[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]


                     PAYCHECK FAIRNESS ACT (H.R. 7):
                        EQUAL PAY FOR EQUAL WORK

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

                             JOINT HEARING

                               BEFORE THE

            SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES


                                AND THE

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                                 OF THE

                         COMMITTEE ON EDUCATION
                               AND LABOR
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC, FEBRUARY 13, 2019

                               __________

                            Serial No. 116-4

                               __________

      Printed for the use of the Committee on Education and Labor
      
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                    COMMITTEE ON EDUCATION AND LABOR

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

Susan A. Davis, California           Virginia Foxx, North Carolina,
Raul M. Grijalva, Arizona            Ranking Member
Joe Courtney, Connecticut            David P. Roe, Tennessee
Marcia L. Fudge, Ohio                Glenn Thompson, Pennsylvania
Gregorio Kilili Camacho Sablan,      Tim Walberg, Michigan
  Northern Mariana Islands           Brett Guthrie, Kentucky
Frederica S. Wilson, Florida         Bradley Byrne, Alabama
Suzanne Bonamici, Oregon             Glenn Grothman, Wisconsin
Mark Takano, California              Elise M. Stefanik, New York
Alma S. Adams, North Carolina        Rick W. Allen, Georgia
Mark DeSaulnier, California          Francis Rooney, Florida
Donald Norcross, New Jersey          Lloyd Smucker, Pennsylvania
Pramila Jayapal, Washington          Jim Banks, Indiana
Joseph D. Morelle, New York          Mark Walker, North Carolina
Susan Wild, Pennsylvania             James Comer, Kentucky
Josh Harder, California              Ben Cline, Virginia
Lucy McBath, Georgia                 Russ Fulcher, Idaho
Kim Schrier, Washington              Van Taylor, Texas
Lauren Underwood, Illinois           Steve Watkins, Kansas
Jahana Hayes, Connecticut            Ron Wright, Texas
Donna E. Shalala, Florida            Daniel Meuser, Pennsylvania
Andy Levin, Michigan*                William R. Timmons, IV, South 
Ilhan Omar, Minnesota                    Carolina
David J. Trone, Maryland             Dusty Johnson, South Dakota
Haley M. Stevens, Michigan
Susie Lee, Nevada
Lori Trahan, Massachusetts
Joaquin Castro, Texas
* Vice-Chair

                   Veronique Pluviose, Staff Director
                 Brandon Renz, Minority Staff Director
                                 ------                                

            SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES

                  SUZANNE BONAMICI, OREGON, Chairwoman

Raul M. Grijalva, Arizona            James Comer, Kentucky,
Marcia L. Fudge, Ohio                  Ranking Member
Kim Schrier, Washington              Glenn ``GT'' Thompson, 
Jahana Hayes, Connecticut                Pennsylvania
David Trone, Maryland                Elise M. Stefanik, New York
Susie Lee, Nevada                    Dusty Johnson, South Dakota
                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

               ALMA S. ADAMS, North Carolina, Chairwoman

Mark DeSaulnier, California          Bradley Byrne, Alabama,
Mark Takano, California                Ranking Member
Pramila Jayapal, Washington          Francis Rooney, Florida
Susan Wild, Pennsylvania             Mark Walker, North Carolina
Lucy McBath, Georgia                 Ben Cline, Virginia
Ilhan Omar, Minnesota                Ron Wright, Texas
Haley M. Stevens, Michigan
                           
                           
                           C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on February 13, 2019................................     1

Statement of Members:
    Adams, Hon. Alma S., Chairwoman, Subcommittee on Workforce 
      Protections................................................     5
        Prepared statement of....................................    27
    Bonamici, Hon. Suzanne, Chairwoman, Subcommittee on Civil 
      Rights and Human Services..................................     1
        Prepared statement of....................................     3
    Byrne, Hon. Bradley, Ranking Member, Subcommittee on 
      Workforce Protections......................................    27
        Prepared statement of....................................    28
    Comer, Hon. James, Ranking Member, Subcommittee on Civil 
      Rights and Human Services..................................     4
        Prepared statement of....................................     4

Statement of Witnesses:
    DeLauro, Hon. Rosa L., a Representative in Congress from the 
      State of Connecticut.......................................    30
        Prepared statement of....................................    33
    Holmes Norton, Hon. Eleanor, a Representative in Congress 
      from Washington, DC........................................    41
        Prepared statement of....................................    43
    Beyer, Jr., Hon. Donald S., a Representative in Congress from 
      the State of Virginia......................................    45
        Prepared statement of....................................    47
    Goss Graves, Ms. Fatima, President and CEO, National Women's 
      Law Center.................................................    51
        Prepared statement of....................................    54
    Olson, Ms. Camille, Partner, Seyfarth Shaw LLP...............    80
        Prepared statement of....................................    82
    Rowe-Finkbeiner, Ms. Kristin, CEO/Executive Director, 
      MomsRising.................................................   110
        Prepared statement of....................................   112
    Yang, Ms. Jenny R., Partner, Working Ideal...................   120
        Prepared statement of....................................   122

Additional Submissions:
    Chairwoman Bonamici:
        Letter dated April 14, 2017, the Office of Legal Counsel.   172
        Letter dated February 11, 2019...........................   175
        Letter dated August 29, 2017, from the Office of 
          Information and Regulatory Affairs.....................   182
    Foxx, Hon. Virginia, a Representative in Congress from the 
      State of North Carolina:
        Chart: U.S. Equal Employment Opportunity Commission 
          Charge Statistics (Charges filed with EEOC) FY 1997 
          Through FY2017.........................................   184
        Chart: U.S. Equal Employment Opportunity Commission 
          (EEOC) Litigation Statistics, FY 1997 Through FY 2017..   185
    Questions submitted for the record by:
        Chairwoman Adams 



        Chairwoman Bonamici 



        Scott, Hon. Robert C. ``Bobby'', a Representative in 
          Congress from the State of Virginia....................   192
    Responses to questions submitted for the record by:
        Ms. Gross Graves.........................................   193
        Ms. Kristin Rowe-Finkbeiner..............................   199
        Ms. Yang.................................................   205

 
        PAYCHECK FAIRNESS ACT (H.R. 7): EQUAL PAY FOR EQUAL WORK

                              ----------                              


                      Wednesday, February 13, 2019

                        House of Representatives

                   Committee on Education and Labor,

            Subcommittee on Civil Rights and Human Services

                               Joint with

                 Subcommittee on Workforce Protections

                            Washington, DC.

                              ----------                              

    The subcommittees met, pursuant to notice, at 10:23 a.m., 
in room 2175, Rayburn House Office Building. Hon. Suzanne 
Bonamici [chairwoman of the Subcommittee on Civil Rights and 
Human Services] presiding.
    Present: Representatives Bonamici, Adams, Takano, 
DeSaulnier, Jayapal, Wild, McBath, Schrier, Hayes, Omar, Trone, 
Stevens, Lee, Comer, Byrne, Thompson, Stefanik, Walker, Wright, 
and Johnson.
    Also present: Representatives Shalala, Underwood, Scott, 
and Foxx.
    Staff present: Tylease Alli, Chief Clerk; Nekea Brown, 
Deputy Clerk; Ilana Brunner, General Counsel; David Dailey, 
Senior Counsel; Carrie Hughes, Director of Health and Human 
Services; Eli Hovland, Staff Assistant; Eunice Ikene, Labor 
Policy Advisor; Stephanie Lalle, Deputy Communications 
Director; Andre Lindsay, Staff Assistant; Richard Miller, 
Director of Labor Policy; Max Moore, Office Aide; Udochi 
Onwubiko, Labor Policy Counsel; Veronique Pluviose, Staff 
Director; Carolyn Ronis, Civil Rights Counsel; Banyon Vassar, 
Deputy Director of Information Technology; Katelyn Walker, 
Counsel; Cyrus Artz, Minority Parliamentarian, Marty Boughton, 
Minority Press Secretary; Courtney Butcher, Minority Coalitions 
and Member Services Coordinator; Rob Green, Minority Director 
of Workforce Policy; John Martin, Minority Workforce Policy 
Counsel; Sarah Martin, Minority Professional Staff Member; 
Hannah Matesic, Minority Legislative Operations Manager; Kelley 
McNabb, Minority Communications Director; Brandon Renz, 
Minority Staff Director; Ben Ridder, Minority Legislative 
Assistant; Meredith Schellin, Minority Deputy Press Secretary 
and Digital Advisor; and Heather Wadyka, Minority Staff 
Assistant.
    Chairwoman BONAMICI. The joint subcommittees on Civil 
Rights and Human Services and Workforce Protections come to 
order. Welcome, everyone. I note that a quorum is present. I 
ask unanimous consent that Ms. Underwood of Illinois and Ms. 
Shalala of Florida be permitted to participate in today's 
hearing with the understanding that their questions will come 
only after members of the Civil Rights and Human Services and 
Workforce Protections Subcommittees on both sides of the aisle 
who are present have had an opportunity to question the 
witnesses. Seeing no objection.
    The subcommittees are meeting today in a legislative 
hearing to hear testimony on H.R. 7, the Paycheck Fairness Act. 
Pursuant to committee rule 7C opening Statements are limited to 
the chairs and ranking members. I recognize myself now for the 
purpose of making an opening Statement.
    In 1963, President Kennedy signed the Equal Pay Act and our 
country enshrined into law a fundamental concept. Equal pay for 
equal work, regardless of sex. Because of this landmark law, 
Title VII of the Civil Rights Act of 1964, and more recently, 
the Lilly Ledbetter Fair Pay Act, we have made tremendous 
progress in reducing inequities for women in the workplace.
    Unfortunately, loopholes and insufficient enforcement have 
allowed wage discrimination to persist. The Equal Pay Act has 
been law for more than half a century, but in 2019 equal pay 
for equal work is not always a reality.
    Today, women earn, on average, 80 cents on the dollar 
compared to white men in substantially equal jobs. The wage gap 
is even worse for women of color. For example, black women earn 
an average of 61 cents on the dollar, native women earn an 
average of 58 cents on the dollar, and Latina women earn an 
average of 53 cents on the dollar compared to white men in 
substantially equal jobs.
    The wage gap persists in nearly every line of work, 
regardless of education, experience, occupation, industry, or 
job title. This has severe consequences for the lives of 
working women and families and for our economy.
    The lack of easily accessible data on wages makes 
discrimination difficult to detect, let alone prevent. Even 
when wage discrimination is discovered, working women still 
face significant barriers to meet the heavy burden of proof for 
holding employers accountable for discrimination.
    Not only is it difficult to prove a pay disparity between 
employees, identifying an employee of the opposite sex in an 
equal position who is paid more in the exact same physical 
location can be impossible in many situations. This is even 
more challenging when information about wages and pay raises is 
often kept secret, and in many cases, even barred from being 
shared between coworkers.
    The roadblocks to enforcing pay equity help explain why pay 
inequity still exists for women, even with the Equal Pay Act. 
Several States have acted to address pay inequities, including 
bipartisan efforts in my own home State of Oregon, but it is 
time for Congress to address persistent wage discrimination 
nationwide.
    Today's legislative hearing will focus on H.R. 7, the 
Paycheck Fairness Act, a proposal to confront and eliminate 
loopholes that allow for gender-based wage discrimination.
    The Paycheck Fairness Act would require employers to prove 
that a pay disparity exists for legitimate reasons. It would 
ban retaliation against workers who discuss their wages and 
allow more workers to participate in class action lawsuits 
against systemic pay discrimination.
    It would prohibit employers from seeking the salary history 
of prospective employees, which despite ongoing legal disputes, 
is in line with existing precedent. The bill would also develop 
wage data collection systems and provide assistance to 
businesses to improve equal pay practices.
    With this legislation we have the opportunity to disrupt a 
national cycle of discriminatory pay that keeps too many women 
and families in poverty. And we have the opportunity to finally 
make equal pay for equal work a reality by passing the Paycheck 
Fairness Act.
    Thank you, and I now recognize the distinguished Ranking 
Member of the Civil Rights and Human Services Committee, Mr. 
Comer, for the purpose of making an opening statement.
    [The information referred to follows:]

 Prepared Statement of Hon. Suzanne Bonamici, Chairwoman, Subcommittee 
                   on Civil Rights and Human Services

    In 1963, President Kennedy signed the Equal Pay Act and our country 
enshrined into law a fundamental concept: ``equal pay for equal work, 
regardless of sex.'' Because of this landmark law, Title VII of the 
Civil Rights Act of 1964, and more recently, the Lilly Ledbetter Fair 
Pay Act, we have made tremendous progress in reducing inequities for 
women in the workplace.
    Unfortunately, loopholes and insufficient enforcement have allowed 
wage discrimination to persist. The Equal Pay Act has been law for more 
than a half century, but in 2019 equal pay for equal work is not always 
a reality.
    Today, women earn, on average, 80 cents on the dollar compared to 
white men in substantially equal jobs. The wage gap is even worse for 
women of color. For example, Black women earn an average of 61 cents on 
the dollar, Native women earn an average of 58 cents on the dollar, and
    Latina women earn an average of 53 cents on the dollar compared to 
white men in substantially equal jobs. The wage gap persists in nearly 
every line of work, regardless of education, experience, occupation, 
industry, or job title. This has severe consequences for the lives of 
working women and families and for our economy.
    The lack of easily accessible data on wages makes discrimination 
difficult to detect, let alone prevent. Even when wage discrimination 
is discovered, working women still face significant barriers to meet 
the heavy burden of proof for holding employers accountable for 
discrimination. Not only is it difficult to prove a pay disparity 
between employees, identifying an employee of the opposite sex in an 
equal position who is paid more in the exact same physical location can 
be impossible in many situations. This is even more challenging when 
information about wages and pay raises is often kept secret, and in 
many cases, even barred from being shared between coworkers.
    The roadblocks to enforcing pay equity help explain why pay 
inequity still exists for women even with the Equal Pay Act. Several 
States have acted to address pay inequities, including bipartisan 
efforts in my home State of Oregon, but it is time for Congress to 
address persistent wage discrimination nationwide. Today's legislative 
hearing will focus on H.R. 7, the Paycheck Fairness Act, a proposal to 
confront and eliminate loopholes that allow for gender-based wage 
discrimination.
    The Paycheck Fairness Act would require employers to prove that a 
pay disparity exists for legitimate reasons. It would ban retaliation 
against workers who discuss their wages and allow more workers to 
participate in class action lawsuits against systemic pay 
discrimination. It would prohibit employers from seeking the salary 
history of prospective employees, which despite ongoing legal disputes, 
is in line with existing precedent. The bill would also develop wage 
data collection systems and provide assistance to businesses to improve 
equal pay practices.
    With this legislation we have the opportunity to disrupt a national 
cycle of discriminatory pay that keeps too many women and families in 
poverty. And we have the opportunity to finally make equal pay for 
equal work a reality by passing the Paycheck Fairness Act.
    Thank you and I now yield to the Ranking Member, Mr. Comer.
                                 ______
                                 
