bill some ten years 
ago and has been introducing it ever since.
    I am proud to be one of over 200 co-sponsors of this legislation, 
which strengthens the existing Equal Pay Act to ensure that women make 
equal pay for equal work.
    This is important because in the 43 years since passage of the 
Equal Pay Act, women still make less than a man.
    In April, the Full Education and Labor Committee held a hearing on 
equal pay and our witnesses confirmed this.
    Although most women are in the labor force--including 70 percent of 
all mothers--on average they earn only 77 percent of what their male 
counterparts make.
    This translates into lost income of anywhere from $400,000 to $2 
million over a lifetime of work.
    This gap exists at the beginning of a woman's career and grows even 
wider over time.
    Dr. Catherine Hill from the Association of American University of 
Women was one of our witnesses at the April hearing, and she testified 
about a recently published study conducted by the AAUW.
    What this study found was that one year out of college, women make 
only 80 percent of what men make, and that the gap exists in every 
career field and in every occupation.
    The study also found that 10 years later, a woman makes only 69 
percent of a man's salary.
    This study looked at a full range of other factors that could 
explain this difference between men and women 10 years down the road 
and discovered that a full 12 percent of the gap was attributable to 
wage discrimination
    This wage gap is grossly unfair to women and affects not only their 
weekly pay check but also their prospects at retirement.Older women are 
less likely than older men to receive pension income, and when they do, 
they only receive one-half the benefits that men do.
    The median income for an older woman is about $15,000 compared to 
$29,000 for an older man. And 70 percent of older adults living in 
poverty are women.
    But not only is unequal pay bad for women, it is bad for their 
families as well. Currently, the average woman's paycheck makes up 
about one-third of a family's total income.And for many families, 
having a working wife can make the difference between being in the 
middle class or being poor.This is also very true for single women who 
are the heads of their households. They are twice as likely to be in 
poverty as single dads.The goal of the Equal Pay Act--to eliminate pay 
disparities for women--is a laudable goal. However it has never lived 
up to its full promise.
    H.R. 1338, the Paycheck Fairness Act does just that.
    It imposes a stricter burden on an employer who wishes to 
affirmatively defend its actions by citing non-gender reasons for the 
difference in pay between a man and a woman.It expands the remedies for 
victims of pay discrimination beyond backpay to compensatory and 
punitive damages.
    It prohibits employer retaliation if workers share salary 
information with each other.It improves the collection of pay 
information.And it creates a grant program for the establishment of 
negotiation skills training programs for women and girls.
    There is so much that we need to do to make the workplace a 
friendly place for women and their families.And equal pay is crucial.We 
have a very distinguished panel of witnesses today who will elaborate 
on this very important bill, and I look forward to their testimony.
                                 ______
                                 
    Mr. Wilson. Thank you, Madam Chairman.
    Good morning. And welcome to our witnesses.
    I appreciate the chair calling this legislative hearing 
this morning to examine H.R. 1338. I would hope this marks the 
start of a commitment to regular order and of giving respect 
and meaning to the deliberative process that this committee, at 
least for the proceeding 12 years, has come to know.
    I choose my words here advisedly. As members well know, too 
often in the last 7 months regular order has not been the order 
of the day. As recently as 2 weeks ago, our committee was 
presented with a markup of complicated legislation that will 
have profound effects on workers and employees with little time 
for analysis and no consideration of the bill through the 
hearing process. So I am glad we are at least starting the 
process of regular order today.
    The comparison I make is very much on point because I think 
the bill before us today, despite its attractive title, 
similarly has the potential to radically change more than 40 
years of well-settled anti-discrimination law under the Equal 
Pay Act and to tip the careful balance embodied in the law 
without significant or meaningful evidence indicating that such 
change is necessary. Make no mistake. As we will hear today, 
that is what H.R. 1338 does.
    Now, I am deeply concerned with the effects this bill will 
have on workers, employers, and others. I am troubled that H.R. 
1338, for the first time, would provide unlimited compensatory 
and punitive damages for employers who had absolutely no 
intention of discrimination, a remedy not available to victims 
of intentional discrimination on the basis of race, color or 
even gender under Title 7.
    As we will hear, H.R. 1338 will essentially gut the ability 
of employers to defend differences in pay among employees based 
on legitimate and nondiscriminatory factors other than sex. The 
bill eliminates the ability of employers to defend pay 
differentials based on different locations, enterprises or 
geographical regions. It reverses well-settled law under the 
Fair Labor Standards Act regarding class action lawsuits solely 
with the result of expanding frivolous litigation.
    And finally, the bill attempts via so-called voluntary 
guidelines, to revive a doctrine of comparable worth that most 
right-thinking policy makers on both sides of the aisle have 
wisely considered dead.
    In closing, let me say I appreciate the opportunity to 
examine this legislation in our subcommittee this morning 
because I think the more closely we look at it, the more flawed 
we will reveal it to be.
    I thank the Chair, welcome our witnesses, and yield back my 
time.
    [The statement of Mr. Wilson follows:]

Prepared Statement of Hon. Joe Wilson, Ranking Republican, Subcommittee 
                        on Workforce Protections

    Good morning, and welcome to our witnesses.
    I appreciate the Chair calling this legislative hearing this 
morning to examine H.R. 1338. I would hope that this marks the start of 
a commitment to regular order, and of giving respect and meaning to the 
deliberative process that this Committee--at least for the preceding 
twelve years--had come to be known.
    I choose my words here advisedly. As Members well know, too often 
in the last seven months, ``regular order'' has not been the order of 
the day. As recently as two weeks ago, our Committee was presented with 
a markup of complicated legislation that will have profound effects on 
workers and employees, with little time for analysis, and no 
consideration of the bill through the hearing process. So I am glad we 
are at least starting the process of regular order today.
    The comparison I make is very much on point, because I think the 
bill before us today--despite its clever title--similarly has the 
potential to radically change more than 40 years of well-settled anti-
discrimination law under the Equal Pay Act, and to tip the careful 
balance embodied in the law without significant or meaningful evidence 
indicating that such change is necessary.
    Make no mistake, and as we will hear today, that is what H.R. 1338 
does, and I am deeply concerned with the effects this bill will have on 
workers, employers, and others.
    I am troubled that H.R. 1338, for the first time, would provide 
unlimited compensatory and punitive damages for employers who had 
absolutely no intention of discrimination--a remedy not available to 
victims of intentional discrimination on the basis of race, or color, 
or even gender under Title VII.
    As we will hear, H.R. 1338 will essentially gut the ability of 
employers to defend differences in pay among employees based on 
legitimate and non-discriminatory factors other than sex. The bill 
eliminates the ability of employers to defend pay differentials based 
on different locations, enterprises, or geographical regions. It 
reverses well-settled law under the Fair Labor Standards Act regarding 
class action lawsuits, solely with the result of expanding frivolous 
litigation. And finally, the bill attempts, via so-called 
``voluntarily'' guidelines, to revive a doctrine of ``comparable 
worth'' that most right-thinking policymakers on both sides of the 
aisle have wisely considered dead.
    In closing, let me say again--I appreciate the opportunity to 
examine this legislation in our Subcommittee this morning, because I 
think the more closely we look at it, the more flawed we will reveal it 
to be. I thank the Chair, welcome our witnesses, and yield back my 
time.
                                 ______
                                 
    Chairwoman Woolsey. Thank you, Mr. Wilson.
    I would like to introduce the very distinguished panel of 
witnesses before us. And I will introduce them in the order 
that they will be speaking.
    First, Dr. Evelyn Murphy, who is an economist and the 
president of the Wage Project, a national organization to end 
wage discrimination in the workplace. She is also the author of 
``Getting Even: Why Women Still Don't Get Paid Like Men and 
What To Do About It,'' which was published in the year 2005. In 
1986 Dr. Murphy was elected lieutenant governor of 
Massachusetts. She was the first woman in the state's history 
ever to serve in any constitutional office. After that, she 
entered the private sector as executive vice president of Blue 
Cross Blue Shield. She is now a resident scholar at the Women's 
Research Center at Brandeis University. She received her B.A. 
and Ph.D. from Duke University and her M.A. from Columbia 
University.
    Thank you for coming, Dr. Murphy.
    Marcia Greenberger--Marcia is the founder and co-president 
of National Women's Law Center, an organization that has worked 
to expand possibilities for women and girls. For over 30 years 
Ms. Greenberger has been an advocate for women and has been a 
leader in developing strategies to secure the successful 
passage of legislation protecting women and counsel in landmark 
litigation establishing new legal precedents for women. She has 
received numerous honors for her work, including being 
recognized by Working Woman Magazine as one of the 25 heroines 
who actively over the last 25 years has helped women in the 
workplace. She received her B.A. and law degrees from the 
University of Pennsylvania.
    Thank you for coming, Marcia.
    Camille Olson--Camille is a partner in the law firm of 
Seyfarth Shaw located in Chicago. She is a member of the firm's 
labor and employment law's steering committee, chair of its 
class action discrimination practice group, and a key member of 
its interdisciplinary task force on fair labor standards. Ms. 
Olson has 20 years of experience representing employers in all 
areas of labor and employment law. She received her B.A. and 
law degrees at the University of Michigan.
    Thank you for coming, Ms. Olson.
    Joseph Sellers--Mr. Sellers is a partner at the law firm of 
Cohen, Milstein and is head of the firm's civil rights and 
employment practice group. In this capacity he represents 
victims of discrimination and illegal employment practices 
individually and through class actions. Prior to that, he 
served as head of the employment discrimination project at the 
Washington Lawyer's Committee for Civil Rights and Urban 
Affairs for over 15 years. Mr. Sellers has also been active in 
legislative matters and worked on the passage of the Civil 
Rights Act of 1991 and the Americans for Disabilities Act of 
1990. He received his B.A. from Brown University, and his law 
degree from Case Western Reserve School of Law.
    I welcome all of you. And you are going to be wonderful 
witnesses.
    For those of you who have not testified before the 
committee before, let me explain the lighting system. We have a 
5-minute rule. Everyone, including the members, are limited to 
5 minutes of presentation or questioning or a combination.
    The green light is illuminated when you begin to speak. 
When you see the yellow light, it means you have 1 minute 
remaining. And when you see the red light, it is time to 
conclude.
    Be certain that as you testify nobody is going to cut you 
off in mid-sentence. But please turn on the microphone in front 
of you.
    And we will begin with you, Dr. Murphy.

             STATEMENT OF EVELYN MURPHY, PRESIDENT,
                          WAGE PROJECT

    Ms. Murphy. Thank you, Chairwoman Woolsey.
    Members of the committee, thank you very much for the 
opportunity to testify before you in the House on the Paycheck 
Fairness Act. As an economist, I have been interested in the 
gender wage gap for over four decades. Over those years as I 
watched more and more women graduating from college and 
entering and working all of their lives, I just assumed that we 
would catch up with men's wages.
    So in the mid-1990s when we had not, it shocked me. I have 
been single-mindedly scrutinizing the wage gap ever since.
    My book, ``Getting Even,'' reveals the extent to which this 
discrimination permeates the entire United States economy. You 
can read about employers of all kinds who in recent years had 
to pay women employees to settle--or former employees--to 
settle claims of gender discrimination. Even with those 
consequences, our current laws have not ended workplace 
discrimination.
    There continue to be barriers to hiring and promoting 
qualified women, financial penalties imposed arbitrarily on 
pregnant women, sexual harassment by bosses and co-workers, 
failure to pay women for the same job as much as men, and 
biases and stereotyping, which may seem slight at the moment 
when it sets back a women, yet also cuts into her paycheck. 
Inequitable treatment takes money out of a woman's paycheck, 
which accumulates over years into serious financial losses.
    The young woman who graduates from high school last spring 
will make $700,000 less than the young man standing next to her 
getting his high school diploma. A woman who graduated from 
college will miss $1.2 million over her working life. And a 
woman with an MBA, a law degree or a medical degree will miss 
$2 million compared to the man getting his degree with her.
    You in Congress, policy analysts, researchers, all of us 
have yet to adequately understand and address the gender wage 
gap. Statisticians, try as they might, have not been able to 
fully ``explain'' the gap. Why is that after all this time? 
Isn't it time to conclude that we are looking at inadequate 
data to explain the gap?
    The gender gap is not just about worker characteristics 
that we get from the Bureau of Labor, Statistics and the Census 
Bureau. It is about workplace characteristics. And it is time 
to collect data as extensively about workplaces as about 
workers.
    This bill is important because it finally points public 
attention in the right place, the American workplace, and 
initiates an expanded collection of workplace data. Prompt 
passage is important.
    Recently the wage project did a survey. And it used the 
national women's groups, the National Committee on Pay Equity, 
the BPW, the YWCA, the AAUW and used their outlets. Eight 
hundred women responded to this survey.
    And while this is not a random survey I will tell you that 
their voices give you a window into what they are experiencing 
today and the kind of discrimination and pay inequities. The 
loudest message in that survey is that women fear retaliation 
when they talk about their pay at work. The non-retaliation 
clause in section three will help many women who now fear 
firing or demotion.
    One college-educated woman in her late 40s said, ``About 3 
years ago I worked for a major corporation in a supervisory 
capacity. My staff was 47 people, and my colleague's staff was 
12. The salary he made was $28,000, and mine was $22,500. The 
vice president advised me that if I told what I found out, I 
could be fired.'' The fear factor is real.
    This bill will help women now silenced by the fear of 
retaliation. And besides, fair minded employers should want 
employees who suspect that their pay is unfair to raise the 
questions now before suspicion hardens into grievances and 
lawsuits and erodes their productivity.
    Three out of four women in this survey reported that they 
had recently had some experience with unfair treatment or pay. 
Passage of this bill will give them a sense that, in fact, the 
inequities in their workplace may get better and improve so 
they don't have to leave their jobs.
    A 37-year-old caseworker in a non-profit organization said 
they hired a man whom they paid more, and she was to train that 
man. She decided to do that and left her job afterwards 
discouraged.
    It costs women money when they have to leave their jobs 
because they are not paid or treated fairly. They lose their 
seniority. And they may take a pay cut in order to get their 
salaries.
    For women whose employers adopt the guidelines from the 
Secretary of Labor, these are women who will know that not only 
is unequal pay now not the law and not sanctioned by law, but 
also pay equity will be ingrained in the workplace and the 
culture of their workplace as well as the practices.
    Every employer should adopt these regulations. That is the 
surest way to get from here to every American workplace having 
pay equity in the near future.
    And speaking of the future and since I have got a red 
light, let me just say this. I hope you pass this bill soon 
because of the unintended legacy if we don't. That is if we 
don't do something.
    I mean, it is clear after all these years that we haven't 
eliminated the pay gap and can't with the laws that we now 
have. If we don't do something, we pass on what women now lose 
to your daughters and granddaughters. It is a lousy legacy. It 
is one you don't and we don't want. But if we don't do 
something about it, that is the legacy we will pass on.
    [The statement of Ms. Murphy follows:]

