[Senate Hearing 110-64]
[From the U.S. Government Printing Office]

                                                         S. Hrg. 110-64



                                 OF THE

                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION




                             APRIL 12, 2007


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               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
BARACK OBAMA, Illinois               PAT ROBERTS, Kansas
BERNARD SANDERS (I) Vermont          WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma

           J. Michael Myers, Staff Director and Chief Counsel

           Katherine Brunett McGuire, Minority Staff Director



                            C O N T E N T S



                        THURSDAY, APRIL 12, 2007

Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, opening 
  statement......................................................     1
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming, 
  opening statement..............................................     3
    Prepared statement...........................................     5
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of 
  New York, statement............................................     9
Reed, Hon. Jack, a U.S. Senator from the State of Rhode Island, 
  statement......................................................    10
Murray, Hon. Patty, a U.S. Senator from the State of Washington, 
  statement......................................................    11
    Prepared statement...........................................    11
Brown, Barbara, Attorney, Paul Hastings, Washington, DC..........    13
    Prepared statement...........................................    15
Samuels, Jocelyn, Vice President for Education and Employment, 
  National Women's Law Center, Washington, DC....................    19
    Prepared statement...........................................    21
Murphy, Evelyn, Founder and President of the WAGE Project, 
  Incorporated, Boston, Massachusetts............................    28
    Prepared statement...........................................    30
Cohen, Philip, Associate Professor and Director of Graduate 
  Studies, Department of Sociology, University of North Carolina, 
  Chapel Hill, North Carolina....................................    36
    Prepared statement...........................................    38

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Kennedy, Hon. Edward M., a U.S. Senator from the State of 
      Massachusetts, prepared statement..........................    53
    Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio, 
      prepared statement.........................................    54
    Response to Questions of Senator Kennedy by:
        Barbara Brown............................................    55
        Jocelyn Samuels..........................................    55
        Evelyn Murphy............................................    57
        Philip Cohen.............................................    57
    Response to Questions of Senator Enzi by Jocelyn Samuels.....    57
    Response to Questions of Senator Harkin by Evelyn F. Murphy..    59
    Response to Questions of Senator Reed by Philip Cohen........    61
    Response to Questions of Senator Clinton by:
        Barbara Brown............................................    61
        Evelyn Murphy and Jocelyn Samuels........................    62
        Evelyn Murphy............................................    63
        Philip Cohen.............................................    66





                        THURSDAY, APRIL 12, 2007

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2 p.m., in Room 
SD-628, Dirksen Senate Office Building, Hon. Tom Harkin, 
    Present: Senators Harkin, Murray, Reed, Clinton, and Enzi.

                  Opening Statement of Senator Harkin

    Senator  Harkin [presiding]. The Senate Health, Education, 
Labor, and Pensions Committee will come to order. At today's 
hearing, we'll focus on three things--the enforcement of two 
current laws, the Equal Pay Act of 1963, the Fair Pay Act and 
also the Paycheck Protection Act.
    I'm proud to be a part of this important hearing on the 
wage gap between men and women. It's unbelievable to me that 
more than 40 years after the passing of the Equal Pay Act and 
the Civil Rights Act, women are still making only 77 cents for 
every dollar that a man makes. I guess we're supposed to be 
comforted by the fact that the wage gap is shrinking but 
according to the Economic Policy Institute, this isn't because 
women are making more, it's because men are making less.
    This is an interesting chart here. What it shows is 
earnings of men, earnings of women. We won't get into ratio but 
it shows them coming together about 2024, not because women are 
going to make more but because both are making less and that 
says something about what our economy is scheduled to do in the 
next few years, if we keep on the same course that we're on. 
Not very heartening.
    The Iowa Workforce Development Agency in my own State has 
been looking at data for all of the jobs in my State. It found 
that across all industries, women are only making 61.8 percent 
of what men make--61.8 percent. There are various reasons given 
why women make less than men, such as women seeking self-
selecting lower paid jobs, having less education, taking time 
off to have babies, et cetera, et cetera. However, I believe 
that women are making less because we are not properly 
enforcing current law and because we do not value jobs we 
traditionally view as women's jobs as we value those we think 
of as men's jobs.
    Why, I ask, is a housekeeper worth less than a janitor? Why 
is a parking meter reader worth less than an electrical meter 
reader? Why is a social worker worth less than a probation 
officer? Without question, we need to do a better job of 
enforcing the law that requires equal pay for equal work and we 
need to stiffen the penalties for violations. That's why I 
support Senator Clinton's Paycheck Fairness Act, which would 
help give women the tools they need to identify and confront 
discrimination head on.
    But we also need to be doing more to make sure women are 
not steered into lower paying job categories and that's why 
yesterday, I re-introduced the Fair Pay Act. My bill amends the 
Fair Labor Standards Act of 1938 to prohibit discrimination in 
the payment of wages on the basis of sex, race or national 
origin. Most importantly, it requires each individual employer 
to provide equal pay for jobs that are comparable in skill, 
effort, responsibility, and working conditions.
    This is the tenth or eleventh year in a row I've introduced 
this. So we're just not going to give up.
    It's strictly about equality and parity. Today, millions of 
female-dominated jobs, for example, as I said, social workers, 
teachers, child care workers, Head Start workers, nurses--are 
equivalent in skills, effort, responsibility and working 
conditions to similar jobs dominated by men but these jobs pay 
significantly less.
    Even for highly educated women, according to the American 
Association of University of Women, a typical college-educated 
woman earns $46,000 a year while her male classmates end up 
making an average of $62,000 a year, a difference of $16,000 a 
year, which would come in pretty handy.
    If you want to read about women living with this kind of 
wage discrimination, Evelyn Murphy has a collection of personal 
stories on her WAGE Project Web site. One such story really 
outlines the long-term problem of gender discrimination. A 53-
year-old woman wrote,

          I started working at a Circuit Bell Telephone Company in 
        1970, right out of high school. I was making $79 a week. At the 
        time, it wasn't bad money but the guys outside were making $150 
        a week and getting time and a half for working overtime.

    And again, these women, we know will retire with less money 
eligible for their retirement, eventhough they live longer so 
they need more retirement money. And let's face it, a lot of 
times women confront separated marriages, divorces in their 
fifties and they've been working at a low paying job and they 
are left with even lower paying Social Security benefits and 
things like that, because of this.
    Well, my bill would also prohibit companies from reducing 
other employees' wages to achieve pay equity and it also 
requires public disclosure of employer job categories and their 
pay scales. Moreover, it would allow payment of differential 
wages under a seniority system, merit system or a system that 
measures earnings by quantity or quality of production.
    Well, some say we don't need more laws--that market forces 
will take care of it. But our experience shows that there are 
just some things that market doesn't take care of. That's why 
we passed the Equal Pay Act. That's why we passed the Civil 
Rights Act and the Family Medical Leave Act. That's why we 
passed the Americans with Disabilities Act. The market just 
doesn't answer some of those problems.
    This is a vital hearing, one that will keep us focused on 
trying to close this gap and to make sure that women are not 
discriminated against in the workplace. It's unfair, it's 
demoralizing. Women shouldn't have to battle and battle and 
battle day after day just to win equal pay. So we need 
inclusive national laws to make equal pay for equal work a 
basic standard and a legal right in the American workplace.
    I might just add parenthetically, in Iowa under a 
Republican governor and a Republican legislature, years ago, we 
passed a pay equity bill for those who are working in the 
public sector. The sky didn't fall. The earth didn't come to an 
end. And quite frankly, women started making more in the public 
sector. Minnesota has the best one, by the way. Minnesota 
covers municipal workers. In Iowa, we just cover the public 
workers but it has worked well in the State of Iowa and I think 
if it works there, I don't know why it couldn't work everywhere 
    So with that, I welcome our guests. I will yield to Senator 
Enzi for an opening statement and I'll yield to Senator Clinton 
for an opening statement.

                   Opening Statement of Senator Enzi

    Senator  Enzi. Thank you, Mr. Chairman. I do want to thank 
Chairman Kennedy for scheduling today's hearing on this very 
important topic of wage equity. I also want to thank my 
colleague, Senator Harkin, for chairing today's hearing. I'm 
sorry that I won't be able to be here for all of it. I've 
looked at the testimony and I will be looking at answers to the 
questions that you have and I'll also be sending a few 
    Since the passage of the Equal Pay Act and the 
discrimination provisions of title VII, we have witnessed 
enormous progress in ensuring both the quality of opportunity 
and equity of compensation. However, some maintain these 
efforts are not sufficient and must be augmented, pointing to 
what some could call a wage gap that continues to exist in 
terms of compensation levels between men and women.
    Many labor specialists note that pay differentials are a 
function of labor market economics and they reflect the choices 
that individual workers and groups of workers tend to make and 
the underlying skill sets of the workers.
    I believe the proper way to address this situation is to 
improve skills, training and education. That's why I continue 
to urge the Democratic leadership to take up and pass the 
Workforce Investment Act, to re-authorize the Federal 
Government Job Skills and Training Program. It passed the 
Senate twice unanimously and it's been sitting around for 4 
years, waiting for a Conference Committee.
    In an economy where skills are critical to success, 
everyone should have access to education and training 
throughout their lives and the Workforce Investment Act is one 
way for people to gain the necessary knowledge and skills they 
need. This bill passed the Senate last year, however the 
Democratic leadership has yet to even address the critical bill 
in the 110th Congress.
    Now, we need to look no further than my home State of 
Wyoming to find a perfect example of what is happening and what 
can happen to improve the job skills and training for women. 
Some of you may know that our State is called the Equality 
State. It was the first territory and the first State to extend 
the right to vote to women. Wyoming was the home to our 
Nation's first woman judge, the first woman governor, the 
Nation's first woman elected to statewide office. In 1920, the 
town of Jackson, Wyoming elected the Nation's first all-women 
town government.
    Now, despite Wyoming's long history of gender equality, 
it's pay gap is among the highest of all of the States and 
that's not because Wyoming employers are notoriously 
discriminatory or grossly undervalue their female workers. 
Rather, Wyoming demonstrates that market choices, education, 
training and opportunity all play a role in the establishment 
of wages and wage differentials.
    Today, Wyoming is undergoing a period of unprecedented 
growth, particularly in such sectors of the economy as energy, 
natural resources and construction. We face significant labor 
shortages in these industries. Just last week, the press 
articles highlighted the fact that Wyoming's unemployment rate 
is 2.3 percent, which is very close to the record set in the 
late 1970s. In addition, there are thousands of energy-related 
industry jobs that are unfilled and waiting for workers of 
either gender.
    By simple operation of the law of supply and demand, the 
wage rates for positions in these sectors in Wyoming's economy 
are at a very high absolute as well as comparative level. The 
other reality is that many of these jobs, from heavy equipment 
operators to carpenters and from welders to coal miners, are 
not positions to which women traditionally gravitate.
    In Wyoming, market forces have greatly increased the labor 
rates for traditionally male jobs, which largely explains the 
magnitude of the wage gap in my own State. Closing the wage gap 
requires an increase in training and educational opportunities 
for women.
    Now, the role of education and training is evident in the 
results of one such program. Climb Wyoming is a not-for-profit 
program funded through a mix of private and public funds. Its 
mission is to move low-income single mothers to higher paying 
careers through training and placement assistance.
    The program has enjoyed considerable success with program 
graduates earning double and even triple their previous program 
income levels. In many instances, these gains have been 
achieved by encouraging program participants to consider non-
traditional work in the energy, natural resources and 
construction industries and providing participants with the 
necessary skills, training and placement assistance to make the 
transition into such non-traditional work.
    Over the past 2 years, Climb Wyoming has training and 
placed 135 single mothers in such non-traditional careers as 
short haul truck driving, welding and construction trades. The 
Casper Star Tribune, which is our statewide newspaper, just 
last week carried an article on the front, which is titled, 
``Train Moms, Earn More.'' It's a tremendous article. It goes 
on for several pages but it does point out some of the 
tremendous changes the program has made in women's lives. One 
woman, one of her difficulties is that she lives 40 miles from 
the job so it's an 80-mile round trip. It doesn't sound like a 
lot out here but nobody does that in Wyoming.
    Senator  Harkin. It takes about 5 minutes driving in 
    Senator  Enzi. Yes, much less. But she wanted to make sure 
that her kids got to go to the Moorcroft School District so 
that required her living in the adjacent town. There is the 
experience of Valerie Gibbons, from my home town of Gillette. 
It's a typical one.
    In 2004, Valerie, a single mother with two children is 
simply unable to make ends meet in a series of low-skill, low-
wage jobs. She entered the training program, was encouraged to 
consider a non-traditional career and given the training and 
counseling that eventually led her to obtaining a commercial 
driver's license. She now works as a short-haul truck driver 
for a construction company in Gillette and has more than 
doubled her previous program earnings in much less time.
    Now, the program has provided a host of similar success 
stories. Heidi Shaffer, a single mother from Casper who could 
barely make ends meet by working 55 to 80 hours a week in a 
low-paying retail position. She trained for a non-traditional 
position and now works as a welder at more than twice her 
previous earnings. The success of Misty, a single mom with two 
children and a program graduate from Cheyenne--before entering 
the program, she worked in a fast food restaurant and earned $6 
an hour. She enrolled in the program and studied integrated 
systems technology and is now working on wind energy generation 
and earning three times her pre-program income.
    These are all real women that have, with encouragement and 
training and education, managed to eliminate the wage gap in 
their working careers. Just as we should be wary of government 
intervention to set wage rates that are the function of 
individual choice, we must be aggressive in pursing initiatives 
that eradicate wage disparity through training and education.
    We can learn a great deal from the success of Climb 
Wyoming's efforts to help women climb the ladder to higher 
paying jobs through education and training. In addition, we 
must take up and pass the Workforce Investment Act 
reauthorization. Our Democratic leadership has failed to 
address the bill this Congress, even though it passed the last 
two Congresses unanimously. This critical bill is essential to 
getting the necessary Federal resources to States for jobs and 
skills and education training. Both Climb Wyoming and the 
Workforce Investment Act are real pathways to closing the wage 
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Enzi follows:]

                   Prepared Statement of Senator Enzi

    Good morning. I want to thank Chairman Kennedy for 
scheduling today's hearing on the very important topic of wage 
equity. I also want to thank my colleague, Senator Harkin for 
his willingness to Chair the hearing today.
    The notion that any individual should be denied employment 
opportunities, or compensated at lower levels because of their 
gender is simply intolerable, and is not acceptable to any 
fair-minded or reasonable person. Indeed, the sex 
discrimination provisions of Title VII and the Equal Pay Act 
were specifically designed to eliminate those twin evils.
    Since the passage of these laws we have witnessed enormous 
progress in ensuring both equality of opportunity and equity in 
compensation. However, some maintain that these efforts are not 
sufficient and must be augmented, pointing to the so-called 
wage gap that continues to exist in terms of compensation 
levels between men and women. Those who would go beyond the 
vigorous enforcement of gender discrimination laws and the 
efficient operation of open markets often make highly selective 
use of statistical data reported by the Department of Labor's 
Bureau of Labor Statistics to support their position. An op-ed 
in last week's Washington Post referred to such statistics as 
misused sound bites that tell us little about gender 
discrimination in the workplace since they ignore the interplay 
of such factors as occupation, experience, seniority, education 
and hours worked in making gross compensation comparisons. For 
example, in managerial and professional positions women are 
much less likely to be employed in the highest paying fields in 
the labor market such as engineering, and computer or 
mathematics-related occupations. As a group, women are also 
much more likely to work part-time than their male 
counterparts. Part-time workers account for up to 25 percent of 
all female wage and salary workers, while, by way of contrast 
just 11 percent of all male wage and salary workers were part-
timers. This has been a relatively constant ratio over the 
years. Women workers are also far more likely than men to enter 
and leave the workforce for family or lifestyle reasons. 
Surveys also strongly suggest that women workers tend to place 
a much higher value than their male counterparts on job 
flexibility and benefits than on pure earnings and are thus 
more likely to gravitate to positions where market-based trade 
offs are often made between the former and the latter. Thus, 
while DOL's latest Report on Women's Earnings finds that 
overall median female earnings have continued their steady rise 
since 1979 and now stand at 81 percent of male earnings; it 
also notes that caution should be exercised in the use of such 
comparisons since they are determined ``on a broad level and do 
not control for many factors that can be significant in 
explaining earnings differences.''
    I do not need DOL's cautionary warning about the 
potentially misleading nature of these kinds of comparative 
statistics since that is readily apparent to me as I look at 
similar statistics for my home State of Wyoming. Wyoming, as 
some of you may know is nicknamed ``The Equality State.'' It 
was the first territory and the first State to extend the right 
to vote to women. Wyoming was home to our Nation's first woman 
judge, the Nation's first woman governor, and the Nation's 
first woman elected to statewide office. In 1920 the town of 
Jackson, Wyoming elected the nation's first all-woman town 
government. The historical roots of gender equality run strong 
and deep in Wyoming.
    So, how can it be, that similar wage comparisons in my home 
State of Wyoming show that the wage gap between the earnings of 
men and women is greater than the national average, indeed in 
some recent years the greatest in all of the States? Does this 
suggest, as some would argue, that employers in Wyoming value 
women employees less; or that Wyoming has somehow transformed 
itself into the ``inequality state?''
    That is categorically not the case. Such a view is not only 
contrary to my State's history, it is contrary to my everyday 
experience. What for me the Wyoming experience demonstrates is 
that there is something overly simplistic and fundamentally 
unsound in the type of ``comparative'' statistics that are so 
often cited. While such statistical sound bites certainly make 
for great political rhetoric; they rarely serve as the basis 
for sound public policy.
    Those who have studied this issue note that there are a 
large number of factors, none of which involve employer 
discrimination, that contribute to the wage gap. Many of these 
factors boil down to matters of choice--choice of career, 
choice of academic pursuit, choice of hours and work location, 
as well as the choice to remain in the labor force or to leave 
it temporarily or permanently. On a macro-economic basis all of 
these choices contribute significantly to the existence of a 
gender-related gap.
    Legislation aimed at undoing the cumulative and macro-
economic effect of these individual choices, all in the name of 
some goal of statistical purity, is neither warranted nor wise. 
This is particularly true where doing so would place enormous 
burdens and liabilities on even our smallest employers to 
correct statistical ``imbalances'' which they did not cause, 
and are not the result of their discrimination. There is a 
fundamental difference between leveling the playing field, and 
guaranteeing the score of the game. And, there is a fundamental 
difference between correlation and causation. If we are going 
to make sound policy and if we are going to make a real 
difference we need to keep these distinctions clearly in mind.
    In properly understanding the wage gap, we must understand 
the role of choice, but we must also understand that choice is 
not the only factor at play. There are other factors which 
affect both individual and macro-economic compensation levels, 
and those merit a closer look, since they are areas in which 
governmental action may be warranted, and useful.
    I believe that the proper way to address this situation is 
to improve skills training and education. This is why I 
continue to urge the Democratic leadership to take up and pass 
the Workforce Investment Act to reauthorize the Federal 
Government's job skills and training programs. In an economy 
where skills are critical to success, everyone should have 
access to education and training throughout their lives and the 
Workforce Investment Act is one way for people to gain the 
necessary knowledge and skills they need. This bill passed the 
Senate last year however Democratic leadership has yet to even 
address this critical bill in the 110th Congress.
    In this regard, I am once again drawn to the example of my 
own State. Wyoming, today, finds itself in a period of 
unprecedented growth, particularly in such sectors of the 
economy as energy, natural resources, and construction. We face 
significant labor shortages in these industries. By simple 
operation of the law of supply and demand, the wage rates for 
positions in these sectors of Wyoming's economy are at very 
high absolute, as well as comparative, levels. The other 
reality is that many of these jobs, from heavy equipment 
operator to carpenter, and from welder to coal miner, are not 
positions to which women traditionally gravitate. The fact that 
in Wyoming market forces have greatly increased the labor rates 
for traditionally ``male jobs'' largely explains the magnitude 
of the wage gap in my own State. However, to some extent it 
begs the more fundamental question as to why these labor 
shortages are not filled in proportional numbers by both male 
and female job applicants. A major factor in this phenomenon 
is, of course, the matter of choice. However, choice alone is 
not the complete story. Education, training and opportunity 
play a vital role as well.
    The role of these factors in shrinking the wage gap is 
evident in the results of just one training program in my home 
State. ``Climb Wyoming'' is a not-for-profit program funded 
through a mix of private and public funds. Its mission is to 
move low income single mothers to higher paying careers through 
training and placement assistance. The program has enjoyed 
considerable success with program graduates earning double and 
even triple their pre-program income levels. In many instances 
these gains have been achieved by encouraging program 
participants to consider ``non-traditional'' work in the 
energy, natural resources and construction industries; and 
providing participants with the necessary skills training and 
placement assistance to make the transition into such ``non-
traditional'' work. Over the past 2 years, Climb Wyoming has 
trained and placed 135 single mothers in such non-traditional 
careers as short-haul truck driving, welding and construction 
    The experience of Valarie Giddens, from my home town of 
Gillette is a typical one. In 2004, Valarie, a single mother 
with two children, was simply unable to make ends meet in a 
series of low skill, low wage jobs. She entered the training 
program, was encouraged to consider a non-traditional career, 
and given the training and counseling that eventually led to 
her obtaining a commercial drivers' license. She now works as a 
short-haul truck driver for a construction company in Gillette, 
and has more than doubled her pre-program earnings. Valarie's 
success has certainly helped to narrow the wage gap. However, 
the cold statistical effect is not what is most important. In a 
recent news interview she noted that securing a higher-paying 
and secure job that she was a different person. ``It changed my 
life so dramatically. I had my self esteem back,'' she said. 
Those are the results that are important.
    Valarie Giddens is not alone. The program boasts a host of 
similar success stories. There's Heidi Schaffer, a single 
mother from Casper, who could barely make ends meet by working 
55-80 hours a week in a low-paying retail position. Like 
Valarie, she was convinced to look at non-traditional work, 
went through a training and apprentice program and now works as 
a welder at more than twice her prior earnings. There's also 
Misty, a single mother with two children and a program graduate 
from Cheyenne. Before she entered the program Misty was working 
in a fast food restaurant and earning about $6.00 per hour. She 
completed a program in integrated systems technology where she 
studied and trained in electrical, plumbing and HVAC work. 
Today she is employed at a wind energy generation farm and is 
earning nearly three times what she earned before entering the 
training program.
    These are all real women that have, with encouragement, 
training and education, managed to eliminate the wage gap in 
their own working careers. Just as we should be wary of 
government intervention to manipulate wage rates that are the 
function of individual choice; we must be aggressive in 
pursuing initiatives that eradicate wage disparity through 
training and education.
    We can learn a great deal from the success of Climb 
Wyoming's efforts to help women climb the ladder to higher 
paying jobs through education and training. In addition, we 
must take up and pass the Workforce Investment Act 
reauthorization. Our democratic leadership has failed to 
address the bill this Congress even though the bill passed the 
Senate last Congress. This critical bill is essential to 
getting the necessary Federal resources to States for job 
skills and education training.
    Both Climb Wyoming and the Workforce Investment Act are the 
real pathways to closing the wage gap.
    Senator Harkin. Thank you very much, Senator Enzi.
    Senator Clinton.