    Mr. COMER. Thank you, Madame Chair. Women deserve equal pay 
for equal work. In 1963, Congress amended the Fair Labor 
Standards Act with the Equal Pay Act, making it illegal to pay 
different wages to employees of the opposite sex for equal 
work.
    The following year, Congress approved the Civil Rights Act 
of 1964 which made it illegal for employers to discriminate 
based on race, color, national origin, religion, and sex. These 
laws marked a seismic shift in the United States as we affirmed 
as a nation that discrimination cannot have a place in America. 
We learned the hard way that change this significant cannot and 
does not happen overnight. But the fact remains that while some 
bad bosses may have blurred the lines over the past several 
decades when it comes to fairness, the law has not been on 
their side.
    Economic studies conducted by government and private 
entities alike have consistently demonstrated that women tend 
to make better choices about managing work life demands than 
men. If employees of different sexes are going to do the same 
work, they are entitled to the same pay.
    The American work force is comprised of more women than 
ever before, 74.9 million women. Of the 2.8 million jobs 
created in the past year, more than 58 percent have been filled 
by women. The number of women-owned employer firms continues to 
rise and census data shows that women own about one in five 
employer businesses nationwide.
    This contribution to the American work force is profound 
and it must be celebrated. All women deserve fairness and 
dignity as they seek greater options and opportunities in their 
respective careers.
    Republicans are committed to that future and we will 
continue to focus on strengthening economic policies that 
affirm the bedrock principle of equal pay for equal work. 
Unfortunately, the legislation which is the focus of today's 
hearing has many shortcomings in this regard and does not help 
the people its authors want you to think it does.
    I look forward to the dialog with our witnesses today and, 
Madame Chair, I yield back.
    [The information referred to follows:]

Prepared Statement of Hon. James Comer, Ranking Member, Subcommittee on 
                    Civil Rights and Human Services

    Women deserve equal pay for equal work. In 1963, Congress amended 
the Fair
    Labor Standards Act with the Equal Pay Act, making it illegal to 
pay different wages to employees of the opposite sex for equal work. 
The following year, Congress approved the Civil Rights Act of 1964, 
which made it illegal for employers to discriminate based on race, 
color, national origin, religion, and sex.
    These laws marked a seismic shift in the United States as we 
affirmed as a nation that discrimination cannot have a place in 
America. We learned the hard way that change this significant cannot 
and does not happen overnight. But the fact remains that while some bad 
bosses may have blurred the lines over the past several decades when it 
comes to fairness, the law has not been on their side.
    Economic studies conducted by government and private entities alike 
have consistently demonstrated that women tend to make better choices 
about managing work-life demands than men. If employees of different 
sexes are doing the same work, they are entitled to the same pay.
    The American work force is comprised of more women than ever before 
74.9 million women. Of the 2.8 million jobs created in the past year, 
more than 58 percent have been filled by women. The number of women-
owned employer firms continues to rise, and Census data shows that 
women own about 1 in 5 employer businesses nationwide.
    This contribution to the American workforce is profound, and it 
must be celebrated. All women deserve fairness and dignity as they seek 
greater options and opportunities in their respective careers.
    Republicans are committed to that future, and we will continue to 
focus on strengthening economic policies that affirm the bedrock 
principle of equal pay for equal work. Unfortunately, the legislation 
which is the focus of today's hearing has many shortcomings in this 
regard and does not help the people its authors want you to think it 
does. I look forward to the dialog with our witnesses today.
                                 ______
                                 
    Chairwoman BONAMICI. Thank you, Mr. Comer. And I now 
recognize the distinguished chairwoman of the Workforce 
Protections Subcommittee, Ms. Adams, for the purpose of making 
an opening statement.
    Ms. ADAMS. Thank you very much and good morning. I want to 
share my appreciation to Chairwoman Bonamici, Ranking Members 
Byrne and Comer, and to all of the witnesses who have joined us 
here today for this important discussion. Thank you all for 
being here.
    It takes the average woman an additional 91 days, three 
additional months, to earn what her male peers earned in 2018 
and that is unacceptable.
    From the North Carolina House to the U.S. House, for 3 
decades I have been fighting to close gender and gender-based 
wage gaps. Today, I guess I feel a little bit like Fannie Lou 
Hamer. Sick and tired of being sick and tired of the ongoing 
inequality.
    Fifty-six years have passed since we signed the Equal Pay 
Act into law and it has been 10 years since President Obama 
signed into law the Lilly Ledbetter Fair Pay Act. But today in 
my district in North Carolina, women still only make about 82 
cents for every dollar a man makes. And nationally, the 
statistic is even worse, 80 cents for every dollar.
    Women of color are even less likely to make as much as a 
man working the same job. Black women earn only 63 cents for 
every dollar a man makes.
    When women are shortchanged our children, our families, our 
economy, all shortchanged. In fact, it shortchanges us about 
$500 billion dollars a year.
    And that is why as the new chair of the Subcommittee on 
Workforce Protections, I am proud to host the subcommittee's 
first hearing on addressing persistent gender-based wage 
discrimination through the Paycheck Fairness Act. Because we 
can no longer wait while every day women across the Nation are 
deprived of equal wages for equal work. Time is up for that.
    The Paycheck Fairness Act is an opportunity for Congress to 
strengthen the Equal Pay Act, bolster the rights of working 
women, and put an end to gender-based wage disparity once and 
for all. It is the right thing to do because it is right. It is 
always right to do what is right.
    And so at this time, I ask unanimous consent to introduce 
for the record four letters all in support of the Paycheck 
Fairness Act. One from the National Partnership for Women and 
Families, one from the American Bar Association, one from the 
American Association of University Women, and the other from 
the National Women's Law Center.
    I look forward to our discussion today--without objection, 
Madame Chair, I am sorry. And I look forward to our discussion 
today and yield to Ranking Member, Mr. Byrne, for the purpose 
of making an opening statement.
    [The information referred to follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
 Prepared Statement of Hon. Alma S. Adams, Chairwoman, Subcommittee on 
                         Workforce Protections

    Good morning. I want to share my appreciation to Chairwoman 
Bonamici, Ranking Members Byrne and Comer, and to the witnesses who 
have joined us here today for this important discussion.
    Thank you for being here today.
    It takes the average woman an additional 91 days--three additional 
months--to earn what her male peers earned in 2018.
    That is unacceptable.
    From the North Carolina House to the U.S. House, for 3 decades, I 
have been fighting to close gender and gender-based wage gaps.
    Today, I feel like Fannie Lou Hamer Sick and tired of being sick 
and tired of this ongoing inequality.
    Fifty-six years have passed since we signed the Equal Pay Act into 
law.
    And it's been 10 years since President Obama signed into law the 
Lilly Ledbetter Fair Pay Act.
    But today in my District in North Carolina, women still only make 
about 82 cents for every dollar a man makes.
    And nationally, that statistic is even worse 80 cents for every 
dollar.
    Women of color are even less likely to make as much as a man 
working the same job.
    Black women earn only 63 cents for every dollar a man makes.
    When women are shortchanged our children, families and our economy 
are shortchanged.
    In fact, it shortchanges us 500 billion dollars annually.
    That's why, as the new chair of the Subcommittee on Workforce 
Protections, I am proud to co-host the subcommittee's first hearing on 
addressing persistent gender-based wage discrimination through the 
Paycheck Fairness Act.
    We can no longer wait while, every day, women across the Nation are 
deprived of equal wages for equal work.
    Time's up for that.
    The Paycheck Fairness Act is an opportunity for Congress to 
strengthen the Equal Pay Act, bolster the rights of working women, and 
put an end to gender-based wage disparity once and for all.
    It's the right thing to do because it's right!
    At this time, I ask unanimous consent to introduce for the record 
four letters all in support of the Paycheck Fairness Act.
    One from the National Partnership for Women & Families, one from 
the American Bar Association, one from the American Association of 
University Women, and one from the National Women's Law Center.
    I look forward to our discussion today and yield to the Ranking 
Member, Mr. Byrne.
                                 ______
                                 
    Chairwoman BONAMICI. Thank you, Madame Chairwoman. I now 
recognize the distinguished Ranking Member of the Workforce 
Protections Subcommittee, Mr. Byrne for the purpose of making 
an opening Statement.
    Mr. BYRNE. Thank you, Madame Chairman. Women deserve equal 
pay for equal work. Congress affirmed this value with the Equal 
Pay Act of 1963, which made it illegal to pay different wages 
to employees of the opposite sex for equal work.
    Everyone in this room must continue to uphold and defend 
this important principle but the legislation under discussion 
today, the so-called Paycheck Fairness Act is the wrong 
approach to ensure that current equal pay protections are 
fortified. It may come as a surprise to some that the Paycheck 
Fairness act offers no new protections against pay 
discrimination.
    Let me repeat that. The legislation under discussion today 
offers no new protections against pay discrimination. Instead, 
H.R. 7 imposes a one-size-fits-all mandate for one of the most 
varied and complex work forces in the world.
    Rather than allowing for informed discussion, the Paycheck 
Fairness Act strictly limits communication between employers 
and employees on key hiring decisions. Under this bill, the 
burdens laid on the backs of employers and the lack of clarity 
for employees are simply unworkable.
    The Paycheck Fairness Act is not designed to protect women. 
It is a false promise that rates opportunities and advantages 
for lawyers and not for working women. Instead of treating sex 
discrimination charges with the seriousness they deserve, the 
Paycheck Fairness Act will make it easier for lawyers to pursue 
lawsuits of questionable validity for the purpose of syphoning 
off unlimited pay days from settlements and jury awards, lining 
their own pockets and dragging women through tedious, never 
ending legal dramas.
    Now I know my fair share of lawyers, having previously 
practiced law myself. Many of them are great men and women 
working on behalf of their clients but many of them are also 
all about the bottom line. And let me tell you, the Paycheck 
Fairness Act would be a cash cow for lawyers working on a 
contingency fee basis, some of whom get 40 percent or more of 
the award.
    The changes to the Equal Pay Act in H.R. 7 will also make 
it extraordinarily difficult, if not impossible, for employers 
to defend against pay discrimination suits even when pay 
differences are the results of legitimate factors like 
experience, education, and performance.
    There remain bad actors in the world that engage in pay 
discrimination. It is repugnant and it is illegal and those bad 
actors must be held accountable. But if we open the gates to 
limitless, frivolous lawsuits, we do a disservice to genuine 
victims seeking justice against offending employers. The best 
way we can create opportunities for all American workers, 
especially working women, is through strong economic policy. We 
know women are reaping the benefits of the present strong 
economy. More than half the jobs created in the last year have 
gone to women. Those women and the next generation of women in 
the work force deserve more than empty promises and deceptively 
named bills. And I yield back.
    [The information referred to follows:]

Prepared Statement of Hon. Bradley Byrne, Ranking Member, Subcommittee 
                        on Workforce Protections

    Women deserve equal pay for equal work. Congress affirmed this 
value with the Equal Pay Act of 1963, which made it illegal to pay 
different wages to employees of the opposite sex for equal work. 
Everyone in this room must continue to uphold and defend this important 
principle, but the legislation under discussion today, the so--called 
Paycheck Fairness Act, is the wrong approach to ensure that current 
equal pay protections are fortified.
    It may come as a surprise to some that the Paycheck Fairness Act 
offers no new protections against pay discrimination. Let me repeat 
that: the legislation under discussion today offers no new protections 
against pay discrimination.
    Instead, H.R. 7 imposes a ``one-size-fits-all'' mandate to one of 
the most varied and complex work forces in the world. Rather than 
allowing for informed discussions, the
    Paycheck Fairness Act strictly limits communication between 
employers and employees on key hiring decisions. Under this bill, the 
burdens laid on the backs of employers and the lack of clarity for 
employees are simply unworkable.
    The Paycheck Fairness Act is not designed to protect women it is a 
false promise that creates opportunities and advantages for lawyers not 
for working women.
    Instead of treating sex discrimination charges with the seriousness 
they deserve, the Paycheck Fairness Act will make it easier for lawyers 
to pursue lawsuits of questionable validity for the purpose of 
siphoning off unlimited paydays from settlements and jury awards, 
lining their own pockets and dragging women through tedious, never-
ending legal dramas.
    Now, I know my fair share of lawyers, having previously practiced 
law myself. Many of them are great men and women working on behalf of 
their clients. But many of them are also all about the bottom line. And 
let me tell you, the Paycheck Fairness Act would be a cash cow for 
lawyers working on a contingency fee basis, some of whom get 40 percent 
or more of the award.
    The changes to the Equal Pay Act in H.R. 7 will also make it 
extraordinarily difficult, if not impossible, for employers to defend 
against pay discrimination suits, even when pay differences are the 
result of legitimate factors like experience, education, and 
performance.
    There remain bad actors in the world that engage in pay 
discrimination. It's repugnant and illegal, and those bad actors must 
be held accountable. But if we open the gates to limitless frivolous 
lawsuits, we do a disservice to genuine victims seeking justice against 
offending employers.
    The best way we can create opportunities for all American workers, 
especially working women, is through strong economic policy. We know 
women are reaping the benefits of this strong economy. More than half 
the jobs created in the last year have gone to women. Those women and 
the next generation of women in the workforce deserve more than empty 
promises and deceptively named bills.
                                 ______
                                 
    Chairwoman BONAMICI. Thank you, Mr. Byrne. Without 
objection, all other members who wish to insert written 
Statements into the record may do so by submitting them to the 
committee clerk electronically in Microsoft work format by 5 
p.m. on February 26, 2019. I will now introduce the witnesses 
for our member panel.
    Mr. BYRNE. Madame Chairwoman?
    Chairwoman BONAMICI. Yes, Mr. Byrne.
    Mr. BYRNE. I have a parliamentary inquiry.
    Chairwoman BONAMICI. The gentleman from Alabama will State 
his parliamentary inquiry.
    Mr. BYRNE. Madame Chairwoman, while I appreciate the 
purpose of this member panel and certainly the distinguished 
members on it, I would like to point out that under the 
Democrat majority just last week at the Judiciary Committee, a 
colleague from our side of the aisle, Mr. Scalise, was denied 
the opportunity to testify before that committee despite having 
direct experience perspective on the topic being discussed.
    So again, while I am always willing to listen to my 
colleagues, I think it is a bit of a double standard by the 
majority to deny a member the right to testify where they 
disagree what that member only allow--only to allow other 
members to testify when they happen to agree with them.
    Can the Chairwoman explain why under the parliamentary 
customs of the house, members of the majority are being allowed 
to speak today but members of the minority were not allowed to 
speak last week at the Judiciary Committee?
    Chairwoman BONAMICI. I cannot speak to what transpired in 
the judiciary committee. I can only speak to what transpired in 
the process of planning for this hearing. The majority and 
minority staff exchanged witness names on February 10, 3 days 
ago. Minority staff never requested or even expressed interest 
in having a minority member testify. If they had we would have 
granted that request.
    I will now move to introductions of the witnesses on our 
member panel. Representative Rosa DeLauro is the author of H.R. 
7, the Paycheck Fairness Act. She represents Connecticut's 3d 
congressional District. She has long fought for America's 
working women and families. Representative DeLauro has led the 
effort in Congress to ensure equal pay for equal work, all 
employees' access to paid sick days and all workers access to 
paid family and medical leave.
    Representative Eleanor Holmes Norton is in her 15th term as 
the Congresswoman for the District of Columbia. Before her 
congressional service, President Jimmy Carter appointed her to 
serve as the first woman to chair the U.S. Equal Employment 
Opportunity Commission. In Congress, she has been a civil 
rights and feminist leader.
    Congressman Don Beyer is serving his third term as the U.S. 
representative from Virginia's 8th district. He was the 
lieutenant Governor for Virginia from 1990 to 1998 and was 
Ambassador to Switzerland and Liechtenstein under President 
Obama. Representative Beyer has spent four decades building his 
family business in northern Virginia.
    Briefly some instructions to our witnesses which you 
probably already know. For the record, we appreciate all of the 
witnesses being here today and look forward to your testimony. 
Let me remind the witnesses that we have read your written 
Statements. They will appear in full in the hearing record. 
Pursuant to committee rule 7d and committee practice, each of 
you is asked to limit your oral presentation to a 5 minute 
summary of your written Statement.
    Before you begin your testimony, please remember to press 
the button on the microphone in front of you so it will turn on 
and we can hear you. As you begin to speak, the light in front 
of you will turn green. After 4 minutes, the light will turn 
yellow to signal you have 1 minute remaining. When the lights 
turn red your 5 minutes have expired.
    I will first recognize Representative DeLauro.