    Prepared Statement of Evelyn F. Murphy, President, WAGE Project

    Chairwoman Woolsey, Congresswoman DeLauro, members of the House 
Subcommittee on Workforce Protections, thank you for the opportunity to 
testify on H.1338, the Paycheck Fairness Act.
    I am Evelyn Murphy, a Ph. D. economist, President of The WAGE 
Project, a national nonprofit organization dedicated to eliminating the 
gender wage gap, author of Getting Even: Why Women Don't Get Paid Like 
Men and What To Do About It, Resident Scholar at the Women's Studies 
Research Center at Brandeis University, a corporate director, and 
former Lt. Governor of Massachusetts.
Gender Discrimination in Today's Workplaces and Its Cost to Working 
        Women.
    As an economist, I have been interested in the gender wage gap for 
almost four decades. Over those years, as I watched more women 
graduating from college, and more women working throughout their lives, 
I just assumed that we would catch up with men's wages. I was startled 
in the mid-1990s when I realized that we were nowhere near parity. I 
have been single-mindedly scrutinizing this wage gap ever since.
    My book, Getting Even--the result of eight years of research 
accumulating evidence of gender wage discrimination never before 
assembled--reveals the extent to which this discrimination permeates 
the entire United States economy.
    You can read about employers of all kinds who, in recent years, had 
to pay women employees or former employees to settle claims of gender 
discrimination; or judges and juries ordered them to pay up. These 
consequences and our current laws have not ended workplace 
discrimination. There continue to be barriers to hiring and promoting 
qualified women; financial penalties imposed arbitrarily on pregnant 
women; sexual harassment by bosses and co-workers; failure to pay women 
the same money as men for doing the same jobs; and biases and 
stereotyping which may seem slight or aggravating setbacks to a woman 
at the time, yet also cut into her paycheck.
    Inequitable treatment takes money out of a woman's paycheck, which 
accumulates into serious financial losses over the 35 years that she 
typically works: the young woman graduating from high school this 
spring will make $700,000 less than the young man receiving his high 
school diploma at the same time; the woman graduating from college this 
spring will lose $1.2 million compared to the man getting his degree 
along with her; and the woman with the newly minted MBA, law degree or 
medical degree will make $2 million less.
    Women don't realize the enormous sums that they lose to wage 
discrimination because they never see big bites taken out of their 
paychecks at any one time. Instead, little nicks in a paycheck--a 
promotion delayed because she is pregnant and her boss guesses 
(wrongly) that she intends to shift to part-time work, a sales call she 
misses because her boss assumes she's going home to cook dinner for her 
family, her request for a different shift to escape a sexual harasser--
all add up, over time to become: $700,000, $1.2 million and $2 million.
    Also, women do not realize how much wage discrimination hurts them 
because we--Congress, policy analysts, researchers--have yet to 
adequately understand and address the gender wage gap. Statisticians, 
try as they might, have not been able to fully ``explain'' the gap. 
Why? Isn't it time to conclude that we are looking at inadequate data 
to explain this gap? The gender wage gap is not just about worker 
characteristics, ie. the data provided by the Bureau of Labor 
Statistics and Census Bureau; it's about workplace characteristics, 
too. It's time to collect data as extensively about workplaces as 
workers.
    H. 1338 is important because it finally points public attention to 
the right place: the American workplace, and initiates an expanded 
collection of workplace data. This bill, with its emphasis on altering 
workplace pay practices, creates the appropriate conditions for 
American women to achieve gender pay equity. Working women are not 
looking for pay equity to be handed to them. Women can and will take 
responsibility for ensuring they're paid and treated fairly. Yet 
employers must also take responsibility to ensure that their pay 
policies and practices are fair and equitable. H. 1338 helps women and 
employers achieve these common goals and initiates the collection of 
workplace pay data essential to eliminating workplace discrimination.
Prompt Action Is Important.
    Prompt passage of H 1338 is very important to working women. Here's 
why.
    The WAGE Project surveyed working women through collaborations with 
several national women's organizations--the National Committee on Pay 
Equity, The Business and Professional Women, The Young Women's 
Christian Association, the American Association of University Women, 
and the National Organization for Women. Almost 800 working women 
responded. These women work in every state in the nation and in every 
sector of the economy. They take home small paychecks as waitresses, 
modest paychecks as office managers and technicians, and relatively 
large paychecks as senior executives, professors and physicians. While 
this is not a random sample of working women, their voices offer a 
candid window into today's working conditions and their recent 
experiences with pay inequity.
    The loudest message of this survey is that women fear retaliation 
if they talk about their pay at work. The nonretaliation clause in 
Section 3 will help many women who fear firing or demotion. One college 
educated woman in her late 40's said: ``About three years ago I worked 
for a major corporation in a supervisory capacity. My staff was 47 
people and my male colleague's staff was 12. His salary was $28,000, 
mine was $22,500 * * * The Vice President advised me that if I told 
what I found out I could be fired.''
    The fear factor is real. This bill will help women now silenced by 
fear of retaliation. Besides, fair-minded employers should want 
employees who suspect unfair pay to raise their questions before 
suspicion hardens into grievances and lawsuits and erodes their 
productivity.
    Three out of four survey respondents reported some recent 
experience with unfair treatment or pay. Passage of H.1338 will give 
those women and others hope that working conditions will become more 
equitable where they now work and that they don't have to leave their 
jobs. A 37 year old case worker in a nonprofit organization said ``They 
just hired a male and asked me to train him. He is starting out making 
more than me. There is (sic) certain criteria you must meet for this 
position which he does not meet. Then they want me to train him to do 
the same job I am doing.'' She did nothing about this ``because I have 
to keep my job to feed my children. I am, however, looking for another 
job.'' Typically, when women encountered blatant pay inequity, they 
said they decided to leave: ``I quit.'' ``I gave notice and left one 
month later.'' ``I used up my vacation time and never went back.''
    Don't miss the financial point: it costs women money when they have 
to leave a job in order to be paid and treated fairly. They may lose 
months of income until they find another job. They lost whatever 
seniority they had built up with the last employer. They may have to 
take a pay cut if pressure to bring in a paycheck forces them to settle 
for a lesser position.
    For women whose employers adopt and enforce the Secretary's 
guidelines for pay equity, they will be working in a workplace where 
pay equity is not only the law, but also, engrained in the practices of 
the employer and the culture of their workplace. Every employer should 
adopt the guidelines to be developed by the Secretary of Labor. That is 
the surest way to establish pay equity in every American workplace in 
the near future.
    Passage of H. 1338 will send working women an important message: 
Congress recognizes their situation, is taking action to bring them 
data with which they can safely raise pay equity concerns with their 
employers, and is pressing employers to be more accountable for pay 
equity among their employees. In the absence of pay equity hearings, 
much less legislation, over the last decade, many women have lost hope 
that their employers feel pressure to exercise oversight and vigilance 
about compliance with Title VII of the Civil Rights Act and the Equal 
Pay Act.
    Finally, there's the future. I urge you to pass H.1338 to avoid an 
unwanted, painful legacy. We couldn't close the wage gap even one penny 
from 1994 to 2004, even with the boom years of the late 1990s! The fact 
that the gender wage gap has been stuck tells us that there is nothing 
inevitable about the wage gap going away on its own if we continue to 
rely only on current laws and their implementation. If we do not act, 
we will pass on to the next generation, and the next after that--to 
your daughters, and your granddaughters, nieces, aunts, and all the 
younger women in your families whom you love and respect--the same 
financial losses working women face today. Is that a legacy you want to 
pass on to them? Of course not. None of us wants to. But that will 
happen if no action is taken to address today's discriminatory 
treatment of women at work.
Some Important Recommended Changes to Specific Language in the Bill.
            Section 3. Enhanced Enforcement of Equal Pay Requirements. 
                    (d) Nonretaliation provision.
    I have already illustrated how important this provision is to help 
working women act on their own behalf without fear of retaliation. Some 
employers may resist open discussion among employees about their 
salaries and pay scales as this woman confirms: ``my employer 
intimidates us. We don't dare talk about what we earn while we're 
working.'' But those employers who do treat and pay women equitably 
have nothing to hide. Open discussions among employees and their 
employer about pay and pay scales can enable all employees to feel 
fairly and adequately compensated. As I have listened to working women, 
they are thoughtful and fair minded about pay. More transparency about 
pay and pay scales in America's workplaces would be beneficial for 
employers and employees alike. H. 1338 promises to open up workplaces 
to healthy discussions about who gets paid what and why. I urge the 
committee to insist on this language in the final bill.
            Section 5. Negotiation Skills Training for Girls and Women.
    Here are my concerns. I leave to staff to wordsmith this section.
    First, I would urge language which clarifies that Congressional 
intent is to focus on negotiation skills directly related to salary and 
total compensation matters, including not only skills in bargaining and 
communicating, but also, benchmarking techniques. It would be easy for 
rules and regulations to interpret the current language of this section 
to permit a broader set of negotiating skills in financial planning, 
flex time and other workplace conditions. These are important matters. 
But the key here is to maintain the priority and focus on negotiations 
skills training which bear directly on a woman's earnings. Clarifying 
language to this section might not necessarily exclude these other 
topics involving a woman's finances, but rather, establish that 
priority funding goes to training which bears directly on women's 
paychecks.
    Secondly, in (a) (5) Use of Funds. In the second sentence, I would 
suggest substituting the words ``equitable salaries and fair, equitable 
compensation packages for themselves'' for the current language 
``higher salaries and the best compensation packages possible for 
themselves''. The purpose of this bill is to establish pay equity. 
Training which focuses on women getting paid what they should, what is 
fair compared with others where they work given their job, experience, 
responsibility, etc fits with the purpose of the bill. The current 
language suggests training women to get promotions (higher salaries) 
and the most money (compensation package) they can. I have no doubt 
that once women get trained to negotiate for fair pay they will have 
the necessary skills for gaining more pay. The intent of this bill, as 
I understand it, is to help women achieve pay equity. That, in itself, 
will be a significant outcome.
    Finally, (c) Report. I recommend that the report include not only 
``describing activities conducted under this section'' but also ``and 
an evaluation of the effectiveness of these activities in enhancing 
equity in women's paychecks''. An assessment of which training programs 
actually advance women's earnings and which do not is essential.
            Section 7. Technical Assistance and Employer Recognition 
                    Program.
    (a) Guidelines. Voluntary guidelines are just that: voluntary. The 
adoption of such guidelines by every employer would dramatically 
advance pay equity. I urge the committee to strengthen language in this 
section such that employers are incentivized to adopt these guidelines 
and conversely, disincentivized for not adopting these guidelines after 
some specified period of time.
    (b) (2) Please insert ``or layoffs of employees'' after men in the 
clause ``* * * lowering wages paid to men''. Women need men as allies 
in achieving fair and equitable treatment where they work. This clause 
is intended to make clear that neither layoffs nor lowered wages are an 
acceptable means for employers to achieve pay equity. The experience of 
the State of Minnesota validates this point. Minnesota achieved pay 
equity--women employees are now paid 97 cents for every dollar men 
employees earn--without one man losing a job or losing money in his 
paycheck. Pay equity can be achieved not a men's expense.
            Section 8. Establishment of the National Award for Pay 
                    Equity in the Workplace. (b)(1)
    I urge the committee to add language which requires applicants for 
this award to disclose the salaries by gender and job category which 
were made more equitable. The language now makes it possible for an 
employer to describe worthy efforts but not report what, if any, actual 
effects its pay equity initiative had. Without documented advances, no 
applicant should be eligible to receive this prestigious award.
            Section 9. Collection of Pay Information by the Equal 
                    Opportunity Employment Commission.
    This section of the bill is extremely important. It has the 
potential to provide breakthroughs in the nation's understanding of pay 
inequities in today's workplaces and in the nation's capability to 
eliminate the discrimination which underlies pay inequity.
    I urge the committee to specifically guarantee access and 
availability of the pay information gathered under this section to 
researchers, public policy analysts, and social service organizations. 
These professionals need this data to advance our understanding of 
workplace discrimination and what to do about it. While the Secretary 
of Labor may perform studies and inform the public under Section 6, 
broad based access to pay data collected in Section 9 would stimulate 
the cross checks and debates of data which only develop when many and 
varied professionals look at the same data. The standard here ought to 
be the accessibility that professionals now have to data gathered by 
Census Bureau and the Bureau of Labor Statistics.
    The designation of the EEOC as lead agency for surveying available 
data and determining data needed to enhance their enforcement 
activities is appropriate. Anticipating that some adaptation of the 
EEO-1 form appears the most likely means to collect pay information by 
gender and job title, I call to your attention how limited the 
availability of EEO-1 data has been to this larger community of 
interests. Until 2000, EEO-1 data was unavailable to almost everyone 
and even now, only a handful of academics have access. The need for 
confidentiality concerning company specific data must be respected, 
but, with adequate resources, the EEOC can devise ways to enable more 
researchers and practitioners to access EEO-1 data. Limited access to 
EEO-1 data has seriously limited public debate and policy formulation 
about the gender wage gap. I have tremendous sympathy for extensive 
enforcement mandate the EEOC implements and I do not intend this as 
criticism of the agency. Rather I want to ensure that, if the EEOC 
becomes the collector of pay information, that the agency has not only 
the mandate but also the resources to make this data available to a 
large community of analysts and practitioners.
In summary.
    Forty years ago, Title VII of the Civil Rights Act and the Equal 
Pay Act made gender discrimination illegal in America's workplaces and 
embraced the principle that women should be paid like men when they do 
the same work. In the last decade, our nation's progress toward 
reaching these goals has stalled. Prompt passage of The Paycheck 
Fairness Act can and will reactivate momentum.
    The Paycheck Fairness Act sends a strong message to working women 
that this nation intends to eliminate paycheck discrimination in the 
foreseeable future. At the same time, the Paycheck Fairness Act sends 
just as strong a message to employers that they can and should pay for 
the job, not who does the job. If employers do that--pay for the job, 
not who does the job--we will eliminate pay discrimination not just for 
women, but for minorities, older workers, and handicapped workers. That 
is the promise contained in this bill.
    I commend you on your leadership on this bill and offer to help in 
whatever you wish.
    Thank you.
                                 ______
                                 
    Chairwoman Woolsey. Thank you, Dr. Murphy.
    Ms. Murphy. Thank you.
    Chairwoman Woolsey. Ms. Greenberger?

        STATEMENT OF MARCIA D. GREENBERGER, FOUNDER AND
           CO-PRESIDENT, NATIONAL WOMEN'S LAW CENTER

    Ms. Greenberger. Thank you very much for the opportunity to 
testify here today and on behalf of the National Women's Law 
Center. And I am very happy to testify in support of the 
Paycheck Fairness Act. And I ask that my full written remarks 
be included in the record and will just briefly summarize then 
in the period that I have.
    And I do want to say at the outset that it is vitally 
important, as Dr. Murphy has said, that this piece of 
legislation is enacted into law along with the Ledbetter Fair 
Pay Act, which is pending in Congress now. Unless we have 
strong laws on the books that reflect a determination on the 
part of this country that women be paid fairly for their hard 
work and the skills that they bring and the contributions that 
they make in the workplace, then we are not living up to our 
deal, ideals or the promises that we have made to women and the 
daughters of this country that we stand for equal pay for equal 
work.
    I would like to talk for a moment or two about why the 
current Equal Pay Act has not lived up to its promise and why 
the law needs to be strengthened. Passed in 1963, it was seen 
as a landmark breakthrough, to be sure, that women who are 
working will get equal pay. But for several reasons it has over 
the years not met the needs that the law was intended to 
address.
    First courts, unfortunately, have interpreted the law in 
such stringent ways, certainly some courts, that it has been 
exceptionally difficult for a woman to demonstrate a violation, 
even when she is clearly paid less on the basis of her sex. And 
with courts these days asking the legislature to be extremely 
explicit in the way that it writes our laws, it is up to 
Congress now to amplify on the Equal Pay Act to be sure that 
courts are not going to get it wrong in the future.
    In particular, we have seen with some courts an argument 
that even though under the Equal Pay Act regulations, when 
comparing the job that a woman has to a man's job, it doesn't 
have to be identical and that minor differences shouldn't 
defeat a claim for equal pay. Some courts have allowed those 
minor differences to justify an employer's paying women less.
    As one commentator stated, there is now a point where with 
some courts, virtually identical jobs are being required but 
even more than that. And it has provided women with a very 
limited substantive right to equal pay as a result.
    In addition, under the Equal Pay Act, in contrast to Title 
7's prohibition against pay discrimination, there is a defense 
of a factor other than sex which employers are allowed to bring 
to bear when defending against an Equal Pay Act claim. And the 
factor other than sex by some courts, again, has been allowed 
to be advanced when that factor has nothing to do with the 
business justification for the pay differential. And as a 
result, all kinds of inappropriate and unconvincing factors 
have been allowed to be advanced as a way of keeping an 
employer legally able to pay women less, again, completely 
unacceptable.
    Further, the Equal Pay Act's procedures and remedies have 
not been sufficient as it has turned out in practice. In 
particular--and I know, Mr. Wilson, you mentioned the damages 
issues--under our law in general when there is an intentional 
violation--and that is what has to be shown in order to get 
damages. And for punitive damages, an even more stringent 
standard would have to be shown. Under the Equal Pay Act, that 
traditional remedy is not available.
    As a result, for all too many employers in this country pay 
discrimination can be simply a cost of doing business. And if 
that employer isn't caught until many years go by without a 
compensatory damage and without a punitive damage remedy, it 
can actually be cost-effective for an employer to simply pay 
women less year after year after year.
    And the Equal Pay Act damages that are available under the 
law now will not fully compensate a woman for the damage that 
she suffers. And that is a damage that can go not only for 
herself and her family during her work life, but for pensions 
also during retirement. But it won't serve as a deterrent, 
either.
    I know that my time is up. And as a result, I can't go 
through some of the other very important provisions in the bill 
that help with remedies, including the class action provision, 
which is important, the information provisions, which are 
important.
    And just to conclude, the Paycheck Fairness Act is a very 
balanced approach. It helps with legal enforcement. It helps 
with voluntary, working together and facilitates that for 
employees and their employers. It helps for government 
enforcement. So it brings all of the private sector resources 
and public sector resources and the promise of this nation to 
bear to finally tackle the job of equal pay.
    Thank you.
    [The statement of Ms. Greenberger follows:]

       Prepared Statement of Marcia D. Greenberger, Co-President,
                      National Women's Law Center