                      Statement of Senator Clinton

    Senator Clinton. Thank you very much, Senator Harkin and 
thank you for your dedication to this issue over so many years. 
I do agree with Senator Enzi that I hope we can take up the 
Workforce Investment Act under a Democratic majority. We 
weren't successful the last two Congresses but now that we have 
a majority, I think we'll be able to pass it and I'm 
particularly pleased because one of the provisions that is in 
it goes right along with what Senator Enzi has talked about, an 
amendment that I suggested to do more to encourage women to 
seek out non-traditional employment in areas that historically 
were not very friendly to women.
    I think that is an important piece of the puzzle but I 
don't think that obviates the need for us to enforce equal pay. 
I believe that we have a real opportunity here with the 
legislation that I've re-introduced, the Paycheck Fairness Act 
with Senator Harkin's legislation, to really highlight the 
impact on families from the continuing discrimination in the 
    You know, a 2003 Government Accountability Office report 
found that women's work patterns partially explained the 
differences between men's and women's earnings but that even 
accounting for all other variables that are often used to 
justify the pay gap, such as time out of the workforce to care 
for children or part-time work, women still earn significantly 
less than men. The report also concluded that 20 percent of the 
wage gap could not be explained by factors other than 
    Now, conventional wisdom often associates the pay wage gap 
with low paying jobs but this inequity is not limited to people 
who are in low-paying jobs. Just recently, Wimbledon finally 
came around to paying the men and women champions the same 
amount of money and we've had a series of studies done at some 
of our finest universities, like MIT, finding that when you 
held constant for time in the workforce, task on job, 
commitment to a career and these are some of the brightest men 
and women in the world who are physicists and mathematicians 
and chemists and everything else, there were still 
discriminatory effects that to their credit, some of the 
institutions have been willing to face and begin to try to 
    So the Paycheck Fairness Act does three things. First, it 
does create strong penalties to punish those who violate the 
Equal Pay Act and it makes it illegal for employers to punish 
women who ask around about salaries. One of the things that 
I've tried to do is to put on my Web site a guide to helping 
women negotiate because a lot of women are somewhat shy or 
reserved about negotiating over salaries and they feel that 
they're just unequipped to go in and ask for higher pay or to 
raise the fact that somebody they know, they're working with, 
doing a similar job or a comparable job or the same job, is 
getting paid more. And very often, employers punish employees 
for finding out or trying to figure out what the salaries are.
    Second, the Federal Government should be a model employer 
in enforcing Federal employment laws and will, under the 
Paycheck Fairness Act, be asked to use every weapon in our 
arsenal to ensure that women get paid the same amount as men 
for doing the same job. That includes re-instating the 
collection of gender-based data in the current employment 
statistics survey, something that was discontinued under the 
Bush administration. So we actually have up-to-date numbers 
showing how this issue is impacting our female employees across 
the country.
    Tax dollars should be used to bridge the equal pay gap, not 
make it wider and finally, I do want to provide ways to help 
women strengthen their negotiation skills, to help them stop 
discrimination before it starts or certainly to prevent it from 
continuing and as Senator Harkin showed us on that graph, we 
have a lot of work to do to get back an economy that produces 
good wages for everybody, with rising incomes.
    This is a part of that puzzle because we certainly should 
not allow discrimination against women who are not only 
supporting themselves but very often, contributing to the 
family support or being the sole support of a family. But it is 
in the interests of all of us, men and women and mothers and 
fathers and daughters and sons to really set the goal of 
finally achieving equal wages for equal work.
    So I want to thank Senator Harkin for his dedication to 
this issue and look forward to working with him to finally 
achieve the goal that we both share.
    Senator Harkin. Thank you very much, Senator Clinton.
    Senator Reed.

                       Statement of Senator Reed

    Senator Reed. Very briefly, Mr. Chairman. I think this is 
an incredibly important topic, the gap between the wages and 
income of women and men is something that we have to explore, 
especially in the context of stagnant income for working 
Americans, both male and female. So this is a very appropriate 
topic and at a very critical moment. Thank you, Mr. Chairman.
    Senator Harkin. Thanks, Senator Reed.
    Senator Murray.

                      Statement of Senator Murray

    Senator Murray. Thank you, Mr. Chairman. I'll submit my 
statement for the record because I know you want to get to your 
witnesses. I really appreciate you having this hearing.
    This work is really important. It affects not just women 
but their families. It's an issue of fairness. No one should 
have to face discrimination in the workplace. For women, the 
lifetime earnings that it impacts also impacts their families. 
This issue is critical and I'm proud to be a cosponsor of both 
pieces of legislation and look forward to what our witnesses 
have to say. I think that for both men and women, this is 
    Women's financial contributions to their families make a 
difference. We know that--studies have shown that poverty rates 
for single mothers could be cut in half if we have fair wage 
laws and I hope that we can move legislation in this Congress 
to again focus on that.
    For all of the men in my family, they know that without a 
women's income, their family would have had much tougher 
choices to make. This is about fairness and pay equity. It's 
about disparity, it's about our sons and our daughters and it's 
a critical hearing and I really appreciate it. Thank you.
    [The prepared statement of Senator Murray follows:]

                  Prepared Statement of Senator Murray

    Thank you, Mr. Chairman, for calling this hearing to 
examine the persistent barriers to equal pay for women in the 
workforce. I want to thank our witnesses for being here today 
and for their contribution to our discussion.
    For me, this is a question of fundamental fairness. No one 
should have to face pay discrimination in the workplace. It's 
unfair and unacceptable.
    I think it's important to recognize that the wage gap 
doesn't just hurt women. It hurts their children and their 
spouses too, so everyone has a stake in ending this 
discrimination. In a national study, the Institute for Women's 
Policy Research and the AFL-CIO found that, collectively, 
America's working families are losing $200 billion in income 
each year as a result of the on-going gender wage gap. And 
their study accounted for differences in other factors like 
age, education, and hours worked.
    That amounts to an average annual loss of $4,000 for each 
working woman's family. Imagine what parents and spouses could 
do with this lost income and the dramatic effect that equal pay 
would have on individual families.
    It's not just women who would benefit from equal pay. 
According to the same study, equal pay would equate to a 
reduction in poverty rates for women and their families. 
Poverty rates for single mothers would be cut in half. Imagine 
that--we could lift half of working single mothers out of 
poverty by ending gender wage discrimination. The poverty rates 
of married working women would fall by more than 60 percent. 
It's clear to me and to America's working families that this 
issue should be important to all of us, whether we are male or 
    Throughout history, women have played a vital role in our 
economic prosperity although they haven't always received equal 
reward for their work. Since the passage of the Equal Pay Act 
of 1963, women have made great strides in narrowing the wage 
gap. In 1963, a woman working full-time, year-round, earned 
just 58.9 percent as much as her male counterpart. 
Unfortunately, that number has only increased to 77 percent as 
of 2005.
    Clearly, barriers to equal pay still persist in today's 
labor market. It's time to confront these barriers and find out 
what we can do to make equal pay a reality for working women 
and their families.
    I'm proud to co-sponsor the Paycheck Fairness Act and the 
Fair Pay Act--two important pieces of legislation that will 
help eliminate some of these barriers. I'm especially pleased 
that these bills enhance enforcement and encourage businesses 
to be forward-thinking in this area.
    The Paycheck Fairness Act prohibits employer retaliation 
against employees who freely share salary information with one 
another. It allows women who have experienced discrimination to 
recover more than just back pay for lost wages. It calls for 
the government to enhance outreach and training efforts with 
employers and calls for more data about wage disparities. It 
also supports women as they individually confront these 
barriers by establishing a negotiation skills training program.
    Equally important, the Fair Pay Act addresses ethnic and 
racial discrimination encountered by women of color. It 
requires businesses to provide equal pay for jobs of comparable 
value and allows workers discriminated against because of 
gender, race, or national origin to file a complaint.
    Finally, these bills recognize exemplary employers who are 
making positive strides in equal pay by establishing a national 
award program.
    Unfair discrimination in the workplace should not be 
tolerated in any form. As a mother and a grandmother, I want my 
children to live in a country where my daughter can earn just 
as much as my son. It's time to address this issue and finally 
close the wage gap for working women and their families.
    Senator Harkin. Thank you, Senator Murray. Before I 
recognize our witnesses, I just want to make it very clear for 
the record that it was due to the input and the demands of 
Senator Clinton that we're having this hearing. It was Senator 
Clinton who really led the charge on making sure we pulled this 
hearing together and that we highlighted this issue at this 
    If I'm not mistaken, I think April 24--is that not right?
    Senator Clinton. The Equal Pay Day.
    Senator Harkin. The Equal Pay Day. It takes women--how do I 
say it? It takes them that much longer to earn what men earn up 
to April 24 than what men would make for the remainder of the 
year. Anyway, the math alludes me. But anyway, I think we know 
what we're talking about.
    But I want to thank Senator Clinton for her great 
leadership on this issue and for bringing us together today and 
insisting that we have this hearing.
    All of your statements will be made a part of the record in 
their entirety. I think you were informed by our staff--I'd 
like to ask if you could each go for 5 minutes. We'll have a 
clock here. If you run a minute over or so, I'm not going to 
get too disturbed about that. If you run 5 minutes over, we 
might start getting anxious. But if you could, just give us the 
basic premise of your testimony and then we can open it up for 
discussion and questions.
    What I'll do is I'll just go from one end down to the other 
and I'll recognize first of all, Barbara Brown and let me make 
sure I get my proper papers out here. An attorney with Paul 
Hastings in Washington, DC., Ms. Brown, welcome to the 
committee and please proceed as you wish for 5 minutes or so 
and then we'll go on.

                        WASHINGTON, DC.

    Ms. Brown. Thank you, Senator and good afternoon to all of 
you who are here. Thank you very much for inviting me to speak. 
I am an employment lawyer and a Partner and Office Chair at 
Paul Hastings here in Washington as well as the Vice Chair of 
the American Bar Association Labor and Employment Law Section 
of 21,000 members.
    I'm involved in discrimination and employment law issues 
all the time and I'm very opposed, vehemently opposed to pay 
discrimination and gender bias of all sorts. But I believe that 
there are already tools in place to handle it.
    We have Title VII of the Civil Rights Act as amended in 
1991 to provide an attack both on intentional discrimination, 
where it may be found with compensatory and punitive damages 
and with a disparate impact theory where there is a neutral 
practice that has a disproportionate impact on a protected 
class. We have the Equal Pay Act of 1963 for individuals who 
believe that a co-worker or perhaps a predecessor in the same 
job is being paid--was paid or is being paid more based on 
    Businesses know these rules. The courts enforce these 
rules. I am heartened and I am frequently called upon by my 
clients as you all have mentioned, to review their pay 
practices and to be sure that they are consistent with the law 
both because the Office of Federal Contract Compliance Programs 
is working to enforce compensation nondiscrimination principles 
because of private litigation and because they are in a battle 
for the best talent and they know that they need to remain 
competitive in order to get it.
    Second of all, compensation is very complex, much more so 
than most other personnel decisionmaking. We see multiple 
regressions in statistical studies, well accepted as the proper 
methodology in this area by the courts and what they show is 
that you can't look only at broad generalizations or broad 
    You've got to look at particular workforces--what skills, 
what experiences, what willingness to travel, to relocate, to 
work late--make a difference among all the employees. Men, as 
compared to one another as well as men and women and employers 
need both the flexibility and the nimbleness to be able to pay 
what it takes to succeed in the market. It's important not to 
overly constrain that requirement with recordkeeping and 
    Third of all, I think that what we're after here is 
equality of opportunity, not dictating results based on 
hypothetical or abstract notions of what ought to be paid the 
same. The market has been remarkably successful, whether you're 
talking about IT or heavy construction or financial analysts or 
whatever it may be, in driving talent where the opportunity and 
in adjusting pay appropriately and what we need to do is make 
sure and I believe employers are making every effort but laws 
are available if they're not, that women have every opportunity 
to get the skills they want, make the choices they want, work 
as hard as they want, work where and how they want.
    General observations about this particular law and why I 
think it is unwise--very briefly, four points. First, the law 
has always said that employees need to be similarly situated in 
order to be fairly compared for purposes of pay. This law will 
eliminate two key concepts. One, the notion that employees must 
be in the same establishment to be working at equal work and 
that seems to me, fundamental. If you're talking--whether it's 
Wyoming, Iowa or New York City, you've got to look at that 
market, not only that geographic market but that employment 
market in terms of what skills are in demand there and what 
drives pay in that place. To take that requirement out would be 
    Second, the defense, the broad catchall defense in the 
Equal Pay Act of any other factor other than sex being 
available to justify differences is critical. Because of the 
numerous factors that make a difference in pay and the very 
difficult if not impossible burden employers would face in 
contemporaneously keeping records of how one team performed 
against another team or how a supervisor's skills in the 
profession that he or she is supervising make that person a 
more valuable manager than someone else would be virtually 
impossible. So to impose all the requirements that are in this 
bill would essentially force employers to do nothing but cave 
in rather than defend perfectly legitimate distinctions.
    Third of all, procedurally in two respects, the bill goes 
awry in my view. It imposes unlimited punitive and compensatory 
damages on pay differences with no requirement that there be 
any discriminatory intent. Title VII draws a clear requirement 
of willful or reckless disregard for federally protected 
rights. This has no such requirement. The Supreme Court has 
repeatedly said as recently as last term, you must--if you're 
going to have punitive damages, have reprehensibility and there 
must be proportionality to the reprehensibility of the conduct. 
This bill has none of that constitutional protection in it.
    Last, it flips class action law under the Equal Pay Act on 
its head. Equal pay, by definition, is a highly individualistic 
inquiry into whether two particular individuals are doing the 
same work, equal work. Class actions are by definition, looking 
at common policies or practices. Title VII far more suited in 
those instances where there are such differences.
    Last but not least, I think that the provisions that would 
create retaliation causes of action would just do nothing more 
than invite employees to have a conversation and then when they 
saw some sort of adverse personnel action happening, claim that 
they were protected. The courts are drowning in retaliation 
cases. They are ruling on the legitimate ones. I don't think we 
ought to be adding another vague and over-broad category.
    All that said, I'm as firmly committed to eradicating 
discrimination where it is. I think that many in the cases that 
I'm involved in, many of the differences that initially look 
suspicious or worrisome turn out to be perfectly legitimate 
when a close look is given. I think this bill is the wrong way 
to go about solving our problems, to the extent they remain. 
Thank you very much.
    [The prepared statement of Ms. Brown follows:]

               Prepared Statement of Barbara Berish Brown

    I am here today to testify about S. 766, the Paycheck Fairness Act. 
I am a practitioner in the area of employment law, handling issues and 
matters across the broad span of employment discrimination and 
personnel practices. I have counseled and defended employers with 
respect to such issues for the past 27+ years. Among the issues that I 
have handled and considered is compensation discrimination and class 
actions. I am Vice-Chair of the 21,000 member Labor & Employment Law 
Section of the American Bar Association and a Fellow of the American 
College of Labor and Employment Lawyers. I am co-author of Equal 
Employment Law Update (BNA 7th ed. Fall 1999) and The Legal Guide to 
Human Resources (Thomson/West Supp. 2006). I speak and write frequently 
on employment law topics. I am chair of the Washington, DC. office of 
Paul, Hastings, Janofsky & Walker LLP.\1\ Paul Hastings has over 1,100 
attorneys internationally and over 130 attorneys in our Washington 
    \1\ The views expressed in this paper are my own.
    I am firmly and unequivocally committed to the eradication of 
compensation discrimination against women. S. 766 is not the way to do 
it. I believe that effective legal tools are in place to accomplish 
that goal and that S. 766 will impose substantial, costly burdens on 
employers that are unnecessary, unrealistic and indefensible. The 
provisions of Title VII of the Civil Rights Act of 1964, as amended, 
and of the Equal Pay Act of 1963 cover the area of compensation 
discrimination. I see no reason to change the underlying substantive 
law concerning compensation, as S. 766 would do in various mischievous 
ways. Nor do I see a need to loosen the procedural rules that govern 
class action lawsuits concerning alleged gender bias in compensation. 
That also would lead to undesirable results.
    All that the proposed changes will do is encourage more employment-
related litigation, which is already drowning the Federal court docket, 
and make it much more difficult, if not impossible, for employers, 
particularly small businesses, to prove the legitimate non-
discriminatory reasons that explain differences between the salaries of 
male and female employees.
    If the goal of this committee is to increase the compensation of 
women, then the committee's focus is better spent on creating 
opportunities for women to choose whatever jobs they want, including 
those that the market rewards with high levels of pay. The amount an 
employee earns depends a lot on the choices that employee makes (or is 
able to make) about her career paths: the amount and type of education 
received, training undertaken, hours worked, family obligations, prior 
experience, personal goals, ability to relocate, frequency and duration 
of time out of the labor force, willingness to commute, and similar 
factors. All of these choices greatly influence employee compensation. 
Many of these factors are outside the control of employers. But many 
are not outside the scope of meaningful government programs that serve 
to promote access to jobs that pay more. That expertise is within the 
ambit of Congress and the Executive Branch, not the judiciary.
    Education and training are of primary importance. Women need to be 
provided with opportunities and incentives for education and training 
that will lead to jobs that pay more. The market is the best way to set 
pay that we have. We should not manipulate the market by setting 
salaries for IT or mining jobs, as S. 766 seeks to do, but we should 
examine the market for trends on the best paying jobs and focus 
government education and training programs on those areas.
    Several broad observations underlie my views:
    1. Current Law Is Reliable And Effectively Remedies Discriminatory 
Practices.--The law on compensation discrimination under the Equal Pay 
Act and Title VII is fairly well settled. That reliability plays a 
positive role in attaining compliance with those established principles 
by the employer community. Employers take compensation discrimination 
very seriously. They are keenly aware that the failure to take steps to 
eliminate unexplained compensation differences may lead to litigation 
that will result in tarnished public image, loss of valuable employees, 
costly legal fees, and judicial intervention in their business 
practices, all of which subtract from the bottom line. Even without the 
threat of litigation, employers are witnessing major changes and shifts 
in our tight (and increasingly mobile) labor market. In order for 
businesses to survive, employers across all industries are committing 
vast resources to recruitment and diversity initiatives to attract, 
retain and train minority and female talent. Without a doubt, 
competitive compensation is central to achieving these labor goals. 
But, as explained below, the setting of compensation is complex and 
requires consideration of numerous factors.
    2. S. 766 Ignores The Complex Realities Of Compensation 
Determinations.--My experience has taught me that compensation is a 
very complex area as compared to most other types of personnel 
decisions. Many different factors play a part in determining salary 
level. Investigating to find out what skills and experiences are most 
highly valued by a particular employer and then looking at how those 
factors can he isolated and quantified is not easy. For example, in a 
newspaper setting, the number of bylines or front page articles may 
well be a proxy for the most highly performing employee, and 
correlating such information to the pay of a group of reporters may 
well explain the higher salaries of some of them. Or, in a company 
where certain kinds of professional skills are most highly valued, 
managers who came from the ranks of those professionals will typically 
be paid more highly than other managers, who may have come to that 
position from administrative jobs.
    Regression analysis is the tool that allows an employer to find out 
what explains differences in pay. This is the method of analyzing pay 
of a group of employees that has been approved by the courts as the 
best method of ascertaining whether differences are explained by job-
related factors or remain unexplained, perhaps attributable to a 
protected characteristic. When we do such an analysis, we typically 
find that most, if not all, of the difference is explained by a myriad 
of non-discriminatory factors including:

     length of experience in the workforce altogether;
     length of service with the current employer;
     length of time in job;
     length of time in the job type (e.g. certain kinds of 
professional experience);
     whether there were significant breaks in service;
     prior job-related experience;
     skills; and