STATEMENT OF THE HONORABLE ROSA L. DELAURO, MEMBER OF CONGRESS, 
                 U.S. HOUSE OF REPRESENTATIVES

    Ms. DELAURO. Thank you very much, Madame Chair. I am so 
pleased to be here this morning and to be with my colleagues, 
Congresswoman Eleanor Holmes Norton and Congressman Beyer. I 
want to say a thank you to Chairman Bobby Scott, as well as 
Subcommittee Chair on Civil Rights and Human Services, Suzanne 
Bonamici, and Subcommittee Chair on Workforce Protections, Alma 
Adams.
    Let me recognize the Ranking Member of the full committee, 
Virginia Foxx, as well subcommittee Ranking Members James 
Comer, Bradley Byrne, and all of the members of the committee 
for welcoming us here this morning.
    I might just anecdotally tell you that it was some 12 years 
ago, in April 2007, where Congresswoman Norton and myself 
testified before the Education and Labor subcommittee on this 
topic of paycheck fairness. Also to tell you that we twice 
passed the Paycheck Fairness Bill in the House of 
Representatives in 2008 and 2009. And we are now here again and 
we anticipate that we will be able to once again pass the 
Paycheck Fairness Bill in the House of Representatives.
    For more than two decades, we have pushed, we have battled 
to strengthen the Equal Pay Act of 1963. We launched side by 
side into the fray to elevate paid discrimination to emphasize 
how central its impact is to working families.
    I cannot tell you how difficult it has been to break 
through on something so simple. Men and women in the same job 
deserve the same pay. Now the issue and the environment have 
collided. The House of Representatives just welcomed a diverse 
class in its history, the most diverse class including the most 
female members ever and equal pay is at the center of the 
discourse.
    The Paycheck Fairness Act would toughen remedies in the 
Equal Pay Act of 1963 giving America's working women the 
opportunity to fight against wage discrimination, receive the 
paycheck that they should have earned.
    Whether through Equal Pay Act or Title VII, current law 
makes it difficult for women to proceed with equal pay cases 
even if a case proceeds and women are awarded a legal victory, 
the damages are often insubstantial, providing women with 
little compensation and employers with little deterrent from 
practicing future wage discrimination.
    Some claim the wage gap is a myth. Women continue to earn 
20 percent less than men, on average, according to census data. 
Women of color, African American women 61 cents. Latinas make 
only 53 cents on the dollar when compared to white, non-
Hispanic men.
    We need to recognize the lack of pay equity translates into 
less income toward calculating pension, retirement, and in some 
cases Social Security.
    The fact is that 60 years after President Eisenhower called 
for equal legislation and more than 55 years after President 
Kennedy signed the Equal Pay Act, pay discrimination is still 
very much a reality in our country. In 2017, there were 25,605 
charges of unlawful, sex-based pay discrimination with the U.S. 
Equal Employment Opportunity Commission and 99--996 Equal Pay 
Act charges.
    Of course, by now, we are all familiar with the case of 
Lilly
    Ledbetter and the Supreme Court decision that closed the 
court room door to all women. But we reopened that door with 
the Lilly Ledbetter Fair Pay Act but the underlying issue, of 
pay
    Discrimination remains. It is systemic. It is 
discriminatory. It is a barrier. And just as our country has 
done to bring down other discriminatory barriers, we must see--
use the collective power of the American people, in the form of 
the U.S. Congress, to ensure women have the power to gain 
economic security for themselves and their families.
    Under the Paycheck Fairness Act, any employee can sue for 
compensatory and punitive damages without facing the arbitrary 
caps they face under Title V--under Title VII.
    It protects employees from retaliation for sharing salary 
information with their co-workers, with some exemptions. It 
establishes a grant initiative to provide negotiation skills 
training programs for girls and women.
    What it does not do. It does not eliminate key employer 
defenses against claims of discrimination. It makes clear that 
when an employer states that its pay scale is informed by a 
``factor other than sex,'' that it must actually be true, not 
just an excuse to continue discriminatory practices.
    H.R. 7 merely restores Congress's intent, which has been 
undermined by court interpretations over the years allowing 
employers to escape liability in cases in which their decisions 
were, in fact, based on sex.
    I thank the Committee for this opportunity to testify and 
for addressing this critical issue. When President Kennedy 
signed the Equal Pay Act over 55 years ago, he said and let me 
quote, ``Add to our laws another structure basic to democracy 
and affirm our determination that when women enter the labor 
force they will find equality in their pay envelope.'' We have 
the opportunity to make good on that promise that presidents of 
both parties have made. Let us seize that opportunity.
    I thank the Chair and I thank the committee for allowing me 
to speak this morning.
    [The statement of Ms. DeLauro follows:]
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    Chairwoman BONAMICI. Thank you very much, Representative 
DeLauro. I now recognize Representative Eleanor Holmes Norton.

  STATEMENT OF THE HONORABLE ELEANOR HOLMES NORTON, MEMBER OF 
            CONGRESS, U.S. HOUSE OF REPRESENTATIVES

    Ms. HOLMES NORTON. Thank you chairwoman Chair Bonamici, 
Chairwoman Adams, Ranking Member Comer, Ranking Member Byrne. I 
appreciate the opportunity to testify on H.R. 7. I will try to 
summarize my testimony.
    I especially welcome H.R. 7 as it bears on my own work when 
I chaired the EEOC and moved jurisdiction of the Equal Pay Act 
under a reorganization under President Carter from the Labor 
Department to the EEOC so that like statutes could be more 
easily enforced under the same agency.
    The Equal Pay Act was the first of the great Civil Rights 
Acts. And we are way overdue in bringing it up to date and 
strengthening it as the DeLauro bill does. It--we--this bill 
makes it easier for complainants to participate in a class 
challenging pay discrimination.
    Now pay discrimination should--class members should once a 
complainant files should include all who probably make the same 
or relatively the same amounts of money. That would be a more 
efficient way to enforce the Equal Pay Act. I appreciate that 
it improves Labor Department's ability to enforce the EPA 
through the Office of Federal Contract Compliance.
    I particularly appreciate that my good friend, this--the 
champion of this bill, Representative DeLauro has included my 
Pay Equity Act for all in H.R. 7.
    This act does something that I think most of us don't even, 
may not even recognize to be discrimination. Some of us may do 
it ourselves. That is to ask an applicant for his or her 
employment history. Even though many employers may not intend 
to discriminate, the effect almost surely is to discriminate 
when you consider where women are and often people of color are 
in the workplace.
    Evidence shows that the historically disadvantaged groups 
often start out with unfair and artificially low wages, 
compared with their white male counterparts. Imagine how this 
discrimination then is compounded from job to job since you 
can't build on the salary you should have made because you 
didn't make the salary you were entitled to in the first place.
    Job offers should be based on an applicant's skill, merit, 
not on salary history. This bill, my own bill would allow the 
assessment of penalties against employers who ask salary and 
act on salary as a way of considering salary and hiring. We 
know what is true because of the verified as studies.
    To cite one, a recent study showed that when employers were 
not allowed to ask the salary history the employee earned 9 
percent more than when the employer was allowed to ask that 
history. I believe this is one of the major reasons for the 
stubborn gap that we have not been able to move much between 
the wages of men and women.
    The H.R. 7 would also direct the EEOC to collect data on 
salaries based on a number of criteria including sex. What? We 
didn't know until now what the difference was based on sex 
because we didn't have the data? Everything I did at EEOC 
depended on the data, most often with class actions where 
having the data you can bring actions that involve large 
numbers of people once there is a remedy.
    The fact that we have not had the relevant data on sex may 
be one reason why women and minorities have made more progress 
in getting jobs than in equal pay once they have those jobs.
    I very much appreciate the priority, Madame Chair, that you 
have given to this long overdue bill.
    [The statement of Ms. Holmes Norton follows:]
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    Chairwoman BONAMICI. Thank you very much for your 
testimony, Representative. I now recognize Representative Don 
Beyer from Virginia.

  STATEMENT OF THE HONORABLE DONALD S. BEYER, JR., MEMBER OF 
            CONGRESS, U.S. HOUSE OF REPRESENTATIVES

    Mr. BEYER. Thank you Chairman Bonamici, Chairman Adams, 
Ranking Member Comer, Ranking Member Byrne. Thank you very much 
for inviting me to participate in this important discussion on 
equal pay for equal work.
    We know when women succeed, America succeeds. Women are 
running in unprecedented numbers, they are marching in 
unprecedented numbers, and they are winning in unprecedented 
numbers, with I think 131 women now in Congress.
    And I am incredibly grateful to play a supportive role in 
this effort that Rosa DeLauro and Eleanor Holmes Norton have 
been pursuing for decades.
    My priority is women's empowerment and the elevation of 
women's voices and concerns. We have made progress. The Lily 
Ledbetter Fair Pay Act, the Survivors' Bill of Rights Act, but 
there is still much more to do because persistent pay gaps 
exist in the U.S. work force that correlate specifically with 
sex, race, and ethnicity.
    Unequal pay for unequal work--for equal work exists over a 
spectrum of jobs, regardless of educational level, regardless 
of geographic location. Economists have found that 62 percent 
of the wage gap can be explained by three factors. Experience, 
industry, and occupation, but the remaining 38 percent cannot 
be explained by such differences.
    Although Federal law specifically prohibits compensating 
men and women differently for the same work, the law must be 
strengthened. The effective enrollment of this mandate is 
impeded by a lack of sufficiently robust and reliable data on 
compensation, including data by sex and race.
    Just this weekend, we spent time with our middle daughter 
who is a senior front end web designer manager. She likes to 
emphasize that last word. And so she is a woman who codes. And 
she had just discovered to her dismay that her male 
counterparts were making money for doing exactly the same job. 
It is this lack of data that acts as a barrier to closing the 
persistent pay gap for women and people of color.
    As a business owner and an employer, I understand the value 
of data because the aphorism is you can't manage what you don't 
measure. We like to think we are driven by data. Data exposes 
trends in hiring, paying and promoting employees, which can 
inform the appropriate interventions. Data can reveal sex in 
racially segregated jobs, or a lack of women or people of color 
in upper management, and disparate salaries, benefits, or 
bonuses.
    Literally it can arm businesses with the information that 
they need to remedy unjustified pay gaps. It can wake many of 
us up who are leading businesses to understand what is 
happening within our own work force and it can provide a lens 
to examine the intersectionality of issues that can contribute 
to wage gaps.
    Since the enactment of the Civil Rights Act in 1964, the 
EEOC has been empowered to collect employment data to identify 
these discriminatory employment patterns based on race, gender, 
and national origin. And for over 50 years, companies have used 
the EEO-1 form to report this important demographic data.
    So as we look to ensure true paycheck fairness, it is only 
natural that we ask the EEOC to improve upon its system of data 
collection and help with wage data to identify wage 
disparities. Only then will businesses have the tools to better 
identify, correct, and eliminate illegal wage disparities.
    You know, in business we are constantly thinking about how 
we can innovate, provide a better product, keep or create an 
ever better culture. Guaranteeing that men and women receive 
equal pay for equal work is a principle rooted in our Nation's 
commitment to equality and fairness.
    The Paycheck Fairness Act has been introduced in every 
Congress since the 105th. The time has come to pass this 
legislation. Today is an important day for us to move forward 
together, for us to make that difference we all know is needed 
for us to break through for change.
    Thank you Madame Chair, I yield back.
    [The statement of Mr. Beyer follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairwoman BONAMICI. Thank you very much Congresswoman 
DeLauro, Congresswoman Holmes Norton and Congressman Beyer. As 
we transition to the next panel, which we will do immediately, 
I want to remind my colleagues that pursuant to committee 
practice materials for submission for the hearing record must 
be submitted to the committee clerk within 14 days following 
the last day of the hearing, preferably in Microsoft Word 
format. The materially submitted must address the subject 
matter of the haring. Only a member of the committee or an 
invited witness may submit materials for inclusion in the 
hearing record.
    Documents are limited to 50 pages each. Documents longer 
than 50 pages will be incorporated into the record via an 
internet link that you must provide to the committee clerk 
within the required timeframe. Please recognize that years from 
now the link might no longer work.
    Again I want to thank the witnesses for their participation 
today. What we have learned is very valuable. We will now seat 
the second panel. Thank you for joining us. I will now 
introduce our witnesses for the second panel.
    Ms. Fatima Goss Graves is the President and CEO of the 
National Women's Law center. Ms. Goss Graves has served in 
numerous roles at the National Women's Law Center for more than 
a decade and has a distinguished track record of working across 
a broad set of issues central to women's live including income 
security, health and reproductive rights, education, access and 
workplace justice.
    Ms. Camille Olson is a partner at the law firm Seyfarth 
Shaw LLP. Since 2013, Ms. Olson has served as chairperson of 
the United States Chamber of Commerce's Equal Employment 
Opportunity, EEO, Subcommittee. She has represented companies 
nationwide in all areas of litigation.
    I am pleased to recognize my colleague Ms. Pramila Jayapal 
to briefly introduce Ms. Kristin Rowe-Finkbeiner.
    Ms. JAYAPAL. Thank you so much, Madame Chair, for this 
opportunity. It is my great honor to introduce Kristin Rowe-
Finkbeiner who is the Executive Director and CEO and the 
cofounder of Moms Rising who is joining me or joining us from 
my home State of Washington.
    We are so proud of the work that Moms Rising has done not 
just in Washington State but around the country. Kristin has 
been deeply involved in grassroots engagement and policy 
analysis for more than 2 decades and Moms Rising now has over 1 
million members and works to increase family economic security, 
to decrease discrimination against women and mothers and to 
build a nation where businesses and families can thrive.
    Thank you so much for joining us and we are--you continue 
to make us proud in Washington.
    Chairwoman BONAMICI. Thank you Rep Jayapal. Now I want to 
introduce Ms. Jenny Yang. She served as the Chair of the U.S. 
Equal Employment Opportunity Commission or EEOC from 2014 to 
2017 and as a member of the commission from 2013 to 2018. She 
is currently a partner with Working Ideal which advises 
employers on building inclusive work places, recruiting diverse 
talent and ensuring fair pay. She is also a fellow at the Urban 
Institute where she examines the impact of changing workplace 
structures on low wage workers. Prior to her time at the 
Commission she spent 15 years litigating equal pay and other 
discrimination cases on behalf of employees.
    We appreciate all the witnesses for being here today. We 
look forward to your testimony. Let me remind the witnesses 
that we have read your written Statements and they will appear 
in full in the hearing record.
    Pursuant to committee rule 7D and committee practice, each 
of you is asked to limit your oral presentation to a 5 minute 
summary of your written Statement. Let me remind the witnesses 
that pursuant to Title 18 of the U.S. Code, Section 1011--1001 
it is illegal to knowingly and willfully falsify any Statement, 
representation, writing, document or material fact presented to 
Congress or otherwise conceal or cover up a material fact.
    Before you begin your testimony, please remember to press 
the button on the microphone in front of you so it can turn on 
and all members can hear you and as you begin to speak, the 
light in front of you will turn green. After 4 minutes the 
light will turn yellow to signal that you have 1 minute 
remaining. When the light turns red, your 5 minutes have 
expired and we ask that you wrap up.
    We will let the entire panel make their presentations 
before we move to member questions. When answering a question 
also please remember to turn on your microphone. I will first 
recognize Ms. Goss Graves for your testimony.