    Chairman Woolsey, Ranking Member Wilson and members of the 
Committee, thank you for this opportunity to testify on behalf of the 
National Women's Law Center on ``The Paycheck Fairness Act (H.R. 
1338).'' More than forty years after enactment of the Equal Pay Act of 
1963, equal pay for women is not yet a reality in our country. While 
progress toward that goal has been made, women working full-time year-
round still earn only about 77 cents for every dollar earned by men--
and women of color fare significantly worse. There is not a single 
state in which women have gained economic equality with men, and 
gender-based wage gaps persist across every educational level.
    The evidence shows that these gaps cannot be dismissed simply as 
the result of women's choices or qualifications. Indeed, substantial 
evidence demonstrates that discrimination and barriers that women face 
in the workforce must shoulder blame for the wage disparities women 
endure. And the recent Supreme Court decision in Ledbetter v. Goodyear 
Tire & Rubber Co. underscores the problems of equal pay that plague all 
too many women in this country.
    Congress should promptly enact the Paycheck Fairness Act, 
introduced by Representative DeLauro and Senator Clinton and the 
subject of today's hearing. In addition, as the Supreme Court's 
damaging decision in Ledbetter demonstrated, Title VII must be 
strengthened. Further, Congress should enact the Fair Pay Act to 
address the damaging and pervasive impact of occupational sex 
segregation on fair wages for women.
    I am delighted to be here today to talk about ways in which the 
Paycheck Fairness Act would strengthen current laws against wage 
discrimination and require the government to step up to its 
responsibility to prevent and address pay disparities. Enactment of 
this Act is critical to ensure that women have the tools necessary to 
achieve equal pay that has too long been denied them.
The Wage Gap Reflects Sex Discrimination
    The wage gap cannot be dismissed simply as the result of ``women's 
choices'' in career and family matters. In fact, recent authoritative 
studies show that even when all relevant career and family attributes 
are taken into account--attributes that themselves could reflect 
underlying discrimination--these factors explain at best a minor 
portion of the gap in men's and women's earnings.
     A 2003 study by U.S. Government Accountability Office (then the 
General Accounting Office) found that, even when all the key factors 
that influence earnings are controlled for--demographic factors such as 
marital status, race, number and age of children, and income, as well 
as work patterns such as years of work, hours worked, and job tenure--
women still earned, on average, only 80% of what men earned in 2000.\1\ 
That is, there remains a 20 cents on the dollar pay gap between women 
and men that cannot be explained or justified by such factors.
     One extensive study that examined occupational segregation 
and the pay gap between women and men found that, after controlling for 
occupational segregation by industry, occupation, place of work, and 
the jobs held within that place of work (as well as for education, age, 
and other demographic characteristics), about one-half of the wage gap 
is due solely to the individual's sex.\2\
     A recent study by the American Association of University 
Women found that, just one year out of college, women working fulltime 
earn only 80 percent of what their male counterparts earn. Indeed, even 
women who make the same choices as men in terms of fields of study and 
occupation earn less than their male counterparts. And the pay gap 
widens further ten years after graduation--women earn 69% of what their 
male counterparts earn. Even after controlling for factors known to 
affect earnings, a portion of these pay gaps remains ``unexplained,'' 
though countless women, like Lilly Ledbetter--and their families--know 
discrimination is the cause.\3\
    Studies like these are borne out by case after case, in the courts 
and in the news, of suits brought by women charging their employers 
with wage discrimination. The evidence shows that sex discrimination in 
the workplace is still all too prevalent. Recent examples of pay 
discrimination cases include:
     In the largest employment discrimination suit ever filed, 
female employees have sued Wal-Mart for paying women less than men for 
similar work and using an old boys' network for promotions that 
prevented women's career advancement. One woman alleged that when she 
complained of the pay disparity, her manager said that women would 
never make as much as men because ``God made Adam first.'' Another 
woman alleged that when she applied for a raise, her manager said, 
``Men are here to make a career, and women aren't. Retail is for 
housewives who just need to earn extra money.'' \4\ The panel of the 
Ninth Circuit recently reaffirmed the case as a class action on behalf 
of more than 1.5 million women who are current and former employees of 
Wal-Mart.\5\ A petition for rehearing by the entire Ninth Circuit is 
currently pending.
     In February 2007, a federal judge approved a $2.6 million 
settlement against Woodward Governor Company for gender discrimination 
with respect to pay, promotions and training. The EEOC sued the global 
engine systems and parts company on behalf of female employees working 
at two of the company's plants. Pursuant to the terms of the agreement, 
an outside individual will oversee the company's implementation and 
compliance, including the development of written job descriptions for 
the positions at issue as well as performance appraisals and a 
compensation review process.\6\
     In 2004, on the eve of trial, investment house Morgan 
Stanley agreed to settle a sex discrimination class action filed by the 
Equal Employment Opportunity Commission alleging that the investment 
firm paid women in mid- and upper-level jobs less than men, passed 
women over for promotions, and committed other discriminatory acts. 
Although it denied the allegations, Morgan Stanley did agree to pay $54 
million to the plaintiffs and to take numerous other actions to prevent 
discrimination in the future.\7\
     In 2004, Wachovia Corporation admitted no wrongdoing but 
agreed to pay $5.5 million to settle allegations by the U.S. Office of 
Federal Contract Compliance Programs that it engaged in compensation 
discrimination against more than 2,000 current and former female 
employees over six years.\8\
     Lilly Ledbetter was one of the few female supervisors at 
the Goodyear plant in Gadsden, Alabama, and worked there for close to 
two decades. She faced sexual harassment at the plant and was told by 
her boss that he didn't think a woman should be working there. She 
suspected that she was getting fewer and lower pay raises than the male 
supervisors, but Goodyear did not allow its employees to discuss their 
pay, and Ms. Ledbetter had no proof until she received an anonymous 
note revealing the salaries of three of the male managers. After she 
filed a complaint with the EEOC, her case went to trial, and the jury 
awarded her backpay and approximately $3.3 million in compensatory and 
punitive damages for the pay discrimination to which she had been 
subject. Because of the arbitrary limits on damages under Title VII, 
however, the court was forced to cut her damages to only about one-
tenth of the amount the jury felt she was owed, or $300,000. The 
Supreme Court took even those damages away in Ledbetter v. Goodyear 
Tire & Rubber Co., Inc., holding that she had filed her case too long 
after the company unlawfully decided to pay her less, even though 
Ledbetter continued to receive discriminatorily reduced paychecks 
because of the earlier decisions.
    Clearly, sex discrimination plays a major role in producing and 
sustaining the wage gap for women. It is thus hardly surprising that 
public opinion surveys consistently show that ensuring equal pay is 
among women's top work-related priorities. For instance, nine in 10 
women responding to the ``Ask a Working Women Survey'' conducted by the 
AFL-CIO in 2004 rated ``stronger equal pay laws'' as a ``very 
important'' or ``somewhat important'' legislative priority for them.\9\ 
Similarly, a January 2007 national survey of 1000 unmarried adult women 
by Women's Voices Women Vote found that 73% of respondents said that 
support for pay equity legislation would make them ``much more likely'' 
to support a Congressional candidate.\10\
Current Law Is Inadequate to Address the Wage Gap
    In 1963, President Kennedy signed the Equal Pay Act into law, 
making it illegal for employers to pay unequal wages to men and women 
who perform substantially equal work. At its core, the Equal Pay Act 
bars employers from paying wages to an employee at an establishment at 
a rate less than the rate at which he pays wages to employees of the 
opposite sex in such establishment for equal work on jobs the 
performance of which requires equal skill, effort, and responsibility, 
and which are performed under similar working conditions * * * \11\
    Under the EPA, a plaintiff must establish a prima facie case by 
showing that ``(1) the employer pays different wages to employees of 
the opposite sex; (2) the employees perform equal work on jobs 
requiring equal skill, effort and responsibility; and (3) the jobs are 
performed under similar working conditions.'' \12\ If the plaintiff 
succeeds in demonstrating each of these requirements, the defendant 
employer may avoid liability by proving that the wage disparity is 
justified by one of four affirmative defenses--that is, that it has set 
the challenged wages pursuant to ``(1) a seniority system; (2) a merit 
system; (3) a system which measures earnings by quantity or quality of 
production; or (4) a differential based on any other factor other than 
sex.'' \13\
    Congress intended the Equal Pay Act to serve sweeping remedial 
purposes. As the Supreme Court has recognized, the Act was designed: to 
remedy what was perceived to be a serious and endemic problem of 
employment discrimination in private industry--the fact that the wage 
structure of ``many segments of American industry has been based on an 
ancient but out-moded belief that a man, because of his role in 
society, should be paid more than a woman even though his duties are 
the same.'' \14\
    Unfortunately, and for several reasons, the Equal Pay Act has 
failed to meet Congress' remedial goals. First, the substantive 
standards of the law--both with regard to a plaintiff's prima facie 
case and with regard to an employer's affirmative defenses--have been 
applied by courts in ways that make it difficult to demonstrate a 
violation of the law, even in cases where wage disparities are actually 
based on sex. Second, the remedies and procedures available to 
plaintiffs under the Equal Pay Act are insufficient to ensure the 
effective protection of this critical anti-discrimination law. Finally, 
both because employers often fail to disclose--and because the 
government refuses to collect--information on pay disparities, it is 
exceedingly difficult for individuals or enforcement agencies to take 
effective enforcement action against discriminating businesses.
Plaintiffs Must Meet an Inappropriate Burden to Make Out a Prima Facie 
        Case
    The plaintiff's prima facie burden is not only demanding, but can 
operate in a way that allows actual pay discrimination to continue. For 
example, plaintiffs must demonstrate that the pay disparity exists 
between employees of the same ``establishment''--that is, ``a distinct 
physical place of business rather than * * * an entire business or 
`enterprise' which may include several separate places of business.'' 
\15\ Indeed, courts ``presume that multiple offices are not a `single 
establishment' unless unusual circumstances are demonstrated.'' \16\
    In addition, as one court recently noted, the plaintiff's showing 
under the Equal Pay Act: is harder to make than the prima facie showing 
[in other cases] * * * because it requires the plaintiff to identify 
specific employees of the opposite sex holding positions requiring 
equal skill, effort and responsibility under similar working positions 
[sic] who were more generously compensated.\17\
    Although the jobs for which wages are compared need not be 
identical, moreover, they must be substantially equal--a comparison 
which typically can be satisfied only after courts have performed what 
one commentator has called a ``very exacting inquiry.'' \18\ 
Notwithstanding the remedial purposes of the law, courts have narrowly 
defined what they will consider to be ``equal'' work. In Angelo v. 
Bacharach Instrument Company,\19\ for example, female ``bench 
assemblers'' in light assembly alleged they were paid less than their 
male counterparts who were classified as ``heavy assemblers.'' \20\ 
Both the women and men, as well as an industrial engineering expert, 
testified that the men's and women's jobs at the plant were 
substantially the same with respect to skill, effort, and 
responsibility.\21\ Despite this testimony, the court held that the 
positions were ``comparable,'' but not equal.\22\ As one commentator 
has stated, therefore, despite the admonition contained in the federal 
regulations that ``insubstantial differences'' should not prevent a 
finding of equal work, the courts have not ``reach[ed] beyond 
comparisons of virtually identical jobs, which in a workforce 
substantially segregated by gender, provides women with a very limited 
substantive right indeed.'' \23\
    For all of these reasons, plaintiffs must meet an inappropriate and 
counterproductive burden to proceed with an Equal Pay Act claim. But 
even plaintiffs who successfully make out a prima facie case of unequal 
pay for equal work face challenges from courts that have construed an 
employer's affirmative defenses in ways that defeat the basic purposes 
of the law.
Interpretation of the ``Factor Other Than Sex'' Defense Has Created 
        Loopholes in the Law
    The Equal Pay Act provides four affirmative defenses through which 
an employer may justify a wage disparity between substantially equal 
jobs. As a commentator has noted, the first three of these defenses--
that a pay disparity is based on a seniority system, a merit system, or 
a system that bases wages on the quantity or quality of production--are 
relatively straightforward ones applied with reasonable consistency by 
the courts.\24\ Court interpretations of the last of the affirmative 
defenses, however--the defense that a pay differential between equal 
jobs is based on a ``factor other than sex''--have in some instances 
opened the door to a perpetuation of the very sex discrimination the 
Equal Pay Act was designed to outlaw.
    In 1974, the Supreme Court rejected the argument that ``market 
forces''--that is, the value assigned by the market to men's and 
women's work, or the greater bargaining power that men have 
historically commanded--can constitute a ``factor other than sex,'' 
since sex is precisely what those forces have been based upon.\25\ 
Despite this unequivocal holding, however, courts in the Seventh 
Circuit recited a ``market forces'' defense as recently as last 
year.\26\
    At the same time, moreover, some courts have accepted as ``factors 
other than sex'' arguments that seriously undermine the principles of 
the Equal Pay Act. Some courts have, for example, authorized employers 
to pay male employees more than similarly situated female employees 
based on the higher prior salaries enjoyed by those male workers. In a 
case decided in March of this year, for example, one federal district 
court accepted the argument that higher pay for the male comparator was 
necessary to ``lure him away from his prior employer.'' According to 
the court, ``salary matching and experience-based compensation are 
reasonable, gender-neutral business tactics, and therefore qualify as 
`a factor other than sex.' '' \27\ Similarly, another district court 
stated that
    [O]ffering a higher starting salary in order to induce a candidate 
to accept the employer's offer over competing offers has been 
recognized as a valid factor other than sex justifying a wage 
disparity.\28\
    Indeed, that court has also stated that ``[i]t is widely recognized 
that an employer may continue to pay a transferred or reassigned 
employee his or her previous higher wage without violating the EPA, 
even though the current work may not justify the higher wage'' 
(emphasis added).\29\
    The problem with these cases is their failure to recognize that the 
prior salary earned by a male comparator may itself be the product of 
sex discrimination or may simply reflect the residual effects of the 
traditionally enhanced value attached to work performed by men. Some 
courts have applied a similarly blinkered approach to evaluating the 
legitimacy of an employer's claim that a man's greater experience or 
education justifies a higher salary. In Boriss v. Addison Farmers 
Insurance Company,\30\ for example, the court accepted the male 
comparators' purportedly superior qualifications as a factor other than 
sex justifying their higher salaries without any examination of whether 
those qualifications were in fact necessary for the job. According to 
the court, it ``need not explore this issue [of whether a college 
degree was a prerequisite for the position] as the Seventh Circuit has 
ruled that a `factor other than sex' need not be related to the 
`requirements of a particular position in question, nor that it be a 
`business-related reason.' '' \31\ In fact, at least two circuits have 
accepted the argument that ``any'' factor other than sex should be 
interpreted literally and that employers need not show that those 
factors are in any way related to a legitimate business purpose.\32\
    Cases such as these undermine both the spirit and analytical 
approach of the Equal Pay Act. What was intended to be an affirmative 
defense for an employer--a defense that demands that the employer carry 
the burden of proving that its failure to pay equal wages for equal 
work is based on a legitimate reason--has instead been converted by 
these courts into a requirement merely that an employer articulate some 
ostensibly nondiscriminatory basis for its decision-making. Because 
these bases can so easily mask criteria that are at bottom based on 
sex, the courts' failure to engage in searching analysis circumvents 
the burden Congress intended employers to bear.
The Equal Pay Act's Procedures and Remedies Offer Insufficient 
        Protection for Women Subjected to Wage Discrimination
    Unlike those who challenge wage disparities based on race or 
ethnicity, who are entitled to receive full compensatory and punitive 
damages, successful plaintiffs who challenge sex-based wage 
discrimination under the Equal Pay Act may receive only back pay and, 
in limited cases, an equal amount as liquidated damages. Even where 
liquidated damages are available, moreover--in cases in which the 
employer acted intentionally and not in good faith--the amounts 
available to compensate plaintiffs tend to be insubstantial.
    These limitations on remedies not only deprive women subjected to 
wage discrimination of full relief--they also substantially limit the 
deterrent effect of the Equal Pay Act. Employers can refrain from 
addressing, or even examining, pay disparities in their workforces 
without fear of substantial penalties for this failure. The class 
action currently pending against Wal-Mart illustrates precisely this 
problem. In that case, Wal-Mart refrained from any examination of the 
pay of its male and female employees, even though a discrete inquiry 
into the pay for male and female occupants of a mid-level management 
job revealed disparities that the company elected not to evaluate 
further. While such conduct would certainly be taken into account in 
assessing the availability of punitive damages under statutes that 
permitted such relief, it is largely irrelevant in calculating remedies 
under the Equal Pay Act.
    Procedures for enforcing the Equal Pay Act also hamstring 
plaintiffs attempting to prove systemic wage discrimination through the 
use of class actions. Class actions are important because they ensure 
that relief will be provided to all who are injured by the unlawful 
practice. But the Equal Pay Act, which was enacted prior to adoption of 
the current federal rule governing class actions,\33\ requires that all 
plaintiffs opt in to a suit. Unlike in other civil rights claims, in 
which class members are automatically considered part of the class 
until they choose to opt out, Equal Pay Act plaintiffs are subjected to 
a substantial burden that can dramatically reduce participation in wage 
discrimination cases.
Current Sources of Information on Wage Disparities are Inadequate to 
        Identify, Target or Remedy Problems
    Individuals are significantly handicapped in their ability to 
enforce their rights under the Equal Pay Act by the inaccessibility of 
information about the wages paid to their coworkers. Far from making 
such information readily available, in fact, numerous employers 
penalize employees who attempt to discuss their salaries or otherwise 
glean information about their colleagues' pay.
    Relevant federal enforcement agencies have not only failed to fill 
this gap, but have, in the case of the Department of Labor, 
affirmatively undermined the government's ability to identify and 
remedy systemic wage discrimination. In September of last year, the 
Department's Office of Federal Contract Compliance Programs (OFCCP) 
published a final rule that guts the Equal Opportunity Survey, a 
critical enforcement tool developed over the course of two decades and 
three administrations to better allow OFCCP to identify and investigate 
federal contractors most likely to be engaging in pay discrimination. 
Without the Equal Opportunity Survey--the only enforcement tool for the 
collection of wage data by sex--the federal government now requires no 
submission of pay information. This refusal to collect relevant data 
deprives the government of any means to systematically monitor pay 
disparities or efficiently enforce the anti-discrimination laws.\34\
The Paycheck Fairness Act Would Remedy the Deficiencies of Current Law
    The Paycheck Fairness Act would respond, in appropriate and 
targeted ways, to precisely the problems discussed previously in this 
testimony that have undermined the effectiveness of current law. Among 
other provisions, the Paycheck Fairness Act would:
             Improve Equal Pay Act Remedies
    The Act improves the remedy provisions of the Equal Pay Act by 
allowing prevailing plaintiffs to recover compensatory and punitive 
damages. The change will put gender-based wage discrimination on an 
equal footing with wage discrimination based on race or ethnicity, for 
which full compensatory and punitive damages are already available. It 
will also eliminate the unacceptable situation of an employer defending 
a denial of equal pay to a woman of color as based on her gender rather 
than her race.
             Facilitate Class Action Equal Pay Act Claims
    The Act allows an Equal Pay Act lawsuit to proceed as a class 
action in conformity with the Federal Rules of Civil Procedure. This 
would conform Equal Pay Act procedures to those available for other 
civil rights claims.
             Improve Collection of Pay Information by the EEOC
    The Act requires the EEOC to survey pay data already available and 
issue regulations within 18 months that require employers to submit any 
needed pay data identified by the race, sex, and national origin of 
employees. These data will enhance the EEOC's ability to detect 
violations of law and improve its enforcement of the laws against pay 
discrimination.
             Prohibit Employer Retaliation
    The Act prohibits employers from punishing employees for sharing 
salary information with their co-workers. This change will greatly 
enhance employees' ability to learn about wage disparities and to 
evaluate whether they are experiencing wage discrimination. Had this 
provision been the law at the time that Lilly Ledbetter was working for 
Goodyear, for example, she might have been able sooner to identify and 
challenge the sex discrimination to which she was subject.
             Close the ``Factor Other Than Sex'' Loophole in 
                    the Equal Pay Act
    The Act would tighten the ``factor other than sex'' affirmative 
defense so that it can excuse a pay differential for men and women only 
where the employer can show that the differential is truly caused by 
something other than sex and is related to job performance--such as 
differences in education, training, or experience.
             Eliminate the ``Establishment'' Requirement
    The Act clarifies that a comparison need not be between employees 
in the same physical place of business.
             Reinstate Pay Equity Programs and Enforcement at 
                    the Department of Labor
    The Act reinstates the collection of gender-based data in the 
Current Employment Statistics survey. It sets standards for conducting 
systematic wage discrimination analyses by the Office for Federal 
Contract Compliance Programs.\35\ The Act also directs implementation 
of the Equal Opportunity Survey.\36\
Conclusion
    In sum, the wage gap is real and cannot be dismissed as the result 
of women's choices in career and family matters. Even when women make 
the same career choices as men and work the same hours, they still earn 
less. The consequences of this wage discrimination are profound and 
far-reaching. Pay disparities cost women and their families thousands 
of dollars each year while they are working and thousands in retirement 
income when they leave the workforce. It is long past time for Congress 
to act to ensure that the promise of equal pay becomes a reality.