    These factors explain the differences in pay among employees 
without regard to gender, and they often explain the differences in pay 
between men and women, on average, as well.
    One thing that is very clear is that simplistic comparisons between 
pay for incumbents of different jobs, with different levels of 
seniority and different skills, without taking those factors into 
account, is comparing apples and oranges. To say by fiat that men and 
women have equal amounts of all those qualities, and therefore that 
their pay should be equal, is to ignore reality. Indeed, through our 
own personal experiences as employees in the labor market, common sense 
tells us that these factors cannot be separated from the way we are 
compensated. S. 766 brushes aside their importance eventhough they form 
the fundamental core to compensation determinations.
    3. S. 766 Leaves Employers Legally Defenseless, Imposes Uncertain 
Punitive Damages, and Creates Unmanageable Class Actions.--An agenda of 
equalizing the pay of men and women, without regard for their job 
content, the market for their type of work and, the choices they made 
in the past concerning the salary they would work for, their education, 
and the fields they chose to work in, is something far different from 
working to eliminate discrimination.
    With these thoughts in mind, I have grave concerns about the 
provisions of S. 766, the Paycheck Fairness Act. My concerns must be 
viewed in light of the fact that there is no requirement to find 
intentional discrimination before liability is imposed under the Equal 
Pay Act. Therefore, if the defenses to a prima facie case are 
eliminated or weakened, the act would hold the current employer liable 
for differences that grew up in the far distant past, perhaps because 
of the acts of prior employers or because of the choices made by the 
employee with respect to her preferred job, salary, training and 
education. These are circumstances outside the current employer's 
control, and it is illogical and unfair to impose liability on it. Some 
of these factors may be legitimate bases for pay differences, as 
different fields, with their different amounts of supply and demand, 
opportunities for public versus private employment, and terms and 
condition of work, are properly compensated differently.
    Overall, the bill is aimed at destroying the requirement, which is 
the cornerstone of current compensation discrimination law, that two 
employees must be similarly situated but paid differently before there 
is liability. Under the Equal Pay Act, the men and women being compared 
have to be performing jobs with equal or substantially equal content in 
the same establishment. S. 766 removes these requirements. First, it 
eliminates the ``establishment'' requirement--that the employees being 
compared work in the same establishment or geographic market. 
Therefore, employees in different locations, with different markets and 
different cost-of-living, will be able to cite a comparator in another 
location to prove their case. An employee working for Company X in 
Topeka, Kansas, will be able to cite a comparator in Company X's New 
York City location to prove her case of compensation discrimination. On 
these basic facts, it is indisputable that economic and labor 
circumstances are vastly different in Topeka than they are in New York 
City and the alarm bell should signal loudly that such a comparator 
provides dubious probative value as to whether the employee suffers 
from compensation discrimination. S. 766 will drive employers to pay 
the same amounts across geographic markets even if the salary scale for 
different jobs is quite different, because a woman in the lower-paid 
market will otherwise have a viable case. Of course, it may be possible 
for the employer to make out a defense to such a charge at great 
expense and burden, but we have to consider the incentives that 
legislation of this sort creates to change compensation systems in 
order to avoid a deluge of litigation.
    The scope of the fourth defense to a prima facie case, ``any other 
factor other than sex,'' is dramatically reduced in S. 766. Because pay 
is so complex and depends so much on what an employer needs to pay at a 
particular point in time in order to meet business exigencies, the 
fourth affirmative defense has been (properly) broad and open-ended. 
Consider a reduction in force, where some managers are demoted to a 
professional job but are held at their managerial salaries for some 
period of time. Justifying this kind of factor would be very difficult 
if not impossible under S. 766, yet it makes eminent good sense and 
serves an equitable purpose. This kind of personnel decision would make 
the employer vulnerable to being ordered to raise the salaries of all 
the women in the professional job to the level of the former managers.
    The hoops that are created for the fourth defense by S. 766 make it 
virtually impossible for an employer to prove the legitimacy of its 
compensation decisions. By requiring that the employer prove that any 
such factor is objective, job-related, and was ``actually applied and 
used reasonably'' in light of the justification for its use, the bill 
essentially eliminates the defense. The bar has been raised so high 
that employers will be doing nothing but keeping records and doing 
studies to justify each compensation decision, or they will give in and 
abandon perfectly legitimate pay practices. The changes in this defense 
will essentially eliminate the market as a defense to pay differentials 
unless detailed contemporaneous data is collected to show how the 
external market influences require a particular job or group of jobs to 
be paid more than other jobs, if those latter jobs are held 
predominantly by women.
    No one who has tried to recruit information technology employees 
can reasonably quarrel with the fact that the market for people with 
their skills and experience is far different than that for financial 
analysts, who may have had as much education and experience as the IT 
folks. Yet, merely if the IT employees are more heavily male than the 
analysts, a presumptive violation of the law will occur. S. 766 will 
therefore tend to result in the same pay for employees in widely 
varying jobs. Many compensation systems are driven by a relationship to 
the market price for benchmark jobs, and depriving employers of the 
ability to defend the salaries of individual employees by referring to 
the market for that position will require wholesale revamping of those 
compensation systems. The market has worked very well to motivate 
people to acquire the skills and take the jobs for which there is a 
need; this bill will interfere with those incentives and produce 
inefficiency and waste. The net bottom line effect of the elimination 
of the establishment basis for comparison and the narrowing of the 
fourth defense is to require that the pay for more and more jobs and 
employees be equalized, no matter how even-handed the employer has been 
treating the employees.
    S. 766 permits the award of unlimited compensatory and punitive 
damages. Moreover, it does so without articulating any heightened 
standard of liability for the award of punitive damages. This destroys 
the compromises that resulted in the Civil Rights Act of 1991 and makes 
no sense in light of the standards typically required to be met before 
punitive damages can be justified. Under title VII, there has to be a 
finding of malice or reckless disregard for the federally protected 
rights of the aggrieved individual before punitive damages can be 
imposed. That makes sense because these damages are intended to punish 
a state of mind that resulted in the discriminatory act.\2\ To permit 
punitive damages in the absence of any finding of intentional 
discrimination at all, never mind the absence of malice, would be to 
misuse that type of damages just to provide unlimited awards against 
employers. Under current law, good faith provides a defense to the 
imposition of liquidated damages, and that is appropriate. Moreover, 
unlimited compensatory damages for pay violations seems very out of 
    \2\ In failing to provide any heightened standard of liability for 
the award of punitive damages, S. 766 sets itself on a collision course 
with Supreme Court precedent and predictably invites years of wasteful 
constitutional challenge. In one of the leading cases on punitive 
damages, Justice Stevens stated that ``[p]erhaps the most important 
indicium of the reasonableness of a punitive damages award is the 
degree of reprehensibility of the defendant's conduct . . . punitive 
damages my not be `grossly out of proportion to the severity of the 
offense.' '' BMW v. Gore, 517 U.S. 559, 575-76 (1996). Writing for the 
majority, he made clear that in the award of punitive damages 
``aggravating factors associated with particularly reprehensible 
conduct'' must be present. Id. S. 766 is devoid of any guidance on the 
standard of liability for punitive damages, leaving it vulnerable to 
being overturned after years of litigation and uncertainty for 
    The class action rules under the Equal Pay Act are also changed by 
this legislation. At present, employees can file an ``opt-out'' class 
action under title VII. However, they will have to be able to show some 
intentional discrimination in order to proceed with a jury trial and 
seek compensatory and punitive damages. This generally requires showing 
some central policy or practice that affects the whole class and that 
is imbued with intentional bias against women. (A disparate impact 
challenge to a specific identified compensation policy may be 
permissible, but such a case would be tried to the court without the 
availability of compensatory or punitive damages.) The area of pay is 
rife with individualized decisionmaking, and it is typically not 
amenable to class treatment. This is particularly true when a plaintiff 
in an EPA case has to show that a man is doing equal work in order to 
recover. That is a highly individualized and fact-specific finding. It 
only makes sense in such a situation for individuals who truly believe 
that they are being illegally underpaid as compared to a male co-worker 
to join the suit. Making such suits opt-out cases with unlimited 
punitive and compensatory damages for all class members will force 
employers to settle rather than litigate, even when the company has 
meritorious defenses, because every female employee would purportedly 
be a member of such a class. In light of recent decisions questioning 
the viability of class actions seeking individualized punitive and 
compensatory damages in situations where there is a need to litigate 
each individual's situation separately, it makes no sense to write 
another law providing for just such unwieldy and unmanageable cases. 
That is not good law nor good policy.
    S. 766 directs the Department of Labor to issue guidelines to 
enable employers to ascertain which jobs are ``equivalent'' for 
purposes of the equal pay law. This means that the Department is being 
asked to group jobs which are not of similar content, but which require 
similar education or skill, in order to require that they be paid the 
same. The explicit goal of this section is to require the payment of 
equal amounts to jobs held ``predominantly by men and those held 
predominantly by women'' despite the different job content, market, and 
other dimensions of those jobs. This is nothing more than the 
discredited ``comparable worth'' theory in new clothing. It authorizes 
grouping jobs based not on their constituting equal work or not on 
differences in pay being driven by a protected characteristic-like 
gender, but based on a study of equivalency which is driven by the goal 
of making all ``male-dominated'' and all ``female-dominated'' jobs pay 
the same. This is misguided and should not be countenanced.
    The bill also instructs the Department of Labor to reject the use 
of multiple regression analysis and instead to utilize more simplistic 
comparisons to draw a conclusion that discrimination is at work. This 
is utterly backwards and rejects well-established precedent and basic 
statistical principles. The Office of Federal Contract Compliance 
Programs issued compensation guidelines in early 2006, and Federal 
contractors have been following those guidelines as they monitor their 
compensation. This guidance was issued only after years of 
consideration of the most effective and accurate way of assessing pay 
differences in order to determine whether women are underpaid as 
compared to similarly situated men. I do not agree with all of the 
elements of the compensation guidance, but in its adherence to multiple 
regression analysis as the proper way to study pay differences, as 
compared to merely comparing the median pay of men and women in a 
salary level or grade. The bill would represent a major step backwards 
in terms of securing widespread consensus on the best way to analyze 
pay and take remedial steps if warranted.
    For all these reasons, I am opposed to this legislation. I believe 
in the eradication of discrimination. I believe that our current laws 
work to meet that end. Furthermore, the better course would be to 
encourage employers to audit their pay systems, through the use of 
regression analysis, to make training available so the women can enter 
any job and field of endeavor they wish to pursue, to root out true 
discrimination, and to provide them with some incentive for doing so. 
Enforcement dollars and effort should go into attacking discrimination 
and not into DOL's creation of a template for what employers should pay 
to their employees based on a formula intended to guarantee equal pay 
for male and female employees despite valid and objective differences 
in the markets, skills, and other factors that explain pay levels.

    Senator Harkin. Thank you very much, Ms. Brown. Now we turn 
to Jocelyn Samuels, Vice President for Education and 
Employment, National Women's Law Center, Washington, DC.
    Ms. Samuels.


    Ms. Samuels. Thank you so much, Senator Harkin and members 
of the committee for chairing this hearing today and being here 
and for all of your leadership on this issue. I'm delighted to 
be here to testify in support of both the Paycheck Fairness Act 
and the Fair Pay Act because I think they address very 
important issues and real problems with the current law.
    I want to make a few basic points about the operation of 
the law but first note that not only do I agree with the 
comments that each of you have made about the wage gap in some 
significant measure, reflects continuing discrimination against 
women but also note that even those factors that are sometimes 
cited as non-discriminatory rationales, themselves can embody 
barriers and discrimination that women have faced in the past.
    So, for example, the length of time that a woman has worked 
in a particular industry may not, in fact, be a product simply 
of her choice but a barrier that she has faced in entering that 
industry. Similarly, women who take time off for childcare 
needs because their family decides that as the lower income 
earner of the family, she can more easily give up her job to 
the demands of childcare, are women who face barriers in the 
workforce that are not non-
    To excuse the wage gap on the basis of these kinds of 
decision, I think, misconceives the nature of the decisions 
that women are sometimes forced to make in the workplace.
    I'd also like to say in response to Senator Enzi that we 
firmly support getting women into non-traditional jobs and 
industries and areas from which they've traditionally been 
excluded but I think what is critical here is to ensure that 
women are paid fairly and equitably, no matter the job they do, 
whether they are childcare workers or house cleaners or 
engineers or CEOs. And contrary to Ms. Brown's impressions, I 
firmly disagree.
    The focus of my testimony today is that far from being 
reliable and effective, current law is simply inadequate to 
address the wage disparities that women face today and I say 
that's so for four reasons.
    First, courts have applied the law in ways that make it 
exceptionally difficult for plaintiffs to prove that they have 
been subject to wage discrimination, even in circumstances 
where disparities are clearly based on facts. Initially, a 
plaintiff has to show that she has been paid less than a 
specific comparator of the opposite sex who holds a job that 
requires equal skill, effort, responsibility and it is 
performed in the same establishment. That is, to say a distinct 
physical place of business, separate and apart from other 
locations of the company that may be just a few miles down the 
road. Even the jobs compared need not be identical, moreover, 
courts have allowed purely minor differences in job functions 
to defeat a plaintiff 's showing.
    In addition, the factor other than sex defense that Ms. 
Brown mentioned has been construed by some courts in ways that 
open the door to perpetuation of the very types of sex 
discrimination that the Equal Pay Act was intended to prohibit.
    Although the Supreme Court long ago, more than 30 years 
ago, rejected the argument that market forces--that is, the 
perception that men will only work for more or command greater 
bargaining power could be a defense to pay violations. Courts 
have authorized, excuse me, employers to pay male employees 
more than similarly situated female employees based simply on 
the higher prior salaries that those male employees have 
earned. As one court has said, moreover, an employer can 
permissibly continue to pay a transferred or a reassigned 
employee his or her previous higher wage, even though the 
current work may not justify that higher wage.
    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 that is 
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 male is 
being paid more based on his prior experience or education, 
accepting that argument without examining whether those 
qualifications are, in fact, related to the job under 
consideration. Several courts have accepted the notion that any 
factor that is not explicitly based on sex is a permissible 
defense under the law, no matter how tenuous its relation to an 
employer's legitimate business purposes.
    Because these basis for decisionmaking can so easily mask 
criteria that are, in fact, at bottom, grounded on sex, these 
cases undermine the spirit of the EPA and the court's failure 
to engage in the kind of searching analysis that I think 
Congress intended when it passed the EPA now more than 40 years 
ago, further circumvents the burden that Congress intended 
those employers to bear.
    Second, the Equal Pay Act procedures and remedies, I think, 
offer insufficient protection for women who are the victims of 
wage discrimination. Unlike those who challenge wage 
discrimination based on race and ethnicity, who are already 
authorized to recover unlimited compensatory and punitive 
damages for the injuries that they have suffered, women under 
the EPA receive only back pay and in a limited number of cases, 
liquidated damages. Those recoveries tend to be insubstantial 
and insufficient to compensate women for the discrimination 
they have suffered. They are also insufficient to operate an 
effective deterrent for employers because the recovery simply 
isn't enough of a penalty to encourage them to take the kinds 
of steps we'd like to see to root out continuing and systemic 
wage discrimination.
    In addition, procedures for enforcing the Equal Pay Act 
hamstring plaintiffs who are attempting to prove systemic wage 
discrimination. Unlike other civil rights claims where 
plaintiffs are authorized to bring class actions and have 
people opt out, under the Equal Pay Act, plaintiffs have the 
burden of searching out plaintiffs who will opt in, which is a 
substantial burden that decreases participation.
    Third, nothing in the Equal Pay Act addresses disparities 
that are premised on occupational wage segregation. Many 
occupations today are segregated based on gender and reflect 
artificially suppressed wages.
    Finally, there is insufficient information available to 
people and the government collects no such information today to 
enable the government or individuals to know what employers are 
paying to others in the workforce.
    The Paycheck Fairness Act and the Fair Pay Act would 
address these problems in targeted and appropriate and critical 
ways and I think it is extremely important for Congress to act 
expeditiously to pass both of them. Thank you so much.
    [The prepared statement of Ms. Samuels follows:]

                 Prepared Statement of Jocelyn Samuels

    Chairman Kennedy, Ranking Member Enzi and members of the committee, 
thank you for this opportunity to testify on behalf of the National 
Women's Law Center on ``Closing the Gap: Equal Pay for Women Workers.'' 
More than 40 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 
    Because these gaps are neither fixed nor immutable, there is much 
that Congress can do to realize the promise of the Equal Pay Act. In 
particular, Congress should expeditiously enact the Paycheck Fairness 
Act introduced by Senator Clinton and Representative DeLauro, and the 
Fair Pay Act, introduced by Senator Harkin and Representative Holmes 
Norton. These bills strengthen current laws against wage discrimination 
and require the government to step up to its responsibility to prevent 
and address pay disparities. Enactment of these bills is critical to 
ensure that women have the tools necessary to achieve the pay equity 
that has too long been denied them.


    The wage gap cannot be dismissed 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 percent of what men 
earned in 2000.\1\ That is, there remains a 20 percent pay gap between 
women and men that cannot be explained or justified.
     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\

    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.'' \3\ 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.\4\
     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.\5\
     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.\6\
     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 6 years.\7\
    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, 9 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.\8\ Similarly, 
a January 2007 national survey of 1,000 unmarried adult women by 
Women's Voices Women Vote found that 73 percent of respondents said 
that support for pay equity legislation would make them ``much more 
likely'' to support a congressional candidate.\9\


    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 . . . \10\

    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.'' \11\ 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.'' \12\
    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.\13\

    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 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. Moreover, the law is simply 
inadequate to respond to wage disparities produced by the significant 
occupational sex segregation that still exists in numerous industries 
today. 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 
Plaintiffs Must Meet a High Burden to Make Out a Prima Facie Case
    The plaintiff 's prima facie burden is a demanding one. 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.'' 
\14\ Indeed, courts ``presume that multiple offices are not a `single 
establishment' unless unusual circumstances are demonstrated.'' \15\
    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.\16\

    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.'' \17\ 
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,\18\ for example, female ``bench 
assemblers'' in light assembly alleged they were paid less than their 
male counterparts who were classified as ``heavy assemblers.'' \19\ 
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.\20\ Despite this testimony, the court held that the 
positions were ``comparable,'' but not equal.\21\ 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.'' \22\

    For all of these reasons, plaintiffs must meet a particularly heavy 
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.\23\ Court interpretations of the last of these 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.\24\ 
Despite this unequivocal holding, however, courts in the Seventh 
Circuit recited a ``market forces'' defense recently as last year.\25\
    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 just last month, 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.' '' \26\ 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.\27\

    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).\28\

    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,\29\ 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.' '' \30\ 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.\31\
    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 decisionmaking. 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,\32\ 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 Law Does Not Address Wage Disparities Premised on Occupational 
        Sex Segregation
    Far too many occupations in the United States remain dominated by 
one gender. Ninety-five percent of child care workers are female, while 
95 percent of mechanical engineers are male. Similarly, while 99 
percent of dental hygienists are women, 99 percent of roofers are men. 
In female-dominated fields, moreover, wages have traditionally been 
depressed and continue to reflect the artificially suppressed pay 
scales that were historically applied to so-called ``women's work.'' 
Maids and house cleaners, for example, 87 percent of whom are female, 
make about $3,000 less each year than janitors and building cleaners, 
who are 72 percent male.\33\
    Current law simply does not provide the tools to address this 
continuing devaluation of traditionally female fields. Courts have 
refused to interpret the Equal Pay Act and Title VII of the Civil 
Rights Act of 1964 to address this chronic problem.\34\ But it is this 
occupational sex-segregation--and the wage disparities associated with 
it--that is partially responsible for the wage gap women face today.
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 co-workers. 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.\35\ 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.
The Paycheck Fairness Act and Fair Pay Act Would Remedy the 
        Deficiencies of Current Law
    The Paycheck Fairness Act and the Fair Pay 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 toughens 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. As a result, it will 
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 
     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 
     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.
     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.\36\ The act also directs 
implementation of the Equal Opportunity Survey.

    The Fair Pay Act would extend the reach of the equal pay laws in 
the following ways:

     Providing Equal Pay for Equivalent Jobs.--The act would 
equalize wage disparities between jobs that are segregated on the basis 
of sex, race, or national origin, but require equivalent skills, 
effort, responsibility, and working conditions.
     Protecting Victims of Wage Discrimination.--Similar to the 
Paycheck Fairness Act, the Fair Pay Act provides punitive and 
compensatory damages to victims of wage discrimination. It also 
prohibits retaliation against individuals who exercise their rights 
under the law.
     Requiring Employer Record Keeping.--The act requires all 
employers to keep records of the methods they use to set employee 
wages. Employers must also provide yearly reports to the EEOC that 
describe their workforce by position and salary as well as gender, 
race, and ethnicity.


    In less than 2 weeks, the Nation will mark Equal Pay Day--the 
annual shameful reminder that women must wait nearly 4 months into the 
year to earn as much as men earned the previous year. This 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.


    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. 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).
    4. Dukes v. Wal-Mart, Inc., 474 F.3d 1214 (9th Cir. 2007), 
available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/
486/$file/0416688.pdf?openelement (last visited Feb. 26, 2007).
    5. 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).
    6. 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).
    7. 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).
    8. 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).
    9. 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).
    10. 29 U.S.C. Sec. 206(d).
    11. Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974).
    12. 29 U.S.C. Sec. 206(d)(1).
    13. Corning Glass Works, 417 U.S. at 195.
    14. Ingram v. Brink's, Inc., 414 F.3d 222, 232 (1st Cir. 2005) 
(citing 29 CFR Sec. 1620.9).
    15. Meeks v. Computer Ass'n Int'l, 15 F.3d 1013, 1017 (11th Cir. 
1994) (citing 29 CFR Sec. 1620.9(a)).
    16. Ingram, 414 F.3d at 232 (citations omitted).
    17. Peter Avery, Note, The Diluted Equal Pay Act: How Was It 
Broken? How Can It be Fixed?, 56 Rutgers L. Rev. 849, 858 (Spring 
    18. 555 F.2d 1164 (3d Cir. 1977).
    19. Id. at 1166.
    20. Id. at 1167-1170.
    21. Id. at 1176.
    22. 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)).
    23. Avery, supra note 17, at 868.
    24. 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).
    25. 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).
    26. Drury v. Waterfront Media, Inc., No. 05 Civ. 10646, 2007 WL 
737486, at *9 (S.D.N.Y. Mar. 8, 2007).
    27. 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. 
    28. Glunt, 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://
SATION%20DISCRIMINATION (last visited April 10, 2007).
    29. No. 91 C 3144, 1993 WL 284331 (N.D. Ill. July 26, 1993).
    30. 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)).
    31. 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.'').
    32. Fed. R. Civ. P. 23.
    33. Bureau of Labor Statistics, 2006: Median Weekly Earnings of 
Full-Time Wage and Salary Workers by Detailed Occupation and Sex, 
available at http://www.bls.gov/cps/cpsaat39.pdf (last visited April 
10, 2007).
    34. See, e.g., AFSCME v. Washington, 770 F.2d 1401 (9th Cir. 1985).
    35. 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 CFR Sec. 60.2.
    36. 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).

    Senator Harkin. Ms. Samuels, thank you very much and now 
we'll turn to Evelyn Murphy, Founder and President of the WAGE 
Project, Incorporated, Boston, Massachusetts.
    Welcome back to the committee, Ms. Murphy.


    Ms. Murphy. Thank you, Senator Harkin and Senator Clinton. 
I commend both of you for wonderful leadership on this. It is a 
great day and a signal right now of importance that we look 
once again at pay equity in our laws.
    I am a Ph.D. economist, switching gears from the lawyers 
here. Let me tell you briefly that the comments that I want to 
make today are basically a synthesism of years of being 
interested in the pay gap. When I started, it was 59 cents on 
the dollar and we have gone up to 77 cents on the dollar. It's 
not where it should be but between that and my years of public 
office, both appointed and elected office, as the former 
Lieutenant Governor of Massachusetts and Secretary of 
Environmental and Economic Affairs and then in the private 
sector. So what I want to do today is bring these things, all 
three parts of my experience together.
    I wrote a book called, Getting Even: Why Women Don't Get 
Paid Like Men and What To Do About It and this is basically a 
case--I spent 8 years researching it and the longer I 
researched, the more upset I got. I believe very strongly that 
the 23 cents of the gender wage gap today is about 
discrimination in the workplace. What you will see in this book 
are cases--all kinds of companies, all kinds of public offices, 
non-profits as well who had to pay up for some kind of 
discriminatory behavior, either because they settled out of 
court cases or judges and juries ordered them so this is not he 
said, she said. These are charges that went far down the 
litigation process.
    What you find here is that companies, in many ways, from 
hiring, barriers on hiring to slower promotions to pay equity 
that is equal pay for equal work, which is not honored, 
companies that penalize pregnant women, sexual harassment, 
which is wage discrimination. Women who lose money when you're 
harassed and can't perform your work and have to change shifts 
to escape a harasser and also the every day discrimination, the 
kind of--the biases and stereotypes that still kick in at every 
workplace today--all these things accumulate and they 
accumulate in a way that when you say there's 23 cents of a 
gender wage gap, it doesn't mean anything until you personalize 
    Once you personalize it and you realize that it means that 
for a young woman who graduated from high school last summer 
loses about $700,000 over her working career compared to the 
young man next to her getting his high school diploma and if 
she graduated from college, it's a 1.2 million difference 
between the young man getting his degree and hers. And if she 
gets a law degree or a medical degree or a MBA, it's a $2 
million difference over her lifetime. That's a huge amount of 
    Women don't see that because it comes in the little niches 
through paychecks from the very beginning. A couple thousand 
dollars difference when she starts out with a guy next to her 
with the same job qualifications, the slowness in the 
promotion, the missed promotion because she's pregnant and the 
boss thinks that she might go part-time, inappropriately thinks 
that. All these things add up. And they add up over a period of 
time, eventually to $700,000 to a $1.2 million to $2 million.
    What excites me about these bills is that it brings back 
the attention to the workplace and it tells me that we can 
finally look at--we've gone as far as we can go, looking at 
women's characteristics. We've been at this for a while now. 
When I started it was 59 cents on the dollar, it was well, you 
need to be better educated. We've got to work longer, we've got 
to work harder. Well, we all know that we now support our 
families. We are major contributors. We've been working long 
and hard. We are essentially--if all those merit arguments were 
true, we should be at zero rather than at a 23-cent difference. 
So we've gone as far as we can go looking at women's 
characteristics and now we have to look at the workplace 
characteristics and that's what these bills do, is looking at 
the policies and the practices and the cultures of workplaces, 
which I find important and compelling in these bills.
    So here's my plea, which is that you act on this promptly. 
I will give you from the WAGE Project survey that's up on our 
Web site right now, just some highlights. We'll give a full 
report on Equal Pay Day.
    But Senator Clinton, when you talk about making it illegal 
to retaliate, when employers can't retaliate, the quotes I have 
from this survey right now are very powerful. These are real 
working women who describe instances in which they can't speak 
up. They know they are being paid unfairly. They have the facts 
behind them. This is not just hearsay. They have data and yet 
they're afraid--they've been told--one woman who says--one 
example in the testimony, a woman says, ``I am supervising 47 
employees and I'm earning $22,500 and the guy next to me is a 
supervisor of 17 employees and he's making $28,000.'' How does 
she know? Because she just calculated the promotions that 
everybody is going to get. So these are real facts.
    Now she can't and she was told that she better not mention 
that, lest she be fired. Now, it may be that there are other 
extenuating circumstances. But if you're too afraid to raise 
this issue and start discussing it in the workplace, what has 
happened, because you're going to lose your job, it has closed 
women down. Women can't talk about this.
    So, in this survey, what I keep finding is women saying, 
``Well, I need my job. My husband is sick. We need our 
paycheck.'' And retaliations are a very serious problem in the 
workplace today. So the extent to which this law deals with 
that, it is terrific.
    What it also does in terms of the salaries--the Secretary's 
guidelines on wage structures, pay structures allows women who 
believe they may be paid unfairly to have some external data to 
look at. I would love to have all employers adopting those 
guidelines. I think that's the real strength and the meat and 
it's the strength of what Senator Harkin's bill does.
    But short of that, just having those guidelines out there 
so women will have an external authority to back to their 
bosses, opens up a dialogue. Here's my hope on this. If you 
will pass this bill and act on it now, what it does, is it 
tells both employee--women, working women that we are getting 
serious about making sure that we set the conditions so that 
they have a fair chance to accomplish fair pay, equitable pay 
for themselves. This is not about giving them--establishing 
fair pay. It is setting conditions in the workplace that allow 
them to make their case.
    Three specific points on the bill--your points about 
negotiation--clearly, negotiation, training for that is very 
important. I would hope that the bill has very sharp language 
that focuses on the training because it could be all over the 
place on financial planning, whatever, but focuses on women's 
paychecks and the effects on women's paychecks and in fact, has 
to, in the report, evaluate those training programs so that we 
get quickly to what works and what doesn't work in training and 
negotiations, which will help women's paychecks.
    Second, I would hope that in the Secretary's guidelines 
that we could stiffen some language so that employers feel they 
have to adopt these guidelines and not just look at them. The 
more incentive they have for adopting, the better. I would hope 
that if we have a prestigious national award that the 
applicants for that award can only apply if they document that 
they have had absolute changes. It's not good enough just to do 
some appropriate things around pay equity. You have to document 
that you have, that there were some changes towards pay equity.
    Finally, I'd say this, in terms of the pay data that is 
collected, please make it accessible to a larger community. 
This needs to be out so the debate on what is happening in the 
workplace is debated and seen from many professionals' eyes and 
those who also offer service and support for working women. 
Thank you.
    [The prepared statement of Ms. Murphy follows:]