 STATEMENT OF FATIMA GOSS GRAVES, PRESIDENT AND CEO, NATIONAL 
                       WOMEN'S LAW CENTER

    Ms. GOSS GRAVES. Thank you, Chair Bonamici, Chair Adams, 
Ranking Member Comer, Ranking Member Byrne, Chair Scott and 
Ranking Member Foxx, and all the members of the committee. 
Thank you for the opportunity to submit testimony today. I am 
Fatima Goss Graves, President and CEO of the National Women's 
Law center.
    It has been a decade since Congress passed the Lilly 
Ledbetter Fair Pay Act and in that time, the push for equal pay 
across this country has only increased. And Congress 
unfortunately has failed to keep up.
    States and cities have responded accordingly by attempting 
to fill the gaps in Federal law. Since 2016, 6 States have 
prohibited employers from relying on prior salary history, 
information from job candidates in order to set their new 
salaries. Three have tightened legal loopholes that allow 
employers to justify paying women less for equal work.
    And because pay discrimination is so often cloaked in 
secrecy and seldom obvious to the person who is actually 
directly affected, States and localities across this country 
have taken measures in recent years to bring pay practices into 
the light through pay data reporting requirements and laws 
protecting employees' rights to talk about how much they make 
with each other.
    In fact, 18 States and the District of Colombia have 
enacted provisions to stop employers from retaliating against 
employees who discuss their own pay with each other. Corporate 
leaders have also recognized that equal pay just makes business 
sense. More than 100 major companies took the White House Equal 
Pay Pledge and companies from Excentra to Gap to Raytheon and 
many more have followed through by instituting measures to 
identify and close pay gaps.
    And the push for equal pay doesn't stop at the U.S. borders 
with United Kingdom being one of the companies that has 
recently found that public and private employers in the UK, its 
250 employers or more are more required to annually publish the 
difference between the average pay of their male and their 
female employees. This new requirement has already prompted 
companies to outline action plans for how they are going to 
reduce their and address their pay gaps.
    But in the face of this giant cultural shift that has added 
new urgency to calls for equal pay around this country, 
Congress still has failed to act. And it is not enough for some 
States to pass laws or for some employers to do the right thing 
or for global corporations to fill indirect pressure because of 
laws in other countries are stronger.
    Every woman in this country, especially the black women and 
Latinas and native women who experience the most yawning pay 
gaps deserves robust, baseline, equal pay protections in a 
Federal law that actually work. So we are talking about a 
gender wage gap that has not dramatically changed over the last 
decade and that follows women into retirement.
    It is a gap that means Latinas lose over the course of a 40 
years career over $1 million compared to white non-Hispanic 
men. That is really life changing money. And it is the sort of 
money that has the potential to transform opportunities for 
individuals and for families and for communities.
    So you will hear from some skeptics that the wage gap is 
just about women's choices or that it is impossible to actually 
abandon practices that have meant again and again that women 
make less over time or that more than 50 years after the Equal 
Pay Act was passed there is no need to update our kind of 
ineffective laws but I just believe that we can do better.
    It is time to match the seriousness of the women in this 
country who are calling for change. The Paycheck Fairness Act 
is a part of a response to this urgent call to shift the ways 
of doing business that have persistently devalued women's work.
    The bill promotes pay transparency by borrowing retaliation 
against workers who voluntarily discuss or disclose their own 
wages and requires employees to report paid data to the EEOC. 
It prohibits employers from relying on salary history to set 
pay when hiring new employees so that pay discrimination 
doesn't follow women and people of color from job to job and 
employers are paying based on the job not based on the fact 
that women and people of color tend to generally make less. And 
it closes loopholes that have allowed employers to pay women 
less than men for the same work without a legitimate business 
justification related to the job. And it ensures women can 
receive the same robust remedies for sex based pay 
discrimination that are currently available to those who are 
subjected to race and ethnicity discrimination under other 
laws.
    So by updating our equal pay laws to reflect our reality 
today, the Equal Pay Act could be the sort of statute that 
would really advance equity and dignity for women at work. So 
thank you for the opportunity to testify today. As you said my 
full testimony is in--will be submitted for the record and I 
look forward to any questions.
    [The statement of Ms. Goss Graves follows:]
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    Chairwoman BONAMICI. Thank you for your testimony. I now 
recognize Ms. Olson for your testimony.

     STATEMENT OF CAMILLE OLSON, PARTNER, SEYFARTH SHAW LLP

    Ms. OLSON. Good morning Subcommittee members. As an 
employment attorney at Seyfarth Shaw, I work with companies 
nationwide analyzing compensation practices to ensure that pay 
differences between employees performing equal work are job 
related. I have also litigated nationwide numerous cases 
analyzing and alleging violations of Title VII, the Equal Pay 
Act, and State equal pay laws.
    My written testimony describes opportunities to strengthen 
the Equal Pay Act. It also details a number of significant 
concerns that I have with H.R. 7. I would like to share three 
of those opportunities and those concerns with you today. H.R. 
7 presumes that the reported wage gap and all employee current 
pay rates result from employer discrimination and rewrites 
existing legal requirements, remedies and class action 
procedures contained in the Equal Pay Act. Specifically, H.R. 7 
effectively eliminates the factor other than sex defense, 
prohibits an employer from seeking or relying on an applicant's 
current pay when extending a job offer, and imposes unlimited 
compensatory and punitive damages while inserting a more 
attorney-friendly class action device among other amendments 
described in my written testimony. First, H.R. 7 de facto 
eliminates the factor other than sex defense. Under the Equal 
Pay Act, most courts currently require the employer prove that 
any pay difference is job-related. If the employer cannot do 
so, the plaintiff prevails. A plaintiff is not required to make 
any showing of discriminatory intent under the Equal Pay Act.
    Under H.R. 7, an employer would be required to prove with 
respect to every pay differential between employees not only 
that the reason was job-related but also that it paid one 
employee more because it was a business necessity, that the 
business necessity necessarily covered 100 percent of the pay 
difference, and that business necessity was not derived by a 
sex-based differential in compensation.
    And even if an employer does that, it still loses if years 
later a plaintiff's attorney identifies an alternative 
employment practice that would have served the same purpose 
without a wage difference.
    But what if the alternative offered in litigation is less 
efficient, more costly, or an unproven alternative on a time-
sensitive project that needs--needed immediate staffing? Is the 
employer's proven business necessity now rejected? Under H.R. 
7, the answer is yes.
    Similarly, H.R. 7 requires employers to ignore an 
employee's competitive job offer unless it can prove that the 
higher competitive wage offer is not the result of historical 
wage discrimination by the other employer. This is an 
impossible burden and it would require the employer to prove 
the other employers wage rate was not set discriminatorily.
    Second, under H.R. 7, employers must ignore an applicant's 
current pay when making an offer. If it doesn't, it is a per se 
violation of Federal law. Few applicants leave their current 
job for a lesser paying job and current pay provides valuable 
information regarding a candidate's actual experience, 
performance or expertise.
    The EEOC's compensation manual describes justifiable 
reasons for considering an applicant's prior salary. H.R. 7 
keeps both sides in the dark about the expectations that each 
party has regarding pay to--at the job at issue.
    Third, H.R. 7's expansion of available damages and class 
actions under the Equal Pay Act is unwarranted. H.R. 7's 
unlimited compensatory and punitive damages far exceed remedies 
available under Title VII and are in addition to the 
significant penalties that already exist.
    In addition, the changes to the class action methodology 
would significantly expand the class size because employees 
would be required to opt out of the--to opt in--to opt out of 
the class as opposed to opt in.
    Despite these Stated concerns, there are opportunities to 
improve the Equal Pay Act. For example, adding language that 
expressly States that pay differences between workers 
performing the same work must be based on job-related measures 
providing employees with an express protection within the Equal 
Pay Act against relation and finally providing employers what 
incentives to engage in voluntary, self-critical compensation 
analyses that encourage self-evaluation to eliminate any 
unjustified pay discrepancies without the need for litigation.
    In summary, H.R. 7 is based on false premises and is 
unworkable as a practical and legal matter.
    Subcommittee members, thank you for the opportunity to 
share some of these concerns and opportunities with you today.
    [The statement of Ms. Olson follows:]
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    Chairwoman BONAMICI. Thank you for your testimony. I next 
recognize Ms. Rowe-Finkbeiner for your testimony.

 STATEMENT OF KRISTIN ROWE-FINKBEINER, CEO/EXECUTIVE DIRECTOR, 
                          MOMS RISING

    Ms. ROWE-FINKBEINER. Thank you Chairs Bonamici and Adams 
and thank you also--
    Chairwoman BONAMICI. Please press your microphone button.
    Ms. ROWE-FINKBEINER. Oops, sorry. Thank you to Chairs 
Bonamici and Adams and thank you also to Ranking Members Comer 
and Byrne for the opportunity to speak today. At Moms Rising, 
an organization with over a million members including members 
in every state in the Nation, we regularly hear from women who 
are experiencing unfair pay, who fear retaliation in the 
workplaces and therefore cannot speak up. And who need the 
protection the Paycheck Fairness Act would provide including 
freedom from retaliation, making it easier to come together to 
collectively challenge pay discrimination and end to the use of 
prior salary histories to set current salaries and the 
additional protections provided that would move us closer to 
pay parity.
    Stories like this one from Laura. Laura and her husband met 
at Columbia University and graduated with the same degree. They 
both got jobs at the same agency in the exact same position. 
However, she was paid $5,000 less than he was. When Laura asked 
the agency about the discrepancy, she was told to accept the 
pay or they would give the job to someone else. Laura is not 
alone.
    More women are graduating from college than men right now 
but after only 1 year in the labor force, women are making less 
money. Unfair pay and the fear of losing wages you depend on in 
retaliation for speaking out is much too common. That is why 
not only directly prohibiting retaliation but also making it 
easier to come together to collectively challenge pay 
discrimination is vitally important.
    Let me tell you too about Felicia. Felicia experienced 
blatant wage discrimination while working at a technical 
support center for a large retail corporation. Felicia was 
hired to work the exact same job as her brother in law and 
discovered she was being paid about $4 less an hour to do the 
same work. She went on to find out that all the male employees 
were also making more in the same job and as it turned out, the 
women were making less.
    Felicia is not alone either. And her experience 
demonstrates why preventing retaliation against employees who 
discuss their wages with other employees is critical. As well 
as why prior earning history should never be used to set 
current earning rates because that compounds unfair pay over 
time, takes money out of women pockets and out of our economy 
and significantly increases poverty.
    But this isn't just about Laura or Felicia. This is about 
the women of America, our families, our economy and our 
children's future. It is time. Our county has changed but our 
public policies haven't kept up. Women became half of the paid 
labor force for the first time in the last decade. Three 
quarters of moms are now in the labor force, more than half of 
whom are the primary bread winner. Yet women are experiencing 
unfair pay every day with moms and women of color experiencing 
the highest levels of wage and hiring discrimination.
    Keep in mind, that a full 81 percent of women become 
mothers which means this double wage hit and sometimes triple 
wage hit if you're a mother of color, is impacting the vast 
majority of women in our Nation.
    Take Valerie, a mom who discovered her male coworker who 
was hired on the same day with the same title was being paid 
substantially more even though she had more duties and 
responsibilities. Valerie went to the owner to request equal 
pay. She was told because her coworker was married and male he 
needed a higher income. Valerie pointed out that since he was 
married and had a wife also working outside the home he 
actually had two incomes while she only had one. Her boss was 
cordial but adamant. She had no choice but to live with it. The 
sad truth is that right now dads are getting wage boosts and 
moms are getting pay cuts.
    The other sad truth is that being a mom is now a greater 
predictor of wage and hiring discrimination than being a woman. 
Our country which claims to love, adore, and respect motherhood 
pays women with children just 71 cents to every dollar it pays 
dads. And moms of color as well as single moms and moms in low 
wage work experience increased wage hits on top of that. 
Subconscious, negative assumptions are hurting women, children, 
businesses and our economy. This is an urgent matter.
    Wage hiring and advancement discrimination is happening 
every day despite numerous studies showing businesses tend to 
make higher profits with women in leadership and that better 
decisions are made with diverse decisionmakers.
    For instance, a study of all Fortune 500 companies found 
higher levels of women in leadership correlated with higher 
profits.
    It's time to stop treating women unfairly in the United 
States of America. It's time for women to be able to join 
together, to be able to share information and to demand that 
current pay not be set by past pay without fear of retaliation. 
It's time to pass the Paycheck Fairness Act. Thank you.
    [The statement of Ms. Rowe-Finkbeiner follows:]
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    Chairwoman BONAMICI. Thank you for your testimony. I now 
recognize Ms. Yang for your testimony.