                                ENDNOTES

    \1\ U.S. General Accounting Office, Women's Earnings: Work Patterns 
Partially Explain Difference between Men's and Women's Earnings 2, GAO-
04-35 (Oct. 2003), available at http://www.gao.gov/cgi-bin/getrpt?GAO-
04-35 (last visited Feb. 26, 2007).
    \2\ See Kimberly Bayard, Judith Hellerstein, et al., New Evidence 
on Sex Segregation and Sex Differences in Wages from Matched Employee-
Employer Data, 21 J. Labor Economics 887, 904 (2003).
    \3\ American Association of University Women Educational Fund, 
Behind the Pay Gap (April 23, 2007), available at http://www.aauw.org/
research/behindPayGap.cfm (last visited July 8, 2007).
    \4\ Bob Egelko, Sex Discrimination Cited at Wal-Mart: Women Accuse 
Wal-Mart, Lawyers Seek OK for Class-Action Suit, San Francisco 
Chronicle, Apr. 29, 2003, at B1, available at sfgate.com/cgi-bin/
article.cgi?file=/chronicle/archive/2003/04/29/BU303648.DTL (last 
visited Feb. 26, 2007).
    \5\ Dukes v. Wal-Mart, Inc., 474 F.3d 1214 (9th Cir. 2007), 
available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/
D12BAFD84138E886882572790082A486/$file/0416688.pdf?openelement (last 
visited Feb. 26, 2007).
    \6\ The court consolidated the EEOC's case with a class action by 
employees alleging race discrimination against African Americans, 
Hispanics, and Asians with regards to pay, promotions, and training. 
The terms of the settlement provide that $2.4 million will go to 
plaintiffs with race-based claims. Press Release, Judge Approves $5 
Million Settlement of Job Bias Lawsuits Against Woodward Governor (Feb. 
20, 2007), available at http://www.eeoc.gov/press/2-20-07.html (last 
visited Mar. 27, 2007).
    \7\ Press Release, EEOC and Morgan Stanley Announce Settlement of 
Sex Discrimination Lawsuit (July 12, 2004), available at http://
www.eeoc.gov/press/7-12-04.html (last visited Feb. 25, 2007).
    \8\ See Office of Federal Contract Compliance Programs, U.S. Dep't 
of Labor v. Wachovia Corp., Case No. 2001-OFC-0004 (U.S. Dep't of Labor 
Office of Admin. Law Judges, Sept. 21, 2004), available at http://
www.oalj.dol.gov/DMSSEARCH/CASEDETAILS.CFM?CaseId=205183 (last visited 
Feb. 26, 2007); Wachovia to Pay $5.5M in Discrimination Case, Tampa Bay 
Business Journal, Sept. 24, 2004, available at http://
tampabay.bizjournals.com/tampabay/stories/2004/09/20/daily37.html (last 
visited Feb. 26, 2007).
    \9\ AFL-CIO, Ask a Working Woman Survey Report, 9 (2004) available 
at http://www.aflcio.org/issues/jobseconomy/women/speakout/upload/
aawwreport.pdf (last visited Feb. 23, 2007).
    \10\ Memorandum from Greenberg Quinlan Rosner Research to Women's 
Voices Women Vote, 13 (Feb. 12, 2007) (on file with the National 
Women's Law Center).
    \11\ 29 U.S.C. Sec.  206(d).
    \12\ Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974).
    \13\ 29 U.S.C. Sec.  206(d)(1).
    \14\ Corning Glass Works, 417 U.S. at 195.
    \15\ Ingrams v. Brink's, Inc., 414 F.3d 222, 232 (1st Cir. 2005) 
(citing 29 C.F.R. Sec.  1620.9).
    \16\ Meeks v. Computer Ass'n Int'l, 15 F.3d 1013, 1017 (11th Cir. 
1994), (citing 29 C.F.R. Sec. 1620.9(a)).
    \17\ Ingram v. Brink's, Inc., 414 F.3d at 232 (citations omitted).
    \18\ Peter Avery, Note, The Diluted Equal Pay Act: How Was It 
Broken? How Can It be Fixed?, 56 Rutgers L. Rev. 849, 858 (Spring 
2004).
    \19\ 555 F.2d 1164 (3d Cir. 1977).
    \20\ Id. at 1166.
    \21\ Id. at 1167-1170.
    \22\ Id. at 1176.
    \23\ Elizabeth J. Wyman, The Unenforced Promise of Equal Pay Acts: 
A National Problem and Possible Solution from Maine, 55 Me. L. Rev. 23, 
34 (2003) (quoting Jennifer M. Quinn, Visibility and Value: The Role of 
Job Evaluation in Assuring Equal Pay for Women, 25 LAW & POL'Y INT'L 
BUS. 1403, 1439 (1994)).
    \24\ Avery, supra note 17, at 868.
    \25\ Corning Glass Works, 417 U.S. at 205 (noting that the 
company's decision to pay women less for the same work men performed 
``took advantage'' of the market and was illegal under the EPA). See 
also Siler-Khodr v. Univ. of Texas Health Science Ctr. San Antonio, 261 
F.3d 542, 549 (5th Cir. 2001) (noting that ``This court has previously 
stated that the University's market forces argument is not tenable and 
simply perpetuates the discrimination that Congress wanted to alleviate 
when it enacted the EPA.'' (citations omitted).)
    \26\ Merillat v. Metal Spinners, Inc., 470 F.3d 685, 697, n6 (7th 
Cir. 2006) (noting that the court has ``held that an employer may take 
into account market forces when determining the salary of an 
employee,'' although cautioning in a footnote against employers taking 
advantage of market forces to justify discrimination).
    \27\ Drury v. Waterfront Media, Inc., No. 05 Civ. 10646, 2007 WL 
737486, at *9 (S.D.N.Y. Mar. 8, 2007).
    \28\ Glunt v. GES Exposition Services, Inc., 123 F. Supp. 2d 847, 
859 (D. Md. 2000) (citing Mazzella v. RCA Global Comm, Inc., 814 F.2d 
653 (2d.Cir.1987); Walter v. KFGO Radio, 518 F.Supp. 1309 
(D.N.D.1981)).
    \29\ Glunt v. GES Exposition Services, 123 F. Supp. 2d at 859. But 
see Lenihan v. The Boeing Co., 994 F. Supp. 776, 798 (S. D. Tex. 1998) 
(``prior salary, standing alone, cannot justify a disparity in pay''); 
Equal Employment Opportunity Commission, Compliance Manual Section 10: 
Compensation Discrimination, at 10-IV(F)(2)(g) (2000), available at 
http://www.eeoc.gov/policy/docs/compensation.html#10-
IV%20COMPENSATION%20DISCRIMINATION (last visited April 10, 2007).
    \30\ No. 91 C 3144, 1993 WL 284331 (N.D. Ill. July 26, 1993).
    \31\ Id. at *9, (quoting Fallon v. State of IL, 882 F.2d 1206, 1211 
(7th Cir.1989) (citing Covington v. SIU, 816 F.2D 317, 321-22 (7th 
Cir.1987)).
    \32\ See Wernsing v. Dep't of Human Servs., 427 F.3d 466, 470 (7th 
Cir. 2005) (``The disagreement between this circuit (plus the eighth) 
and those that required an `acceptable business reason' is established, 
and we are not even slightly tempted to change sides.'').
    \33\ FED. R. CIV. P. 23.
    \34\ In addition, current law does not address wage disparities 
that are premised on occupational sex segregation. Many occupations 
today remain dominated by one gender, and many that are dominated by 
women still pay artificially depressed wages. But courts have refused 
to use existing laws to address this continuing devaluation of 
traditionally female fields. The Fair Pay Act would ensure that 
continued occupational sex segregation does not perpetuate the 
suppressed wages usually paid for typically female jobs.
    \35\ The Paycheck Fairness Act would overturn the DOL's 2006 
decision to narrow the scope of its investigations into systematic wage 
discrimination. See DOL, Interpreting Nondiscrimination Requirements of 
Executive Order 11246 with Respect to Systemic Compensation 
Discrimination, 71 Fed. Reg. 35,124 (June 16, 2006).
    \36\ The Act refers to a regulation the Office of Federal Contract 
Compliance Programs (OFCCP) rescinded on September 8, 2006. See DOL, 
Affirmative Action and Nondiscrimination Obligations of Contractors and 
Subcontractors; Equal Opportunity Survey, 41 C.F.R. Sec.  60.2.
                                 ______
                                 
    Chairwoman Woolsey. Thank you, Ms. Greenberger.
    Ms. Olson?

              STATEMENT OF CAMILLE OLSON, PARTNER,
                       SEYFARTH SHAW LLP

    Ms. Olson. Good morning. Thank you, Madam Chairperson.
    I appear before you today on behalf of the U.S. Chamber of 
Commerce, the world's largest business federation. I am a 
member of its labor relations committee, as well as its 
subcommittee on employment non-discrimination issues.
    As set forth in my written testimony presented to the 
subcommittee, the United States Chamber of Commerce strongly 
opposes the Paycheck Fairness Act. If passed it would amend the 
Equal Pay Act in significant substantive as well as procedural 
ways upon the unsubstantiated premise that any differences in 
wages between men and women are the result of intentional 
discrimination by employers.
    Yet, in fact, the Equal Pay Act is not an intentional 
discrimination statute. It imposes what has been called by 
commentators and judges strict liability on employers upon a 
showing of unequal pay for unequal work without a finding of 
intentional discrimination.
    In addition, once a plaintiff can show a disparity in pay, 
the employer has the burden of producing not just evidence, but 
retains the ultimate burden of persuading a jury that, in fact, 
the difference was based on one of the factors enumerated in 
the statute or a factor other than sex.
    The Paycheck Fairness Act is fundamentally flawed, as is 
some of the testimony that you have heard in the underpinnings 
of this act in that it imposes harsh, lottery-type penalties 
upon employers. It lowers the applicable standards of proof for 
employees and provides plaintiffs' class action attorneys with 
class action devices to be applied, which are much more lenient 
than the current ones that exist under the statute.
    It also reinvigorates, as you have heard today through the 
testimony that has already been presented, the concept of 
comparable work directly the OFCCPs and the Department of 
Labor's directive to issue guidelines to focus on the 
comparisons of jobs that are not equal to determine in the 
minds of the government as opposed to the market forces whether 
or not the difference in pay between jobs that are not equal is 
in their minds fair.
    What I would like to do is describe for you just briefly 
today under the Equal Pay Act and Title 7 what remedies do 
exist for women who claim sex discrimination in pay. Women 
bringing claims of pay discrimination based on their sex have 
the following remedies under the Equal Pay Act: back pay, as 
well as an adjustment of pay going forward; interest, a concept 
also that hasn't been mentioned here yet today; liquidated 
damages, meaning a doubling of any damages that are found in 
terms of back pay as well as attorneys' fees and costs.
    And because it is part of the Fair Labor Standard Act's 
procedures, there is also a potential for individual liability 
for defendants, including to up to $10,000 in fines and up to 6 
months in prison.
    In addition, under Title 7, women are also currently 
entitled to up to $300,000 in compensatory and punitive 
damages, depending on the size of the employer, upon a showing 
of intentional discrimination. That is not available under 
Title 7 with respect to a disparate impact finding. Nor is it 
with respect to other findings, for example, under the 
Americans with Disabilities Act in connection with the 
reasonable accommodation issues if there is not a finding of 
intentional discrimination.
    In addition, under the Equal Pay Act and Title 7 as it 
currently exists, plaintiffs also have the right to bring 
collective actions. Basically what a plaintiff has a right to 
do is bring an action on behalf of anyone who is similarly 
situated who is interested in joining the action. All they must 
do is file a written consent that they are interested in 
joining.
    There is no charge-filing requirement of 180 or 300 days. 
In addition, there is a longer statute of limitations. That 
claim is filed directly with the court system and can be filed 
up to 2 to 3 years if there is a willful finding in connection 
with a finding of a violation.
    As mentioned earlier, the requirement for a plaintiff under 
the Equal Pay Act is to show a difference in wages not to show 
intentional discrimination. At no time does the plaintiff bear 
this burden.
    Instead the burden shifts to the employer under the current 
law to show a legitimate factor other than sex, as enumerated 
in the statute or as otherwise considered by the employer is 
the reason for the disparity. Courts have widely recalled the 
fact that if you compare Title 7 to the statute's current 
requirements under the Equal Pay Act that, in fact, under the 
Equal Pay Act it is much more difficult for an employer to get 
summary judgments so that more plaintiffs' claims go to juries.
    I don't have time to discuss the significant concerns with 
the Paycheck Fairness Act that exist, but let me at least name 
the categories for you so you have them: the issue of uncapped 
punitive and compensatory damages unrelated to a finding of 
intentional discrimination; a substantial change to a factor 
other than sex affirmative defense; as well as directing the 
Department of Labor and the OFCCP to issue guidelines which 
basically import comparable worth analysis into the equation, 
guidelines that generally under other laws have been viewed and 
provided to juries as strong evidence of what the agency that 
is responsible for enforcing that statute believes is the law; 
and finally, as mentioned earlier, changing the class action 
procedures to one that would include many more potential 
plaintiffs.
    In summary, the chamber strongly opposes the Paycheck 
Fairness Act and requests the subcommittee proceed very 
cautiously with its review of its provisions.
    [The statement of Ms. Olson follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
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    Chairwoman Woolsey. Thank you, Ms. Olson.
    Mr. Sellers?