                 Prepared Statement of Evelyn F. Murphy

    Senator Clinton, Senator Harkin, members of the committee, thank 
you for the opportunity to testify today on S. 766, the Paycheck 
Fairness Act.
    By way of introduction, I am Evelyn Murphy, a Ph.D. economist, 
author of Getting Even: Why Women Don't Get Paid Like Men and What To 
Do About It and President of The WAGE Project, a national nonprofit 
organization dedicated to eliminating the gender wage gap. I am also a 
Resident Scholar at the Women's Studies Research Center at Brandeis 
University, Vice Chair of the Board of SBLI USA Mutual Life Insurance 
Company, a Director of Citizens Energy Corporation, a Director of The 
Commonwealth Institute, and a Trustee of Regis College. Earlier in my 
career I served as Lt. Governor of Massachusetts, Secretary of 
Environmental Affairs and Secretary of Economic Affairs. After public 
office, I became Executive Vice President of Blue Cross and Blue Shield 
of Massachusetts and a corporate director of several publicly traded 
financial institutions.
    I outline this to explain that my remarks today combine three parts 
of my career. First, as an economist, I have had an interest in the 
gender wage gap for almost four decades. Over decades, as I watched 
more and more women graduating from college and entering careers, I 
just assumed that we would catch up with men's wages in a fairly short 
period of time. So, I was startled in the mid-1990s when I realized 
that we were nowhere near parity. I have been examining the wage gap 
ever since. More about that in a moment. As a former public official, I 
know what government can and cannot do. Government cannot regulate this 
Nation into pay equity. We will simply never appropriate sufficient 
funds to supervise the pay practices of every employer. Finally, from 
my experience in business I know that the President, the CEOs, the 
boss--whatever that top person is called--has the responsibility and 
authority, but not yet sufficient accountability, to insure pay equity 
for all of his or her employees.
    With these perspectives, let me turn to my analysis of today's 
gender wage gap by highlighting material from my book.
    The essence of Getting Even--the product of 8 years of research in 
which I accumulated evidence of gender wage discrimination never before 
assembled--is that practically all 23 cents of the gender wage gap is 
caused by inequitable treatment of working women simply because we are 
women. That's unfair. It is also illegal: it is discrimination.
    Inequitable treatment takes money out of a woman's paycheck, which 
accumulates into serious financial losses over the 35 years that she 
typically works. Over the course of their working lives, a young woman 
graduating from high school this spring will make $700,000 less than 
the young man standing in line alongside her receiving his high school 
diploma. A young woman graduating from college this spring will lose 
$1.2 million compared to the man getting the same degree at the same 
time. A woman earning an MBA, law degree or medical degree will make $2 
million less.
    Because we have heard the gender wage gap ratio bandied about for 
decades, it has lost meaning. It has become simply a number. But once a 
woman personalizes this ratio by calculating what she is losing over 
her lifetime, I can tell you that every woman I talk to daily about 
this subject starts listening with laser beam intensity about why she 
is losing so much money. Through grassroots organizing that The WAGE 
Project is doing to establish WAGE Clubs--groups of women who gather to 
discuss their pay and treatment at work--large numbers of women are 
figuring out their own personal wage gap and are intent on stemming 
their financial losses.
    Women do not realize the enormous price that they pay for gender 
wage discrimination because they do not see big bites taken out of 
their paychecks at any one time. Rather, little nicks in a woman's 
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 has gone home to cook 
dinner for her family, a request she makes for reassignment to escape a 
sexual harasser, leaving the bonus she earned behind--all add up, over 
time, to become $700,000, $1.2 million, $2 million.
    In Getting Even you will read about employers of all kinds--
businesses, corporations, government offices, nonprofit institutions, 
in localities throughout America, who had to pay women employees or 
former employees to settle claims of gender discrimination or judges 
and juries ordered them to pay up. The behavior of these employers 
vividly illustrate the commonplace forms of today's wage 
discrimination: barriers to hiring and promoting qualified women; 
arbitrary financial penalties imposed on pregnant women; sexual 
harassment by bosses and co-workers; failure to pay women and men the 
same amount of money for doing the same jobs. You will read about 
everyday discrimination, that is, the biases and stereotypes which 
influence manager's decisions about women. Acts of everyday 
discrimination may seem slight to a woman at the time, aggravating but 
certainly not worth legal action, yet these biases, too, cut into 
women's paychecks over time.
    While all these pay-nicking activities occur daily in workplaces--
sometimes intentional, other times simply unreflected biases--in recent 
years, public discourse has tried to explain away the gender wage gap 
as mothers opting out to raise families, women choosing low-paying 
professions, women preferring flex-time and part-time work. I would be 
glad to refute each of these as causes of the gender wage gap in our 
discussion. These so-called ``causes'' simply cannot withstand close 
scrutiny and commonsense as causes of the wage gap. Please do not 
misinterpret this point. We need pay equity AND better working 
conditions for working mothers. These are not tradeoffs.
    The gender wage gap--the fact that women earn 77 cents for every 
dollar that men earn--has been stuck for 14 years. Think about that. 
Women have been graduating from college at the same rate as men or 
higher for a quarter century. More and more women are the sole 
financial providers for themselves and their families. Women work as 
hard as men; women are as committed to their jobs as men. Women need 
their paychecks just as much as men. So if all the reasons about merit 
which I heard when I started work (when women earned only 59 cents for 
a man's dollar!) were right, the gap today should be, in essence, zero!
    Since the gap has not closed even a penny in more than a decade 
with women essentially equal to men by traditional measures of merit, 
then we have to conclude that we are looking in the wrong places to 
explain the gender wage gap. The gap is now not about women's 
characteristics, it's about workplace characteristics--the policies and 
practices of employers and the cultures that employers sanction.
    What gives me great hope today is the fact that the Paycheck 
Fairness Act points public attention and policy to the right place: the 
American workplace. This bill, with its emphasis on altering workplace 
pay practices, creates the appropriate conditions for American women to 
achieve gender pay equity once and for all. Working women are not 
looking to have pay equity handed to them. Women can and will take 
responsibility for ensuring they're paid and treated fairly. But 
employers must also take responsibility to ensure that their pay 
policies and practices are fair and equitable. S. 766 helps women and 
employers achieve this common goal.
    So, in my time today, I would call your attention to two matters: 
first, the need for prompt passage of S. 766; and second, consideration 
of specific language in the current bill.


    First and foremost, I urge you to act promptly on this bill because 
working women need help--no special treatment, no special breaks--
simply the kind of help that this bill offers them. Let me explain.
    Several months ago, The WAGE Project initiated a modest survey of 
working women. We secured their participation through collaborations 
with national women's organizations, specifically, 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. Using these networks 
almost 800 working women have filled out this survey. They work in 
every State in the Nation. They work in large corporations and small 
businesses, in manufacturing and financial service outfits, in 
nonprofit health care agencies and hospitals, social service 
organizations, colleges and universities and in municipal, State and 
Federal agencies. They take home small paychecks as waitresses, modest 
paychecks as office managers and technicians, and relatively large 
salaries as senior executives, professors and physicians. While this is 
not a randomly selected sample of working women, their voices offer a 
candid window into today's working conditions and their recent 
experiences with pay inequity.
    We asked women to respond to three questions--tell us of any recent 
experience(s) at work when you have been paid or treated unfairly; 
second, on what basis--with what data and facts--do you conclude that 
this treatment was inequitable or unfair; and third, what, if anything, 
did you do about it.
    The responses are now being analyzed and a full report will be 
released, as planned, on Equal Pay Day, April 24, 2007. However, 
because the survey has direct bearing on this hearing, I would like to 
draw upon some survey responses to illustrate what women face and how 
S. 766 can assist and support them.
    For example, one college educated woman in her late 40's living in 
the South reported: ``About 3 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.'' She knew this because ``I helped the manager calculate the 
salary increases for the upcoming year. The Vice President advised me 
that if I told what I found out I could be fired.''
    The Paycheck Fairness Act would help this woman. The nonretaliation 
clause in section 3 would enable this woman to raise her objections to 
the inequity she sees without worrying that she will be fired.
    She is not alone. Many women in this survey reported fears of 
firing or retaliation in explaining why they chose not to act even 
though they had solid documentation of unfair pay. One woman said: 
``stayed silent. Would obtain worse treatment if confronted him,'' said 
one woman. Another: ``I need this job. My husband is sick and cannot 
work.'' Another explained: ``I need my salary and benefits.'' A former 
Vice President in a financial services institution, with a title and 
job you'd think would make her secure in raising an objection to unfair 
pay, explained in some detail: ``I took too long to speak up. I feared 
being fired. When I finally did, I was given the cold treatment. It was 
an awful environment to work in and since I value my health, I decided 
to find another career.''
    Another survey respondent, a Vice President in a call center said 
``in the 23 years I have worked here, I have never been paid the same 
pay as the male managers'' How did she know this? ``I have total access 
to payroll records.''
    If her company adopted the guidelines which the Secretary of Labor 
develops in section 7 to enable employers to evaluate job categories 
based on objective criteria, this woman could use these measures to 
initiate an objective discussion about her pay compared with others in 
her job category and equivalent jobs where she works. Even if her 
company does not adopt these guidelines, the existence and availability 
of the guidelines enables women to access some objective external data 
to make their case about pay equity for their particular jobs with 
their bosses.
    The survey shows that all too often, even though women can document 
unfair treatment, there are other reasons that they do not act. For 
example: they have lost hope that they can rectify their circumstances 
or change the culture of their workplace. One women said: ``That's the 
way it has always been here.'' ``Just the facts of life!'' exclaimed a 
50-year-old office manager in the Midwest. ``They don't care about the 
unempowered.'' ``I tried once, and nothing happened.''
    Passage of S. 766 sends these women a message: that the Federal 
Government recognizes that they are experiencing unfair and inequitable 
treatment and pay; is taking action to bring them external data on 
which to raise their objections with their employers; and is pressing 
employers to be more accountable for pay equity among their employees. 
In the absence of Federal legislation for decades, many women have lost 
hope that their employers feel any pressure to do more to comply with 
anti-discrimination laws.
    Financially, the passage of S. 766 would give women hope that 
working conditions will become more equitable where they now work. They 
would not have to leave their jobs. Listen to this woman, a 37-year-old 
case worker in a nonprofit organization. ``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.'' In response to the question ``what did you do about it?' she 
replied ``Nothing, because I have to keep my job to feed my children. I 
am, however, looking for another job.'' Her response is indicative of 
many others: when women encountered blatant pay inequity, often they 
decide to leave. Women said: ``I quit.'' ``I gave notice and left 1 
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 
several 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 the pressure to bring in a paycheck forces 
them to settle for a lesser position.
    One other reason why women do not act can be found in this woman's 
account: ``I challenged it and all I received was a hostile work 
environment, harassment, suspension with trumped up charges. Found a 
law firm to take the case. . . . it is almost cost prohibitive to take 
this on. I am at $20,000 and counting and I haven't even gotten through 
the investigative phase . . . This is why I feel that most women do 
nothing. They can't get the finances to do it.'' I can tell you from 
all the women whom I've interviewed, most women who pursue litigation 
to the very end lose their jobs, lose their careers, lose their 
husbands, lose their mental health. Lose, lose, lose. The only reason 
they stick it out through years of litigation, they say, is because 
they believe they just might make their employer treat other women 
better. This is not the price we as a society should ask women to pay 
to make workplaces more equitable.
    Some women did speak up, but few reported reaching an equitable 
resolution. ``I spoke my piece about how unfair it was but nothing ever 
came of it.'' ``I spoke with personnel but it was swept under the 
carpet.'' After seeing a male colleagues' pay stub left out on her desk 
and learning that he, with fewer credentials and less seniority, was 
earning 40 percent more than she was, ``I approached HR and was told 
paychecks are private and I shouldn't have looked at it. I decided not 
to pursue it any further for fear of backlash.''
    The Secretary's guidelines for evaluating pay for job categories 
can help these women make their cases for pay equity and protect them 
from retaliation as well.
    For all 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 is also, where the practice of the 
employer and the values the employer embeds in the daily culture of the 
workplace. Let me be very clear, 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.
    And, speaking of the future, I also urge you to promptly pass S. 
766 to avoid an unintended, painful legacy. Think about the economy 
during the last 14 years. In the late 1990s, this Nation enjoyed 
unprecedented economic advances. Yet we couldn't close the gap through 
that time! Not even a penny much less all 23 cents. The fact that the 
gender wage gap has been stuck for 14 years 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. We will 
pass on to the next generation, and the next after that--to your 
daughters, Senators, 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. Personalize that loss for 
your daughter or granddaughter or niece. Is that a legacy you want to 
pass on? 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 


    Now I would like to draw your attention to language in several 
sections of the current draft.
2a. 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. S. 766 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.
2b. 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 the 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. That is a 
hard task to accomplish through negotiation training and would be easy 
to avoid unless specifically given priority. Clarifying language to 
amend this section might not necessarily exclude these other topics 
involving a woman's finances, just establish that priority is given to 
funding 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 women 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. But the intent of this 
bill as I understand it, is for women to achieve pay equity first. 
That, in itself, will be a significant outcome.
    Finally, (c) Report. I hope the report includes 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.'' In these times of limited funds for 
domestic initiatives, some assessment of which training programs 
actually advance women's earnings and which do not is essential. I hope 
the committee will require an evaluation of training programs.
2c. Section 7. Technical Assistance and Employer Recognition Program 
        (a) Guidelines
    The time available to prepare for this hearing did not allow me to 
reflect on this section in detail. So, I cannot offer suggested changes 
in language. But I do want to express my hopes for revised language in 
this section. Voluntary guidelines are just that: voluntary. However, 
the adoption of such guidelines by every employer would dramatically 
advance pay equity. I ask the committee to strengthen this section so 
that employers are incentivized to adopt these guidelines and/or 
conversely, face disincentives for not adopting these guidelines over 
some 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 is illuminating on this point. Minnesota 
achieved pay equity (97 cents on the dollar) without one man losing a 
job or losing money in his paycheck. Pay equity can be achieved not at 
men's expense.
2d. Section 8. Establishment of the National Award for Pay Equity in 
        the Workplace. (b)(1)
    I would urge the committee to add language which requires 
applicants for this prestigious award to disclose the relevant salaries 
by gender and by job category which were made more equitable. The 
language now makes it possible for an employer to describe worthy 
efforts but not report what actual effects their pay equity initiative 
had. Without measurable and measured advances, I would argue, no 
applicant should be eligible to receive this award.
 2e. 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 hope the committee will specify 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, insuring access to a 
larger audience 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 the 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 to capture pay information appears the most likely means to 
collect pay information, 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. I respect the 
need for confidentiality concerning company specific data, but believe 
that, with adequate resources, the EEOC could devise ways to enable 
more researchers and practitioners to access EEO-1 data. The difficulty 
in gaining EEO-1 data has seriously limited public debate, policy 
formulation, and even enforcement remedies. I have tremendous sympathy 
for extensive enforcement mandate the EEOC implements and I do not 
intend this as criticizism of the agency. Rather I want to ensure that, 
if the EEOC, becomes the collector of pay information, that the agency 
has the mandate and 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. More recently, in the 14 years since the last 
Congressional hearings on pay equity, one fact stands out: our Nation's 
progress toward reaching these goals has stalled. Prompt passage of The 
Paycheck Fairness Act can and will reactivate momentum.
    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 power of concepts in this bill.
    I commend you on your leadership on this bill and offer to help in 
whatever you wish.
    Thank you.

    Senator Harkin. Thank you, Ms. Murphy. And now we turn to 
our final witness and that would be Dr. Philip Cohen, Associate 
Professor and Director of Graduate Studies Department of 
Sociology at the University of North Carolina, Chapel Hill.
    Welcome, Dr. Cohen.


    Mr. Cohen. Thank you. I'd like to thank Chairman Kennedy, 
Senator Harkin, and Clinton for holding the hearing and 
inviting me here, giving me the opportunity to speak to you 
today, the other members as well.
    I'm going to step back for just a moment and put some of 
this discussion of pay equity in the broader context of gender 
equality trends in the country to establish where we are at the 
moment that we look at these bills.
    There are a number of indicators that show dramatic 
improvements since the Equal Pay Act that was passed in the 
sixties but on closer scrutiny, those improvements are 
concentrated in the seventies and eighties and I'll give 
several examples. Starting with the gender pay gap itself, 
which was stalled from 1960 to 1980 at 60 cents on the dollar. 
In the eighties, there was a sharp increase. It went up to 72 
cents and since then, we've picked up another few points but 
progress has largely stalled on the gender pay gap.
    On women's employment rates, there were dramatic 
improvements again up until the mid-1990s, especially married 
mothers' employment. Their employment rates doubled in the 20-
year period up to that point. But now they've leveled off and 
women's employment rates have actually declined absolutely for 
the first time during the recent recession and so-called 
jobless recovery. So their progress has also stalled.
    And on gender segregation, the tendency of men and women to 
work in different jobs, again we had steady progress until 
about 1990 and then by most measures, it is now a much slower 
or even stalled--actually apropos of Senator Enzi's comment 
about blue collar work integration--occupational integration 
among blue collars has been much slower and more for 
professional and women with advanced education where 
integration has gone faster.
    What were the sources of these positive developments when 
they were moving quickly? It's worthwhile to look at some of 
them because some of them, the conditions have changed. Some 
were not directly related to women's wages. For example, the 
birth control pill gave women a lot more options for planning 
their lives and their futures and increasing the incentives for 
them to make long-term investments in their careers. Overall 
economic shifts in the growth of the service economy, which 
drew women in because they were the occupations that 
traditionally hired women. They were growing so rapidly. 
Feminism itself, which gave the popular expression, to the 
opportunity for equality for women. The declines in fertility, 
the possibility, the social acceptability of delayed marriage, 
all these things increased women's own investments in their 
    But the government also intervened in important ways during 
this era. Not only the Equal Pay Act and Civil Rights Act but 
subsequent Federal equal employment opportunity and affirmative 
action enforcement, Roe versus Wade--these changed the ground 
on which gender played out in this country.
    I just mentioned those to say that the economic, social and 
political engines of gender equality in this country seem to 
have lost steam in the last 10 years and I think that's an 
important context for today's hearing.
    The benefits of equal pay for women are far reaching and 
some have already been touched on here today. I want to 
highlight lower pay for women means higher poverty rates for 
single mothers, in particular. We have 3.5 million poor, 
single-mother families in this country and they're twice as 
likely to be poor as single father families, even when they are 
both employed full-time and year round. The poverty rate is 
lower for those men and women but twice as high still for 
single mothers in that condition.
    Lower pay means lower pensions for women when they retire. 
Obviously this is an issue of growing importance, the public 
burden of retirement support as the population ages and lower 
pay also increases stress on families, we now know, in a number 
of ways. Poor couples are less likely to get married when women 
have lower wages. Couples are more likely to divorce when women 
have lower wages and fathers are more likely to be involved in 
parenting and housework when women earn more within the couple.
    Government intervention in this regard has been helpful 
before in important ways. In the seventies and eighties, EEO 
enforcement and affirmative action did change employer 
practices in some ways that we can now document and show that 
they had beneficial effects. More accountability and 
formalization in hiring and promotion practices, the reliance 
on human resource professionals, for example--these practices 
spread through industries and had a ripple effect beyond the 
targeted organizations.
    I'm just going to touch briefly on one aspect of the two 
bills here. The expansion of the narrow definition applied 
under the Equal Work Standard of the Equal Pay Act. Men and 
women in this country largely do work in different jobs and 
that is an important part of the gender wage gap as Senator 
Harkin mentioned at the beginning. I can add an example to what 
you had. Nurse aids and truck drivers both do jobs that require 
medium amounts of strength. Both require the same amount of on-
the-job training. Nurse aids have a higher average education. 
They are both the same average age and yet nurses' aids earn 57 
percent of what truck drivers earn and that's 3.5 million 
workers in this country.
    Because of this, if we only eliminate the wage gap within 
identical jobs at the same job location, we're just not going 
to close the gender gap in pay. And I see my time is expiring, 
so I'll wrap up on this point.
    I did a very simple analysis that you have in my details in 
the testimony of 500 occupations in the Census Bureau and if we 
equalize the pay within each occupation, the gender gap would 
be reduced by about half. But we can't do that because under 
current law, even when those occupations--even within those 
detailed occupations, for example, bus driver, there are finely 
graded occupational job title classifications, which prohibit 
or prevent action for disparate pay between men and women.
    We have to be able to challenge those small differences in 
job classification and title that are sometimes used to justify 
large gender disparities in pay and I think the reforms 
proposed in both of these bills might help address that 
shortcoming and help close the gender gap.
    Thanks again for the opportunity to speak with you today.
    [The prepared statement of Dr. Cohen follows:]

               Prepared Statement of Philip N. Cohen \1\


    Today's discussion of gender pay equity comes at an opportune time 
in the history of gender inequality in this country. The 1970s and 
1980s witnessed dramatic improvement in many intersecting arenas:
    \1\ I would like to express my gratitude for intellectual 
contributions by my advisors and mentors, Reeve Vanneman and Suzanne 
Bianchi; my colleague Matt Huffman, with whom I have conducted much of 
my research on gender inequality; graduate students with whom I have 
worked on these issues, including Jeanne Batalova, Makiko Fuwa, Jamie 
Lewis, Danielle MacCartney, and Miruna Petrescu-Prahova; and colleagues 
with whom I consult or collaborate with regularly, including Lynne 
Casper, David Cotter, Paula England, Joan Hermsen and Liana Sayer.
     Women's employment soared.--This was concentrated among 
married mothers with children under six. For this group, annual hours 
worked increased from under 600 in 1978 to almost 1,100 by 1998. The 
percentage working full-time, year round more than doubled during that 
time, reaching 35 percent by 1998.\2\
    \2\ Cohen, Philip N. and Suzanne M. Bianchi. 1999. ``Marriage, 
Children, and Women's Employment: What Do We Know?'' Monthly Labor 
Review 122(12):22-31.
     The gender pay gap narrowed.--From 1960 to 1981, women 
working full-time, year-round consistently had median earnings stuck at 
about 60 percent of men's. The 1980s were the most dramatic period of 
improvement, and the gap closed to 72 percent by 1990.
     Occupational segregation by gender decreased.--The level 
of segregation (which ranges from 1 to 100) dropped from 54.4 in 1970 
to 46.3 in 1990. This occurred as women entered historically male-
dominated occupations (such as medicine and law), and integrated 
occupations (such as those in real estate and educational 
administration) expanded, increasing opportunities for women's 
advancement.\3\ One aspect of this desegregation involved access to 
management positions and the ``glass ceiling.'' From the late 1970s to 
the late 1990s, women's representation in management occupations 
increased from about one-quarter to almost one-half (although they 
remained concentrated in the lower reaches of managerial 
    \3\ David A. Cotter, Joan M. Hermsen, and Reeve Vanneman [2004], 
Gender Inequality at Work, Russell Sage Foundation and Population 
Reference Bureau.
    \4\ Philip N. Cohen and Matt L. Huffman (forthcoming), ``Working 
for the Man? Female Managers and the Gender Wage Gap,'' American 
Sociological Review.
     Wives and husbands shared housework more equally.--The 
most rapid change occurred between 1975 and 1985, when the ratio of 
married mothers' to married fathers' housework time dropped from 4.5 to 
2.1--meaning married mothers did just over twice as much housework as 
their husbands.\5\
    \5\ Suzanne M. Bianchi, John P. Robinson and Melissa A. Milkie 
(2006), Changing Rhythms of American Family Life, Russell Sage 
     Public attitudes toward equality for women warmed.--From 
the late 1970s to the mid-1990s, there was a steep increase in the 
percentage of Americans expressing support for female politicians and 
for mothers working outside the home; and opposing the idea that women 
should stay at home, and that children suffer when their mothers work 
for pay.\6\
    \6\ David A. Cotter, Joan M. Hermsen, and Reeve Vanneman (2007), 
``The End of the Gender Revolution? Gender Inequality in the 1990s and 
Beyond,'' paper presented at the annual meetings of the Population 
Association of America. Details are available at http://
     Women gained access to political and administrative 
power.--The increases were especially pronounced in State government, 
among both elected legislators and State executives and 
administrators.\7\ As noted, women's representation in management 
positions broadly increased as well.
    \7\ Cotter et al. (2007).