        STATEMENT OF JENNY YANG, PARTNER, WORKING IDEAL

    Ms. YANG. Members of the committee, thank you for the 
opportunity to testify today. For over 50 years, pay 
discrimination has been illegal but our existing laws have not 
lived up to their promise. The Paycheck Fairness Act provides a 
balanced, workable and much needed approach to better combat 
pay discrimination.
    While my testimony today is informed by my experience at 
the EEOC and litigating cases on behalf of workers, it is also 
informed by my experience at Working Ideal where we advise 
employers on building inclusive workplaces, recruiting diverse 
talent and ensuring fair pay. And while I'm a Fellow with the 
Urban Institute, examining the changing workplace, my views 
here today are my own and should not be attributed to these 
organizations, their boards or funders.
    To illustrate some of the challenges workers face under 
existing law, I would like to share one case that has stuck 
with me from my time at the EEOC. Margaret Thibodaux Woody was 
an adjunct professor who Houston Community College hired for 
one of two open faculty positions. The man hired for the second 
position had the same degree, from the same university and 
similar work experience.
    Initially the college offered them both the same starting 
salary. When Margaret tried to negotiate she was told she could 
not. Yet the male candidate was permitted to negotiate a salary 
$10,000 higher. When Margaret learned of this and approached 
human resources, she was told nothing could be done. Indeed, 
her supervisor urged her to rely on her husband's salary for 
additional income.
    In addition, Margaret alleged she faced retaliation, 
receiving a lower performance evaluation and unfair discipline. 
The District Court dismissed her case and the EEOC filed a 
friend of the court brief in support of her appeal. Although 
the 5th Circuit rejected Margaret's retaliation claim, it 
reinStated her pay claim. This was 6 years after she began work 
at the college.
    Unfortunately, experiences like Margaret's are all too 
common. Her fight for equal pay highlights three broad themes 
that underscore the need for the Paycheck Fairness Act.
    First, the lack of clarity in existing law has created 
unjustifiable barrier for workers.
    Second, a culture of pay secrecy hides the problem.
    And third, employers need greater incentives to evaluate 
their pay practices.
    First, courts have interpreted the Equal Pay Act in ways 
that have made it extraordinarily difficult for employees. The 
EPA provides employers with a defense where disparities are 
based on a factor other than sex. This has become an expansive 
catch all under which some courts have allowed employers to 
rely on arbitrary and often discriminatory considerations.
    The Paycheck Fairness Act would make clear that an employer 
must rely on a reason that actually relates to the job as a 
business necessity. In addition, the Act would prohibit 
employees from relying on prior salary to set pay.
    As we saw with Margaret's experience, if a new employer 
were to rely on her prior college salary which was $10,000 less 
than a man performing the same job, that new employer would 
carry forward past discrimination. The Paycheck Fairness Act 
also takes an important step to clarify when workers can 
compare jobs within any establishment.
    Some courts have interrupted this provision of the Equal 
Pay Act in a manner that is out of step with the realities of 
today's work place by limiting comparisons to a single brick 
and mortar facility. The Paycheck Fairness Act ensures that 
employees can challenge discrimination that extends to at least 
the county or similar subdivision when they perform equal work 
at different locations.
    Second, the culture of secrecy has surrounded pay which has 
kept employees from learning about pay disparities. The Act 
addresses this in two ways. Although existing law provides 
limited protections for workers who discuss pay, the Paycheck 
Fairness Act would provide a coherent set of rules to protect 
employees from retaliation.
    The Act also directs EEOC to collect pay from employers. 
During my tenure as chair, the agency moved forward to collect 
summary pay data, a vital tool to better identify 
discrimination and strengthen enforcement. The current 
administration abruptly halted this data collection. Reporting 
pay data provides a catalyst for employers to review their pay 
practices and make necessary corrections.
    Finally, the Paycheck Fairness Act provides much needed 
incentives for compliance.
    In closing, to ensure that the promise of equal pay becomes 
a reality, our laws must change. Thank you.
    [The statement of Ms. Yang follows:]
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    Chairwoman BONAMICI. Thank you for your testimony. Now we 
are going to move to member questions and under committee rule 
8A, we will be under the 5 minute rule. As chair I will go 
first followed by the ranking member of the Civil Rights and 
Human Services Committee, Mr. Comer and then the chair of the 
Workforce Protections Committee, Ms. Adams and the ranking 
member of the Workforce Protections Subcommittee, Mr. Byrne and 
then the chair of the full committee, Mr. Scott. And then we 
will move to members.
    I now recognize myself for 5 minutes for the purpose of 
questioning the witnesses.
    Ms. GOSS GRAVES. in your testimony you discussed data that 
demonstrates pay discrimination as a significant cause of the 
gender wage gap for women, especially women of color. And you 
mentioned that women with caregiving responsibilities face 
persistent discrimination in the work place resulting in lower 
wages. Yet pay discrimination remains difficult to detect. 
Provisions in the Paycheck Fairness Act would require the EEOC 
and the Department of Labor to collect information from 
employers on compensation disaggregated by sex, race, and 
nationality. How would these provisions help detect 
discrimination and how would detecting this discrimination 
affect the lives of working families?
    Ms. GOSS GRAVES. So we basically have two problems. One is 
a transparency problem because workers who are experiencing pay 
discrimination very rarely know that is the case. And we also 
don't have the right incentives in place.
    And so the idea is if an employer is collecting and then 
reporting that data to the EEOC, the first thing that it's 
going to do is going to look to make sure that if there are 
problems it's going to address it. It is unlikely that it is 
going to hand over to the EEOC data that reflects that--the 
ongoing case of discrimination. So it gives them a chance and 
an opportunity to do the right thing first.
    But it also gives the EEOC the opportunity to have more 
effective enforcement which is especially important because of 
the high rates of retaliation that come to people who try to 
exercise their rights whether it is around pay discrimination 
or any other form of discrimination.
    Chairwoman BONAMICI. Thank you. Ms. Yang, in your testimony 
you discussed the reporting burden on workers facing pay 
discrimination which combined with the lack of sufficient 
remedies leads to under reporting. You also mentioned when you 
were at the EEOC you worked on updating the guidance on 
retaliation. In what ways are the Equal Pay Act, Title VII of 
the Civil Rights Act and the National Labor Relations Act 
insufficient to provide workers with the rights and tools they 
need and how would the Paycheck Fairness Act help address 
systemic pay discrimination and provide relief to workers 
affected?
    Ms. YANG. Thank you for that question. Currently, under 
Federal law, there is a limited protections for employees who 
discuss pay. Under the Title VII anti-retaliation provision, 
that discussion needs to be considered protected activity 
opposing or participating in an investigation.
    The Paycheck Fairness Act provides one consistent and 
coherent standard that everyone can understand. So workers will 
not be afraid to share information that is vitally needed to 
identify pay discrimination.
    Chairwoman BONAMICI. Thank you. And this is a question for 
both Ms. Goss Graves and Ms. Yang. In her testimony, Ms. Olson 
cites a District Court decision in the Chamber of Commerce for 
Greater Philadelphia v. City of Philadelphia case as evidence 
that prohibiting employers from asking workers about salary 
history is an unconstitutional impairment of fair speech, 
excuse me, free speech.
    Ms. Goss Graves and Ms. Yang, do you know the status of 
this case and in your opinion after having worked in this field 
for a long time, was the case correctly decided and does the 
prohibition on asking about salary history prior to an offer of 
employment in the Paycheck Fairness Act raise constitutional 
concerns?
    Ms. GOSS GRAVES. I don't think that the Paycheck Fairness 
Act raises conditional concerns. First, that District Court 
decision itself said that relying on salary history, having a 
provision that says you can't rely on salary history itself 
doesn't raise constitutional concerns.
    I have to say that case is right now on appeal and I think 
the district court got the second part of it wrong where they 
said it did raise constitutional concerns to ask, to prohibit 
people from asking about salary information. This is sort of a 
common thing in Federal law where the underlying provision, you 
know, say the ADA, where the underlying provision is that you 
can't discriminate based on disability, you also can't go 
around asking people if you are disabled.
    And the reason is so that people can when they are making 
those employment decisions be really clear that they're not 
actually back door violating the law as well.
    Chairwoman BONAMICI. Ms. Yang, do you agree with that 
analogy?
    Ms. YANG. I agree with that and it is quite common under 
many of our Federal laws to have prohibitions for asking about 
certain information, such as our Disability and Genetic 
Nondiscrimination Acts which explicitly prohibit certain pre-
employment inquiries.
    Chairwoman BONAMICI. Terrific. And I did want to followup 
on the rest of my question to Ms. Goss Graves about how the 
Paycheck Fairness Act would affect especially families. I am 
about to run out of time so I am going to ask you, I know some 
of it is in your written testimony to perhaps followup on that 
at another opportunity.
    I would like to request unanimous consent to enter into the 
record a letter from a coalition of many stakeholders 
highlighting the importance of passing the Paycheck Fairness 
Act to address pay discrimination.
    And because I want to be a good role model and stick to my 
time, I am going to yield back and recognize Ranking Member 
Comer for 5 minutes for the purpose of questioning the 
witnesses.
    Mr. COMER. Thank you, Madame Chair. Ms. Olson, thank you 
for your testimony. As you have noted, private-sector 
businesses do not have rigid pay scales like the Federal 
Government has for civil servants. And most businesses today do 
not have hundreds of jobs that are exactly the same as a 
factory may have had 100 years ago or even 50 years ago.
    Based on your experience advising businesses on 
compensation issues, would the provisions relating to business 
necessity in H.R. 7 be workable and effective in today's 
vibrant and changing economy? And can you provide examples to 
support your view?
    Chairwoman BONAMICI. Please turn on your microphone.
    Ms. OLSON. Thank you very much for your question. The 
concept of business necessity as applied in H.R. 7 is 
unworkable and it is an impossibly high standard to meet. It 
says basically that a job-related or business-related factor 
has to be judged against if you didn't do it, what? There is no 
specific definition here. But what?
    If you didn't do that, if you didn't pay the worker more, 
would the business continue without the employee being hired? 
Without the employee being retained? The fact that there are so 
many different variables that are job-related and support 
differences in qualifications and experience in production, in 
contributions and also in the ability to retain employees who 
may get competitive offers from others requires employers to be 
able to respond to those to motivate, to retain, to reward 
employees.
    And to do so with respect to factors that are job-related, 
which is what the majority of courts say and what the statute 
really requires based on the statutory construction of the way 
it is drafted is a standard that is workable and does not allow 
pay discrimination to be inserted. But instead, if an employer 
is required to say I have got to prove it is a business 
necessity not just related to the job, how do I do that? And 
even if I do that, I've got to explain that business necessity 
covers 100 percent of any difference.
    And if in litigation later, a plaintiff's lawyer said well, 
did you consider this particular example of another way that 
you could have done it? For example, raising the pay of all 
employees, if that was financially feasible. Is that an example 
that an employer then would have to face a jury with in 
connection with that issue? What will it really leave employers 
doing? Really not making distinctions. Employees lose. 
Employees with different, with better, with higher 
qualifications that relate to the job they're performing aren't 
going to be rewarded for those things.
    Mr. COMER. Ms. Olson, I noted H.R. 7's mandate that 
businesses provide employee pay data to the EEOC. Among other 
concerns, I have little confidence in the Federal Government's 
ability to keep this data confidential and I worry that workers 
privacy would be breached.
    Do you share these concerns? Can you also comment on how 
large a burden it would be for employers to submit hiring, 
termination, and promotion data in addition to pay data, all 
disaggregated by sex, race, and national origin. Is this 
provision necessary and practical or do the bill's sponsors 
have other motivations in mind?
    Ms. OLSON. I can't really speak to the motivations on these 
particular issues but what I can speak to is what burden it 
would be and the lack of the benefit and the concerns I have 
with respect to the confidentiality.
    With respect to the issue of burden, employers don't 
collect today. There is no Federal law or record keeping 
requirement that they collect information regarding the 
national origin of employees. So this is an entirely new 
obligation based on a law related to sex discrimination and I 
didn't see any directives that relate to the issues of 
including national origin and race-related to this issue.
    In addition, employers don't collect in a digitized or well 
documented way necessarily the promotions in their systems that 
relate to pay differences. So that would be a complete review 
and trying to reorder and restructure the way their own record 
keeping is done. And unless an employer is a Federal 
contractor, they're not required to keep information regarding 
terminations. So those are all new record keeping requirements 
that at this point have no limits in H.R. 7 and there are no 
descriptions of the privacy or confidentiality protections that 
would be applied.
    And let me just mention, H.R. 7 describes generally that 
the data collected will be disaggregated data. Does that mean 
by employee? Or does that mean by group? We don't know from 
H.R. 7. And I would just tell you that the privacy and 
confidentiality concerns if in fact it is by employee are even 
more significant.
    Mr. COMER. Thank you. Madame Chair, I yield back.
    Chairwoman BONAMICI. Thank you. I now recognize Chairwoman 
Adams, the chair of the Workforce Protections Subcommittee for 
5 minutes for the purpose of questioning the witnesses.
    Ms. ADAMS. Thank you, Chairwoman Bonamici, and thank you 
all of your testimony. Ms. Yang, in your testimony you stated 
that reliance on salary history and setting starting pay also 
runs the risk of perpetuating past discrimination that occurred 
in previous jobs. Can you expound on this a little bit?
    Ms. YANG. Yes. Thank you. That's a very important question, 
Congresswoman. The problem that we have seen is that 
historically where employers rely on past salary they can be 
carrying forward past discrimination as in the situation of 
Margaret's that I shared with you before. It can be in fact 
both discriminatory as well as arbitrary what prior employers 
may pay individuals.
    For example, if in a particular field, women tend to work 
in the public interest, social sector and they are moving into 
the private sector, women would be at a lower salary in a 
previous job. In fact, they may have had more experience 
because they had a lower budget and were actually doing more. 
But, in moving to that new private sector job, a man coming 
from private sector may be paid more even though they are 
performing the same work of an equal skill and responsibility. 
So that's what this Paycheck Fairness Act provision really is 
intended to root out.
    Ms. ADAMS. Thank you. Ms. Olson agreed with the district 
court's decision in the Philadelphia case that banning an 
employer from asking about salary history is unconstitutional. 
However, Ms. Olson disagreed with the court's decision that 
employers should be prohibited from relying on pay history when 
determining pay. Once asked, you know, how can one be sure that 
an employer isn't relying on salary history when determining 
salary? Ms. Yang?
    Ms. YANG. Well, the employer with the Paycheck Fairness 
Act, the employer would not be permitted to ask for that 
information or utilize that information. And there are many 
more ways for employers to set starting pay that is actually 
based on the work being performed and that is the ultimate goal 
of the Equal Pay Act and the Paycheck Fairness Act.