STATEMENT OF JOSEPH SELLERS, PARTNER, COHEN, MILSTEIN, HAUSFELD 
                         AND TOLL PLLC

    Mr. Sellers. Good morning, Madam Chair, members of the 
subcommittee. Thank you for inviting me today.
    When it was enacted in 1963, the Equal Pay Act, the first 
federal sex discrimination law that had been passed applying to 
the workplace, held great promise. But it has fallen far short 
of that promise because of a number of procedural flaws in the 
legislation, many of which the Paycheck Fairness Act would 
address.
    I want to identify a few of the areas and begin with the 
area that has not been discussed. And that is the initial 
burden that women who wish to invoke the Equal Pay Act must 
satisfy in order to even shift the burden to the employer to 
have his business practices scrutinized.
    The factors that must be satisfied are difficult to 
satisfy, typically requiring expert analysis that most 
individuals cannot afford to pay. And therefore, many women 
stumble at the beginning in pursuing these claims when they 
pursue them individually. So I would like the subcommittee not 
to begin its assessment of this bill by assuming, as might 
otherwise be led to believe, that these claims are anything but 
very difficult to bring under the best of circumstances.
    We have already discussed briefly among the panel the 
catch-all defense, the factor other than sex that can be used 
by employers to defend these claims. That defense can permit 
such practices as strength and agility tests or prior pay 
levels at the time before employees are hired to be used to 
justify existing pay disparities between men and women in the 
workplace.
    And simply because they do not on the surface reflect an 
intention to discriminate or reflect some basis to be inclined 
to discriminate, they may satisfy this factor other than sex 
standard. And so, I applaud the Paycheck Fairness Act's 
proposed changes here, which do nothing more than import into 
this statute the protections that were already accorded to 
workers in the Civil Rights Act of 1991 as it applied to 
disparate impact claims.
    There is nothing revolutionary about requiring that the 
factors be bona fide, that they be related to the job in 
question, that they be shown to serve a legitimate business 
purpose. Those are hardly extraordinary requirements. And that 
is what this provision would require.
    I turn quickly to the issue of multiple party claims, class 
actions. I think there is a good deal of misunderstanding 
perhaps about what this bill would accomplish here.
    I have represented employees for nearly 30 years in a 
number of pay discrimination cases. And I have found repeatedly 
that they are, as I think Dr. Murphy mentioned at the 
beginning, there is a great deal of fear about suing your 
employer.
    And the provision currently in place, which is simply an 
anomaly because this act was--the Equal Pay Act was an 
amendment to the Fair Labor Standards Act--requires that each 
woman who wishes to participate in these cases has to file a 
notice to her employer and take some affirmative action to 
actually participate in the case. In practice that leads to far 
often fewer than 50 percent of women aggrieved with respect to 
a particular pay practice actually participating. That is 
hardly the goal we should seek to achieve, unless your goal is 
simply to minimize liability for an employer.
    And that is certainly, I would hope, not the sole goal of 
our nation's civil rights laws, but rather to do justice. And 
those women who are aggrieved ought to be given the opportunity 
to participate in these cases.
    The act would simply add to the law a provision which is 
applicable under Title 7, applicable to virtually every other 
modern civil rights law that individuals who wish to pursue a 
claim as a group can invoke the rules of civil procedure 
applicable to all cases in federal court. And therefore, people 
who are aggrieved can participate in those cases where they 
initiate their own action or not. So it really puts this law in 
parity with the other civil rights laws.
    The remedies--I will say only one thing quickly about that. 
And that is by simply awarding to aggrieved individuals the 
earnings lost and occasionally double the earnings lost, it 
provides no deterrent to employers to ensure that their pay 
practices are fair. It simply, as has already been explained, 
potentially the cost of doing business to discriminate on the 
basis of pay.
    And finally, the last point I will make to conclude quickly 
is I really want to stress the importance of the reporting 
requirements that this bill would add to require employers to 
present data about pay to the Office of Federal Contract 
Compliance Programs and the EEOC. As Justice Ginsburg in the 
Ledbetter decision recognized, most employees don't know how 
others are paid, lack the basis to make those comparisons. We 
need the federal agencies to collect that information in order 
to provide the proper enforcement.
    Thank you very much.
    [The statement of Mr. Sellers follows:]

           Prepared Statement of Joseph M. Sellers, Partner,
                 Cohen, Milstein, Hausfeld & Toll PLLC

    Although in effect for more than 40 years, the Equal Pay Act 
(``EPA'') has fallen into disuse. The liability requirements of the EPA 
are extraordinarily difficult for plaintiffs to satisfy, the remedies 
available fail to address the full range of harm suffered by aggrieved 
women and the enforcement scheme provided by the statute ignores the 
realities of the modern workplace. As a result, women who believe they 
have been subject to pay discrimination in compensation more often 
invoke Title VII of the Civil Rights Act of 1964, enacted one year 
after the EPA was passed. Properly recast, however, the EPA can offer a 
powerful tool in the ongoing efforts to reduce the gap in earnings 
between men and women. The Paycheck Fairness Act of 2007 (``PFA'' or 
``Act'') would eliminate most shortcomings of the EPA that have limited 
its utility.
    In this statement, I will identify and discuss the most serious 
flaws of the EPA. In offering these views, I draw upon nearly 30 years 
of legal practice representing victims of civil rights violations, 
especially in equal employment opportunity matters.
    First, the initial proof required of a plaintiff to establish a 
prima facie case is prohibitively high, as a result of which most women 
who pursue claims individually under the EPA do not prevail.
    Second, the EPA permits employers to defend claims by asserting 
that the pay difference is attributable to one or more ``factors other 
than sex.'' This defense shields from challenge grounds for pay 
disparities that, while not overtly attributable to sex, may 
nonetheless be closely associated with gender. As such, the scope of 
the defense must be confined to grounds that plainly could have no 
relationship to gender.
    Third, where evidence exists of a pattern or practice of pay 
discrimination, the EPA requires each aggrieved worker to opt into the 
case in order to receive any relief. This opt in requirement has had 
the effect of excluding many women from participation in EPA cases. 
Instead of employing this outdated and burdensome procedure where 
multiple claims are advanced, the EPA should employ Rule 23 of the 
Federal Rules of Civil Procedure which includes within a certified 
class all women who may be aggrieved by the same or similar pay 
practice without the obligation to opt into the case.\1\
    Fourth, the remedies available under the Equal Pay Act fail to 
address fully the harm that pay discrimination causes and provide 
little deterrence to employers from engaging in such discrimination, as 
the maximum relief available is often little more than payment of the 
wages the aggrieved women would have been paid in the absence of the 
pay discrimination to which they were subject.
    Fifth, as most employees are unaware of the compensation paid to 
their co-workers, they lack the information needed to initiate actions 
under the EPA. Private enforcement of this statute, therefore, will 
often fail to reveal, much less challenge and end, systemic gender-
based pay disparities. Without regular disclosure of worker 
compensation by gender to an appropriate enforcement agency, the 
protections afforded by the EPA will never be realized.
I. Difficulties in establishing plaintiff's prima facie case
    A plaintiff seeking to recover under the Equal Pay Act bears a 
heavy burden of proof to demonstrate a sex-based pay disparity is 
discriminatory. A plaintiff must show she performed work that is 
``equal'' or ``substantially equal'' to that of a male comparator in 
the same establishment and under similar working conditions.In 
determining whether work is equal or substantially equal, courts 
consider factors such as skill, effort, responsibility, and working 
conditions.While a plaintiff must show more than that the work of the 
comparator is comparable, she is not required to prove the work was 
identical.The meaning of equal work in the EPA, therefore, lies 
somewhere between comparable and identical work. This range of possible 
meanings that can be ascribed to ``equal work,'' the central 
requirement that the plaintiff must satisfy, has created considerable 
uncertainty about how to satisfy this standard.
    Rather than conducting a comparison of the essential features of 
jobs held by a plaintiff and her comparator, courts too often compare 
superficial features of the jobs and overlook fundamental similarities 
that are masked by trivial differences. Without the assistance of an 
expert to conduct analyses of each job at issue, which requires an 
expense few plaintiffs can afford individually, courts are left at sea 
in interpreting the requirements that plaintiffs must satisfy. Rather 
than assessing whether the jobs involve equal or similar skill, effort, 
and responsibility, courts have been tempted simply to compare a 
detailed job task list.Similarly, courts are not required to consider 
(1) experience, training, education, and ability required of jobs when 
assessing whether they involve equal skill; (2) the degree of mental or 
physical exertion required by the two jobs, as effort may be equal even 
if exerted in a different manner; and (3) the degree of accountability 
required for each job responsibility, despite the relevance of such 
factors in determining job comparability. Without the assistance of 
experts to guide the interpretation of broad statutory language and its 
application to job features that may not be easily compared, courts 
often find plaintiffs failed to satisfy their initial burden of proof 
and, as a result, the burden of proof never shifts to the employer to 
justify its challenged pay practices.
    The Equal Pay Act also requires that a plaintiff and her male 
comparator work in the same establishment.As more employers have 
multiple facilities at which the same jobs are performed, this 
requirement imposes increasingly unjustified constraints on the job 
comparisons that must be made. Where women work in jobs whose only 
comparators are located in other facilities, this provision creates a 
requirement that is impossible to satisfy.
    These difficulties in establishing appropriate comparators pose the 
greatest obstacles to success under the EPA for women holding higher 
level jobs where an employer's contention that each job is unique may 
seem most plausible. Current litigation trends show that blue-collar 
workers who hold jobs with simple, well-defined duties and whose work 
is almost identical have had greater success in satisfying their burden 
of proof under the EPA.In contrast, women in administrative, managerial 
and executive positions have experienced a high rate of dismissal of 
their EPA claims because their jobs are more easily viewed as unique 
and therefore lack an appropriate comparator. As women have come to 
occupy higher level positions in the workplace with increasing 
frequency, they have found less available to them the protection 
against pay discrimination that Congress intended to provide by 
enacting the EPA.
    The Paycheck Fairness Act in part addresses these obstacles to 
satisfying the plaintiffs' burden of proof under the EPA. The Act would 
appropriately eliminate the requirement that equal work must be 
performed at jobs located at the same facility, thereby shifting the 
focus of any comparison to the characteristics of the work 
performed.Other artificial barriers to satisfaction of the plaintiffs' 
burden of proof cannot be so easily eliminated. Clearer and more 
precise definitions of the initial requirements that plaintiffs must 
satisfy might provide courts with greater guidance and reduce the all-
too-common resort to mechanical comparisons that ignore important 
features of the jobs. Ultimately, the elaborate comparisons of multiple 
job dimensions that the EPA requires are most likely accomplished with 
assistance from experts. But, their cost is prohibitive for most 
employees who pursue their claims individually, making the ability to 
pursue such claims collectively especially important to effective 
enforcement of the EPA.
II. The defense available to employers, that a pay disparity was 
        attributable to a ``factor other than sex,'' must be more 
        narrowly defined, as it presently protects conduct that causes 
        gender pay disparities.
    In order to avoid liability, employers must rebut evidence of a 
gender-based pay disparity by proving that the wage gap is a result of 
one of the following--a bona fide seniority system, a merit system, a 
system which measures earnings by quantity or quality of production, or 
a factor other than sex. The first three defenses available to 
employers are specifically defined by statute and are normally 
associated with sound business practices likely to minimize the 
influence of gender in compensation decisions. The last defense that 
the EPA affords employers, however, that the pay disparity was caused 
by a ``factor other than sex,'' insulates from judicial scrutiny a wide 
array of business practices which, while neutral on their face, 
nonetheless may rely on factors that disadvantage women. Accordingly, 
the ``factor other than sex'' defense must be confined to business 
practices shown to serve compelling and legitimate interests of the 
employer and for which no alternative exists that would cause a smaller 
or no disparity in pay.
    For example, a policy that paid war veterans more than non-war 
veterans in jobs involving the same work was found to be a gender-
neutral ``factor other than sex'' notwithstanding that the lower paid 
non-war veteran employees were all women and the higher paid war 
veterans were all men.Reliance on pre-hire pay levels and strength and 
agility requirements offer other examples of factors that correlate 
highly with gender but which nonetheless can satisfy the ``factor other 
than sex'' defense.
    While not expressly relying upon gender, these factors and others 
like them are so closely associated with gender that they serve as a 
proxy for gender. As such, they should not qualify as grounds on which 
an employer may successfully defend a gender-based pay disparity.
    Nor is the EPA clear in prescribing the burden of proof that 
employers must satisfy in order to assert the ``factor other than sex'' 
defense successfully. The vague language of this defense, in contrast 
to the specificity of the other three defenses, has led courts to allow 
employers to satisfy the ``factor other than sex'' defense more easily 
than the other defenses. In Strecker v. Grand Forks County Social 
Service Board, for example, the court accepted the employer's simple 
assertion that use of the state personnel classification system was a 
gender-neutral ``factor other than sex'' that contributed to the 
observed gender-based pay disparity.In contrast, in Brewster v. Barnes, 
the court required the employer to satisfy a burden of persuasion; that 
is, to persuade it that the proffered reason actually contributed to 
the pay disparity and was gender neutral.As a result, the court 
concluded that the employer had failed to raise a ``factor other than 
sex'' because it failed to investigate or determine whether the 
employee in fact spent more than fifty percent of her time performing 
certain tasks. Defining the ``factor other than sex'' defense with 
greater particularity and specifying the burden of proof that the 
employer must satisfy would likely ensure that courts hold employers to 
the same evidentiary standard as they do with the other affirmative 
defenses available under the EPA.
    The Paycheck Fairness Act would address the shortcomings in the 
``factor other than sex'' defense available in the EPA. First, the Act 
requires that the ``factor other than sex'' be bona fide. The addition 
of the bona fide requirement ensures the factor proffered by the 
employer actually is neutral and unrelated to sex. Second, the Act 
requires that, in order to qualify as a defense, the proffered factor 
must be related to the position in which the pay disparity was 
observed, ensuring that it actually accounts for the challenged pay 
disparity.Third, the Act requires as an alternative ground that the 
proffered factor serve a ``legitimate business purpose'' and that no 
alternatives be available that would achieve the same business purpose 
but cause less pay disparity.This provision will be invaluable in 
ensuring that neutral practices, such as pre-hire pay levels or 
criteria relying upon stamina or strength, be scrutinized closely for 
the purpose they serve and compared with alternative criteria that may 
not cause gender-based pay disparities.
    Oddly, the Act as it is presently drafted treats these two new 
requirements that a ``factor other than sex'' must satisfy as 
alternatives rather than as standards both of which must be met.There 