    What drove this unprecedented progress? Three of the most important 
factors were:

     The pill.--An often-overlooked medical breakthrough--the 
birth control pill--permitted young women in the 1960s and 1970s to 
control (and therefore plan) the sequencing of their family and 
professional lives to an unprecedented degree, especially by delaying 
childbearing and increasing their career investments.\8\
    \8\ Claudia Goldin (2006), ``The Quiet Revolution That Transformed 
Women's Employment, Education, and Family,'' American Economic Review 
     Economic restructuring.--Women made these choices in a 
rapidly changing economic context marked by the expansion of the pink 
collar and service occupations that traditionally employed women, 
creating a booming demand for women's labor.\9\
    \9\ Cotter, David A., Joan M. Hermsen, and Reeve Vanneman (2001), 
``Women's Work and Working Women: The Demand for Female Labor,'' Gender 
& Society 15(June):429-452.
     Culture and politics.--These economic and technological 
changes added fuel to the fire of change in the cultural and political 
realms. The feminist movement, declining fertility and the growing 
acceptability of divorce and delayed marriage all propelled women's 
independence and empowerment. Legal and legislative innovations, from 
the Equal Pay and Civil Rights Acts, to Equal Employment Opportunity 
and Affirmative Action, to Roe v. Wade, changed the ground upon which 
gender played out.

    This era of rapid progress toward gender equality now has 
definitively stalled. Equalizing trends in these areas have slowed (the 
wage gap, desegregation, political representation), stopped (women's 
employment, the division of housework) or even reversed (mother's 
employment, public attitudes) in the last 10 years.\10\ The economic, 
social and political engines driving gender equality appear to have 
lost steam.
    \10\ Trends in the last few years are ambiguous, complicated by the 
recession and weak employment during the recovery. See Heidi Hartmann, 
Vicky Lovell, and Misha Werschkul (2004), ``Women and the Economy: 
Recent Trends in Job Loss, Labor Force Participation, and Wages,'' 
Institute for Women's Policy Research Publication #B245. On the recent 
pay gap see, David Leonhardt, ``Gender Pay Gap, Once Narrowing, Is 
Stuck in Place,'' New York Times December 24, 2006.
    In summary, today's discussion of pay equity occurs in the context 
of an overall movement toward gender equality that sorely needs a 
boost. Can equal pay provide such a boost?


    Improving pay equality between men and women can be an important 
impetus for equality in many areas, and for other social benefits for 
women, families and children, with far-reaching consequences:

     Poverty.--Because of lower earnings for women, single 
mothers are twice as likely to live below the Federal poverty line as 
single fathers (36 percent versus 18 percent). Thus, there are 3.5 
million single mother families in poverty. Even among single parents 
who work full-time and year-round--the comparison we commonly make to 
assess the gender wage gap--single mothers are more than twice as 
likely to be in poverty as single fathers (12.1 percent versus 5.7 
    \11\ Figures reported by the U.S. Census Bureau, from the March 
2006 Current Population Survey (http://www.census.gov/hhes/www/poverty/
     Pensions.--Men are more likely than women to work in jobs 
that provide pensions upon retirement, but even among men and women who 
do receive pensions or Social Security, accumulated earnings 
differences lead to large gender gaps in pension amounts.\12\ This 
issue is of growing importance as the number of retirees and the costs 
of public retirement support increase.
    \12\ William E. Even and David A. Macpherson (2004), ``When will 
the gender gap in retirement income narrow?,'' Southern Economic 
Journal 71(1):182-200; William E. Even and David A. Macpherson (1994), 
``Gender Differences in Pensions,'' Journal of Human Resources, 
     Marriage and children.--Wives' higher levels of earnings 
and employment are associated with greater marital stability, even as 
they make it more possible for women to leave bad marriages,\13\ and 
reduce the negative repercussions of divorce for children.\14\ Higher 
earnings--for women as well as for men--also increase the chance of men 
and women marrying, especially among the poor.\15\
    \13\ R. Schoen, S.J. Rogers and P.R. Amato (2006), ``Wives' 
employment and spouses' marital happiness: Assessing the direction of 
influence using longitudinal couple data,'' Journal of Family Issues 
27(4):506-528; Liana C. Sayer and Suzanne M. Bianchi (2000), ``Women's 
economic independence and the probability of divorce: A review and 
reexamination,'' Journal of Family Issues 21(7):906-943. For a review, 
see Lynn White and Stacy J. Rogers (2000), ``Economic Circumstances and 
Family Outcomes: A Review of the 1990s,'' Journal of Marriage and the 
Family 62(4):1035-1051.
    \14\ Yongmin Sun, Yuanzhang Li (2002), ``Children's Well-Being 
during Parents' Marital Disruption Process: A Pooled Time-Series 
Analysis,'' Journal of Marriage and Family 64(2):472-488. (This finding 
is with regard to family income, not mother's income specifically.)
    \15\ Megan M. Sweeney (2002), ``Two decades of family change: The 
shifting economic foundations of marriage,'' American Sociological 
Review 67(1):132-47; K. Edin and J. M. Reed, ``Why don't they just get 
married? Barriers to marriage among the disadvantaged,'' Future of 
Children 15(2):117-137.
     Domestic labor.--Within marriages, housework and childcare 
are divided more evenly in couples with more equal earnings,\16\ partly 
because wives' deploy their own incomes toward domestic and caring 
services.\17\ Husbands' contributions to childcare improve children's 
development,\18\ and their greater contribution to housework, in turn, 
boosts wives' career prospects and encourages them to invest more in 
their careers.\19\
    \16\ Suzanne M. Bianchi; Melissa A. Milkie; Liana C. Sayer; John P. 
Robinson (2000), ``Is Anyone Doing the Housework? Trends in the Gender 
Division of Household Labor,'' Social Forces 79(1):191-228; Liana C. 
Sayer and Sanjiv Gupta (2007), ``Who's Opting Into Housewifery?'', 
paper presented at the Population Association of American annual 
    \17\ Philip N. Cohen (1998), ``Replacing Housework in the Service 
Economy: Gender, Class, and Race-Ethnicity in Service Spending'' Gender 
& Society 12(2):219-231.
    \18\ Lenna Nepomnyaschy and Jane Waldfogel (2007), ``Paternity 
Leave and Fathers' Involvement with Their Young Children,'' paper 
presented that Population Association of America annual meetings.
    \19\ For evidence that reducing women's housework increases their 
wages, see, e.g., Joni Hersch and Leslie S. Stratton (1997), 
``Housework, Fixed Effects, and Wages of Married Workers,'' Journal of 
Human Resources 32(2):285-307. The unequal division of housework and 
the gender wage gap are therefore mutually reinforcing.

    If government policy can help rekindle the movement toward gender 
equality, then the prospects for a more equal society will be greatly 
enhanced. What role, then, can government play?


    In the 1970s and 1980s, research shows that government policy, 
especially Equal Employment Opportunity enforcement and Affirmative 
Action practices, led to changed practices among employers. This 
improved pay and access to jobs for women and minorities (especially in 
management). These policies promoted the formalization of hiring 
practices, which reduces particularism, or subjective hiring and 
promotion without adequate consideration of the merits of 
candidates.\20\ For example, more companies began relying on human 
resource professionals and formal internal labor markets for 
promotion.\21\ The influence of State policy has been shown, for 
example, with the finding that establishments with closer institutional 
ties to the State (public agencies, non-profits, those in California, 
and those with personnel offices and ties to labor attorneys) were more 
vigorous in their adoption of due process mechanisms for employees 
(disciplinary hearings and grievance procedures) in the 1970s and 
1980s.\22\ As some firms implement practices that reduce 
discrimination, these practices diffuse through industries. Thus even 
targeted legal or social interventions can have important ripple 
    \20\ Frank Dobbin, John R. Sutton, John W. Meyer, and W. Richard 
Scott, (1993), ``Equal Opportunity Law and the Construction of Internal 
Labor Markets,'' American Journal of Sociology 99(2):396-427.
    \21\ Donald Tomaskovic-Devey and Kevin Stainback (2007), 
``Discrimination and desegregation: Equal opportunity progress in U.S. 
private sector workplaces since the Civil Rights Act,'' Annals of the 
American Academy of Political and Social Science 609(Jan.):49-84.
    \22\ John R. Sutton, Frank Dobbin, John W. Meyer and W. Richard 
Scott (1994), ``The Legalization of the Workplace,'' American Journal 
of Sociology 99(4):944-971.
    A drop in government involvement can also have negative effects. 
For example, many firms responded to civil rights enforcement in the 
1970s with EEO and AA programs. But when enforcement was curtailed 
during the Reagan years, such programs were systematically eroded.\23\
    \23\ Erin Kelly and Frank Dobbin (1998), ``How Affirmative Action 
Became Diversity Management: Employer Response to Antidiscrimination 
Law, 1961 to 1996,'' American Behavioral Scientist 41(7):960-984. Note 
that anti-discrimination enforcement is just one area where policy can 
have an effect on gender inequality. ``Family-friendly'' workplace 
regulations and policies may also promote more equitable employment 
practices (although some leave policies have been shown to reduce 
women's labor force participation, which may backfire on gender 
inequality). See Hadas Mandel and Moshe Semyonov (2005), ``Family 
Policies, Wage Structures, and Gender Gaps: Sources of Earnings 
Inequality in 20 Countries,'' American Sociological Review 70(6):949.

    This brief review suggests several possible benefits of the 
proposed legislation, the ``Paycheck Fairness Act'' and the ``Fair Pay 
Act'' (bill numbers not available at this writing). I will only comment 
on a few aspects of these proposals here.
    Punitive and compensatory damages, class actions, procedural 
reform.--Both bills appear to improve incentives for employers to make 
employment practices more equitable, by increasing potential costs and 
narrowing exclusions. Successful lawsuits or settlements in this area 
may spur organizational innovations that spread through affected 
industries, as happened with earlier EEO and title VII cases.\24\ 
Significantly, both bills would improve data collection and analysis, 
which are crucial tools for identifying and remedying problems of 
gender inequity.
    \24\ Alexandra Kalev and Frank Dobbin (2006), ``New Legal Realism: 
Enforcement of Civil Rights Law in Private Workplaces: The Effects of 
Compliance Reviews and Lawsuits Over Time,'' Law and Social Inquiry 
    Best practices.--Despite several decades of attempts at equal 
employment and anti-discrimination reforms, there is little consensus 
on what practices have been most effective.\25\ The Paycheck Fairness 
Act's proposed rewards for innovative employers, and support for 
training and assistance, may help set examples to encourage the spread 
of such innovation. Past research has clearly shown that the benefits 
of occupational desegregation, for example, extend to all women in the 
surrounding labor market.\26\
    \25\ Alexandra Kalev, Erin Kelly, and Frank Dobbin (2006), ``Best 
Practices or Best Guesses? Assessing the Efficacy of Corporate 
Affirmative Action and Diversity Policies,'' American Sociological 
Review 71(4):589-617.
    \26\ David A. Cotter, JoAnn DeFiore, Joan M. Hermsen, Brenda 
Marsteller Kowalewski, and Reeve Vanneman (1997), ``All Women Benefit: 
The Macro-Level Effect of Occupational Integration on Gender Earnings 
Equality,'' American Sociological Review 62(5):714-734. Cohen and 
Huffman (2003), ``Individuals, Jobs, and Labor Markets: The Devaluation 
of Women's Work,'' American Sociological Review 68(3):443-63.
    The ``equivalent jobs'' standard.--Because men and women are so 
often segregated into jobs with different titles, even when they are 
similar in skill requirements and working conditions, the proposed 
change in the EPA standard language might permit legal scrutiny of 
segregation practices when those outcomes include unequal pay for men 
and women. This could have profound effects on both equal pay and 
    This last point requires additional elaboration. Men and women are 
largely segregated across occupations, establishments, and jobs within 
establishments. In 2000, 51 percent of either men or women would have 
had to change occupations in order to achieve equal distributions.\27\ 
How does segregation affect the pay gap? Consider this example. There 
are 1.1 million nurse aides and 2.5 million truck drivers in this 
country. The nurse aides have more education on average, with 38 
percent having at least some college training, compared with 29 percent 
of truck drivers. Both groups' average age is 43. Both do work that 
requires ``medium'' amounts of strength, and nursing aides require more 
on the job training to perform their duties (according to measures from 
the Bureau of Labor Statistics). And yet, those nurse aides, 89 percent 
of whom are women, have median earnings of only $20,000 per year, just 
57 percent of the median earnings of truck drivers--97 percent of whom 
happen to be male.\28\ This example suggests that segregation is a 
major source of wage inequality.\29\
    \27\ I use the standard index of dissimilarity and data on about 
500 occupations from the 2000 Census, from Earnings Distribution of 
U.S. Year-Round Full-Time Workers by 28 Occupation: 1999 (PHC-T-33); 
available at: http://www.census.gov/population/www/cen2000/phc-
    \28\ Analysis of data from the 2004 Current Population Survey, 
published in Philip N. Cohen and Christin Hilgeman, review of 
Occupational Ghettos: The Worldwide Segregation of Women and Men, by 
Maria Charles and David B. Grusky, Contemporary Sociology (35[3], 
2006). Job characteristics are from the Dictionary of Occupational 
Titles. Restricting the analysis to those working full-time and year-
round, narrows the gender gap slightly, to 64 percent (Census 2000 data 
available at http://www.census.gov/population/www/cen2000/phc-
    \29\ Segregation among lower-status workers has been more severe, 
and slower to change in recent decades (See Cotter et al. [2004]). Most 
analyses find small direct effects of segregation on the wage gap, 
compared to the size of the wage gap within occupations. I conducted a 
simulation testing the effect of (1) men and women being redistributed 
into the average overall occupational pattern, but keeping their 
average earnings in each occupation the same, which reduced the gender 
gap from .67 to .73 (a 19 percent reduction in the gap); and, (2) men 
and women earning the same average earnings within each occupation, 
which reduced the wage gap to .85 (55 percent reduction). This is 
within the range of previous estimates. Researchers in the 1990s found 
that anywhere from 9 to 38 percent of the wage gap was accounted for by 
the difference in occupational distributions. See David A. Cotter, 
JoAnn DeFiore, Joan M. Hermsen, Brenda Marsteller Kowalewski, and Reeve 
Vanneman (1997), ``All Women Benefit: The Macro-Level Effect of 
Occupational Integration on Gender Earnings Equality,'' American 
Sociological Review 62(5):714-734. In my study with Matt Huffman, we 
analyzed the distribution of men and women across 62,000 occupation-by-
industry cells, and found that gender segregation at that level of 
detail accounted for 27 percent of the gender wage gap in 1990. See 
Cohen and Huffman (2003).
    Even though such a gap might seem unjust, the courts have not 
favored challenges based on the ``comparable worth'' of different jobs, 
preferring to let ``the market'' determine such differences--while 
disparities in wages within ``equal'' jobs have been successfully 
challenged under the rules of EPA.\30\ Yet, at the very detailed level, 
studies that examine specific job positions in the same establishment 
often find very small gender gaps in pay.\31\ If you look close enough, 
maybe everyone's job is a little different.
    \30\ These cases are summarized in the CRS report ``Pay Equity 
Legislation in the 110th 31 Congress,'' by Jody Feder and Linda Levine 
    \31\ Trond Petersen and Laurie A. Morgan (1995), ``Separate and 
Unequal: Occupation-Establishment Sex Segregation and the Gender Wage 
Gap,'' American Journal of Sociology 101(2):329-365. For background, 
see Paula England (1992), Comparable Worth: Theories and Evidence, 
Aldine de Gruyter.
    What is the proper balance? The Census data show, for example, 
average earnings of $170,000 for male physicians, compared to $100,000 
for female physicians, which suggests a large pay disparity for men and 
women in the same jobs. Yet within those groups men and women 
specialize very differently, and work at different establishments.\32\ 
If comparable worth permits too much legal intervention into wage 
setting, the current rules appear to permit too little--allowing small 
differences in job characteristics to justify large gender disparities 
in pay. Ultimately, eliminating the wage gap will require both 
integrating men and women more into the same occupations, and 
eliminating disparities within occupations and jobs. The chief benefit 
of the ``equivalent jobs'' reform might be to permit a broader 
comparison of work that is substantively equivalent but that is 
classified differently by employers. The pressure this brings to bear 
on employers might reduce the wage gap by calling into question 
practices that segregate men and women into different jobs--and that 
reward similar jobs differently.
    \32\ Many studies that try to account for all known sources of 
inequality, such as the 2003 GAO report on the gender gap, control for 
occupations at an even higher level of categorization--comparing, for 
example, all ``service/household'' workers with all ``professional and 
technical'' workers. The GAO report finds that women earned 20 percent 
less than men in 2000 once occupation and other standard variables, 
including work experience and patterns, were controlled. See ``Women's 
Earnings: Work Patterns Partially Explain Difference Between Men's and 
Women's Earnings,'' GAO-04-35 (2003).