    And that, the starting salary is where we see the most 
significant disparities that get perpetuated through time so 
that is a very important part to make sure employers are really 
carefully checking assumptions, stereotypes that may be in 
their process and ensuring that it is truly job related.
    Ms. ADAMS. Thank you. Ms. Goss Graves, the Paycheck 
Fairness Act clarifies that if an employer justifies pay 
disparity based on a factor other than sex, such defense must 
be based on a bonafide job related factor such as education, 
training or experience that is consistent with a business 
necessity. Can you give us examples of how this business 
defense has historically been applied in ways that perpetuate 
gender based wage discrimination?
    Ms. GOSS GRAVES. So what has happened in some of the cases 
is that some courts have allowed employers to have vague 
references to the market to point to the fact that the guy was 
a better negotiator so that's why--or perceived as a better 
negotiator so that's why they paid them more. Or relying on the 
fact that the woman made less in the past to sort of salary 
match, to match that past salary and saying that's why we are 
paying them more. You know, those sorts of justifications or 
any old reason as long as they're not saying sex, you know, so 
it has become this giant loophole in the law.
    And so what the Paycheck Fairness Act would really do is 
ask two different questions. So, you know, one is the reason 
that you're offering actually related to the job? Are you 
pointing to something to pay them more that actually is not 
related to the job? And then second, is it something that you 
actually need to do or is there some alternatives that would 
work better?
    So perhaps you had been salary matching and as your way 
because that was your way of assessing the market but there is 
lots of ways to assess the market. There is standardized things 
that give you information about the assessing the market. There 
is Glass Door, there's Pay Scale, there is a lot more than 
salary matching to assess your market.
    So it really requires an employer to think hard about am I 
paying someone fairly and am I paying them for the job that I'm 
actually asking them to do. So you actually make the Equal Pay 
Act's promise of equal pay a reality.
    Ms. ADAMS. Yes. Ms. Olson suggests that employers should be 
given incentives like the elimination of liquidated damages for 
conducting self-audits to address pay inequities. Why is this 
insufficient in your mind, in your thinking?
    Ms. GOSS GRAVES. You know, its--we are more than 50 years 
after Congress said we should start paying people equally for 
the same work so, you know, the idea that we need incentives to 
comply with a law that is 5 decades old is a little bit 
troubling when people have been harmed along the way in all 
these many decades.
    Ms. ADAMS. Thank you very much. Madame Chairman, I am going 
to yield back, I am out of time.
    Chairwoman BONAMICI. Thank you very much, Congresswoman 
Adams. And I now recognize the ranking member of the Workforce 
Protections Subcommittee, Mr. Byrne, for 5 minutes for 
questioning the witnesses.
    Mr. BYRNE. Thank you, Madame Chair. Ms. Olson, I really 
appreciate your being here today. You are recognized among the 
labor and employment bar in the United States of America as one 
of our leaders. You have bene participating in this area since 
1983. You were one of the first women to practice in this area 
so you bring a wealth of experience spanning many years and I 
appreciate your vantage point on it. You know, we all want to 
see equal pay for equal work. But as Federal policymakers up 
here in Congress, our question is what is the best way to 
achieve that? So we have this proposed bill, H.R. 7, in front 
of us which I know you are familiar with. And I want you to use 
your experience, many years of experience in equal pay cases 
and discuss whether the new remedies and the new class action 
provisions in that bill will actually achieve the outcome we 
all want to achieve. And I also want you to address if you will 
your own experience in this area and what you think it will do 
to both employers and employees. Press the button.
    Ms. OLSON. Thank you very much. First of all, let me talk 
about the current Equal Pay Act. Even in--with reference to the 
cases that were described today by other witnesses, you heard 
them describe those cases worked. The cases continued. They 
were sent back.
    The law today does not say an employer can just articulate 
a reason, any reason, a reason they don't consistently apply, a 
reason that's really not related to a job. The employer has the 
burden of proof under the Equal Pay Act. It is different than 
Title VII. It's much harder in that sense. And the burden of 
proof is to demonstrate a consistent bona fide job-related 
factor as being used.
    And in cases that are cited in my testimony and some that 
were cited today by others, the courts looked at that proof and 
said it's not enough to just articulate something that you're 
not consistently applying. That's not bona fide. And it's not 
enough if it's not directly related to the job. You've got to 
show a nexus that matters.
    In terms of the issues of what's currently available to an 
employee who files a claim under the Equal Pay Act? You've got 
back pay, injunctive release and relief in terms of front pay, 
double damages in terms of the back pay, attorney's fees, 
costs, interest, a much longer statute of limitations. The 
limitations in Title VII is 300 days. Under the Equal Pay Act 
it goes back 3 years if there is a willful violation.
    So the employer who may have not been found to have ever 
discriminated on the basis of someone's sex but just can't 
explain the entire difference in terms of the differences in 
pay, could be held to unlimited punitive and compensatory 
damages. That's a windfall for plaintiff's lawyers and will not 
allow--I know from my experience in litigating these cases, 
these cases to be resolved because of the endless, limitless 
potential for damages as opposed to the realities of what you 
are looking at. So that's one point.
    And then on the issue of class actions and I litigate class 
actions around the country. The class action mechanism that 
currently exists here is the same one that exists for wage and 
hour laws in our country. The same on that exists for the age 
discrimination claims that are brought and its one that in my 
experience moves much faster for the employee who is aggrieved 
because conditional certification benefits plaintiffs, 
employees in the cases and the way it is currently being done 
because conditional certification under the Equal Pay Act is a 
very low standard to be certified.
    So almost immediately in these cases, notices are sent out 
to employees, all employees saying who wants to opt in? Who 
wants to be part of this case? If you do, all you have to do is 
sign this form and you're part of it and you move very quickly 
to the merits and trying to resolve the issue. What H.R. 7 
would do is it completely changes that to a rule 23 situation 
where you're going to debate for years whether those standards 
are appropriate and then if so look at mass groups of data for 
employees who never signed a form, who never said they wanted 
to be part of it but didn't affirmatively opt out on a court 
document that they were given.
    Mr. BYRNE. Very quickly, speak to the Chamber of Commerce 
v. Greater Philadelphia case. Would it apply to H.R. 7? If so 
what would it do?
    Ms. OLSON. It absolutely would. It is on appeal to the 
Third Circuit that's absolutely correct. But part, there are 
part--the part of H.R. 7 that has the same flaw that was 
recognized by the court in Philadelphia is the part that says 
an employer can't ask.
    Mr. BYRNE. So it is a free speech issue.
    Ms. OLSON. Absolutely. It's unconstitutional.
    Mr. BYRNE. Thank you. I yield back, Madame Chairman.
    Ms. ADAMS. Thank you, Mr. Byrne. At this time I want to 
recognize the chair of the committee on education and labor Mr. 
Scott for 5 minutes.
    Mr. SCOTT. Thank you, Madame Chair. Ms. Yang, in terms of 
EEOC pay data, what is reported now and what would be reported 
under the bill?
    Ms. YANG. Thank you, Chairman Scott. The EEOC has for over 
50 years collected data from employers with 100 or more 
employee's on--based on race, gender, ethnicity and job 
category to understand the total demographics of the workplace 
by a particular job.
    What the EEOC moved forward to do with the pay data 
collection was to strengthen that reporting so the agency would 
have a much more effective tool to identify potential pay 
disparities that the agency could then use its resources more 
effectively to investigate.
    And to answer the earlier point, the agency has robust 
confidentially and security protocol in place and the 
information that would be collected is in the aggregate. So it 
is not an individual persons pay information, it is just the 
total number of women for example in a particular job category 
with that pay.
    Mr. SCOTT. And how logistically difficult would it be to 
provide this information?
    Ms. YANG. We had an extensive process while I was chair of 
the EEOC with public comment. Two rounds of public comment. We 
also conducted our own pilot looking at these issues and heard 
from many sources. And we found that the burden on--what we 
worked to do is to minimize the burden of employers while also 
ensuring the pay data is useful for the agency's enforcement 
purposes.
    And I do believe the proposal of the EEOC move forward with 
struck a reasonable balance that imposed not a significant 
burden on employers.
    Mr. SCOTT. Thank you. And we have talked about class 
actions, Ms. Yang. What is the present law on class actions and 
how does the bill change it and why is that important?
    Ms. YANG. Thank you for that question. My understanding is 
the bill will actually strengthen workers protections by giving 
them the choice to choose either the collective action 
provision that currently exists or to utilize the more modern 
rule 23 procedure that applies to virtually all other types of 
claims in Federal court.
    And the challenge with existing law is under the collective 
action opt in procedure, it requires employees to file a notice 
with the court which can be very difficult for employees to do 
because of fear of retaliation or at the time they're required 
to file they may not have any information about how their pay 
compares to other people and they may not be comfortable filing 
that on record with the court. As a result you often see 
perhaps 20 percent of all eligible women opting into the case.
    In contrast, a rule 23 class action allows the class to be 
certified and gives individuals an opportunity to opt out 
later. The problem with currently law is that it is often much 
less expensive for employers to just wait, to not look at their 
pay and then if they're found responsible for discrimination 
just to fix it later because the penalties are insufficient. 
And it shouldn't pay to discriminate but unfortunately under 
our current law it does.
    Mr. SCOTT. Thank you. And there is a change in damages 
allowed under the bill. How would damages in present law under 
the Equal Pay Act different for gender cases than the race, 
religion, national origin?
    Ms. YANG. The Equal Pay Act covers discrimination only 
based on gender. It provides the ability to get back pay. So 
the difference typically between the pay a woman received 
compared to the pay a comparable male received. And so in the 
cases were you can show there were willful actions, there is 
the opportunity to get higher damages but it is still quite 
limited.
    So what the Paycheck Fairness Act does is provide 
meaningful remedies that will actually compensate workers for 
the full spectrum of harms that they suffer and that includes 
compensatory damages, expenses that may have been incurred due 
to having to search for a new job or medical expenses related 
to distress from the experience.
    Mr. SCOTT. How does that compare for cases involving race 
discrimination, religion or national origin?
    Ms. YANG. So there a number of protections under Title VII. 
Title VII prohibits discrimination based on race, ethnicity, 
national origin and it provides compensatory and punitive 
damages. There are statutory caps that have not been adjusted 
so those are well behind where they should be.
    And you also have the reconstruction era statutes including 
section 1981 that prohibits discrimination in contracting that 
provides a full scope of damages for compensatory damages as 
well as punitive damages without a statutory cap for 
intentional discrimination based on race and ethnicity but 
there is no comparable provision based on gender.
    Mr. SCOTT. And so this bill would just conform gender 
discrimination recovery to other cases?
    Ms. YANG. Yes. So this bill will fill that gap by ensuring 
that women who are facing pay discrimination have a full scope 
of relief.
    Ms. ADAMS. Thank you. I would like to recognize the 
gentlelady from New York, Ms. Stefanik for 5 minutes.
    Ms. STEFANIK. Thank you, Chairwoman Adams, and thank you to 
all of our witnesses today for your thoughtful testimony. Women 
deserve equal pay for equal work and in the United States, this 
is the law of the land.
    Since 1963, it has been illegal to pay different wages to 
employees of the opposite sex for equal work. Additionally, 
Title VII of the Civil Rights Act codified nondiscrimination 
rules for employment, making it illegal to discriminate 
including through wages based on race, color, national origin, 
religion, or sex.
    The good news is that we have a strong story to tell of 
women's empowerment in today's economy. The number of women 
working in America is at a historic high of 74.9 million and of 
the 2.8 million jobs created last year, nearly 60 percent went 
to women. We know that women are graduating college at higher 
rates than men and are increasingly their family's primary 
breadwinners.
    Let me reiterate my support of equal pay for equal work and 
voice my desire to strengthen this principle. To do this we 
must understand what is actually happening. If you account for 
factors such as hours worked over week, rate of leaving the 
labor force, specific industry occupation and length of time 
out of the work force, the wage gap shrinks but it is not 
completely eliminated. We must focus on closing this remaining 
gap.
    My concern with H.R. 7 is not with the overall goal, which 
I strongly support, but with how it goes about achieving this 
goal. I am concerned that aspects of H.R. 7 appear to be 
prioritizing trial lawyers and in some cases it makes it more 
difficult for business that are acting in good faith to rectify 
past wrongs and prevent future pay disparity. Despite these 
concerns, I want to lay out the principles of H.R. 7 that I 
strongly support although I have some concerns about the 
current drafting.
    The principles I support are the following. I support the 
principle of allowing a job applicant to negotiate on the 
merits of themselves without being saddled by previous salary 
history. I support the principle of enforcing non-retaliation 
for pay disclosure by employees. I support the concept of 
providing workplace negotiation skills training to women.
    In addition to these principles, I support policies that I 
believe will help close this remaining wage gap and we can look 
at particular Governors who have effectively passed bipartisan 
legislation. I want to build on those current laws and I want 
to ask a few questions to Ms. Olson.
    Ms. Olson, you discussed that today's employees are looking 
for flexibility in employment and that increasingly means 
alternative forms of compensation outside of traditional wages. 
Could you elaborate on the potential benefits that allowing 
businesses to have protection for alternative compensation 
models would have?
    Ms. OLSON. Absolutely. It allows it to, you know, in sum 
attract, motivate, and retain in the work force longer men and 
women all who may have unique needs, that may not all be 
compensation-based, it may be based on other benefits of their 
working life as well as their personal life and that is not a 
male, female issue. That's just a worker issue today.
    And in terms of that employers are doing along those lines, 
is they're looking not just to have different types of payments 
in terms of wages and other elements of compensation but also 
different benefit plans and different opportunities in terms of 
leave and other issues.
    And what employers are doing with respect to their own pay 
audits is really, you know, many, many things. One being really 
looking at a lot of the data that is used. It's not necessarily 
digitized. Making sure that they do audits and it creates 
systems so that they actually can go back and be able to 
account for what are the differences in pay, reviewing it, also 
reviewing starting pay against what have you been paying people 
in those jobs that are in the work force that haven't moved? 
Don't just pay the new people who are coming in because the 
market is high and people who have been with you for a number 
of years so there is a holistic view of pay that's being done 
across workplaces today.
    Ms. STEFANIK. I want to followup on that, Ms. Olson. As you 
just did in your testimony point out that many businesses are 
looking internally to review their pay practices. And 
specifically in your opening statement, you discussed certain 
state laws that incentivize employers to self-audit their pay 
systems. Can you elaborate on that and why that is a successful 
model to close this remaining wage gap?
    Ms. OLSON. Yes. It really is successful. A number of 
employers unfortunately are concerned that their own 