is no reason the requirement that a ``factor other than sex'' be 
related to the job in question serve as an alternative to the 
requirement that ``a factor other than sex'' serve a legitimate 
business purpose and have no alternative factors available that may 
cause no pay disparity. The first requirement, that the factor at issue 
is job related, ensures that it is applicable to the job in which the 
disparity was observed, not simply apply to a broader or different 
category of jobs. The second requirement, that the factor serve a 
legitimate business purpose and have no alternatives that would have 
caused less pay disparity, ensures that the factor at issue be 
important to the employer's business and that the availability of 
options that might not cause the observed pay disparity be considered 
in assessing the lawfulness of the employer's compensation practice. 
Both requirements are necessary to ensure a ``factor other than sex,'' 
while neutral on its face, not serve as a proxy for sex. The Act should 
be revised to treat these requirements in the conjunctive, not the 
disjunctive as they now appear, to ensure that both requirements be 
satisfied when an employer asserts the defense that a gender-based pay 
disparity was due to a ``factor other than sex.''
III. When multiple claims are asserted under the epa, each claimant 
        should be able to participate in the case without the need to 
        opt into the action.
    When more than one woman working for the same employer claims she 
was the subject of a gender-based pay disparity, the EPA may permit 
them to pursue their claims together. Unlike virtually every other 
employment discrimination law, however, the EPA requires each woman who 
may have been adversely affected by the same discriminatory pay 
practice to file a notice with the court in which the case is pending 
expressing an intention to participate in the action. This burden 
erects an obstacle to women who may have been aggrieved by the same pay 
practice that may deny to some, or even many, the opportunity to 
participate in the case. Women aggrieved by the same pay practice 
should be afforded the opportunity to participate in the same lawsuit 
by order of the court, as occurs under virtually every other civil 
rights statute, rather than be required to notify their employer and 
the court of such an interest.
    At the time the EPA was enacted in 1963, most of the civil rights 
laws in effect today had not been passed. As there was no other federal 
law in effect at that time which protected against sex discrimination 
in the workplace, the EPA was enacted as an amendment to the Fair Labor 
Standards Act, 29 U.S.C. Sec. Sec.  201-219. (``FLSA'') Enacted in 
1938, the FLSA provides that where multiple persons wish to challenge 
the same conduct under that statute, each must file a separate notice 
with the court in order to opt into the case. One year after the EPA 
was enacted, Congress passed the Civil Rights Act of 1964, of which 
Title VII provides comprehensive protections against employment 
discrimination in all phases of the employment relationship, including 
compensation practices. Because Title VII was enacted as freestanding 
legislation, claims brought under it are governed by the Federal Rules 
of Civil Procedure which generally apply to all cases brought in the 
federal courts. Rule 23 of the Federal Rules of Civil Procedure 
provides that, where multiple claimants seek to challenge the same 
conduct, an order of the court certifying their group as a class 
ensures their participation in the action and their eligibility to 
share in any remedies awarded to members of the class. As a consequence 
of its early enactment and the absence of other laws that addressed sex 
discrimination in the workplace at that time, the EPA borrowed a 
procedure to govern multi-party claims from the FLSA, a statute that 
was enacted about 30 years earlier, before the Federal Rules of Civil 
Procedure and Rule 23 existed.
    The ability of all women aggrieved by a discriminatory pay practice 
to participate in the same case is critical to vindicating their rights 
under the EPA and ensuring that the rights of all women with the same 
claim are adjudicated in the same case at the same time and before the 
same court. The current process governing the pursuit of multiple pay 
discrimination claims against the same employer inevitably leads to the 
exclusion of many women with similar claims from the case in which the 
alleged pay practices are challenged. Although the EPA permits the 
court to issue notice to all women who may have been aggrieved by the 
challenged pay practice, some women have refrained from opting into EPA 
cases as they may lack knowledge personally that they were paid less 
than similarly situated men. Other women have declined to opt into the 
EPA cases from fear that the notice they must provide to their employer 
of an interest in participating in the case will subject them to 
retaliation. The cumulative effect of these additional hurdles that 
must be surmounted for women to participate in EPA multi-party cases, 
in my experience, leads to the exclusion of as many as half of the 
women eligible to participate.
    The better approach to the adjudication of multi-party claims 
arising under the EPA is to permit pursuit of such claims in a class 
action certified by a court pursuant to Rule 23 of the Federal Rules of 
Civil Procedure, where the circumstances warrant it. By employing the 
class certification process, the claims of women aggrieved by the same 
or similar pay practice are encompassed within the same case by court 
order and without the need for each woman to file notice opting into 
the action. This process comports with the procedure used for 
adjudicating multi-party sex discrimination claims arising under Title 
VII and ensures that all women who may have been aggrieved by the same 
or similar pay practice will pursue their claims together.
    The Paycheck Fairness Act would amply address this shortcoming in 
the EPA by expressly providing that women seeking to challenge the same 
or similar pay practices may proceed by class action governed by Rule 
23 of the Federal Rules of Civil Procedure.This provision will rectify 
a significant procedural flaw in the EPA and bring it into conformity 
with other civil rights laws enacted during the same period.
IV. Remedies available under the equal pay act should include the award 
        of compensatory and punitive damages
    The remedies available under the Equal Pay Act are too limited to 
address the harm that is suffered by pay discrimination and to provide 
an adequate deterrence to discrimination by employers.
    Successful litigants under the Equal Pay Act ordinarily recover the 
difference between the wages they were paid and the average wages paid 
to employees of the opposite sex who performed equal work for the two 
years before their complaint was filed. If the plaintiffs show the 
violation was willful, then they receive three years of back pay. 
Should the employer fail to show that the challenged pay disparities 
were the product of good faith, then the plaintiffs may also recover 
liquidated damages in the amount of the pay disparity.
    Unlike Title VII of the Civil Rights Act of 1964, which was amended 
in 1991 to permit the award of compensatory and punitive damages to 
victims of intentional discrimination, the Equal Pay Act does not 
authorize the award of such remedies. The award of compensatory damages 
may be warranted where a victim's knowledge of the pay disparity causes 
emotional harm or the payment of wages to women below those paid to 
similarly-situated men leads to consequential damage to a victim. 
Punitive damages might be warranted where an employer knew of the 
gender-based pay disparity and failed to take prompt and appropriate 
corrective action or the employer recklessly disregarded the rights of 
women to be free from pay discrimination. Absent the availability of 
these remedies, the EPA fails to provide the full panoply of remedies 
that are now routinely available under federal law to victims of 
intentional employment discrimination.
    Moreover, the monetary remedies currently available under the EPA 
for the most part simply require payment of wages that were unlawfully 
withheld in pursuit of gender-based pay discrimination. That remedy 
fails to provide an adequate incentive for employers to engage 
regularly in the examination of their own compensation practices and to 
investigate and address any pay disparities that may be detected. Even 
the payment of lost wages doubled where an employer has failed to 
demonstrate it acted in good faith permits employers to tolerate the 
risk that employment practices resulting in gender-based pay 
disparities will be detected and challenged, as they can compute 
precisely the economic exposure and determine whether it is a tolerable 
cost of doing business. The potential for the award of damages, on the 
other hand, may create risk that is not easily quantified and financial 
exposure that will cause employers to be more diligent in examining 
their pay practices and promptly address gender-based disparities where 
warranted.
    The Paycheck Fairness Act redresses the deficiency in the remedies 
available under the EPA by permitting the award of compensatory and 
punitive damages.In doing so, the Act eliminates a shortcoming of the 
EPA that has long diminished its value as a vehicle for addressing 
unlawful pay disparities.
V. As most employees are unaware of the amount of pay their co-workers 
        receive, compensation data must be reported to federal 
        enforcement agencies to ensure unlawful pay disparities can be 
        systematically detected and redressed.
    In most workplaces, the amount of compensation paid to each 
employee is not known by his or her co-workers. As a result, employees 
ordinarily lack the factual basis with which to compare the 
compensation they receive with pay levels of co-workers performing the 
same work. The lack of such information from which informed pay 
comparisons can be made greatly limits the ability of most workers to 
formulate and advance a claim of pay discrimination under the EPA. The 
enforcement of the EPA, therefore, cannot depend for the most part on 
private legal action. Instead, the
    protections of the EPA can only be secured by investigation and 
enforcement of pay disparities by the EEOC and the Office of Federal 
Contract Compliance Programs, the federal agencies charged with 
enforcing the EPA in the private sector. In order to ensure that these 
agencies possess reliable information about employer compensation 
levels, employers must be required to report such information regularly 
to them.
    Unlike most personnel actions, the results of which are readily 
evident to many employees, the levels of compensation paid to an 
employee are rarely known to co-workers. In contrast, the identity of 
persons selected for promotion is often observed by employees who work 
near or with the selectee. Perhaps more than any other personnel 
action, the results of compensation decisions are typically 
confidential and the ensuing amounts of compensation paid are known 
only to the pay recipient and a handful of managers and personnel 
staff. Indeed, the limits on knowledge about pay levels and the 
corresponding difficulty most employees have in comparing their 
compensation with amounts paid to co-workers prompted Justice Ginsburg 
to observe recently that: ``Comparative pay information * * * is often 
hidden from the employee's view.''
    The lack of knowledge about the amounts paid to co-workers is 
undoubtedly attributable to several causes. First, concealing 
compensation levels from workers protects the privacy of employees, for 
most of whom the amount of their pay is regarded as a matter of 
considerable sensitivity. Second, many employers discourage, and some 
actually ban, discussion between employees about the amounts of their 
compensation. Third, even employees informed about the pay levels of 
their co-workers likely lack knowledge about the factors that 
influenced those pay levels, such as evaluation of their co-workers 
performance and perhaps even the level of education and training each 
has received.
    Absent ready access to the pay levels of their co-workers and the 
factors that led to those pay levels, most employees lack the knowledge 
needed to make a viable claim of pay discrimination under the EPA. 
While discovery is ordinarily available to workers who initiate 
litigation under the EPA, workers must have sufficient information with 
which to determine they wish to file such a claim before bringing an 
action to enforce the EPA. It is not surprising, therefore, that of the 
claims filed alleging discrimination in the workplace, only a small 
percentage make specific allegations of pay discrimination.
    Lacking regular access to information about the amounts of 
compensation paid to their co-workers, the few employee-initiated 
complaints of pay discrimination cannot serve as an adequate source of 
information to federal enforcement agencies about the incidence of 
gender-based pay disparities in the workplace. Instead, those agencies 
must be granted access on a regular and organized fashion to 
information about the amounts of compensation paid to workers, 
identified by their demographic features and by the characteristics of 
the jobs they hold. Only with access to such information can federal 
enforcement of the EPA and its sister protections under Title VII of 
the Civil Rights Act of 1964 be pursued systematically and thoroughly.
    The Paycheck Fairness Act directs the EEOC to survey the data on 
employee compensation currently available to the federal government 
and, soon thereafter, to issue regulations that will provide for the 
collection of pay information from employers.This provision offers the 
best hope for the systematic investigation of employer compensation 
practices and, to the extent warranted, the pursuit of an organized and 
strategically developed enforcement program. A similar provision should 
be added to the Act directing the Office of Federal Contract Compliance 
Programs of the Department of Labor to undertake similar measures.
Conclusion
    More than 40 years ago, the Equal Pay Act was enacted with great 
hope that its protections would eliminate gender-based pay disparities 
from workplaces throughout the nation. But, the difficult scheme 
employed for enforcement of the EPA and the inaccessibility of 
information about pay to most employees has caused enforcement of this 
statute to fall far short of its promise. The Paycheck Fairness Act 
would considerably enhance the ability of employees to secure the 
protections against pay discrimination afforded by the EPA and create 
the first comprehensive program to investigate and eradicate gender-
based pay disparities in this country. I urge its speedy enactment.
                                 notes
    \1\ Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974).
    \2\ Working conditions need not be equal, but must be similar as 
evidenced by the physical surroundings and job hazards. Id. at 200.
    \3\ 29 C.F.R. 1620.14(a) (2003); Lambert v.Genesee Hosp., 10 F.3d 
46, 56 (2d Cir. 1993)
    \4\ Cavuoto v. Oxford Health Plans, Inc., 2001 WL 789316, *7 
(D.Conn. June 13, 2001) (conducting a superficial task-by-task 
comparison of job duties as opposed to inquiring into the effort, 
skill, and responsibility involved in the jobs being compared); 29 
C.F.R. Sec.  1620.15(a) (2003).
    \5\ 29 U.S.C. Sec.  216(d) (2007).
    \6\ See, e.g., Georgen-Saad v. Texas Mutual Insurance Co., 195 
F.Supp.2d 853, 857 (W.D. Tex. 2002) (noting that the Equal Pay Act is 
more easily applied to lower-level workers performing commodity-like 
work and is not suitable for assessing high-level workers)
    \7\ See Juliene James, The Equal Pay Act in the Courts: A De Facto 
White-Collar Exemption, 79 N.Y.U. L. REV. 1873 (2004) (explaining the 
historical and normative factors that result in a de facto white collar 
exemption to the Equal Pay Act).
    \8\ PFA, Sec.  3(c).
    \9\ Fallon v. State of Illinois, 882 F.2d 1206, 1212 (7th Cir. 
1989).
    \10\ 640 F.2d 96 (8th Cir. 1980), rev'd on other grounds by 
Pullman-Standard v. Swint, 456 U.S. 273 (1982); see also Patkus v. 
Sangamon-Cass Consortium, 769 F.2d 1251 (7th Cir. 1985) (holding that 
the defendant satisfied the factor-other-than-sex defense based on the 
existence of a reorganization plan).
    \11\ 788 F.2d 985 (4th Cir. 1986). A burden of persuasion requires 
the party to which it is assigned to prove or persuade a fact finder 
that the fact proffered is more likely true than not. St. Mary's Honor 
Center v. Hicks, 509 U.S. 502, 506 (1993); Texas Dept. of Community 
Affairs v. Burdine, 450 U.S. 248, 254 (1981). In contrast, a burden of 
production only requires the party to which it is assigned to 
articulate or produce evidence in support of the fact proffered, not 
persuade the fact finder that such evidence should be credited. Id. See 
also Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000) 
(concluding that, unlike Title VII claims, Equal Pay Act claims follows 
a two-step burden-shifting paradigm).
    \12\ PFA Sec.  3(a).
    \13\ PFA Sec.  3(a)(I)(aa)(AA).
    \14\ PFA Sec.  3(a)(I)(aa)(BB).
    \15\ PFA Sec.  3(a)(I)(aa)(AA).
    \16\ PFA Sec.  3(e)(4).
    \17\ PFA Sec.  3(e)(1).
    \18\ Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S.------, 
No. 05-1074, slip op. at 3 (2007)(Ginsberg, J. dissenting).
    \19\ See Equal Employment Opportunity Commission, EEOC Litigation 
Statistics FY 1997 to FY 2006, available at http://www.eeoc.gov/stats/
litigation.html (showing that only 10 of the 403 suits filed in 2006 
included Equal Pay Act claims).
    \20\ PFASec.  9.
                                 ______
                                 