    Senator Harkin. Dr. Cohen, thank you very much. Thank you 
all for excellent statements and for keeping them relatively 
short. I appreciate that very much.
    To start our questioning, I will turn to Senator Clinton.
    Senator Clinton. Well, Professor Cohen, thank you for your 
very thorough understanding of this issue and I wanted to ask 
you about the study that came out yesterday by Vanderbilt 
University. Joni Hersch, a Professor of Law and Economics, 
found that even when taking into consideration characteristics 
that might affect wages, such as choices over household and 
child-related responsibilities, market characteristics, working 
conditions, occupational segregation and so forth, sex 
discrimination remained a strong explanation for the gender pay 
gap. What accounts for that, Dr. Cohen? I mean, if you were to 
really just strip it all away, why is it so hard to penetrate 
society and the economy so that people get the best out of all 
their workers, regardless of gender?
    Mr. Cohen. Well, Senator Clinton, that is, in my line of 
work, the million dollar question. It's difficult to answer. I 
think a very important part of it remains job segregation and 
that's why I think it's so important to broaden that 
consideration of equal work and equivalent work and also to 
consider jobs in different establishments as my colleagues 
    Women do make choices that have negative effects on their 
long-term earnings but the choices they make are highly 
constrained and a lot of the times, those choices are 
constrained by factors at their places of work. So that you may 
be comparing women and men in different positions at the same 
workplace who have responded to opportunities at that 
workplace. It is very important to consider the factors in 
hiring and promotion and wage setting that work through 
people's careers, even within the workplace that they're in.
    But I think from the research that we have, family 
obligations and burdens do account for some but when we account 
for that, like you say and the recent study shows--I haven't 
read in detail but we do have--in aggression terms, it's the 
coefficient that won't go away. The effect of being a woman is 
always there and I think the segregation of tasks is an 
important part of that and if we could look at the equivalency 
of jobs, which are classified somewhat differently and equalize 
those differences, I think it would have a big effect.
    Senator Clinton. Thank you. Dr. Murphy, you have spent so 
much of your career wrestling with these issues and I really 
personally admire your commitment to this both in the public 
sector and through your ongoing efforts to try to untangle the 
wage gap. What I would like to ask you is, with respect to the 
women who you have interviewed over a number of years, how much 
do you think they blame themselves for wage gaps and for their 
not getting ahead and how much do they see structural systemic 
problems that they think they just can't overcome?
    Ms. Murphy. Interesting question, Senator Clinton and thank 
you. You have been heroic in pressing for better opportunities 
for women for a long time as well.
    My sense in the conversations, the discussions I have with 
working women every day is that most women today need jobs. It 
is such an important part of a family income or for their 
families if they are the sole supporter that they are 
struggling very hard to maximize their job performance and as 
much money as they can make. Sometimes there's a second guess, 
well, if I had done something a little differently, maybe I 
could make more money or be a better worker but I am struck by 
the troublesome part of how much women feel in the workplaces 
that they're just unfair--inequitably treated. It is profoundly 
there. And because we're so socialized not to grumble too much, 
we tend to--women get quiet and they don't confront this or 
because they do need the job or they quietly leave, which also 
costs them time in promotions and time in rank wherever they 
were. So I'm finding--and then there's a kind of despair in all 
of this, an emotional part of it, which is they are either so 
angry or they despair and say, ``I just can't change the 
    So to me, I think we are coming to the place where I think 
we've turned the corner, that with the wage gap stuck for the 
last 14 years, we've suddenly come to the place where we have 
to acknowledge there's something going on in the workplace that 
we're not dealing with here and while women have been quiet, 
it's largely because they haven't seen ways in which they can 
act constructively without losing their jobs or being set back. 
So I think a large part of this right now is the kind of 
trouble, the systemic intransigence that we need to get at.
    Senator Clinton. Finally, let me ask about the equivalence 
issue because that is a much harder case to make for many 
people. Senator Harkin's bill really requires people to more 
fairly assess the requirements for a job and to consider them 
more equivalent or comparable, even if they're not the same. 
I'll start with you, Ms. Samuels, do you have any advice about 
how best to make the case for comparability? And I know that 
it's worked in Minnesota and Iowa but how would you make the 
case more generally?
    Ms. Samuels. Well, I think the key for it rests on what Dr. 
Cohen discussed, which is the continuing gender-based 
occupational segregation that we see in far too many industries 
and in far too many lines of work. It has worked in places like 
Minnesota and there are various State laws that do mandate the 
kind of comparability comparison that the Fair Pay Act would 
ask the government to undertake.
    This is not a government mandate that would set pay for 
different industries. What it would require is that employers 
take a careful look at the credentials and qualifications that 
are required for each of their job lines and make a fair 
assessment about the value of that work to the company. It 
maintains employer discretion but also addresses this very 
systemic, endemic problem that traditionally female jobs, 
because of the historical devaluation of women's work, continue 
to pay significantly less than traditionally male fields.
    Senator Clinton. Dr. Murphy.
    Ms. Murphy. Thank you. Let me just add, you mentioned 
Minnesota and Minnesota is a very interesting example because 
Minnesota pays 97 cents on the dollar for all of the women 
versus American men. The interesting thing here is Minnesota 
took every job under the umbrella--under the roof of the State 
as an employer and ranked it, similar to the guidelines that 
you're suggesting and they ranked it by the qualifications and 
skills, the experience, the accountability, the dangers and all 
those things and it allows them to do--to solve this problem 
that you're hearing about sizing right now, which is about the 
job segregation because when you rank all the jobs under the 
State's umbrella as an employer, you can compare the nurse in 
the State hospital with the man who is driving the snowplow 
truck for the DPW and the woman who is a teacher at a 
professional university with the guy who is out managing the 
forests and parks. It allows you to compare all those jobs and 
it gets at this occupational segregation problem under that 
    So holding that employer accountable for that kind of 
fairness and equity allows you to pay for the job not who does 
the job. And once you do that and once every employer pays for 
the job not who does the job, you could solve all kinds of 
discrimination in the workplace. This is about race and 
handicap and age as well as gender. So it's a powerful concept 
and one final thing and then I'll shut up.
    I interviewed Faith Remke, the State of Minnesota--it cost 
the State of Minnesota to do this, to implement this bill, One 
Paycheck right now. Her name is Faith Remke and I talked to 
Faith Remke in preparing my book and I asked her whether the 
methodology that the State of Minnesota uses could be used by 
any employer and she said, ``yes.'' I mean, this can be used by 
a private employer as well as a public--so the methodology is 
here. The intellectual work has been done. It just needs to be 
applied to other employers.
    Senator Clinton. Thank you.
    Senator Harkin. I mean, heck, all you've got to do is look 
at the Board of Directors of all these companies and it is 
mostly white males.
    Ms. Murphy. Yes, indeed.
    Senator Harkin. And they try to get a few token women once 
in a while. But you look at who is running the businesses, who 
is running the companies.
    Ms. Murphy. That's right.
    Senator Harkin. And they set the policies. That's no 
secret. I mean, change the Board of Directors of a lot of these 
companies and put a majority of women on it and you might get 
some changes made.
    Ms. Murphy. I think you would.
    Senator Harkin. Senator Murray.
    Senator Murray. Mr. Chairman, thank you so much for having 
this hearing. I think this is really enlightening. Senator 
Clinton, I want to thank you for your leadership on this issue 
and as I listened with interest to your question about women 
and perceptions, one of my concerns is that women oftentimes 
don't believe this is a problem. Your leadership really helps 
highlight it. You can't solve a problem if people don't believe 
it is a problem. Ms. Murphy, you talked about women just 
deciding to be quiet. I'm more concerned that perhaps they're 
not speaking up because they don't know it's an issue. Do you 
find that out there?
    Ms. Murphy. Oh, yes. Oh, yes, particularly women on 
campuses. I mean, I spent a lot of time the last couple weeks 
on campuses and young women think it's all equal and fair. When 
they graduate, they're sort of excited and then when you sort 
of talk about what happens and what they can lose, these women 
listen up in a way that's amazing because they suddenly get it. 
But this is a part in which lots of other women don't as well, 
Senator Murray but for young women on campuses, this is a very 
important lesson.
    Senator Murray. Dr. Cohen, do you agree with that?
    Mr. Cohen. Yes, I do. I think the one consequence of 
occupational segregation is women often don't have direct 
comparisons to make with men in the same job in the same 
establishment I guess, if I can, while I'm already talking, in 
response to that question about this segregation issue, because 
it does get to the perceptions. The market does have some 
equalizing tendencies. You know, if you're way out of step with 
under paying or over paying some group, you may put yourself at 
a competitive disadvantage.
    But the market also has a lot of historical and cultural 
baggage in the way that things are interpreted and so, it may 
be that the comparable work standard, the idea of comparing 
very different jobs and trying to establish the value of 
meddles in the market too much, as some courts have found. But 
the current mechanism seems to meddle too little. It doesn't 
allow enough comparison in ways that sometimes the market needs 
and I think the perceptions thing is a big part of that 
because, well, like I said, people don't see other occupations 
as being directly comparable and I think this sort of 
discussion can help highlight those comparisons.
    Senator Murray. I think it is really important to have this 
discussion. I think part of the Paycheck Fairness Act is to 
help train young women with negotiation skills when they start 
work. The numbers you gave were startling--how much did you say 
you lose if you just have a high school education?
    Ms. Murphy. Seven hundred thousand dollars.
    Senator Murray. And if you have a Ph.D., it was over----
    Ms. Murphy. Ten million.
    Senator Murray. We want to make sure these young women know 
early on that there is a wage gap that will really impact them. 
Could you tell me what happens to the wage gap the longer a 
woman stays in the workforce? Does it close? Does it widen? 
Does it ever even up?
    Ms. Murphy. It tends to widen. I mean, the interesting 
thing is if you think about a young woman who graduates from 
college and gets a $30,000 job and she's excited because she 
says, ``My heavens, I'm earning more money than I ever expected 
to. I didn't realize I was worth that.'' It's more than my mom 
ever made and the young man who just graduated from college 
with her gets a job in the same place and he's making $33,000 
and so--well, it's not that much money. At the end of the year 
when the bonuses are paid, he gets a bigger bonus because it's 
a percentage of the salary. The end of the year, the boss says, 
``He's a real comer. He's hard charging, he's fired up so we'll 
bump him up to $38,000 and she's good, she's solid, she's 
working hard so we'll move her to $33,000'' and suddenly she's 
earning the same the next year as he was the first year and the 
bonus at the end of the year is even bigger and at the end of 
that year, the boss says, ``Well, he's going to be one of our 
executives. He's managerial potential. We'll bump him up to 
$43,000 and she just said she's pregnant and so, well, we want 
her when she comes back, when she's had her child and she's 
very good so we'll move her up to $35,000.'' And the longer 
they work, the wider this differential becomes until it 
accumulates to those huge losses.
    Senator Murray. Talk to me then about the retirement gap. 
Senator Clinton and I have spent a great deal of time on it, 
especially with regard to the Social Security. What happens 
    Ms. Murphy. Oh, it's huge. Because all the way along, we 
have an employer who is contributing to the IRA or you don't 
have as much money to put aside for your own retirement or your 
employer doesn't put aside as much retirement so that 
accumulates as well. And because, as Senator Harkin said, women 
live longer. Then at the end of life, you have less money over 
a longer life so you're actually right. This confirms the 
problem for later on, if you don't get at it from the very 
    Senator Murray. Thank you very much. I really appreciate 
again, the leadership of Senator Harkin and Senator Clinton. I 
hope that we can start making women more aware that a gap 
exists and work to put in place the tools that women need to 
earn as much as they can. We will all benefit from that. Thank 
you very much.
    Senator Harkin. Thank you very much, Senator Murray. I just 
wanted to ask first Dr. Cohen--I hope I don't catch you off 
guard on this. How does the pay gap affect men and what would 
closing the pay gap mean to men? Married men, single men? I 
don't care, just men. How will it affect them?
    Mr. Cohen. Well, if it would be accomplished by raising 
women's wages, it would improve the family incomes of married 
men, certainly.
    Senator Harkin. OK. Fine.
    Mr. Cohen. It's not clear--I don't know of any evidence 
that remedying problems of gender discrimination has resulted 
in lower wages for men. There may be cases where that's the 
case but that certainly has not been the historical trend. When 
the gender gap was closing, it was not in general at the 
expense of male wages. The last few years actually are an 
interesting exception there, when wages for men were falling 
and the last couple points of the gender gap that we got were 
mostly from men's falling wages. But that's not a consequence 
of raising wages for women as far as I can tell.
    Senator Harkin. I throw this out for your consideration. 
You might get more men willing to take those jobs that have 
been previously considered women's jobs. Certainly there is a 
nurse's aid paid the same as a truck driver. Hey, I might not 
like getting beat around that truck cab all the time. I might 
want to be a nurse's aid if I had the same equal pay and 
benefits and retirement benefits and that type of thing. It 
might be a more appealing job but if there is this huge wage 
gap, well then, I'd gravitate to something else.
    Mr. Cohen. Absolutely, I agree.
    Senator Harkin. So it would allow men to be able to pursue 
different careers and different occupations than they might 
want to pursue right now.
    Mr. Cohen. It also does give families more flexibility as 
far as fathers----
    Senator Harkin. That's right, if the women's--then the man 
maybe has more flexibility to do different things than what 
they have right now, to choose different options, for example.
    So I think that we tend to forget that men would be 
beneficiaries of this. We're always thinking about this as some 
kind of a zero sum game. If they win, we lose. I don't think 
that at all. I think that the whole society would gain on that.
    Oh yes, I know--I want to ask--the example, I think that 
Ms. Samuels, you had in your--and I'm going to read it. You 
didn't read it but I'm going to read it.
    Recent examples of pay discrimination cases because this is 
one that is very prominent now in the public. 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 boy's 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 
    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.'' The Ninth Circuit recently reaffirmed the case of the 
class action on behalf of more than the 1.5 million women who 
are current and former employees of Wal-Mart. I read that again 
because look--I mean, unless you live in some kind of isolated 
bubble in our society and you lack all sensitivity whatsoever, 
you know this goes on every day in workplaces all over this 
country. And again, I think in many cases--I've read a lot 
about this case and these women were very brave to come forward 
like they did. I think a lot of times women don't do that 
because they are single mothers. They do have kids to provide 
for and they're hanging on and they just don't need to be fired 
from a job and go out and beat around looking for another one. 
So they just tend to absorb it. And this old boy's network kind 
of thing goes on all over the place. We know that. Come on. We 
can't kid each other about this. So that's why I think it is so 
important not only for the Paycheck Fairness to provide for the 
kind of increased penalties and increased wherewithal for women 
to take these cases and to pursue them but also for broadening 
things out as we're trying to do with the pay equity, Fair Pay 
    I just--again, I ask Ms. Brown. You are on the plaintiff's 
side in all this but surely you must recognize also that this 
kind of discrimination goes on every day--every day. Every day 
and so because women simply don't have the wherewithal a lot of 
times to file these suits and you go up against them, does it 
behoove us as government--and your statement, I read your 
statement. You're saying that there are things that government 
can do and government can't. Government can do training and 
better education and things like that. But I ask rhetorically, 
hasn't the government intervention in the past provided for 
better workplaces, everything from OSHA laws to the Americans 
with Disabilities Act that I'm probably more familiar with, the 
Civil Rights Act, all these things that would not have occurred 
other than through government intervention.
    And are we short-sighting ourselves by saying that that's 
all that needs to be done? Now there were people before this 
Civil Rights Act who said, ``We don't need that.'' We've done 
everything. There were people before the Americans with 
Disabilities Act who said, ``We don't need to do that. We've 
done all these things.'' There are plenty of ways for people to 
access the courts and take their cases on. And I'm just 
wondering if we aren't being a little shortsighted now by 
saying, ``Well, we've done all we can do. We don't need to do 
any more in that regard because we know that these things 
happen every day,'' your comments.
    Ms. Brown. Yes, Senator, thank you. I'm usually on the 
defense side but I really--first of all, I really disagree with 
you that this happens every day everywhere. If you pluck a 
number of anecdotes out of the experiences of millions and 
millions of people, you get a distorted view and I think you 
should be comforted that at least in those workplaces that I 
interact with, I read cases about, I teach seminars. There has 
been radical change. I think the point of all the laws is to 
allow people to fulfill their potential, to express their 
values, to work in job conditions that they want to work in. 
Maybe they don't want to drive a truck. Maybe they would rather 
be in an office. But to tinker with the market forces in 
private employment, it seems to me, to get at the problem in a 
very, very potentially destructive way because it's the 
vibrancy of that market, the ability to come up with new jobs, 
to develop new technology, new services that we can sell 
globally that provides the opportunity for employees.
    So what we need and what we have is the laws that say if 
you want a job, if you want the skills, if you want the 
education, if you want to work here, then go for it and to the 
extent that you find barriers there, I don't think it's the job 
of courts or Congress to read people's minds and decide for 
them, I think you're being mistreated or I think you're in the 
wrong job.
    I think people have to step forward and the retaliation 
protections are substantial. These cases aren't little negative 
value cases. There are attorney fees provisions, there are 
punitive and compensatory damages so I think what we want to do 
is say, we're not going to decide that these jobs are 
comparable to these other jobs. In a public sector, if an 
employer--if a State or a locality chooses to do that, that's a 
legitimate choice. But for the private economy, you're talking 
something very different.
    Senator Harkin. But look what happened in Minnesota. First 
of all, you say that these anecdotes may give you this sort of 
view. I'm pained to ask, is Wal-Mart a distortion? I don't 
think so and I think life's experiences teach us that that's 
not a distortion. It's an every day occurrence.
    Secondly, just take a look at what Minnesota did. Now 
Minnesota closed its pay gap 97 percent. They only have a 3 
percent disparity. So we have a case study in what a change in 
policy can mean on that level. So it's not as if we don't have 
something to base this on, we do. So what is so different about 
Minnesota than compared to Massachusetts or New York or Iowa? 
We did a little bit in Iowa, not much. So I'm just saying--that 
wouldn't have happened had it not been for a government--in 
that case, the State government, doing something.
    Ms. Brown. Well, what they've said is we're going to spend 
more money and we're going to pay jobs in a way that is not 
consistent with what the market would pay for them. We're going 
to say that conditions, skills, responsibility and perhaps 
other factors----
    Senator Harkin. Working conditions.
    Ms. Brown [continuing]. Are not necessarily going to drive 
what jobs are paid but we're going to make a decision by FEOT 
that we're going to have an equal result. That has never been 
the law. The law is, you can't intentionally discriminate 
against an individual because of a protected characteristic and 
you can't pay people who are doing equal work under similar job 
conditions, different amounts because of their gender.
    But to tinker with the economy, to have the Labor 
Department say, ``We think a job is worth a certain amount,'' 
when we need people to go do the jobs that the economy needs 
and wants and values, seems to me to be a very, very wrong way 
to go about solving the problem if you believe there is a 
problem. What you need to do is have a level playing field so 
that people can make the choices they want to make and take the 
jobs that they want to take, not to decry an equality of 
result. That's just not been the way that the equal opportunity 
    Senator Harkin. Then you obviously haven't read my bill. 
The Equal Pay Act provides that level playing field. It doesn't 
mandate exactly what you've got to pay. It just says, ``Let's 
put it all out there. Let's get the information we need and 
let's compare them and let's provide a basis that if it 
requires equal skill, responsibility, effort and working 
conditions, then the pay should be equalized.''
    It just provides an avenue for women to bring an action, if 
employers aren't living up to that. We didn't say you've got to 
do it. But Minnesota did it because that was the public sector. 
I'm just saying that in that case, you can see what happens 
when the government did do that. It closed the gap. And did it 
in a way, I think, that benefits all of the State. I don't know 
about that but I'm just saying that the Equal Pay Act basically 
says, ``Look, we're going to get the information out. We're 
going to compare these. We're going to make this information 
available so that women know what these other jobs are paying 
and therefore, then they have a case of action to take.'' It's 
similar to what we've done under so many other civil rights 
laws in our country.
    The Americans with Disabilities Act doesn't say you have to 
hire a person with a disability. We didn't say that. We just 
said, if you're hiring people, you can't discriminate against 
someone because they have a disability. That's all we're 
    Ms. Brown. Absolutely.
    Senator Harkin. And that's what we're saying in the Equal 
Pay Act, too.
    Ms. Samuels. Senator Harkin, if I could just respond to 
your comment for 1 minute. I agree with you completely that 
there is unfortunately pervasive and systemic sex 
discrimination as well as discrimination on the basis of race 
and national origin and disability that still persists in the 
    Where I part company with Ms. Brown is that I think that 
the problem that these bills are intended to address is that 
the market forces themselves, not only cannot alone solve these 
inequities but, in fact, are based on the kinds of prior 
barriers and discrimination that have prevented people like 
women, like minorities, like people with disabilities from 
reaching the same level playing fields that men have occupied.
    All these bills will do--they would not diminish 
innovation. They would not mandate particular levels of pay for 
particular jobs. What they would do is insist that employers 
take a look at the jobs that they have in their workforces and 
make sure that there aren't artificial barriers that are 
limiting the pay that people should get for working in them.
    Senator Harkin. So your point being, how can you expect a 
system to adjust itself to change the basis when the system 
itself is set up on that basis? You're right. Interesting 
    Ms. Samuels. It's metaphysical.
    Senator Harkin. Yeah, it's getting metaphysical here, 
you're right. I really didn't have anything else that--oh, one 
question I just want to get on to the record, to all of you. Do 
you believe that there is an incentive for bringing frivolous 
lawsuits under the current law? Are there incentives for 
bringing the frivolous lawsuits? I hear that all the time. Is 
there an incentive for that or can you speak to that or not?
    Mr. Cohen. I can't speak very much to that but I can say 
one thing about that, which is, it's hard for women whose 
damages are not great to be able to bring lawsuits because they 
can't afford the upfront costs or get lawyers to take on their 
cases. So the way the law is now certainly privileges those who 
have higher earnings and therefore higher damages when they are 
discriminated against. Unless you can get qualified as a class 
and do the Wal-Mart thing, which is very difficult, it's very 
hard to get over those hurdles.
    Ms. Samuels. I might also add that it is not a pleasant 
experience to be engaged in a lawsuit. I don't know very many 
people who would choose that route and in fact, part of the 
problem with the current law that the Paycheck Fairness Act and 
the Fair Pay Act would fix is that the likelihood of success, 
even in meritorious cases under current law, is very low 
because of the procedural hurdles, because the remedies, as Dr. 
Cohen mentioned, are not great enough to ensure that a woman 
will be fairly compensated for her time and because the 
substantive standards of the law don't allow her to make her 
case in a way that really goes to the heart of the basis for 
these wage disparities.
    Ms. Murphy. And to pile on--in addition--women know. It's 
very expensive to pursue any kind of litigation. And most of us 
don't have that money to do this. So you have to think long and 
hard whether you want to sue and pursue even the slightest 
grievance for the cost, both financially for what it does. You 
lose your job. You can lose your career. You lose your husband 
often and your mental health. Every woman I've talked to who 
has pursued litigation have paid a horrific personal price and 
usually hangs on only to try and change that employer's 
environment for the women who are working there or come after 
her because it is such a long, hard and expensive process.
    Senator Harkin. Ms. Brown.
    Ms. Brown. Yes, if I may, several points. First of all, I 
think there are a certain number of frivolous lawsuits but I 
think that the courts are set up to screen those out. I think 
that the more energy is spent and would be spent under this 
bill with employers having to try to think about whether they 
could record contemporaneously every objective factor that goes 
into every pay decision, which is something they have to make 
about every employee periodically, than they make defending 
frivolous lawsuits.
    The problem with the bill is that it's putting the onus on 
the employer for all sorts of choices that people make that are 
a result of social and familial patterns of behavior and I 
think to try to dictate something different is wrong and to 
suggest that if those guidelines are out there, they'll be 
purely voluntary, I think is naive and I don't think that's 
really the intention because the expectation or the hope would 
be that courts will impose them on employers and I think that 
really would wreck havoc.
    The other thing I would say is, since the Supreme Court in 
the sexual harassment context and the punitive damages context, 
urged employers to create effective, internal complaint 
processes so that they could avoid liability or the imposition 
of punitive damages, there has been a very, very healthy 
development of effective internal complaint processes. So you 
only see the tip of the iceberg when you see things that get to 
court. But the effective resolution of many, many complaints 
doesn't reach the public record and I think it's an encouraging 
development since those cases that has greatly helped work 
things out informally.
    Ms. Murphy. I'd just add that I think that's a perfect 
example of the way in which the laws can spur necessary social 
    Senator Harkin. All right. Anything else? Well listen, this 
has been a very good, very enlightening hearing. I thank you 
all for being here and your testimonies and I thank Senator 
Clinton again, for her great leadership on this issue and for 
calling this hearing together and making sure that we have it. 
I think that this is an issue that's not going to go away and 
we've just got to keep at it until we overcome the obstacles 
and get a better system of fairness out for people in our 
society, on so many bases--sex discrimination, race, 
disability--all these areas, just to make our society more fair 
and more equitable and I think then the free enterprise system 
works even better.
    So with that, the committee will stand adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                 Prepared Statement of Senator Kennedy

    One of the most profound economic shifts of the past 
century has been the entry of vast numbers of women into the 
workforce. In 1900, women made up only 18 percent of the 
working population. Today, more than 46 percent of our workers 
are women. Nearly three-quarters of all mothers are in the 
labor force, and nearly four million women hold multiple jobs 
in order to provide adequately for their families.
    Although America's women are working harder than ever, 
they're not being fairly compensated for their contributions to 
our economy. Today, women earn 77 cents for each dollar earned 
by men, and the gap is even greater for women of color. 
African-American women earn only 67 percent of what white men 
earn, and Hispanic women earn only 56 percent. Women are 
routinely paid less than men for performing the same jobs, and 
occupations dominated by women tend to be lower-paying than 
male-dominated occupations, even when the skill sets required 
are the same.
    The problem is not getting better. This year's wage gap of 
23 cents is the same as it was in 2002. Since 1963, when the 
Equal Pay Act was passed, the wage gap has narrowed by less 
than half of a cent a year. At that rate, women won't achieve 
fairness in the workplace for at least another 50 years. That's 
unacceptable in the 21st century.
    It's true that the wage gap is caused in part by how 
society deals with the realities of working women's lives. Many 
women have to take time out from the workforce to care for 
children or other family members, and these gaps in employment 
can permanently reduce their future earnings. It's an 
unfortunate reality, but it shouldn't have to be this way. No 
one should have to give up fair treatment in the workplace in 
order to have children or care for elderly parents.
    We also can't blame the pay gap exclusively on women's 
dominant role in child care. Outright gender discrimination 
also accounts for the disparity between men and women's pay.
    There's ample evidence of such discrimination. Multiple 
studies--including a study by the Census Bureau in 2004, a 
General Accounting Office report in 2003, and a 2006 study by 
the Maryland Department of Labor, Licensing, and Regulation--
have examined the gap in earnings between men and women and all 
reached the same conclusion. This gap cannot be explained by 
differences in education, tenure in the workforce, working 
patterns, or occupation. Gender discrimination alone causes a 
significant portion of the pay gap, and it illustrates the 
continued prevalence of discrimination against women in our 
    It's appalling that such discrimination still exists in 
America. It's preventing working women from achieving their 
full potential, and Congress needs to act now to bring fairness 
to the workplace.
    Women are not getting paid equally for doing the same jobs 
as men. It's illegal and it's unacceptable, but it happens 
every day. There are too many gaps in the law, and too many 
barriers to effective enforcement.
    Senator Clinton's Paycheck Fairness Act will give America's 
working women the support they need to fight for equal pay. It 
will make sure our fair pay laws apply to everyone, and it will 
strengthen the penalties for employers who are not obeying the 
law. These basic reforms are long overdue, and I urge my 
colleagues on the committee to support this important 
    Equal pay for equal work is a key part of the solution. But 
we also need to deal with the problem that our economy often 
undervalues and therefore underpays work done by women, 
particularly women of color. Women are not getting paid what 
they are worth for doing jobs that may be different than those 
performed by men, but are of equal value to the employer.
    Senator Harkin's Fair Pay Act addresses this challenge. It 
will require employers to provide equal pay for jobs that are 
comparable in skill, effort, responsibility, and working 
conditions. It will give workers the information they need to 
determine whether female-dominated jobs are being under-valued, 
and it provides a remedy for workers who are victims of such 
systemic discrimination. It is the second key step on the path 
to workplace fairness, and it deserves our strong support as 
    I look forward to hearing from our witnesses today about 
these important proposals and other ideas for closing the wage 
gap. America's working women deserve full fairness on the job, 
and today's hearing is a step in the right direction.