individual, self-critical analyses or views and the way they 
categorize for statistical reasons different jobs and 
individuals, et cetera, could be used against them later. No 
good deed by trial lawyers who say well, you categorized it 
that way without maybe the benefit of all the information so if 
an employer has to build their audit model toward is this going 
to be subject to legal challenge or is it perfect in terms of 
that way, it's just so costly. You are using third-party 
statisticians and a lot of outside consultants to do that.
    Whereas, if instead an employer in good faith reviews their 
pay systems and also take and this is what these laws are 
saying. Take good faith efforts for purposes of that looking at 
what they have found and taking steps to eliminate pay 
differences that there ought to be one, a privilege with 
respect to that so it can't be used against them later and the 
question isn't did they come to the right answer, but did they 
do a diligent analysis and in good faith make good faith 
decisions with respect to it. It will encourage people.
    I definitely can represent that to this--these 
subcommittees. It will encourage more employers to do these 
audits, to make these changes voluntarily and quickly.
    Ms. STEFANIK. Thank you. Thank you for the flexibility on 
the time, I yield back.
    Ms. ADAMS. Thank you. I recognize now the gentlelady from 
Pennsylvania, Ms. Wild, for 5 minutes.
    Ms. WILD. Thank you very much, Madame Chairwoman. Greetings 
to all of you. By way of background, before I arrived here in 
Congress just a couple of months ago, I was a litigator for 35 
years and have been on both sides of these kinds of disputes. I 
have represented employers and employees who are claiming an 
injury in the nature of some form of discrimination. So this 
testimony has been captivating for me and I read all of your 
testimoneys with great interests.
    As a litigator, I was always most interested in making sure 
that there was a level playing field in the courtroom and that 
my client, whichever side my client might have been on, was not 
walking into a court room with the deck stacked against him or 
her or it, depending upon the case. And that to me seems to be 
one of the most important criteria for this type of statute.
    So I, my questions are--come--are coming from that angle. 
So let me start with you, Ms. Olson. I wanted to ask you, have 
you ever represented an employee who has claimed to be injured 
by way of discrimination?
    Ms. OLSON. I have always practiced at business law firms 
that have represented employers with respect to these issues 
but also represent them pre-litigation where I view my role as 
coming to the right decision on behalf of that employer and 
analyzing all the facts. Not as a person who is defending a 
position that has been taken, but determining whether in fact 
there is any evidence of discrimination and I view that as my 
role pre litigation and during litigation.
    Ms. WILD. And when you are in the litigation situation is 
it fair to say that you have always been there on behalf of 
companies or corporations?
    Ms. OLSON. That's absolutely true.
    Ms. WILD. OK. Your clients have a vested interest in this 
legislation, sit hat fair to say?
    Ms. OLSON. I don't know what you mean by vested interest. I 
believe every American has a vested interest in making sure 
that we get this right.
    Ms. WILD. Well, is it fair to say that the vast majority of 
your clients would not be happy if this legislation was passed?
    Ms. OLSON. I don't believe the vast majority of Americans 
would benefit from this legislation--
    Ms. WILD. OK, well lets stick with my question. OK. Your 
clients, let's just talk about your clients. Is it fair to say 
that most of them would be very unhappy if this legislation was 
passed?
    Ms. OLSON. You know, I can't answer for them. I haven't 
asked them that question. I don't believe the legislation works 
in today's workplace so my opinion is that I don't believe that 
it would be beneficial to any small, medium, or large employer.
    Ms. WILD. And you believe that the current State of the law 
provides for a level playing field, don't you? You've stated in 
your written testimony that plaintiffs already take advantage 
of the system by filing discrimination charges, therefore the 
Equal Pay Act must be enough.
    Ms. OLSON. I haven't said that the Equal Pay Act is enough. 
I provided three examples of improvements or enhancements to 
the Equal Pay Act that I believed would enhance it.
    Ms. WILD. OK. Would you agree with me, the data that we 
have received from the EEOC indicate that employees filed 
almost 85,000 charges of discrimination in 2017 and the EEOC 
legal staff filed just 184 merit lawsuits alleging 
discrimination. Does that sound about right to you?
    Ms. OLSON. It absolutely does.
    Ms. WILD. OK. And you believe that the rest of those 
charges that were not accepted by the EEOC evidence some sort 
of what, frivolous claims, unwarranted claims?
    Ms. OLSON. No. No. That, the charges that are filed, many 
of them continue in investigation, many of them are resolved 
through settlements and others are dismissed for lack of 
substantial evidence as found by the EEOC investigators.
    Ms. WILD. All right. But you would agree then that just 
point 2 percent of claims are actually prosecuted by the EEOC. 
Yes? Say yes or no.
    Ms. OLSON. The answer to that is yes.
    Ms. WILD. OK. I would like to move on to Ms. Yang if I may. 
Ms. Yang, can you address the concern articulated by my 
colleague on the other side of the aisle that the Paycheck 
Fairness Act will open the floodgates for litigation by 
providing for uncapped punitive and compensatory damages, even 
where there is no showing of intentional discrimination?
    Ms. YANG. Yes. I know that there is out of time but if I 
have time, I'm happy to answer that question. I think it's 
important to for us all to step back for a moment and recognize 
the rigorous prima facie case that a worker needs to establish 
to even get to the point of the defense.
    Courts have required employees not just to show a pay 
difference between a man and a woman but to show that those 
jobs are substantially equal in terms of their skill, in terms 
of their responsibility, in terms of their effort. And that is 
a rigorous standard to meet.
    Employees also need to show that they're working under 
similar working conditions. So it is only after the employee 
has shown all of these things which is actually higher than the 
Title VII burden of proof on a worker under the similarly 
situated standard. Right. It is only after you have shown that 
the employer gets to try to put forward this affirmative 
defense.
    And it is appropriate to require that defense is business--
a business necessity because the employee has already shown 
that they're doing the same work. So if the employer is going 
to justify paying one gender less than the other, it needs to 
be able to explain a sound businesses reason for doing that.
    Courts have been interpreting that standard of business 
necessity since 1971 in Griggs Duke--Griggs v. Duke Power case 
and in 1991 it was codified in the Civil Rights Act of 1991 
which amended Title VII. So it is a well-established standard.
    Ms. WILD. Thank you, Ms. Yang. And if I just may, I know we 
are over time, but I, the trial lawyers are the ones that help 
the employees who claim to be aggrieved, is that right?
    Ms. YANG. Absolutely. This Paycheck Fairness Act is about 
helping workers. Anyone who says this law is working now is not 
appreciating how much risk employees take on to come forward to 
sue their employers, to litigate for years and years, to have 
courts deciding that biased factors justify a pay disparity, 
right. Even if some courts are getting it right, that is a real 
hardship for those workers who have to go through that process.
    Ms. WILD. Thank you, Ms. Yang. Than you, Madame Chairwoman, 
for your indulgence.
    Chairwoman BONAMICI. Indeed. I next recognize the ranking 
member of the full committee, Representative Foxx from North 
Carolina for her questions.
    Ms. FOXX. Thank you very much, Madame Chair. I thank the 
witnesses for being here today and for your testimony on a very 
important issue for women and all workers across the country. 
It's a topic of discussion today.
    Pay discrimination based on sex is illegal and should not 
be tolerated. I also strongly agree with previous statements 
made today that women deserve equal pay for equal work.
    Ms. Olson, the Equal Pay Act in Title VII of the Civil 
Rights Act prohibit pay discrimination on the basis of sex and 
equal pay for equal work and have been the law of the land for 
55 years. From your significant experience in studying this 
issue and from your legal work in this area, are employers 
mindful of their legal responsibility not to pay different 
wages based on the sex of the employee? What steps do 
businesses of all size take to ensure they're not 
discriminating based on sex and how much workers are paid?
    Ms. OLSON. Thank you. In my experience employers have a 
deep commitment to ensuring their compensation systems 
effectively attract, motivate, reward, and retain employees 
while complying with applicable laws that you've described. 
Complexities exist because job related factors such as 
seniority, work performance, prior experience, relevant 
credentials, competitive offers, and other job-related factors 
exist between employees who perform the same work.
    Some of those are quantitative. Some of those are 
qualitative issues. Some of those are contained by their nature 
in HRIS systems. Some of those are not.
    So what employers are doing today in terms of taking good 
faith efforts to comply, I mentioned the conduction of pay 
audits. That is happening across the country. They are also 
doing individual employee-level adjustments in connection with 
those audits. I also mentioned they're reviewing all starting 
pay decisions in comparison to other pay within the work force. 
There is also something that I'll describe as the information 
gap and employers are trying to change that to make sure that 
they have documented and even digitized in their work force its 
information regarding what are the variables that are changing 
and affecting pay. They're educating and developing managers 
regarding legitimate business reasons that are to be used with 
respect to particular issues. They're building new compensation 
structures with ladders within those particular jobs to make 
sure that everybody understands that maybe a difference in 
experience or performance is what is putting you in a ladder 
going up that relates to the pay you're getting. Those are some 
of the things that employers are doing.
    Ms. FOXX. Thank you. Ms. Olson, H.R. 7 directs the EEOC for 
the first time ever to collect employee pay data from employers 
broken down by the sex, race, and national origin of each 
employee. This provision is a reprise of the rejected Obama 
Administration proposal to add pay data to the EEO-1 report, 
which I raised concerns about when it was under reviewed by 
OMB.
    The Obama proposal would have increased the data fields 
provided by employers in each EEO report 20fold from 180 to 
3,660. That is an astonishing figure.
    At the time it was also estimated that adding the employee 
pay data to the EEO-1 would bring the overall cost to employers 
would have to bear to approximately 700 million annually.
    Ms. Olson, do you agree that requiring additional employer 
reporting to the Federal Government involving employee pay data 
would not only create huge compliance costs but it will also 
raise significant privacy and confidentiality concerns for 
workers and business alike and if so can you expand on these 
and any other concerns with this mandate?
    Ms. OLSON. Thank you, Representative Foxx. I can and I 
actually was one of those witnesses that testified before the 
EEOC with respect to the expanded EEO-1 and also relied on 
specific survey and economic data regarding the actual burden 
that employers reported that expanded pay data that you 
described would really impose with a complete lack of utility 
or benefit.
    And let me just give you an example. That form would have 
required for example a hospital to provide data with respect to 
men and women within the position of profession without regard 
to what job they held. They might be a pharmacist, they might 
be a lawyer, they might be a doctor, they might be a nurse. But 
if there were any differences generally between pay between men 
and women within that category without regard to the job they 
held, that would be used. That's the kind of information that 
has no utility. That kind of information I just described.
    In terms of the burdens, the burden initially estimated by 
the EEOC when it was introduced was about 5 million. After our 
testimony, the EEOC increased the burden and said, you know 
what, I might have been wrong. Maybe it was about 20 million. 
And the data that we collected showed that it was at least 700 
million, the number that you used.
    And in terms of privacy concerns, the EEOC's response to 
those issues which was required under the Paperwork Reduction 
Act, was that we will get to that.
    Ms. FOXX. Thank you. Madame Chairman, I didn't have time to 
ask a question about the Harvard University study on 
Massachusetts Bay Transportation but I would like to enter that 
into the record.
    Chairwoman BONAMICI. Without objection.
    Ms. FOXX. Thank you, Madame chairman. Thank you for your 
indulgence.
    Chairwoman BONAMICI. Indeed. I now recognize Representative 
McBath from Georgia for 5 minutes for her questions.
    Ms. MCBATH. Thank you to the chairs for holding this 
hearing today and I would like to thank the witnesses for being 
here and for your prepared testimoneys and remarks. I am proud 
to be an original cosponsor of the Paycheck Fairness Act and I 
think most of us can agree that every American should earn 
equal pay for equal work.
    As of January 2019, the median annual wage for women and 
men in the 6th District of Georgia where I reside was $53,351 
and $75,837 respectively. That amounts to a $22,000 difference. 
This gender gap is most clear. And I am glad the Paycheck 
Fairness Act would address this issue.
    Not only would this legislation help women in Georgia, this 
will also help families across the Nation. I would like to 
learn a little bit more about the impact of the gender pay gap 
and so, Ms. Graves, could you please answer this question for 
me? What impact does education level, whether that be high 
schools, secondary or posts secondary have on the gender pay 
gap?
    Ms. GOSS GRAVES. Thank you, Congresswoman. One of the 
things that has been studied and studied again is whether or 
not it is possible to totally eliminate the gender pay gap if 
you control for things like education level, if you control for 
things like geography, if you control for unionization, you 
know, a range of things.
    And although the pay gap does shrink when you control for 
education level, it's just impossible to eliminate no matter 
how much you control for it. There is a large portion of it 
that remains unexplained and likely due to discrimination. And 
one of the reasons that we know that is that there is a number 
of studies that have followed people right out of college, AUW 
has a study like that where they have looked at people straight 
out of college, I mean, within a year of graduating from 
college even when same major still a pay gap.
    Ms. MCBATH. Well, thank you. Could you also speak to what 
impact paid family and medical leave has on the gender pay gap?
    Ms. GOSS GRAVES. One of the things that we know is that the 
pay gap is due to discrimination in the same job but it is also 
due to other things like the fact that there is a, what we like 
to call a care giver penalty. And so those, the full suite of 
solutions to really finally make sure that we don't have a 
situation where Latinas are losing a million over the course of 
their lifetime or $22,000 in Georgia 6 is going to include 
things like Paycheck Fairness Act but it's also going to 
include things like finally having a national paid family and 
medical leave program so passing things like the Family Act 
will make a difference.
    Actually waging--raising wages so that we for the first 
time in over a decade raised the minimum wage, right, and have 
one fair wage. All of those things will help to contribute to 
lowering the pay gaps so that we do not have a situation like 
we had in the last decade where we have barely budged.
    Ms. MCBATH. OK. Thank you. Well, also very struck by the 
section of the bill that would establish and run grant programs 
to carry out negotiation skills training programs for girls and 
for women. So, Ms. Goss Graves, could you expand on the impact 
this will have on the gender pay gap as well?
    Ms. GOSS GRAVES. I mean, one of the things that we know is 
that a lot of employers rely on negotiation as a part of their 
salary setting process. And study after study has shown that 
the problem is that when employers see men and women who 
negotiate differently, right. When men negotiate they kind of 
like it. When women try to negotiate it turns out they don't 
think they do so well. So some of that is bias and stereotypes 
and stereotyping.
    But one of the things that Paycheck Fairness Act would 
actually do is give women more tools, give people tools so that 
they understand how they will be perceived when they negotiate.
    Ms. MCBATH. Thank you so much. I yield back my time.
    Chairwoman BONAMICI. Thank you, representative, and before 
I recognize the next member for questions, I request unanimous 
consent to submit for the record a letter from Virginia Lipnic 
to Donald McIntosh, Kimberly Esserly dated May 25, 2017 with 