    Chairwoman Woolsey. Thank you.
    Thank you all for your testimony.
    Now I am going to recognize myself for 5 minutes. And my 
first question is to you, Dr. Murphy. In Ms. Olson's written 
testimony, she claims that unexplained differences in the wage 
gap are attributable to women's choices. How would you respond 
to that?
    Ms. Murphy. Well, for years now statisticians have been 
analyzing, doing regression analysis to try and explain through 
women's characteristics or through workers' characteristics 
what this 23-cent difference is all about. And finally, I mean, 
the consensus right now is that 40 percent of that cannot be 
explained by all these regression analyses. I am a data nerd. 
You have to excuse me.
    But being a data nerd, if you look carefully at this 40 
percent, as much as everybody has tried to explain that it is 
not discrimination, you have to conclude after a while that 
this is discrimination. If you start with that 40 percent and 
then you look back into other statements about what is 
explained and look carefully at the footnotes and the hedging 
clauses, you will find that there may be some discrimination in 
the explained portions.
    So I take the 40 percent to be discrimination. And it may 
be substantially more than that. That is why, as Attorney 
Sellers was saying, that is why it is important to gather this 
other data until we have data from the workplace that can be 
factored in and used as well to explain and understand the 
extent of this discrimination.
    We have pushed as far as we possibly can with the Bureau of 
Labor Statistics and the Census Bureau's data. You can't go any 
further without analysis to get a clear statement and 
understand what discrimination is. But you can with the EEOC 
data and some modification which finally gets the pay data in 
workplaces.
    Chairwoman Woolsey. Okay, thank you.
    Ms. Greenberger, you would probably like to respond to 
that, too. But I would like you to talk to us a little bit 
about the current Equal Pay Act and what has happened with the 
Ledbetter decision and with the very idea of that we are 
weakening, not strengthening support for women in the 
workforce. So where does this legislation we are talking about 
now--how would that help or hinder what came out of Ledbetter?
    Ms. Greenberger. Well, let me just make one quick comment 
with respect to the pay gap and the nature of discrimination as 
a major cause of the pay gap in the country today, as Dr. 
Murphy said. Not only is the ``unexplained'' portion, which has 
to be due to discrimination substantial in and of itself, but 
also the so-called other factors like women making choices 
sometimes to stay at home to take care of children.
    Well, clearly, for some women that is their choice. And it 
is a choice to be supported. And I wish we had policies in our 
country that better did support those choices.
    But in many families, it is the worker, the wage earner who 
earns the least, who economically is the one who then cuts back 
on their paid labor force participation in order to deal with 
family responsibilities, whether it is children, elderly 
parents or the like.
    And so, what is deemed by many of these judgments as 
women's choices actually in a number of instances also reflects 
the pay discrimination that women face, which means they are 
the ones who have to give up paid employment, health insurance, 
pension plans and the like to meet the family responsibilities 
that need to be addressed in this country.
    So we are facing very substantial costs for families and 
for women with this pay discrimination. That is number one.
    Now, where are we with the law? First of all, what we have 
seen over the past number of years is an actual cutback in 
government enforcement of our anti-discrimination laws in 
general in the workplace, including the Equal Pay Act. So we 
have seen a cutback in data being collected on the basis of 
race, national origin, sex, religion, et cetera. We have seen 
the Bureau of Labor Statistics collecting less information with 
respect to women, not more.
    We know there is a particular problem with respect to women 
of color who suffer especially with respect to discrimination 
in the workplace and with pay. We do not collect adequate data 
by race, by gender or by gender and by ethnicity.
    That data is essential in order to identify the problems to 
have enforcement. Without that data, which this bill would go a 
long way to assuring is collected, we cannot target enforcement 
for the government properly. We cannot as a country understand 
the full scope and effect and the damage being done by pay 
discrimination.
    So this legislation is essential for that. On top of that, 
you mentioned the Ledbetter Supreme Court decision, a five-four 
decision where the Supreme Court by one vote narrowly 
interpreted Title 7's ability to address the issue of pay 
discrimination by limiting individual's right to bring a 
complaint to 180 days within the first discrimination.
    Chairwoman Woolsey. Okay, I am going to stop you there. And 
we are going to have a second round. And I am going to ask you 
to go further into Ledbetter.
    Ms. Greenberger. Okay, thank you.
    Chairwoman Woolsey. Mr. Wilson?
    Mr. Wilson. Thank you, Madam Chair.
    And, again, witnesses, thank you for being here.
    Dr. Murphy, I have a high regard for economists. But I have 
to tell you I am quite partial to three attorneys. And this is 
unheard of, I know. But I am an inactive attorney myself, sir, 
practiced for 25 years. And I am very grateful my oldest son is 
a trial attorney. And so, I appreciate your profession very 
much.
    Ms. Olson, my first question would be what is the 
difference between ``a factor other than sex'' and ``a bona 
fide other than sex,'' if you can explain the distinction. Then 
as follow-up, if you could, can you explain what the practical 
impacts of the further limitations on the defense such as the 
alternative employment practice requirement would be?
    Ms. Olson. Thank you, yes. It is difficult to tell because 
the words bona fide are not defined by the act. Instead when 
you look up the definition of the word bona fide, it says 
genuine. And the question is is that going to be something that 
one is going to look at with subjective intent, or is that 
something that is going to be looked at in terms of whether 
there is an underlying determination that there was intentional 
discrimination, or was it an appropriate factor to consider.
    Mr. Wilson. So whether or not it was a result of 
discrimination, if a reviewing court or jury determines it just 
wasn't an appropriate factor or the right factor that the 
employer should be considering, would that be sufficient to be 
bona fide within the meaning of the act? And I think that would 
be the subject of significant litigation for many years to 
come.
    Question: Does it impart a state of mind obligation or 
doesn't it? Is it something that can be supplanted in terms of 
the judgment of a particular employer by a jury? And that is 
clearly one of the issues.
    Ms. Olson. In addition to amending any other factor other 
than sex by adding bona fide, there are a number of other 
differences and a much higher standard of proof that an 
employer--and, again, an employer who at this point, unlike 
Title 7, would bear the ultimate burden of persuasion in front 
of a jury, would be required to show, they would also be 
required to show that there was a legitimate business purpose.
    And even once they show that, the plaintiff could still 
prevail if the plaintiff were able to show, notwithstanding a 
business necessity in connection with the defense that is built 
in here, that there was another way in which second guessing in 
hindsight, somebody looking at the decisions of the employer, a 
jury, could determine that perhaps the same objective could 
have been achieved by the employer using another factor that 
might not have in retrospect as significant an impact on women.
    An example might be, for example, an employer might have a 
pre-employment or a requirement, an employee in terms of a 
certain position have a certain amount of training. And the 
plaintiff may be able to defeat the employer's legitimate 
factor, which was training, by saying the employer could have 
spent 6 months to a year on the job training individuals who 
were not trained outside of the workplace and that that would 
eliminate the disparate factor, disparate treatment of women in 
connection with that particular issue.
    Mr. Wilson. But shouldn't an employer have the right at the 
start of a relationship to hire employees who are the most 
qualified to do the job?
    Additionally, can you explain to me in greater detail the 
theory of comparable worth and how this bill might result in 
more of these sorts of claims being brought? How exactly does a 
comparable pay system work? And what are the results, 
generally?
    Ms. Olson. That is a very good question. And it is an 
amazing thing that we are looking at a strict liability 
statute, the Equal Pay Act, that does not even require 
intentional discrimination. And we are looking at changing it 
by including the entire concept of comparable worth, which has 
been resoundly rejected, not just by this legislature, not just 
by the initial legislature that passed the Equal Pay Act, as 
you can see from my written comments, but also by judges and 
circuits courts of appeal and the U.S. Supreme Court.
    Comparable worth theory, at its essence, allows someone to 
compare the pay of one job to another job, even though the jobs 
are different. Basically what this statute would do, the 
Paycheck Fairness Act would do, would be to direct the 
Department of Labor and the OFCCP to compare--and the language 
of the statue is clear--jobs that are different for the purpose 
of determining whether employers have determined ``fair pay'' 
for those jobs. That is not what is required under Title 7, 
under the Equal Pay Act or under any federal legislation that I 
am aware.
    Mr. Wilson. Thank you very much.
    Chairwoman Woolsey. Thank you.
    Mr. Hare?
    Mr. Hare. Thank you very much, Madam Chair. I do share one 
thing with the ranking member. I am troubled by this 
legislation. But I am troubled that we even have to have 
hearings in past legislation to end discrimination against 
women in the workplace.
    I came out of a clothing factory where 95 percent of the 
people that were employed there were women. And I could tell 
you we live in a fantasy world if we really believe that this 
isn't happening to women every single day as we sit here. And 
so, from my perspective, I think it is not just the right thing 
to do. I think we have a moral obligation to pass this bill and 
to pass it quickly and hopefully get the President to sign 
this.
    I would like to ask you, Ms. Olson. You were talking about 
in your defense of the EPA cases--I was wondering how many 
cases under the EPA with multiple claims, including a positive 
action, have you personally defended. And the second part of 
that question would be with regard to those cases, how 
successful have the plaintiffs been in the cases that you were 
defending?
    Ms. Olson. I defended a number of cases on behalf of 
employers. And in those cases, a number of cases, as you know, 
approximately, I think, over 90 percent of all cases settle 
prior to going to trial. And many of those cases do settle at 
some point. In addition, the motion for summary judgment 
structure is set up to allow both plaintiffs and defendants to 
file motions.
    And if you look at cases, some of them are won in summary 
judgment. Some of them are tried to juries. Most of those cases 
do not just include Equal Pay Act cases. One might argue that 
it would be actually malpractice for a plaintiff's lawyer to 
simply bring an Equal Pay Act case without a Title 7 case 
because of the overlapping and the lucrative available remedies 
when you pair those two statutes together.
    Let me just mention that if you look at----
    Mr. Hare. Well, I guess my question was how successful--
because it seems that the plaintiff has to go through numerous, 
numerous hoops to even get to that step. And I am wondering in 
the cases where you defended the employer, how successful was 
the plaintiff in--I mean, what percent of cases were you not 
successful in representing the defendant on?
    Ms. Olson. I can't give you a percentage of success. But I 
can tell you that in connection with those cases, cases where 
there was an issue with respect to whether or not there was 
equality in pay, obviously are considered and are resolved 
prior to a resolution by defense counsel, including myself.
    With respect to those cases in which the employer has a 
strong position that, in fact, there was a disparity that was 
based on a factor other than sex, those cases actually were 
tried through pleadings. And actually employers were successful 
in my situation, every case that I can recall involving the 
Equal Pay Act.
    Mr. Hare. So you had 100 percent success rate, then, 
defending your clients?
    Ms. Olson. That is not the way I would look at it. I would 
look at it--because you have to include the much more 
significant number of cases that are resolved short of a 
determination positively in terms of one person's favor or 
another.
    In addition, if you look at just the last 2 years and Equal 
Pay Act and Title 7 wage claims, and if you look at just the 
reported cases, you will see verdicts of anywhere between $1 
million and over $50 million in connection with verdicts across 
the country in connection with those cases. So to say that, in 
fact, there isn't an effective mechanism out there today in 
which classes are being certified or collective actions are 
proceeding wouldn't be an accurate reflection of the case law.
    Mr. Hare. Okay.
    So I just wanted to ask Mr. Sellers this. But I guess, so 
you have never lost one then, in other words? You are batting 
1,000?
    Ms. Olson. I have settled. That is correct. I have settled.
    Mr. Hare. Okay.
    Mr. Sellers, of people who go to court, go all the way 
through this process where there is not a settlement who have a 
case and have taken all this time and all the effort to bring 
this to an end, what percent of those cases does the plaintiff, 
from your personal experience--how successful is the plaintiff 
in even getting a judgment in their behalf?
    Mr. Sellers. I would estimate it somewhere less than 10 
percent. And that is, of course, recognizing that there are 
many women who don't pursue their claims to begin with. They 
often contact me, and I conclude the proof required to even 
make the initial showing is too demanding, and, therefore, they 
wouldn't even get to the point of shifting the burden to the 
employer.
    Mr. Hare. Go ahead.
    Mr. Sellers. I just wanted to make one other point because 
we have heard a couple of times the use of the reference to the 
statute as a strict liability statute. And I really want to 
respectfully disagree with that characterization.
    A strict liability statute would be one in which the 
plaintiff prevailed if she simply satisfied the legal 
requirements set forth for her. This statute provides a whole 
array of defenses for employers. There is no employer that has 
a case brought against it, as I think Ms. Olson's experience 
demonstrates, that doesn't have very substantial defenses 
available.
    So I really think it is a mistake to characterize this as 
some kind of ``you bring your case and you automatically win.'' 
The practice is otherwise; I think strict liability is nowhere 
to be applied to this statute.
    Mr. Hare. Thank you. I yield back.
    Chairwoman Woolsey. Thank you very much.
    Mr. Price?
    Mr. Price. Thank you, Madam Chair.
    I appreciate the panelists coming today. I appreciate the 
information that has been presented.
    I thank the Chair for providing this opportunity because I 
think it points out clearly distinct differences between the 
approach that many of us take here in Congress. This would be, 
I think, another classic example of what I have coined to be 
Orwellian democracy that we are engaged in here in this 110th 
Congress.
    We have a bill before us that is entitled the Paycheck 
Fairness Act might better be described or titled the Increase 
in Class Action Suit Litigation Act in order to be more 
accurate in its description.
    I come to this setting, again, appreciating the 
information. I come from a family of professional women. I come 
from a profession where the number of women are increasing, 
medicine. I will assure you that the federal government 
discriminates equally against both men and women in the area of 
health care and of medicine and would hope that we would be 
addressing some of those issues as well.
    I am struck by many of the comments. And it is always a 
challenge to try to figure out exactly how to use your time up 
here because we get 5 minutes.
    Mr. Sellers, I was interested in your comment about 
apparently if a job had to do with strength and agility, the 
employer ought not be able to take strength and agility into 
account. I was amused, I guess, by the fact that you lamented 
that there weren't more lawsuits that were able to be brought.
    It is understandable, given your profession. But I think 
that it is somewhat curious that that ought to be our goal. And 
my good friend who just spoke seemed to think that because 
plaintiffs weren't winning more then we ought to change the 
rules so that plaintiffs could win more, not talking about the 
merits of the issue or the merits of the cases.
    Dr. Murphy talked about being a data nerd. I am a fact 
nerd. And facts are stubborn, stubborn things. And so, I would 
like to draw the attention of all a couple facts. CBO found 
that among people ages 27 to 33 who have never had a child, 
women's earnings approached 98 percent of men's. And women who 
hold positions and have skills of similar experience to those 
of men face wage disparities of less than 10 percent. And many 
are within a couple points.
    Now, is there discrimination out there? Absolutely, 
absolutely. But I have got real reservations about how rampant 
that is indeed and whether or not the vast majority of these 
factors aren't simply the market.
    I have asked a number of times to get information about 
companies held, owned, and operated by women and whether the 
pay discrepancies that--or pay differentials--in those 
companies are similar to others. And I suspect that--and I 
haven't been able to get that, but I suspect that that is 
indeed the case.
    Again, talking about Orwellian democracy, this Congress 
might be--and this committee might be described as being an 
anti-jobs committee and an anti-jobs Congress. There are three 
major things that drive the cost of business: taxation, 
litigation, and regulation. And we are coming down hard on 
business on every one.
    This, I believe, would significantly increase the 
litigation that is present and, therefore, decrease jobs in 
America, decrease jobs for men and women. And I would suggest 
that that is a direction in which we ought not head as a 
nation.
    But if I may, Ms. Olson, my reading of 1338 shows that we 
would provide--if it were enacted--we would provide for an 
uncapped compensatory and punitive damages. And I wondered if 
you might talk about the consequences of that in employment 
litigation and in the marketplace.
    Ms. Olson. Yes. And if I might add, in terms of the issue 
of uncapped punitive and compensatory damages, those are not 
available today under Title 7 so that you would be taking sex 
discrimination in pay and saying that sex discrimination in pay 
as opposed to under the Americans with Disabilities Act, the 
Age Discrimination Employment Act or Title 7 should have a 
higher, an uncapped, unlimited amount of damages available. It 
would be much more difficult in those situations.
    Let me just mention in its essence, again, there is no 
intentional finding that is required under the Equal Pay Act. 
Mr. Sellers disagrees with those courts that have described the 
Equal Pay Act as a strict liability statute, as he may. But he 
hasn't disagreed with the concept that it is fundamentally 
different than Title 7.
    Punitive damages are damages that are assessed by courts 
and juries to deter, to punish bad conduct. That kind of 
assessment is one that is completely contrary to the notions of 
the Equal Pay Act that don't require even intent, yet alone a 
willfulness in terms of an even higher standard, yet alone an 
intentional punitive damage-type determination.
    There are cases involving the Equal Pay Act and Title 7 in 
which juries have found that an employer violated the Equal Pay 
Act and was willful in doing so. But that standard is lower 
than even the general intentional discrimination standard under 
Title 7. And, therefore, they didn't make it a violation of 
Title 7. And there is a 10th Circuit case to that effect. There 
are a number of cases to that effect that are cited in my 
written testimony.
    It would be very difficult to determine what is the 
practical effect. There would be many more cases. There would 
be much more litigation. It is an open-ended checkbook. How do 
you determine what the economic value of those cases are if 
there are meritorious ones to try to settle? It provides a 
lottery-type recovery over and above what would be required in 
connection with liquidated damages.
    Mr. Price. My time is expired.
    And I appreciate that, Madam Chair.
    Chairwoman Woolsey. Thank you.
    Mr. Price. I would just echo those sentiments. I have grave 
concerns about the unintended consequences.
    Chairwoman Woolsey. Thank you, Mr. Kline. We actually 
didn't turn the light on way into your opening statement.
    Mr. Price. Right.
    Chairwoman Woolsey. So you----
    Mr. Price. I am Mr. Price.
    Chairwoman Woolsey. Right, I am sorry, Mr. Price.
    Mr. Price. I don't want you to----
    Chairwoman Woolsey. Thank you.
    Mr. Payne?
    Mr. Payne. Thank you very much. And we could really look at 
discrimination, I guess. There are some medical people there. 
But if we ever take a look at discrimination in the medical 
profession, it would be unbelievable.
    They did a study of aspirin years ago. Twenty-two thousand 
people were included in it and not a single woman. And the 
whole question was to see about life expectancy and the impact. 
And we find even in the tamoxifen clinical tests they really 
didn't tell women that they could get a different type of 
cancer by using this, the drug over the placebo. But I am not a 
doctor.
    Also this question about comparable worth. We talk about it 
more simply as equal pay for work of equal value and the 
disparate impact, for example. Fire departments just did not 
want women to be fire persons, I guess, or firemen.
    And so, they would have a part of the test--and I was a 
member of the municipal council--that everyone who qualified 
had to drag a dummy weighing 150 pounds or 200 pounds across a 
gym floor of about 100 years in a certain amount of time. Well, 
many women could not make it.
    Now, the question of disparate impact, whether it is 
necessary. How many people are you going to drag across a floor 
weighing over 150 pounds every time you get a fire? So one of 
the things we did was to say, well, is this a disparate impact, 
does it make sense. And it didn't. And, therefore, we were able 
to get women on the fire department.
    But there is no question that there are so many built in 
discriminations against women, whether it is in, like I said, 
the medical field where they are not brought into clinical 
tests. And they have said, well, it is bad business, those 
three business points that I mentioned, taxation, regulation, 
and litigation and how this is so terrible for America.
    But I just wonder if maybe Dr. Murphy or Ms. Greenberger--
is the disparate pay between men and women bad for the economy? 
You know, we just heard that this job creation, its impact. And 
I just wonder what your opinion is on this topic that my 
colleague just talked about being so bad for American business.
    Ms. Greenberger. We have heard some arguments to that 
effect about every single anti-discrimination statute that if 
it means that employers somehow are going to have all these 
enormous burdens, that we need to just let the market work its 
will, that we can't afford to have people vindicating their 
rights in court, that if women get equal rights, that it means 
that they will end up hurting the economy. All of those 
predictions have turned out not to be true.
    And, in fact, women's wages are essential for the economy 
today. Most families rely upon the wages of women as well as 
men in order to make ends meet. If you ask--and there have been 
many public opinion surveys--about the nature of pay 
discrimination and do men and women see pay discrimination 
against women, the numbers are off the charts about the 
importance of addressing pay discrimination.
    Because around the kitchen table, men and women know that 
women's wages are not fair, they are not equal, and that the 
children, the families, men, women, sons, daughters pay the 
price for the discrimination against women in the workplace. 
And our economy is the poorer for it as well because women's 
skills aren't being able to be developed.
    They don't have the resources to pay for health care. And 
there are a number of studies about the problems that women 
face in the health care system, the fact that they do not have 
the kind of health insurance that they need, that they don't 
get that as part of the pay in the workplace.
    Our country pays an enormous price because of this pay 
discrimination. And I agree completely that our economy would 
be stronger, the workplace would be not only fairer, but also 
that we as a country would be far richer if women were paid 
what they are worth.
    And I do want to make one point with respect to Ms. Olson. 
I think she misreads the statute in very serious respects and 
has paraded a whole range of horrible effects of this 
legislation, which it doesn't require. But in particular with 
respect to comparable worth or comparable pay, which was a 
question that was asked, all that this legislation does is talk 
about studying the issue. It isn't talking about requiring 
this.
    But when we have parking attendants making more than child 
workers, employers ought to be looking and seeing whether that 
is a pay scale that makes sense.
    Chairwoman Woolsey. Thank you, Ms. Greenberger.
    Ms. Greenberger. Thank you.
    Chairwoman Woolsey. I want to remind Mr. Price that the 
reason it seemed like I cut him off was that he had a minute-
and-a-half before we even turned his clock on.
    Mr. Kline?
    Mr. Kline. Thank you, Madam Chair. And anytime that you get 
Dr. Price and I confused, it is okay with me. I fare better 
when that happens.
    I want to thank the witnesses for being here today. I was a 
little bit concerned when my good friend and colleague, the 
gentleman from Illinois, said it was a moral imperative that we 
pass this legislation. And I disagree, of course.
    But what really concerns me is that we have put this on a 
moral basis, that those that might not support this somehow are 
lacking in morals. So I hate it when the dialogue kind of gets 
down to that level.
    This is a lot about details, and lawyers are involved here. 
That is what we do here, I suppose, is get lawyers involved 
because we are writing law.
    I would like to, Ms. Olson, give you the opportunity to 
address a couple of issues. One, we had a discussion. There was 
some confusion about the theory of comparable worth. And then 
disparate impact was brought in. Can you sort of sort through 
that for us a little bit? And then if time allows, I would like 
you to address the regression analysis discussion that Dr. 
Murphy had. And we have got a vote on, so we will be scrambling 
out of here pretty shortly.
    Ms. Olson. Okay. And if I just might start my comments by 
saying there is something to the issue of whether it would be 
bad for the economy. There is no question it would be bad for 
the free market system that we have in our country in terms of 
the way wages are set as opposed to government agencies 
determining which jobs should be treated as comparable and 
which pay should be attached to those as opposed to allowing 
the free market system to do that.
    In terms of comparable worth, the comment that has come 
here from the table is that, in fact, I misunderstand the 
statute and that it doesn't intend to inject comparable worth 
into the description of what would be required by the Equal Pay 
Act. In fact, it does so by directing the Department of Labor 
and the OFCCP to actually study jobs that are different and to 
publish guidelines to be addressed and reviewed by employers.
    My experience--and I have spent a lot of time doing trial 
work in front of juries--is that judges automatically take 
those guidelines promulgated by the various agencies, whether 
it is the EEOC or the Department of Labor, and present them to 
the juries as the governing law in connection with what is 
appropriate, whether it be a pre-employment testing issue or in 
this situation, which would be an issue of what jobs should be 
treated as comparable and what they pay ought to be. That is 
not something which has previously been the province of any 
agency or the province of judges or juries in connection with 
employment discrimination litigation.
    In terms of disparate impact analysis, today plaintiffs and 
women have the right under Title 7 using the rule 23 device 
that Mr. Sellers described to bring disparate impact pay claims 
that exist today. And those cases are brought. And I describe--
they are significant settlements in many of those cases over 
the last number of years.
    With respect to regression analysis, it is an analysis that 
was adopted by the OFCCP back in June of last year in terms of 
once it gave significant consideration to how can we best 
determine what is appropriate in terms of the comparison of 
different jobs and different issues in terms of pay. It felt 
that accrued analysis just looking at jobs by pay band really 
didn't explain the differences.
    You really need to consider a number of different factors. 
And the statistical methodology to do that is regression 
analysis. And it adopted it in just June of last year as the 
appropriate way it would go about taking a look at jobs and 
pay.
    Mr. Kline. Thank you, Madam Chair. I yield back.
    Chairwoman Woolsey. I think you heard the bells ringing. We 
have a series of four votes. So we will conclude.
    And in concluding, I would like to say there is a 
difference between both sides of the aisle on this issue. Many 
of us and many of you believe that you can have jobs, you can 
have successful businesses, and you can have equality. One does 
not cancel out the other.
    So in looking at that, if the Equal Pay Act worked as well 
as Ms. Olson believes it does, then my question is why do women 
earn 23 cents less an hour than men. Are women not worth the 
same as men? Of course not.
    That is what we are dealing with. That is what we will have 
to do something about. That is what you have spoken to us about 
today.
    I wish we had a lot more time. But you don't want to hang 
around here while we go vote. It is going to be at least 45 
minutes. And I want to thank you so much for being here, all 
four of you. You have brought a lot to the discussion.
    As previously ordered, members will have 14 days to submit 
additional materials for the hearing record. And any member who 
wishes to submit follow-up questions in writing to the 
witnesses should coordinate with the majority staff within 14 
days.
    Without objection, this hearing is adjourned.
    [The prepared statement of Ms. DeLauro follows:]