                  Prepared Statement of Senator Brown

    I want to thank the Chairman for holding this important 
hearing and I also want to thank the witnesses who have joined 
us today.
    All of us have mothers, sisters, daughters, or female 
coworkers and I think we would all agree that if they're doing 
the same work as their male counterparts, they deserve to be 
paid the same wage. Too often this is not the case.
    The wage gap between women and men has remained stagnant 
for 14 years, even though more and more women are graduating 
from high school and college and entering the workforce.
    It is unacceptable that in this day and age, on average, my 
three daughters can expect to earn $1 million less over the 
course of their lives than their male co-workers on the same 
career path.
    In 1963 when President Kennedy signed into law the Equal 
Pay Act, who would have imagined that 44 years later women 
still wouldn't be earning an equal wage for equal work? With 
that bill women made real and important gains. But the expected 
economic equality is yet to materialize.
    In my home State of Ohio, 25 percent of single mothers live 
in poverty. Yet these women, who need our help the most, still 
earn more than 20 percent less than men.
    I'm proud to be a co-sponsor of the Paycheck Fairness Act, 
legislation that will help close the pay gap for good.
    The Paycheck Fairness Act would create a training program 
to help women strengthen their negotiation skills, allow 
employees to pursue litigation for punitive damages, and 
require the Department of Labor to continue collecting and 
distributing much needed information on women workers.
    I am also a co-sponsor of the Fair Pay Act. This bill would 
amend the Fair Labor Standards Act to prohibit discrimination 
in the payment of wages on the basis of sex, race, or national 
origin. It would require employers to provide equal pay for 
jobs that require comparable levels of skill and enable 
employees who are discriminated against to file a complaint 
with the EEOC or go to court.
    When the Equal Pay Act became law, women had the hope of 
righting years of economic injustice by earning equal pay for 
equal work. With these pieces of legislation we can finally 
make these hopes a reality.
    I again would like to thank the Chairman for holding this 
hearing and look forward to working with all of my colleagues 
to pass this important legislation to ensure the rights of all 
American workers. Thank you.

  Response to Questions of Senator Kennedy by Barbara Brown, Jocelyn 
              Samuels, Evelyn Murphy, and Philip N. Cohen

                             BARBARA BROWN

    Question 1. In your testimony you argue that much of the pay gap 
between men and women is a result of choices made by individual 
employees. Yet, several recent studies have found that a substantial 
pay gap remains even when controlling factors such as amount and type 
of education or training, prior experience, hours worked, and family 
obligations are accounted. How do you explain these troubling findings? 
Do you agree that some portion of the pay gap must be attributable to 
actual gender discrimination?
    Answer 1. Not available.

    Question 2. You have stated you don't believe additional 
legislation is necessary to address the pay inequity between men and 
women. Yet, despite years of progress for women, the pay gap has held 
relatively steady since the late 1980s. How do you believe that the pay 
gap will be remedied in the absence of a change in the law?
    Answer 2. Not available.

                            JOCELYN SAMUELS

    Question 1. Opponents of the Paycheck Fairness Act have argued that 
the bill would make it impossible for employers to prove that there was 
a legitimate non-discriminatory reason that explain differences between 
the salaries of male and female employees. How would an employer make 
such a demonstration under the act? Do you believe the changes the act 
makes would unfairly disadvantage employers in such litigation?
    Answer 1. Under the Paycheck Fairness Act, an employer could 
continue to rely on the four affirmative defenses authorized under the 
Equal Pay Act--namely, that a pay disparity was based on ``(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.'' These defenses would 
continue to offer the employer a robust opportunity to explain, and 
justify, a decision to pay a female employee less than a male employee 
performing equal work.
    What the Paycheck Fairness Act would do is simply to ensure that 
the ``factor other than sex'' defense--which has been applied under the 
Equal Pay Act in ways that seriously undermine the principles of equal 
pay for equal work--could be used only in circumstances in which sex 
discrimination did not in fact taint pay decisions. The Paycheck 
Fairness Act would restore Congress's original intent, as recognized by 
the Supreme Court, to ensure that factors like the value assigned by 
the market to men's and women's work, or the greater bargaining power 
that men have historically commanded, were not used to excuse pay 
disparities. As such, the Paycheck Fairness Act would clarify that the 
``factor other than sex'' defense applies only where the employer can 
show that a pay differential is truly caused by something other than 
sex and is related to job performance.
    The bill's clarification of the defense would not unfairly 
disadvantage employers. Employers would be able to satisfy the defense 
by using familiar principles of anti-discrimination law, including 
those that underlie the requirement of Title VII of the Civil Rights 
Act of 1964 that a practice that disproportionately disadvantages a 
protected group be shown to be ``job related and consistent with 
business necessity.'' Like that disparate impact defense, the Paycheck 
Fairness Act's treatment of the ``factor other than sex'' defense is 
not designed to--and would not--prevent an employer from basing pay 
decisions on legitimate business considerations. It would simply ensure 
that those considerations could not be used in a way that would mask 
underlying sex discrimination.

    Question 2. In her testimony, Ms. Brown argued that there is a 
significant amount of frivolous litigation on equal pay issues under 
current law. Does empirical evidence bear this out? Given the 
relatively low awards in such cases and the Supreme Court's recent 
ruling addressing punitive damages more generally, do you expect the 
Paycheck Fairness Act to generate an onslaught of frivolous lawsuits?
    Answer 2. The Equal Pay Act has not generated, and the Paycheck 
Fairness Act will not generate, an onslaught of frivolous lawsuits. As 
noted in my testimony, a plaintiff pursuing an Equal Pay Act claim 
faces numerous hurdles to proving and obtaining remedies for pay 
disparities based on sex, starting with showing that she is paid less 
than a male employee performing equal work at the same establishment--a 
demanding standard that one commentator has said ``provides women with 
a very limited substantive right indeed.'' Even those women who do 
succeed in proving pay discrimination receive only limited relief. 
Unlike those who challenge wage disparities based on race or ethnicity, 
who are entitled to receive full compensatory and punitive damages--and 
unlike those who challenge sex discrimination in other employment 
decisions, such as hiring, promotions and the like--successful 
plaintiffs under the Equal Pay Act receive only back pay and, in 
limited cases, an equal amount as liquidated damages. 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.
    The Paycheck Fairness Act would address these limitations, but not 
in ways that will produce frivolous litigation. The act would simply 
ensure that the prohibitions of the Equal Pay Act are applied 
effectively and would place women subject to wage discrimination on an 
equal footing with those who challenge pay discrimination on grounds of 
race or ethnicity. There is simply no basis to assert that ensuring 
that the law means what Congress intended it to mean more than four 
decades ago--or providing women the same remedies available to other 
civil rights plaintiffs--will produce meritless claims. To the 
contrary, these improvements to the law are necessary to ensure that 
the promise of equal pay for equal work becomes a reality.

    Question 3. In your testimony, you point to a few recent gender 
discrimination cases where the companies involved are household names--
Wachovia, Wal-Mart, and Morgan Stanley stand out because of their 
prominence and the number of Americans they employ. It appears that pay 
discrimination is not an anecdotal phenomenon practiced by a few ``bad 
apples'' but is instead a widespread phenomenon affecting some of our 
Nation's largest employers. How do these prominent cases illustrate the 
need for improvements in our equal pay laws?
    Answer 3. Pay discrimination, far from being an anecdotal 
phenomenon practiced by a limited number of employers, is unfortunately 
all too often a way of doing business across the country. Shortly after 
this committee's hearing took place, for example, Morgan Stanley agreed 
to pay--in its second settlement of a sex discrimination lawsuit in 3 
years--at least $46 million to settle a class-action suit filed by 
eight current and former female brokers who claimed that they were 
subject to discrimination in training, promotion and pay. And the 
American Association of University Women recently released a study, 
Beyond the Pay Gap, which reveals that just 1 year out of college, 
women working full-time already earn only 80 percent of what their male 
colleagues earn, even when they work in the same field. The report 
shows that 10 years after graduation, the pay gap widens--women earn 
only 69 percent of what their male counterparts make.
    As studies have repeatedly shown, these pay gaps are not the result 
of choices that women make. A 2003 study by the U.S. Government 
Accountability 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 earn, on average only 80 percent of what men earn, leaving 
a 20 percent pay gap that cannot be explained or justified. The just-
released AAUW study confirms this point.
    The persistence of the pay gap, more than 40 years after enactment 
of the Equal Pay Act, demonstrates the critical need to improve the 
protections of that act. While Congress intended to sweepingly prohibit 
pay discrimination when it passed the Equal Pay Act in 1963, subsequent 
interpretations of the act have significantly limited its 
effectiveness. In addition, because the act was signed into law before 
the other major anti-discrimination laws passed by Congress, it does 
not reflect the remedies and procedures that have been efficacious in 
addressing other forms of discrimination. Enactment of the Paycheck 
Fairness Act and the Fair Pay Act is critical to making the promise of 
equal pay for equal work a reality.

                             EVELYN MURPHY

    Question 1. Some have argued that evidence for actual cases of pay 
discrimination is mostly anecdotal. Given your experience with the WAGE 
project, would you agree? What does research demonstrate about how 
widespread such discrimination truly is?
    Answer 1. Not available.

    Question 2. You pointed to the excellent example set by Minnesota 
in the State's own hiring practices. Clearly, the State's efforts have 
been very successful in dramatically narrowing the pay gap among its 
employees. Can you point to similar examples where public employers 
have proactively adopted these kinds of policies? How successful have 
they been? How well would these kinds of efforts transfer into the 
private sector?
    Answer 2. Not available.

    Question 3. You have said that one factor greatly affecting the 
inequality of wages is the fear of asking for a raise or bringing an 
issue of inequality to a superior. Do you have any knowledge of, or 
experience with, programs that train women to be more effective in 
salary negotiations? Is there reason to believe that such programs 
would make a real impact in pay disparity?
    Answer 3. Not available.

                            PHILIP N. COHEN

    Question 1. Ms. Brown argued against making a comparison of pay 
between jobs in different establishments of the same employer because 
of variances in local markets. However, without comparing across 
establishments, employees working for the same bank in different 
branches across the street or the city cannot be fairly evaluated.
    Do you believe that comparisons between establishments are valid? 
What limitations do we face in addressing the wage gap when we limit 
our comparison to within a single establishment?
    Answer 1. Because the level of gender segregation is so high, 
between occupations, but also between establishments and within 
establishments, a very strict standard of comparison--such as the 
current standard--makes it very difficult to address gender inequity. 
Even if we were to require comparisons only across identical job titles 
or job descriptions, the requirement to make comparisons only within 
establishments is unnecessarily restrictive and permits gender 
discrimination in the sorting of workers across establishments within 
an organization.

    Question 2. You have made a compelling case for looking at the 
comparable worth of jobs that require different tasks but relatively 
equal skill levels. You gave the example of nurse aides and truck 
drivers, which are roughly comparable in terms of education, training, 
and the strength required to do the job.
    Do you have other specific examples of such comparable occupations 
and the difference in their wages? Has there been any research done to 
systematically identify these pairings or groupings?
    Answer 2. I do not have other specific examples at hand. The most 
systematic analyses have been conducted by State governments (e.g., 
Washington State), in attempts to implement comparable worth standards 
in State employment. A rough comparison is readily achieved using 
levels of formal education and work experience from surveys such as the 
Current Population Survey, combined with occupational characteristics 
from the Dictionary of Occupational Titles or the new O*Net 
occupational classification scheme.

        Response to Questions of Senator Enzi by Jocelyn Samuels

    Question 1. This committee also has jurisdiction over education. It 
strikes me that much of the ``occupational segregation'' that exists is 
due not to decisions made by an employer, but to decisions made by the 
employee when she was still a student. These decisions were no doubt 
heavily influenced by her teachers, school environment, family 
environment and peers. How can we most effectively address THIS aspect 
of occupational segregation?
    Answer 1. Occupational segregation is indeed influenced by 
educational sex segregation at an earlier stage; educational sex 
segregation remains pervasive in fields that have traditionally been 
dominated by one gender. The National Women's Law Center has, for 
example, studied enrollment patterns of girls and boys in high-school 
level career and technical education (CTE) classes that are 
nontraditional for their gender. Although title IX has been in effect 
for 35 years, girls remain pervasively under-represented in 
traditionally male CTE fields; nationwide, girls make up 87 percent of 
students enrolled in traditionally female training courses, such as 
cosmetology and home health care, and only 15 percent of those taking 
courses in traditionally male fields such as construction or 
    \1\ National Women's Law Center, Tools of the Trade (October 2005), 
available at http://www.nwlc.org/pdf/NWLCToolsoftheTrade05.pdf.
    These enrollment patterns have critical consequences for girls' 
economic security as adults; girls who take up traditionally female 
occupations can expect to earn half (or less) of what they could make 
if they went into traditionally male fields. In fact, the highest 
median wage for a traditionally female category ($14.63 for health 
professions) was lower than the lowest median wage in a traditionally 
male field ($16.63 for agricultural management).\2\
    \2\ Id.
    But critically, the Center's research has also revealed that these 
patterns of sex segregation, far from resulting exclusively from 
choices made by young men and women, are in fact in large measure the 
product of barriers and discouragement that students face, ranging from 
steering by guidance counselors to selective recruitment of boys or 
girls for particular courses to harassment and differential treatment 
in nontraditional classrooms.\3\
    \3\ Id.
    It is critical to take the steps necessary to address this 
educational sex segregation and its impact on employment opportunities 
and wages for women. Congress' reauthorization of the Carl E. Perkins 
Act last year made progress in creating enhanced mechanisms to hold 
States accountable for eliminating barriers to recruitment and 
retention of students in CTE classes nontraditional for their gender. 
But more must be done. Among other things, the Department of Education 
must step up to its responsibility to proactively and fully enforce 
title IX to investigate, and ensure elimination of, school-based 
barriers that limit girls' access to educational opportunities. And 
Congress should both exercise its oversight responsibilities over the 
Department of Education and move expeditiously to enact additional laws 
that would provide incentives for students to explore nontraditional 
training and requirements that schools take proactive steps to address 
gender-based barriers in education.
    These steps would substantially advance efforts to realize the 
promise of gender equity in education enacted by Congress in title IX 
three and one-half decades ago. But such steps will not be effective in 
fully addressing occupational segregation and pay disparities in the 
workforce without the additional enactment of the Paycheck Fairness Act 
and the Fair Pay Act, both of which create appropriate and targeted 
mechanisms to remedy the sex discrimination in which far too many 
employers across the country continue to engage.

    Question 2. If much of the ``occupational segregation'' that exists 
today IS due not to decisions made by an employer, but to decisions 
made by the employee, is it fair to hold the employer responsible for 
any of these choices?
    Answer 2. It is simply not accurate to state that much of the 
occupational segregation that exists today is due to decisions made by 
employees. As noted in my previous response, the educational sex 
segregation that contributes to continued segregation in the workplace 
is not a product of choice but of a multitude of factors including, 
importantly, gender stereotyping and artificial barriers to equal 
educational opportunity that are imposed at or by schools. And 
additional barriers are imposed in the workforce when women apply for 
jobs that are nontraditional for their gender. While schools and 
employers may have largely abandoned the types of explicit statements 
that ``women need not apply'' that characterized education and 
employment several decades ago, the constraints on women's choices 
remain as powerful, albeit perhaps not as overt, as they have ever 
been. The recent Supreme Court decision in Ledbetter v. Goodyear Tire & 
Rubber Co. illustrates all too forcefully the problems faced by women 
in nontraditional work environments. Lilly Ledbetter, who was one of 
the very few female supervisors at the Goodyear tire plant in Gadsden, 
Alabama, faced persistent sexual harassment at the plant and was told 
by her boss that he didn't think a woman should be working there. 
Before her case was dismissed by the Supreme Court on statute of 
limitations grounds, moreover, Ledbetter had proven that she was 
subject to sex discrimination in pay so egregious that a jury awarded 
her $3.3 million in compensatory and punitive damages.
    Moreover, the pay scales that currently attach to female-dominated 
occupations reflect not the intrinsic value of that work to employers 
or to the economy, but the fact that wages have historically been 
suppressed for fields that are viewed as ``women's work.'' The 
pernicious and persistent effects of the stereotypes that limit the pay 
for jobs held by women were recently reflected in the class action 
lawsuit filed against Wal-Mart, in which a plaintiff stated that when 
she applied for a raise, her manager said ``[m]en are here to make a 
career and women aren't. Retail is for housewives who just need to earn 
extra money.'' \4\ As a result, employers who continue to undervalue 
female-dominated occupations are simply benefiting from historic 
patterns of discrimination that have yet to be corrected.
    \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/

    Question 3. There are some choices we are discussing here that I 
hope you agree women should be permitted to continue to make, such as 
taking time out for child rearing. Once we allow for those choices, 
what is the appropriate statistical wage gap?
    Answer 3. It is critical that employers across the country develop 
workplace policies that enable all employees, both male and female, to 
integrate career and family and other responsibilities. This is why, 
for example, the Center supports enactment of the Healthy Families Act, 
which would provide 7 paid days of sick leave for employees to address 
the health needs of themselves and their families. It is also crucial 
that the Department of Labor maintain and expand strong protections in 
regulations implementing the Family and Medical Leave Act and that 
Congress enact amendments to that law to ensure, for example, that the 
leave it provides is fully available to workers in smaller businesses. 
Employers must also be encouraged to provide flexible work arrangements 
to ensure that workers need not choose between their families and their 
    But even allowing for the fact that some employees, including 
women, may choose to take time out of the workforce for child-rearing, 
available evidence demonstrates that unexplained pay disparities 
persist. For example, a 2003 study by the 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 percent of what men earned in 2000. \5\ That is, there remains 
a 20 percent pay gap between women and men that cannot be explained or 
    \5\ 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 www.gao.gov/cgi-bin/getrpt?GAO-04-35.
    Moreover, new research released in April 2007 by the American 
Association of University Women Educational Foundation shows that just 
1 year out of college, women working full-time already earn less than 
their male colleagues, even when they work in the same field--and even 
though women typically outperform men on academic measures in college. 
According to the report, Behind the Pay Gap, 1 year after college 
graduation, women earn only 80 percent of what their male counterparts 
earn. Ten years after graduation, women fall further behind, earning 
only 69 percent of what men earn. Even after controlling for hours, 
occupation, parenthood, and other factors known to affect earnings, the 
research indicates that one-quarter of the pay gap remains unexplained 
and is likely due to sex discrimination. Over time, the unexplained 
portion of the pay gap grows.\6\
    \6\ American Association of University Women Educational 
Foundation, Behind the Pay Gap (April 2007), available at www.aauw.org.
    This research unequivocally demonstrates that pay disparities 
persist regardless of choices that women--or men--make and that all 
necessary steps must be taken to address the underlying discrimination 
that these disparities manifest.

      Response to Questions of Senator Harkin by Evelyn F. Murphy

    Question 1. Dr. Murphy, data from the Census Bureau, the Department 
of Labor, and others have shown that the pay gap has been decreasing at 
a greater rate in recent years than during the 1990s.
    To what extent can this decrease be attributed to the drop in men's 
wages rather than gains made by women? Are there other factors?
    Answer 1. Let me start with highlighting some puzzling aspects of 
gender wage gap since 1990 according to U.S. Census data, along with 
policy questions raised by these seeming anomalies.

    1. In 1993, the gender wage gap reached an historic low of 23 
cents--that is, median weekly earnings for year-round, full-time 
working women were 77 cents for every dollar earned by year-round full-
time working men. Then the gap widened to 26 cents over the next 4 
years even though the Nation's economy was in an expansion which would 
last through the rest of the decade. Policy researchers attributed this 
erosion in the gender wage gap to the passage of national welfare 
reform legislation, saying this was the result of large numbers of 
welfare women forced into taking low paying jobs. An analysis I did for 
my book, Getting Even, indicated that the effects of welfare reform 
legislation only took effect in the late 1990s when the wage gap was 
narrowing once again. The welfare reform explanation for changes in the 
gender wage gap in the mid-1990s is simply wrong when the time allowed 
after passage of the law before women were forced to take jobs and the 
related TANF data sets about when women actually took jobs are examined 
in detail. What then really explains the gender wage gap's erosion in 
these years? Using the current data, no one has a credible answer.
    2. The gender wage gap only returned to 23 cents in the early years 
of the 21st century--when the Nation's economy was contracting, not 
expanding. In the booming economy between 1993 and 1999, why couldn't 
women lop off one penny of difference in their wages compared with 
men's? Again, using the data currently gathered by the Census 
Department and Bureau of Labor Statistics, no one has a credible 
    3. If the reasons for the gender wage gap were simply about merit--
that women are not as well educated, as well trained, do not work as 
hard, have not worked as long as men--then the Nation should be 
debating why women only earn 95 cents or so for every dollar men earn 
because these differences have been essentially gone for several 
decades now. So, if the gender wage gap cannot be explained by 
differences in the characteristics of working women and working men, 
what is the explanation? I am a Ph.D. economist whose dissertation was 
based on regression analyses, correlation coefficients, tests of 
significance, and the like. If you carefully examine technical papers 
``explaining'' the gender wage gap by the most respected statistical 
economists in this field, you will find sufficient caveats about their 
``explanations'' to undermine any certainty that more than 5 cents of 
this difference is due to differences in women's characteristics 
compared with men's. In short, using Census and BLS data, no one has a 
definitive answer.

    All of these questions are to caution you about drawing conclusions 
regarding the causes of the gender wage gap and changes in the gap 
based only on analyses of the labor force and ignoring analyses of 
employers' behavior. Researchers and policy analysts can only use what 
data are available, i.e., U.S. Census and Labor Department of labor 
force characteristics. Their answers get framed by the data they have 
to use. These data historically have taken into account only one 
dimension: workers characteristics. Employers' contributions to the 
gender wage gap have been left out. EEO-1 filings, the only data 
currently collected by the Federal Government about employers, are the 
only large scale data set about workplaces. These filings give only 
glimpses into employer's behavior regarding wages. A more comprehensive 
EEO-1 data gathering effort would give the U.S. Senate and policy 
analysts information to assess how much of the 23 cents difference is 
due to employer's discrimination. In 1999, an analysis by Professors 
Alfred and Ruth Blumrosen of EEO-1 filings \1\ showed de facto 
``visible, intentional job discrimination'' by gender and race on the 
part of a significant number of employers. Their analysis covered only 
differences in job titles held by women and men. A more rigorous 
comparison of wages by gender by job title would enable policy analysts 
to gain a first approximation of the part employers pay practices in 
contributing to the gender wage gap. I urge the committee to review the 
complete report of the Blumrosens to understand the value of employer 
data in addressing the gender wage gap.
AMERICA--1999; ALFRED W. BLUMROSEN, Thomas A Cowan Professor of Law, 
Rutgers Law School, Director, Intentional Discrimination Project, 
Rutgers Law School; RUTH G. BLUMROSEN, Adjunct Professor of Law, 
Rutgers Law School, General Advisor, Intentional Discrimination 
Project, Rutgers Law School.
    So when you ask what other factors affect the gender wage besides 
men's declining real wages, I would ask you to look at employer data 
about: (1) differences in wages paid by gender for employees holding 
similar job titles who have similar training and education, years of 
experience, comparable responsibilities and conditions at work; (2) 
differences by gender in time to promotion (and more pay) for employees 
with similar performance ratings along with comparable training, 
experience, responsibilities, conditions; and (3) turnover of employees 
by gender with comparable skills, experience, authority, conditions of 
work. These three analyses would provide a solid start at assessing, 
for the first time in this Nation's history, the contribution of 
employer's discriminatory behavior to the gender wage gap.
    Finally, in response to the matter you raise with regard to women's 
recent gains in the wage gap due to men's declining real earnings, 
here's a cautionary note. Because the gender wage gap is a ratio, one 
needs to look at what happens to both the numerator and the 
denominator. For example, according to the Census Bureau, the gender 
wage gap narrowed between 2003 and 2004. You asked whether this is due 
to men's real median earnings declining. The answer is yes, but that's 
not a complete picture. Women's earnings declined, too, yet at a lower 
rate than men's. In that particular year, women did not gain at men's 
expense. Both lost ground. Women just lost less ground relative to men.
    Thank you for the opportunity to respond to your question. I would 
be glad to discuss this further with staff or committee members. I hope 
that the committee will report out favorably the pay equity legislation 
before them at this time. These bills are much needed to help not only 
working women, but also the families who rely on their paychecks to 
maintain a decent standard of living.

         Response to Questions of Senator Reed by Philip Cohen

    Question 1. Dr. Cohen, evidence suggests that the effects of the 
pay gap are more pronounced when we look specifically at single 
mothers. In particular, data from my State of Rhode Island shows that, 
in 2005, the median income for female-headed households was $19,964; 
yet, for single fathers, the median income was $31,016.
    What pressures does this disparity put on the economy as a whole? 
What provisions within the bills we have been discussing today will 
most directly address this particular part of the pay gap?
    Answer 1. The lower incomes and higher poverty rates among single 
mothers are important because children of unmarried parents are much 
more likely to live and be cared for by their mothers. When those women 
do not earn wages that can lift their families out of poverty, 
children's poverty is increased. This increases the cost of welfare and 
harms the quality of life for those children and their mothers.
    The proposed legislation could have a beneficial effect in this 
regard. Occupational segregation between men and women has declined 
much slower among workers with lower levels of education than it has in 
the professions. Because single mothers are disproportionately less 
educated, that means they are more likely to work in 
female-dominated jobs that suffer from gender devaluation--the tendency 
of women's work to be paid less, partly because of the historical 
association of female workers with secondary incomes (``pin money''). 
That historical legacy is very hard to shake, even when a simple 
examination of worker skill levels reveals that women's jobs are 
equally skilled as men's. So the proposed provisions that would allow 
broader comparison of compensation across non-identical but equivalent 
jobs under the Fair Pay Act might benefit working-class women directly.
    On the other hand, gender segregation among working-class women 
also means women are excluded from jobs that do require more skill and 
therefore provide more lifetime earnings and security. That is, the 
problem is not just that women are paid less for working at the same 
skill level--they are also blocked from many skilled blue-collar jobs. 
I am not aware of provisions in the proposed laws that would directly 
address occupational segregation (beyond the possible ripple effect of 
desegregation following from more equal pay scales). This remains a 
serious problem, not easily challenged under current anti-
discrimination law, which makes it difficult to sue employers for not 
hiring people fairly.

        Response to Question of Senator Clinton by Barbara Brown

    Question 1. I noticed throughout your testimony that you emphasized 
the importance of training and trying to get women into high paying 
jobs. I think I can safely say that nobody on this panel is suggesting 
women shouldn't be helping themselves. As Senator, I've introduced and 
supported several pieces of vocational training legislation, including 
the Workforce Investment Act and legislation specifically honoring 
tradeswomen. The ``Paycheck Fairness Act'' itself actually includes 
negotiating training for women so they can combat a difference in 
salary before it starts.
    It seems there are three parties responsible for ensuring equity: 
(1) the employee, who is responsible for complying with the law; (2) 
the government, to make sure everyone is playing by the rules and (3) 
the employee. Ms. Samuels and Ms. Murphy have shared some stories with 
us today, however, that illustrate how there's only so much a woman can 
do to help herself if discrimination exists in the workplace.
    In your testimony, you suggest the committee's time might be 
``better spent on creating opportunities for women to choose whatever 
jobs they want, including those that the market rewards with high 
levels of pay.'' Women today, however, are heeding your call to achieve 
higher-paying jobs. From the year 2000 through 2005, women posted a net 
increase of 1.7 million jobs paying above the median salary, while men 
gained a net increase of just over 220,000 of such positions, according 
to a Bureau of Labor Statistics. The issue of the wage gap, however, 
continues to affect women workers. In 2005, the median weekly pay for 
women was $486, or 73 percent of that for men--$663. And just this 
year, Wimbledon has finally agreed to pay its women tennis champions 
the same amount of prize money as their male counterparts. Last year's 
men's champion received $1.170 million, while the tournament's women's 
winner got $1.117 million.
    Just because women are entering fields with higher pay doesn't mean 
we shouldn't be looking at other professions. And to that end, my 
question is--rather than just encouraging women to get higher-paying 
jobs, which is one part of the equation--shouldn't we also be examining 
professions traditionally held by women such as teaching, nursing, and 
child care so we can learn to value them in the same way we value other 
    Answer 1. Not available.

       Response to Questions of Senator Clinton by Evelyn Murphy 
                          and Jocelyn Samuels

    Question 1. I'd like to direct this question towards Ms. Murphy and 
Ms. Samuels. As you heard, Ms. Brown states ``current law is reliable 
and effectively remedies discriminatory practices,'' and yet each of 
you and your studies show that the wage gap is stagnating and 
discrimination remains prevalent today.
    In fact, in 2003, the GAO 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 percent of what men earned in 
2000. That is, there remains a 20 percent pay gap between women and men 
that cannot be explained or justified.
    And over time, as you note in your statement, Ms. Murphy, this adds 
up. Over the course of a woman's working life she stands to make a 
considerably smaller sum than that of her male counterpart. If she is a 
high school graduate, that sum amounts to $700,000. If she is a college 
graduate, she will lose $1.2 million compared to a man receiving the 
same degree during the same year. And if she earns an MBA, law degree 
or medical degree? She'll lose $2 million.
    And yet, some continue to claim not only that current law is 
adequate, but also that legislation to strengthen what we have on the 
books now--bills like the ``Paycheck Fairness Act'' and the ``Fair Pay 
Act'' are gratuitous. Given what you know about the wage gap, how would 
you respond to those who argue that: (a) current law supplies 
sufficient protection for women and that (b) additional legislation to 
strengthen current law is unnecessary?
    Answer 1. Current law is simply inadequate to make the promise of 
equal pay for equal work a reality. This is so for several reasons, 
some of which I discuss below. First, court interpretations of the 
Equal Pay Act have narrowed its application in ways that make it 
difficult to demonstrate a violation of the law, even in cases where 
wage disparities are in fact based on sex. For example, it is 
insufficient for a plaintiff to show that she is paid less than an 
individual who works at a branch of her company several miles away; she 
must instead find a comparator within her same physical 
``establishment.'' In addition, judicial interpretations of the 
employer's ``factor other than sex'' defense have in some cases 
authorized pay disparities based on the very types of sex 
discrimination the Equal Pay Act was intended to prevent--such as a 
man's higher prior salary or greater bargaining power, which can 
themselves be the product of underlying sex discrimination.
    Second, the Equal Pay Act's remedies and procedures, which were 
enacted before the seminal civil rights acts that began to follow in 
1964, are insufficient to protect women who are subject to wage 
discrimination. For example, unlike those who challenge wage 
disparities based on race or ethnicity, who are entitled to receive 
full compensatory and punitive damages, successful Equal Pay Act 
plaintiffs receive only back pay and, in limited cases, an equal amount 
as liquidated damages. These amounts not only deprive women subjected 
to wage discrimination of full relief; they also substantially limit 
the deterrent effect of the Equal Pay Act.
    Additionally, current law does not address wage disparities 
premised on occupational segregation. In female-dominated fields, wages 
have traditionally been depressed and continue to reflect the 
artificially suppressed pay scales that were historically applied to 
so-called ``women's work.'' But courts have not interpreted the Equal 
Pay Act or Title VII of the Civil Rights Act of 1964 to address this 
chronic problem.
    The Paycheck Fairness Act and the Fair Pay Act would respond, in 
appropriate and targeted ways, to each of these deficiencies in current 
law. Enactment of these bills is critical if the promise of equal pay 
for equal work is to become a reality.

    Question 2. Ms. Samuels, I'd like to call on your legal expertise 
to address some of Ms. Brown's concerns expressed in her testimony 
regarding the ``Paycheck Fairness Act.''
    Ms. Brown claims that by not requiring a court to find intentional 
discrimination before liability is imposed under the Equal Pay Act, 
employers are left ``legally defenseless.'' In fact, Brown claims this 
provision would make it ``virtually impossible for an employer to prove 
the legitimacy of its compensation decisions.'' Is that true?
    Answer 2. The claim that it is ``virtually impossible for an 
employer to prove the legitimacy of its compensation decisions'' in a 
lawsuit brought under the Equal Pay Act is incorrect. Under the Equal 
Pay Act, a plaintiff bears the initial burden of establishing that she 
is being paid less than a man who is performing equal work in the same 
establishment. Courts have imposed a heavy burden on plaintiffs trying 
to make this showing. Once a plaintiff meets this burden, moreover, an 
employer may avoid liability by proving that the wage disparity is 
justified by one of four affirmative defenses--that is, that the 
employer 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.''
    These defenses hardly leave the employer unable to justify its 
compensation decisions. In fact, the ``factor other than sex'' defense 
has been interpreted by some courts in ways that seriously undermine 
the principles underlying the Equal Pay Act and allow employers to 
justify decisions that are, in fact, based on sex. Some courts have, 
for example, accepted a ``market forces'' defense to pay 
discrimination; others have allowed employers to pay men more on the 
grounds that higher pay was necessary to attract a male candidate away 
from his prior employer. These cases fail 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.
    These cases also convert what Congress intended to be an 
affirmative defense for an employer--a defense that demands that the 
employer prove that its failure to pay equal wages for equal work is 
based on a legitimate reason divorced from sex discrimination--into a 
requirement merely that an employer articulate some ostensibly 
nondiscriminatory basis for its decisionmaking. The Paycheck Fairness 
Act would correct this problem by requiring an employer to show that a 
pay differential is truly caused by something other than sex and is 
related to job performance. It would in no way prevent an employer from 
justifying legitimate pay decisions; it would simply ensure that the 
``factor other than sex'' defense could not be used to mask decisions 
that in fact rest on discriminatory rationales.

       Response to Questions of Senator Clinton by Evelyn Murphy

    Question 1. I'd like to direct this question towards Dr. Murphy and 
Ms. Samuels. As you heard, Ms. Brown states ``current law is reliable 
and effectively remedies discriminatory practices,'' and yet each of 
you and your studies show that the wage gap is stagnating and 
discrimination remains prevalent today.
    And yet, some continue to claim not only that current law is 
adequate, but also that legislation to strengthen what we have on the 
books now--bills like the ``Paycheck Fairness Act'' and the ``Fair Pay 
Act'' are gratuitous. Given what you know about the wage gap, how would 
you respond to those who argue that: (a) current law supplies 
sufficient protection for women and that (b) additional legislation to 
strengthen current law is unnecessary?
    Answer 1. Senator Clinton, first allow me to thank you for your 
leadership in rekindling American women's quest for pay equity. Through 
your initiative, the hearing on the The Paycheck Fairness Act and the 
Fair Pay Act has refocused public policy discussion away from its 
preoccupation over the last decade with women's qualifications and 
commitment to work toward the conditions working women encounter in the 
workplaces throughout America. That is a much-needed paradigm shift.
    In response to this specific question, Senator Clinton, you are the 
lawyer, I am not. So you understand better than I do the tactics of 
those who claim that current laws sufficiently protect women. They 
shift the burden of proof to those of us who cannot disprove their 
claim without data about what is happening to women at work.
    The Federal Government does not now collect from employers and make 
readily available the essential salary data to disprove this assertion. 
EEO-1 filings by employers provide a starting point in examining 
workplace discrimination. More salary information from employers still 
needs to be collected. The EEOC's track record with protecting the 
privacy of information should assure employers that additional company-
specific salary data can be protected, too.
    Absent that data, let me raise questions to challenge the assertion 
that current laws sufficiently protect women:

    1. If current laws provide sufficient protection then the gender 
wage gap is not about discrimination at work. So why is the gap still 
so large? If the gap were simply about women's qualifications, years of 
experience, commitment to work, etc., that is, the ``merit'' arguments, 
the overall differences in these measures between year-round, full-time 
working men and women have been essentially gone for over a decade. By 
``merit'' reasoning, why isn't the wage gap closer to 5 cents than a 
gaping 20 cents?
    2. In 1999, Professors Alfred and Ruth Blumrosen reported their 
analysis of EEO-1 data about the gender and racial composition of job 
holders (Executive Summary attached). Using very conservative 
methodology, they found a large portion of employers exhibiting de 
facto intentional discrimination. How do those who claim that women are 
sufficiently protected with current laws refute this documentation that 
workplace discrimination exists on a significant scale?
    3. For years, national surveys have reported that working women put 
pay equity as a top concern and legislative priority. In the recent 
WAGE Project survey of over 700 women living and working in every State 
in the Nation and in a wide variety of public, private and nonprofit 
jobs, 7 out of 10 respondents reported a recent 
experience with unfair treatment or pay. (See Executive Report at 
http://www.wageproject.org/content/news/ under National Wage Survey 
Results, Wage Survey of Working Women Highlights, April 24, 2007.) The 
EEOC reports a steady stream of over 23,000 sex discrimination filings 
each year for the last decade. Add to that 10,000 retaliation claims 
filed each year under title VII. Bear in mind that these figures do not 
include the claims of sex discrimination filed with State 
discrimination authorities every year. So, when one looks beyond Census 
and BLS data, which are used to compare workers' characteristics, and 
instead looks at workplace characteristics, there is considerable 
evidence that workplace discrimination in America is widespread. If 
laws provide adequate protection, why do so many women continue to 
claim discrimination? Why don't they feel protected?

    Question 2. Ms. Murphy, thank you for your testimony and for 
sharing so may women's personal experiences with the wage gap. Their 
voice is one that is constantly silenced--be it in the boardroom or on 
the assembly line, and we thank you for representing those voices 
today. After hearing from you and some of our other witnesses, I think 
it's fair to say there is a consensus that: first, the pay gap is not 
improving; second, current law is not covering the problem, or at the 
very least, is not being used effectively; and third, that's why 
Senator Harkin and I have introduced legislation in an attempt to 
address this discrimination.
    Could you discuss how, from your perspective, the ``Paycheck 
Fairness Act'' would help the average female employee who suspects 
discrimination from her employer or, worse, a female employee who has 
learned of discrimination in her workplace?
    Answer 2. I see four significant ways in which the average female 
employee who suspects she has been disadvantaged by discrimination by 
her employer or knows about the existence of discrimination where she 
works could be helped by passage of the Paycheck Fairness Act:

    (a) She would be able to share salary information with co-workers 
in order to validate or disprove her suspicions without fear of 
retaliation; over the last 2 years, I have discussed working conditions 
with literally thousands of women in groups of 20-200. On practically 
every occasion one woman will say she cannot find out whether her 
salary is fair because her employer has threatened her with dismissal 
if she mentions her salary to anyone at work. Such threats are 
commonplace today in America's offices, plants, and worksites. Because 
so many women and their families depend on a woman's paycheck, these 
threats effectively stop women from pursuing even reasoned and 
reasonable questions about unfair pay.
    (b) She would be able to consult the Secretary of Labor's 
guidelines on job categories in order to get an external, objective 
criteria to compare her job with others. The Secretary's guidelines 
would give her a starting point to make sure she is comparing her job 
fairly with another--apple to apple--before she compares her salary 
with that of a comparable job.
    (c) She and her female and male co-workers could urge their 
employer to adopt practices which eliminate pay inequities identified 
through the research and studies authorized by the Secretary of Labor. 
Most importantly, they could urge their employer to adopt the practices 
of the company which wins the prestigious national award. Many women do 
not want to litigate. They know the financial and emotional price they 
would pay. Nonetheless, women do want to change the conditions where 
they work so that they and others are treated fairly and equitably. The 
prescriptive information generated by the Paycheck Fairness Act would 
be a valuable resource to help women change the culture where they 
    (d) Finally, for women who have substantial evidence of 
discrimination and consider litigation, the financial penalties which 
would be available to them if their litigation were successful would 
pressure employers to resolve pay inequities to avoid costly judgments 
or settlements.

    Not only would passage of the Paycheck Fairness Act offer working 
women added protections and support at work, it would signal employers 
and working women alike that Congress intends to pursue its 40-year 
agenda to eliminate discrimination against working women until all 
vestiges of inequity are erased.
    Thank you for this opportunity to respond to questions prompted by 
my testimony at the hearing before the U.S. Senate Committee on Health, 
Education, Labor, and Pensions. If I can be of further assistance, 
please have your staff contact me.


     The Reality of Intentional Job Discrimination in Metropolitan 
                           America--1999 \*\
    \*\ This study was supported by a grant from the Ford Foundation to 
Rutgers University. The views expressed are those of the authors, not 
necessarily those of the Foundation or the University.
        Alfred W. Blumrosen--Thomas A. Cowan Professor of Law, Rutgers 
        Law School, Director, Intentional Discrimination Project, 
        Rutgers Law School
        Ruth G. Blumrosen--Adjunct Professor of Law, Rutgers Law 
        School, General Advisor, Intentional Discrimination Project, 
        Rutgers Law School

                           Executive Summary

    Intentional discrimination was ``the most obvious evil'' that the 
Civil Rights Act of 1964 was designed to prevent. Is intentional 
discrimination still a potent force restricting job opportunities for 
women and minorities? Or, is it what University of California Regent 
Ward Connerly suggested in 1998, ``Black Americans are not hobbled by 
chains any longer. We're free to compete. We're capable of competing. 
It is an absolute insult to suggest that we can't.'' \1\ Which is it: a 
``level playing field,'' or an uphill struggle for women and minorities 
against intentional job discrimination that favors whites/males?
    \1\ Interview on ``60 Minutes'' by Mike Wallace, Aug. 2, 1998, 
transcript, p. 22.
    This question is answered in a 4 year, 1,400 page study of the race 
color and sex of employees in large and mid sized private business 
METROPOLITAN AMERICA--1999, by Rutgers Law School Professor Alfred W. 
Blumrosen and adjunct Professor Ruth G. Blumrosen. Supported by a grant 
from the Ford Foundation to Rutgers University, the study is based on 
employers' annual reports to the Federal Government involving 160,000 
establishments employing 37 million workers. It involved a computer 
analysis of these reports, combined with Supreme Court and 
Congressional rules to identify ``patterns and practices'' of 
intentional job discrimination of the Supreme Court and Congress.
    In 1991, Congress confirmed that intentional discrimination exists 
when ``race, color, religion, sex or national origin was a motivating 
factor for any employment practice, even though other factors also 
motivated the practice.'' \2\ ``Intent to discriminate'' is not the 
equivalent of ``evil motive,'' where a personal wish or desire to 
oppress women or minorities is the only explanation for the harm done. 
If an employer has both a legitimate reason for its practices and also 
a discriminatory reason, it is engaged in intentional discrimination.
    \2\ Sec. 703 (m) of Title VII.
     The study found that intentional job discrimination 
continues on a major scale. Blacks, Hispanics, Asian Pacific workers 
and White Women who have the knowledge, skills, abilities, and 
experience to compete are deprived of that opportunity by intentional 
discrimination between a quarter and a third of the time they seek such 
     In 1999, intentional discrimination affected 2 million 
minority and female workers. It exists in every region of the country, 
in each of nine occupational categories from officials and managers to 
labor and service jobs.
     Seventy five thousand establishments discriminated 
intentionally against 1.3 million minorities; while 60,000 
establishments discriminated intentionally against 952,000 women. 
Despite the persistence of intentional discrimination, the majority of 
establishments did not appear to engage in it. As a result, minorities 
and women have increased their participation in the labor force and in 
their proportion in better paying jobs.
     Forty industries were ``equal opportunity 
discriminators''--discriminating against 75 percent of the Blacks, 
Hispanics, Asian-Pacific workers and White women who were affected. The 
top 10 of these industries were Hospitals, Eating and Drinking Places, 
Department Stores, Grocery Stores, Nursing and Personal Care 
Facilities, Computer and Data Processing Services, Hotels and Motels, 
Telephone Communications, Commercial Banks and Motor Vehicles and 
Equipment Manufacturing.
     Medical, Drug and Health related industries alone 
accounted for 20 percent of Women, Blacks, Hispanics and Asian Pacific 
workers affected by discrimination.
     Ninety percent of the affected workers were subjected to 
discrimination that was so severe that there was only one chance in 100 
that it occurred by accident. That is far more than enough to trigger a 
legal presumption of intentional job discrimination.
     Between one third and one half of this discrimination was 
caused by ``hardcore'' establishments that had been discriminating for 
at least 9 years.

        Response to Questions of Senator Clinton by Philip Cohen

    Question 1. Dr. Cohen, I believe your knowledge of the history of 
gender inequality in this country may lend itself well to this 
question. Most criticism of legislation aimed at strengthening current 
equal pay law is rooted in the belief that such legislation would place 
an undue burden on employers.
    I think it's critical to note, however, that these bills are not 
anti-employer. For example, the Paycheck Fairness Act creates a 
``Secretary of Labor's National Award for Pay Equity in the 
Workplace.'' This bill is not anti-employer. It's anti-discriminatory 
employer--a label I think most, if not all, people in this room would 
adopt. In order to achieve pay equity, we have to reward the good 
actors as often as we seek to remedy practices by bad ones.
    My question to you is whether you agree with this notion. Is their 
sociological research that shows rewarding successful companies might 
in fact have a positive impact on competitors, if by only leading by 
    Answer 1. I cannot site a specific study that confirms this 
prediction. However, there are two reasons to suspect it is true based 
on current research. First, we know that organizations within a field 
compete with each other in many ways. To the extent that the treatment 
of workers and their compensation is visible to those outside an 
organization, more equitable treatment may confer a competitive 
advantage on an employer. This could affect who applies for jobs at the 
organization, or who patronizes it. We know from some studies that 
organizations that hire more female managers have benefited from that 
competitively, and that companies hire more female managers when their 
clients themselves have more women in leadership positions. Second, 
organizations learn from others within their fields, and often copy 
each other's practices in order to increase their legitimacy or to 
appear in compliance with a changing social or legal environment. All 
of this suggests that public recognition of firms dedicated to gender 
equity might lead to more widespread adoption of such practices.

    Question 2. Related to the idea that work-family flexibility ideas 
need to be a part of the solution to the wage gap, this question is for 
anyone on the panel.
    I recently read in Business Week that Best Buy has started an 
endeavor called ROWE--``results-only work environment.'' The ROWE 
concept defies the traditional notion that physical presence at work 
directly results in productivity. Best Buy is now expanding this 
successful experiment to give all employees at its corporate office 100 
percent flexibility and the company plans to roll out the clock-free 
world to its retail stores. Since the program's implementation, Best 
Buy reports that the average voluntary turnover has fallen drastically 
and productivity is up an average 35 percent in departments that have 
switched to ROWE. Of course, all employees, not just women enjoy this 
policy; but surely it helps the mother who is struggling to make it 
home on time for her kids while keeping her job.
    And Best Buy is not alone--Sun Microsystems Inc. calculates that 
it's saved $400 million over 6 years in real estate costs by allowing 
nearly half of all employees to work anywhere they want. At IBM, 40 
percent of the workforce has no official office.
    Can anyone share other stories of corporate efforts to make the 
workplace more flexible not just for their female employees, but for 
everyone? And do you think these sorts of policies can eradicate the 
pay gap?
    Answer 2. Not available.

    [Whereupon, at 3:25 p.m., the hearing was adjourned.]