    Prepared Statement of Hon. Rosa L. DeLauro, a Representative in 
                 Congress From the State of Connecticut

    Madame Chairwoman, I want to thank the Committee for hosting its 
second hearing on the 'Paycheck Fairness Act'. This is an important 
sign of progress, showing just how serious the Committee is about this 
issue and just how well you appreciate the need to help women in the 
workplace.
    In the more than ten years, I have spent working on these issues, 
we were not able to get a hearing on the bill. Now we have had two 
hearings in just three months. I am very proud of the momentum we are 
building.
    It is time to value the work that women do in our society. It is 
time to continue fighting, as we are doing here today, for working 
women and families--and for women like Lilly Ledbetter.
    When the Supreme Court ruled 5 to 4 against Ms. Ledbetter this 
Spring, it decided that a victim of pay disparity should be able to 
document a discriminatory difference in pay within a mere six months, 
despite the typical office secrecy over income. When women still earn 
only about 77 percent of what men earn, this ruling leaves them with no 
remedy, essentially rolling back efforts to ensure equal pay.
    We need to fix the Supreme Court ruling, and we need to ensure no 
woman is ever subject to the injustice Lilly Ledbetter experienced. 
That is why I have called on Congress to pass the 'Paycheck Fairness 
Act' and give women the tools to confront discrimination in the 
workplace and give teeth to the Equal Pay Act. Shortchanging women of 
their due, shortchanges their entire families, limits their 
opportunity, and undermines their work.
    It is no wonder, that today the 'Paycheck Fairness Act' enjoys the 
bipartisan support of 224 cosponsors. This is an issue of fairness. We 
owe it to Lilly Ledbetter. We owe it to the more than 1.5 million 
female employees at Wal-Mart who have sued the retailer for paying them 
less than their male counterparts. We need to ensure women have the 
tools to remedy and if necessary, fight pay discrimination.
    And that is exactly what Paycheck Fairness would do, requiring the 
Department of Labor to enhance outreach and training efforts to work 
with employers to eliminate pay disparities. It would prohibit 
employers from retaliating against employees who share salary 
information with their co-workers and stiffen penalties for employers 
in violation of the Equal Pay Act. And it would require the Department 
of Labor to resume collecting and disseminating information about women 
workers and create a new grant program that would help strengthen 
women's salary negotiation skills.
    Ensuring pay equity can help families gain the resources they need 
to give their children a better future--the great promise of our 
American dream.
    And in today's hearing we will hear from some excellent witnesses 
who will help illuminate these issues from a number of valuable 
perspectives. Evelyn Murphy, an economist, is founder of the Wage Clubs 
and the author of ``Getting Even: Why Women Still Don't Get Paid Like 
Men.'' Joe Sellers, an attorney, working on civil rights and employment 
cases has worked with Wal-Mart employees claiming discrimination, and 
Marcia Greenberger, Co-President, National Women's Law Center.
    Again, Madame Chairwoman, I want to thank you for your careful 
deliberation of this critical issue and I look forward to the day when 
we bring The Paycheck Fairness Act to the House floor.
                                 ______
                                 
    [The prepared statement of the American Association of 
University Women, submitted by Ms. Woolsey, follows:]










                                ------                                

    [The prepared statement of Business and Professional Women/
USA, submitted by Ms. Woolsey, follows:]

       Prepared Statement of Business and Professional Women/USA

    Chairman Woolsey and members of the Committee, thank you for this 
opportunity to provide written testimony on wage inequity and its 
impact on working women, their families, and employers.
    Business and Professional Women/USA (BPW/USA) and Business and 
Professional Women's Foundation have a unique perspective on this issue 
in that we understand that working women are both employees and 
employers. Legislative solutions to workplace inequity must provide 
tools that support both the employee and employer, to level the playing 
field and provide opportunities that dismantle the systemic barriers 
that remain. We bring this perspective to our testimony today.
Background of Organizations
    Founded in 1919, BPW/USA is a multi-generational, nonpartisan 
membership organization with a mission to achieve equity for all women 
in the workplace through advocacy, education, and information. 
Established as the first organization to focus on issues of working 
women, BPW/USA is historically a leader in grassroots activism, policy 
influence and advocacy for millions of working women. BPW/USA's 
legislative platform focuses on the issues of workplace equity and 
work-life effectiveness. Pay equity undeniably falls within this focus 
making fair pay one of our top policy priorities. BPW/USA has long 
fought for equal pay as our members were witness to President Kennedy 
signing the Equal Pay Act into law. Today, the wage gap continues to be 
one of the greatest economic factors that affect working women and 
families. Therefore BPW/USA remains committed to the pay equity issue 
by being the leading advocate to move legislation forward and educator 
for working women, and policy makers.
    In 1956, Business and Professional Women's (BPW) Foundation became 
the first research and education institution of national scope solely 
dedicated to issues that affect working women. BPW Foundation utilizes 
the avenues of research, education, policy and knowledge development to 
achieve its mission: to empower working women to achieve their full 
potential and to partner with employers to build successful workplaces. 
BPW Foundation encourages cross-sector collaboration between employers, 
research organizations, working women and policymakers. This 
collaboration is based on the understanding that each sector plays an 
important role in creating successful workplaces for working women and 
their employers by virtue of their ability to identify and act 
collectively upon common ground areas ready for change.
Women in the Workforce
    Workingwomen have made great strides in establishing themselves as 
an integral force in the American economy in the last five decades. The 
growing participation of women in the paid labor force was a critical 
factor in the economic growth of the United States during this time. By 
2006, women comprised 46 percent of the labor force increasing from 29 
percent in 1956 and 36 percent in 1976.\i\ By 2002, women-owned 
employer firms employed 7.1 million workers and paid $173.7 billion in 
annual payrolls and accounted for 6.5 percent of total employment in 
U.S.\ii\ Women comprised 46.3 percent of wealthiest Americans, by 2001, 
with a combined net worth of $5.8 trillion.\iii\
    The importance of working women to the U.S. economy and to their 
families' incomes can not be underestimated. According to the U.S. 
Census Bureau the wages of men (under age 44) have undergone a steady 
decline. At the same time the real median income of families has risen; 
economists attribute this rise to the growth in women's labor force 
participation.\iv\ Typically, women in dual-income households provide 
approximately one-third of the family income. Two-thirds of all 
families with children have all available parents at work; among prime-
age women (ages 25 to 45), 75 percent of women and 71 percent of 
mothers are in the labor force.\v\
    Additionally, working women's continuing readiness to take on 
primary responsibility for addressing critical societal needs such as 
care giving for children, elders or ill family members or acting as 
volunteer leaders has fueled a shadow economy of unpaid work that 
contributes significantly to the economic and social well-being of 
communities and families. One estimate shows unpaid care giving (by 
women and men) for older or ill family members, alone, provides $257 
billion in services to the nation.\vi\
    Over the past 50 years, women in large numbers realized the 
individual accomplishments demanded of them at the start of the 
movement to achieve equity in the workplace: they received college 
degrees in ever increasing numbers, started their own businesses, made 
concerted efforts to move into nontraditional fields, mentored and were 
mentored.\vii\
    Women are outperforming men at almost every educational level with 
88 percent of women in the 25-29 age group completing high school 
compared to 85 percent of men; women also now make up 58 percent of 
U.S. college students compared to 43 percent in 1970. Women have earned 
more bachelor's degrees than men since 1982 and more master's degrees 
since 1986. Within four years, it is estimated that women undergraduate 
and graduate students will outnumber men by 10.2 million to 7.4 
million. Women are also more likely to have higher grades than 
men.\viii\ But still, women with graduate degrees earn only slightly 
more than men with only a high school diploma ($41,995 compared to 
$40,822).\ix\
    Yet with all of this progress the wage gap persists in the 21st 
Century.
The Persisting Wage Gap
    In a time when women make up nearly half the workforce, many think 
that the issue of wage inequity no longer exists. However, a recent 
deluge of corporate law suits disproves this view. A number of 
corporations such as Goodyear Tire, Smith Barney, Merrill Lynch, Wal-
Mart and Boeing have all faced sex discrimination lawsuits in recent 
years brought on by female employees asserting that their employers 
paid them less than men or did not promote them as quickly. These pay 
discrimination law suits brought media attention to an issue that 
continues to impact the paychecks of many working women.
    The 2006 Census Bureau estimates that full time, year-round female 
workers make 77 cents for every dollar a male earns. For minority women 
this statistic worsens as African-American women make 66 cents, Latinas 
make 55 cents and Asian-American women make 80 cents. After stalling in 
the 1980's, at the current rate of change, it will be another 50 years 
before women achieve equal pay.
    Many women are aware of the wage gap and the enormous impact it 
will have on their financial lives; unfortunately some are not. 
According to economist Evelyn Murphy, over a working lifetime, the 
gender wage disparity will cost a woman between $700,000 and $2 million 
in lost wages, dependent upon her education level. Women know that the 
wage gap exists due to lost promotions and chronic discrimination. 
Economists believe that between 10 percent and 30 percent of the wage 
gap is attributable to discrimination.\x\
    Pay inequity is not a women's issue, but a family issue. Men have 
an equal investment in ending the wage gap for the sake of total 
household income and retirement savings. Today the majority of American 
families depend on the earnings of both parents to financially survive 
so rewarding equal pay for equal work would result in increased family 
incomes. As a result of the wage gap, women stand to lose significant 
amounts of money that could be used for their families and 
retirement.\xi\ Lower pension and social security benefits that result 
from unequal pay cause this gap to follow women and their families 
throughout their lives.
The Power of Grassroots
    The goal of BPW/USA is to empower working women to be strong 
advocates for themselves, in their workplaces, and on behalf of 
legislation like the Paycheck Fairness Act. Annually, BPW/USA members 
recognize Equal Pay Day in April by hosting events and activities 
across the nation to raise awareness of the wage gap. BPW/USA believes 
in the three pronged approach to addressing the issue of pay equity. 
This entails passing legislation to enact tougher laws, holding 
businesses accountable for unfair pay practices, and providing women 
with the knowledge and tools to empower themselves. BPW/USA educates 
women about the wage gap, what to do if they are being paid unfairly, 
and how to negotiate a better salary. While BPW/USA is reaching 
thousands of women through its signature conferences, grassroots 
programs and activities, there needs to be government supported 
programs and trainings educating a broad audience of women about the 
wage gap, and providing them with needed skills training.
Change in the Workplace
    As a neutral convener and independent research and education 
institution, BPW Foundation plays a unique and critical role in 
identifying opportunities for change and in building collaborative 
solutions.
    In the 21st century, workplaces are undergoing constant 
transformation. The forces reshaping America's workplaces contain a 
compelling opportunity for innovation, adaptation and change. Such 
change can enable the dismantling of the remaining barriers that block 
women's full and equitable participation in the workforce.\xii\
    An emerging workplace trend is the increasing realization that 
forces shaping options for working women are, in fact, forces affecting 
everyone in the workplace including women, men, caregivers, entry-level 
workers, impending retirees, second careerists, people with 
disabilities and employers. Public policy, aimed at ending the wage 
gap, has the power to offer solutions and tools that can positively 
reshape the workplace for all employees and expand the labor pool for 
all employers.\xiii\
    Research conducted by BPW Foundation at its annual National 
Employer Summits has revealed that the causes of workplace 
dissatisfaction are often the same issues that create potential 
inequity in the workplace. Workplaces and workforces are wrestling with 
the changing realities of employees' lives and expectations, the 
demographic transformation of the labor force, the impacts of 
technology on work design, and the growth of global workplaces.\xiv\ In 
the midst of this, employers striving to create diverse, equitable 
workplaces are faced with dismantling the systemic and cultural 
barriers that continue to block women's full and equitable 
participation in the workplace. Solutions to remove the structural and 
cultural barriers that stymie women's participation in the workplace 
necessitate the collaboration of policy makers, employers and working 
women and requires a combination of public policy and voluntary 
practice-based solutions.\xv\
The Need for Public Policy to Address Pay Inequity
    Ideally closing the wage gap should not occur as a result of 
legislative action, but because employers proactively pay their 
employees fairly. Unfortunately, many employers fall behind in 
monitoring their pay scales adequately, which is why Congress stepped 
in forty years ago to pass the Equal Pay Act.
    The Equal Pay Act was passed to help remedy the chronic employment 
discrimination taking place in the private industry. Lawmakers in the 
1960's knew that a law must be in place to bring fairness to a 
marketplace that was failing its working women. While women have been 
able to take charge of workplace biases and discrimination by holding 
businesses accountable for their pay practices by filing under the 
Equal Pay Act, there are limitations to this law which have hampered 
progress.
    The marketplace alone cannot prevent pay discrimination, giving the 
government a significant role in ensuring fair workplace practices. 
Previous anti-discrimination laws like the Equal Pay Act, Civil Rights 
Act, Americans with Disabilities Act and Pregnancy Discrimination Act 
have each played a role in ensuring that people are treated fairly in 
the workplace. Congress is now in a position to take a proactive role 
in continuing the advancement women have made in the workplace and in 
ensuring that women are getting the paychecks and promotions they have 
earned through the Paycheck Fairness Act.
    This legislation addresses some of the remaining systemic barriers 
to women being paid fairly and provides employees and employers with 
the tools and skills to deal with them. Provisions within the Paycheck 
Fairness Act address two important ingredients to closing the wage gap. 
These include providing women with negotiation skills and avenues of 
redress when discrimination occurs, which support working women as they 
deal with the structural inequities and biases within many workplaces. 
The bill also offers some support to employers. Rather than putting the 
onus on early adopters of equitable work practices, the bill would 
spread the work among all firms by allowing employers equal access to 
guidelines developed by the Department of Labor, and by utilizing 
government researchers to gather and pool employer data on wages to 
establish benchmarks and track progress. It also provides the 
opportunity for employers to share their knowledge through a national 
summit, about the transformation of their workplace practices.
    The Paycheck Fairness Act would also educate a broad audience of 
women by establishing a competitive grants program to develop training 
for women and girls on compensation negotiations, and requiring the 
Department of Labor to reinstate equal pay activities and investigatory 
enforcement tools for cases of gender discrimination. Women who have 
better negotiation skills increase their chances of being paid and 
promoted fairly. However, they cannot receive this needed training 
without the passage of the Paycheck Fairness Act. The support of the 
Department of Labor will allow many working women to be exposed to 
strengthening their skills when negotiating salary for a new position 
or lobbying for a promotion.
    The Paycheck Fairness Act addresses many of these limitations, 
clarifies key definitions that have limited the court's willingness to 
intercede in unfair practices and provides working women, researchers, 
and engaged employers with the tools and research they need to make and 
measure progress.
Suggestions for Paycheck Fairness Act
    To further strengthen the legislation and the ability of employees 
and employers to create win-win solutions in the workplace, we suggest 
the following:
     The awards program focus on progress rather than effort. 
Existing awards programs that highlight employers of choice are coming 
under greater scrutiny with critics pointing out that these programs 
often give applicants a skewed vision of what is actually available in 
the workplace. Often programs or policies may exist that go unused by 
employees because of perceived cultural or systemic biases within 
firms. It is important that any recognition program focus on 
quantitative results in changing wage inequities and not simply on 
effort expended.
     Incentives should be offered to employers to help offset 
costs for reviewing and transforming their human resource practices.
     As partners in this change process, employers should be 
actively engaged in discussions about wage equity and workplace 
practices and the supports they need to create successful workplaces. 
The summit provision within the legislation is a good start. We 
encourage those developing legislation to engage more employers within 
the current development process to proactively address concerns and 
cost issues.
Conclusion
    Solving the wage gap will require women to be proactive about their 
negotiation skills, the passage of effective legislation and the 
realization by businesses that paying women fairly has benefits to the 
bottom line. For the sake of our daughters, it is time for American 
women to stand together and create positive change not only for 
ourselves, but for the financial future of our families.
                                endnotes
    \i\ ``The New Math of Unemployment,'' Time Magazine. November 1976.
    \ii\ ``Women in Business: A Demographic Review of Women's Business 
Ownership,'' Office of Advocacy, Small Business Administration. 2006
    \iii\ ``Personal Wealth, 2001,'' Statistics of Income Division, 
Internal Revenue Service, Barry W. Johnson and Brian G. Raub. 2005.
    \iv\ Society for Human Resource Management, 2006. www.shrm.org/
trends/visions/3issue2006/0306b.asp
    \v\ Equal Employment Opportunity Commission Hearing, Heather 
Bourshey, Center for Economic and Policy Research, April 17, 2007.
    \vi\ Expenditure Data from HCFA, Office of the Actuary, Levit K. et 
all., Health Affairs, 2002.
    \vii\ Forces Shaping 21st Century Workplaces and Workforces, BPW 
Foundation, 2006.
    \viii\ Society for Human Resource Management, 2006. www.shrm.org/
trends/visions/3issue2006/0306b.asp
    \ix\ Institute for Women's Policy Research, 2004.
    \x\ Society for Human Resource Management, 2006. www.shrm.org/
trends/visions/3issue2006/0306b.asp
    \xi\ The State of Work-Life Effectiveness, BPW Foundation, June 
2005.
    \xii\ Forces Shaping 21st Century Workplaces and Workforces, BPW 
Foundation, 2006
    \xiii\ 2006 National Employer Summit Report, BPW Foundation, 2007.
    \xiv\ Resources and Policy Changes Needed to Create Successful 
Workplaces, BPW Foundation, April 2006.
    \xv\ 2006 National Employer Summit Report, BPW Foundation, 2007.
                                 ______
                                 
    [Whereupon, at 11:45 a.m., the subcommittee was adjourned.]

                                 
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