the subject Responses to the Chamber in EEAC critics of the 
EEO-1 pay data collection. And a letter from Virginia Lipnic to 
Peggy Mastroianni, legal counsel, titled EEOC's response to 
EEAC's argument that relevant circumstances have changed after 
OMB's approval of the EEO-1 report.
    In that letter which was recently discovered in response to 
a FOIA request from the ACLU, Ms. Mastroianni in fact informed 
Ms. Lipnic that there were in fact no significant change in 
relevant circumstances that would provide OMB with an 
independent basis to reconsider and issued a stay. Without 
objection.
    And I now recognize Mr. Johnson from South Dakota for 5 
minutes for your questions.
    Mr. JOHNSON. Madame Chair, thanks so much. I will start by 
stating the obvious that equal pay for equal work is just and 
it is appropriate. I'm proud that it's the law of the land 
under the Equal Pay Act. That pride doesn't blind my eyes to 
the fact that there are opportunities for improvement, of 
course and that is where I would like to start. Ms. Olson, you 
referenced in your testimony and also alluded to under 
questioning by Ms. Wild some areas for improvement.
    And I guess the one that I want to learn a little bit more 
about is you talking about making sure that the required--there 
is a requirement that the pay differential is linked to some 
job-related or site-related factor. I assume that would add to 
the predictability and the clarity and the common-sense 
application of the Equal Pay Act but it would like you to teach 
me a little bit more about that.
    Ms. OLSON. Thanks very much for your question. Yes, the 
currently the Equal Pay Act language says any other factor 
after a list of job-related factors, many of them that have 
been talked about today, and any other factor other than sex. 
That language based on principles of statutory construction and 
the majority of circuit courts that have looked at it have said 
that well that other factor has got to be job related. But 
there have been a couple of courts that have said well, it's 
got to be uniformly implied and it's got to be the real reason 
but I don't know if it necessarily has to be job-related. 
That's a very, very small minority view.
    Employers look to both development and education of 
managers who do interviews and also human resource executives 
that they make sure that their decisions are based on what is 
often times called LBRs. Legitimate business reasons. And 
that's really what the courts have looked to and inserting that 
so that there is no question. It's absolutely expressed in the 
statute and I believe would be welcome and it is appropriate.
    Mr. JOHNSON. So give me some sense now it seems as though 
maybe the prevailing set of case law has kind of moved away 
from illegitimate business reasons, right. I mean, give me some 
sense of what may--
    Ms. OLSON. Just--
    Mr. JOHNSON. Go ahead, sorry.
    Ms. OLSON. You know, I'm sorry. So I think I understand 
your question. It's not that an illegitimate business reason 
was ever appropriate. See, to go back to what the Equal Pay Act 
is, it's a strict liability statute and the only employment 
discrimination statute in the United States that says show me a 
difference in pay between two people doing the same thing. You 
don't have to prove discrimination. Just show me a difference 
in pay and employer--you don't have the burden of production in 
the law. You have the burden of persuasion. You have to not 
articulate a legitimate business reason, you've got to prove 
it. That's what the Equal Pay Act currently says.
    And so here, examples would be job performance. Examples 
would be experience that would be relevant. But relevant 
experience isn't something that's usually documented and 
digitized in a system, it's something you learn from talking to 
someone or was on their resume.
    So emphasizing that those job related reasons are the ones 
and only the only ones that you can rely on is something that I 
think will also further the proactive employer actions that I 
have described in terms of what we all want which is equal pay 
for equal work.
    Mr. JOHNSON. That is very illuminating, thank you. Yes, I 
want to shift a little bit to retaliation and that is 
prohibited by the National Labor Relations Act. But I want to 
get a sense of how the law today around this equal pay issue 
differs from that and then how the proposed legislation would 
deal from the National Labor Relations Act.
    Ms. OLSON. OK, thank you very much. And it's not just the 
National Labor Relations Act. There are many, many statues and 
I have city them in my written testimony including Title VII 
that says you can't be retaliated against for discussing. It's 
not just participating or opposing a pay practice and if you go 
to the EEOC website today, you'll see the long list which I 
have included in my testimony of all the different type of 
discussion actions that are, that the EEOC has listed as 
protected under existing law.
    So you've got Title VII you've got other non-discrimination 
like GINA for example. You've got the National Labor Relations 
Act that protect reasonable actions taken by employees to--for 
an appropriate purpose for learning, for discovering, for 
trying to understand is there a difference. What the--what H.R. 
7 does, it says anybody can talk about anybody's pay with no 
restraints, not for a reasonable purpose, the purpose in terms 
of furthering equal pay, any reason.
    So you could just post everybody's name and pay rate on 
social media. And if somebody did that, an employer couldn't 
take action against them? That's what currently H.R. 7 would 
allow.
    Mr. JOHNSON. Thank you very much. Thanks for your courtesy, 
Madame Chair. I yield back what time I don't have.
    Chairwoman BONAMICI. Thank you, Representative. I now 
recognize Representative Dr. Schrier from Washington for her 
questions.
    Ms. SCHRIER. Thank you. Thank you, Ms. Chairman, and thank 
you to all of our witnesses. I just, I am very grateful for you 
coming and I am excited about hearing more about pay equality. 
This--just this morning I as the first pediatrician in Congress 
had the opportunity to meet with a whole bunch of groups who 
all advocate for the welfare of children whether that is 
education, healthcare, you name it.
    And a question came up that was about the intersectionality 
really between poverty and food insecurity and housing 
insecurity, education, healthcare, school outcomes, even 
kindergarten readiness and as--and we all in that room 
understood that.
    And so my question is to you, Ms. Rowe-Finkbeiner, about is 
there such an advocate for moms if you could talk about poverty 
in homes where there is a single working mom and what Paycheck 
Fairness Act would do to change the living situations and the 
ultimate outcomes for those families and for the kids.
    Ms. ROWE-FINKBEINER. Thank you for the question. It is a 
good one. Right now, in the United States of America when we 
are looking at women's wages and what is happening with women, 
we have to take a step back and look at what is happening with 
pay equality.
    So right now, over 90 percent of people who are women are 
making less than $75,000 a year and half of those people who 
are women are making less than $30,000 a year. Single moms are 
experiencing the most extreme wage hits. They are making around 
55 cents to a man's dollar. And so when we look at what happens 
with families, we look at what happens with our economy, we see 
a tremendous problem.
    If women had pay parity, we would drop poverty in families 
by 50 percent. This is huge. This is needed. This is necessary. 
1 in 5 children in our country right now are experiencing food 
scarcity due to family economic limitations and family 
structure has changed. I want to say that again. Family 
structure has changed.
    A Johns Hopkins University study found that 57 percent of 
births to millennials were to single mothers. So when we are 
looking at what happens with the confluence of the wage hit, of 
what is happening with parenting, of what is happening with 
children, what is happening with our country, we have to get to 
pay parity. And we have to get to pay parity because it helps 
businesses.
    Again, remember when we have more women in leadership, 
businesses thrive. It helps families. When we pull families out 
of poverty, we have children becoming the leaders of tomorrow. 
It helps women because when we are actually having enough to 
spend, we then in turn help our economy.
    I want to step back. I love your big question because I 
always shave big answers but I want to step back and remind 
people that women make three quarters of consumer purchasing 
decisions. An economy that is 72 percent of our GPD is based on 
consumer spending. So when we have women having such extreme 
pay hits, we have extreme harms to our children's health to our 
economy and to women. And this is a really big deal to solve so 
I'm so excited that we are all here today to solve it and to 
finally, finally, finally pass the Paycheck Fairness Act. Thank 
you for your question.
    Ms. SCHRIER. Thank you. I may have another one for either 
you or for Ms. Goss Graves. You can battle this one out.
    So this is a personal story that I have for the past many 
years enjoyed, I think, pay parity because as a pediatrician, 
my pay was based mostly on my productivity and here I have 
equal pay.
    But I have to tell you that coming out of residency, I was 
so excited to earn more than $4 an hour that when I was offered 
my first job, that is right. When I was offered my first job I 
just immediately accepted. It didn't, it never occurred to me 
to negotiate. That was what was offered and that is what I 
would accept.
    So I just have to ask a bit about to either one of you, 
about the negotiation skills training and what that looks like 
and how that helps and, you know, do you have any empiric 
evidence on what kind of gap that could make up for women who 
are just entering a first job?
    Ms. GOSS GRAVES. The negotiation training is important 
because it is going to give people more tools and remind them 
to ask and to ask for more for sure. But it is also just 
important to remind people that we can't fully negotiate our 
way out of pay discrimination and so it is a piece of a broader 
approach that ends the many, many practices that employers are 
giving. You know, I would say that, you know, your employer who 
set your first salary perhaps far too low probably takes some 
responsibility there too especially if there was someone doing 
exactly what you were doing but making a lot more.
    Ms. SCHRIER. I will never know the answer to that question. 
Thank you very much.
    Chairwoman BONAMICI. Thank you, representative. I next 
recognize Representative Hayes from Connecticut for her 
questions.
    Ms. HAYES. Thank you, Madame chair. Actually I am going to 
yield my time to my colleague, Congresswoman Susan Wild.
    Chairwoman BONAMICI. Representative Wild.
    Ms. WILD. Thank you, Congresswoman, for yielding your time 
to me. I am going to continue with my theme of leveling the 
playing field and I want to elaborate on the last comment that 
I made after Ms. Yang testified in response to my question.
    My experience over 30 plus years of being a litigator, most 
of which by the way, Ms. Olson, was on the defense side, 
meaning I represented the companies or people who were being 
sued by somebody represented by a trial lawyer and for anybody 
who doesn't know, trial lawyer is commonly used to refer to 
lawyers who represent plaintiffs. But in my experience, far 
from being the villains, almost every trial lawyer I 
encountered was the only hope for a plaintiff who was 
unsophisticated, didn't understand the law and had no hope of a 
legal claim without the expertise of his or her lawyer.
    Our legal system is dependent on having lawyers who will 
help individuals, who are unsophisticated in the law or who do 
not know their legal rights. So for instance, when my colleague 
on the other side of the aisle, Mr. Johnson, was talking about 
retaliation being forbidden and Ms. Olson was engaging in the 
dialog with him, the only way an employee would be able to 
pursue a claim of retaliation is with the benefit of a trial 
lawyer to help him or her.
    So with that said, I am going to ask Ms. Rowe-Finkbeiner, 
in your testimony you shared an interesting perspective and we 
are going to shift gears a little bit to class actions. As you 
may have ascertained I like to get into the weeds on this legal 
stuff. But I would like--I was drawn to your testimony on why 
it is important to amend the Equal Pay Act to change the class 
action to be an opt out standard similar to the standard under 
Title VII and under rule 23 of the Federal Rules of Civil 
Procedure. From the perspective of the women that you have 
engaged with, why is it important for them to be able to band 
together in such actions? And maybe you could just explain that 
a little bit for those who aren't familiar with the opt out 
standard.
    Ms. ROWE-FINKBEINER. Well, we need to remember again who is 
being impacted the most by unfair pay to your question which is 
low income women. The lower your income, and three quarters of 
minimum wage workers are women, the more significant you are 
going to be impacted by wage gaps.
    And so for lower wage women workers, automatic inclusion in 
class action lawsuits is vitally important. Because it is also 
in those job positions that you are most vulnerable to 
retaliation.
    The moms of America that we hear from every day are telling 
us their story about their unfair pay. They're telling each 
other their story about unfair pay. But they are absolutely 
afraid to step forward and talk to their employer or to take 
action or to much less afford an attorney. And this is very 
important because if we don't have this inclusion, if we can't 
stand together, then women have to stand up by themselves and 
say I am experiencing unfair pay.
    And let me tell you, that does not go well. We hear from 
the moms of America what happens when they stand up and they 
lose their jobs or they're told, you know, it's this or the 
highway. And so we hear that again and again and again and so 
what that says is that the current law is not sufficient. What 
is happening right now is not sufficient.
    We have right now experiences where we have moms with equal 
resumes on pieces of paper, not actually in person, getting 
hired 80 percent less of the time that non moms. So current law 
is not sufficient. We need to be able to band together, we need 
to be able to protect women from retaliation and the way to 
protect women from retaliation is to have an inclusive group 
rising together and that's absolutely needed as shown by the 
horrifyingly horrible pay gap data that we see right now today.
    Ms. WILD. And just to be perfectly clear, opt out would 
mean that they would be included in the class unless they chose 
to opt out if they were discriminated against, is that correct?
    Ms. ROWE-FINKBEINER. I want to defer to Ms. Yang who is an 
attorney.
    Ms. WILD. OK. And I am going to ask Ms. Yang a question 
anyway so she can address it in response to this. Prior to your 
time at the EEOC, you spent 15 years litigating equal pay and 
other discrimination cases on behalf of employees. And 
litigation is obviously very expensive, especially with the 
threat of the prevailing party recovering attorney's fees. And 
that often scares off aggrieved workers. Is that your--would 
you agree with that?
    Ms. YANG. Yes.
    Ms. WILD. OK. Could you discuss please how in your 
experience employers use the prevailing party doctrine to 
extort or deter aggrieved workers claims and how the Paycheck 
Fairness Act levels the playing field on that issue. And it--
    Ms. YANG. And people--
    Ms. WILD [continuing]. at the same time perhaps you could 
address the question that I asked.
    Chairwoman BONAMICI. And before you answer, Ms. Yang, the 
time has expired and the hour is late so I am going to ask you 
to submit that response to the record because we still have 
other members who have not yet asked their questions.
    Ms. WILD. Thank you and I apologize--
    Ms. YANG. Sure.
    Ms. WILD [continuing]. Madame Chairman.
    Chairwoman BONAMICI. Nope, no worries. Certainly the 
response can be submitted for the record.
    Ms. YANG. Certainly I will do that.
    Chairwoman BONAMICI. I next recognize Representative 
Stevens from Michigan for her questions.
    Ms. STEVENS. Thank you so much and thank you to our 
distinguished panel today for testifying and sharing your 
expertise on this critical topic around wage disparities and 
gender wage disparities.
    As somebody who has spent their career in work force 
development and STEM education and particularly girls STEM 
education, I couldn't think of a more pertinent topic for our 
new Congress in this historic moment, 100 years from when women 
got the right to vote to now having the most number of females 
serving in the body that we bring this topic to the fore and 
this legislation to the floor of the U.S. Congress.
    And so my first question is for Ms. Goss Graves around the 
value of work and the value of human driven work. And in 
particular, in your testimony Ms. Goss Graves, you talked about 
60 percent of employees in the private sector report that 
discussing their wages is either prohibited or discouraged. Why 
is that the case? How do these policies inhibit workers from 
adjudicating pay discrimination claims?
    Ms. GOSS GRAVES. So pay is, there is a lot of secrecy 
already around pay even before you add on punitive pay polices 
that some employers put in place. So if an employee puts a 
policy in place that says if you talk about your wages with 
each other, if you report what you are making to anyone, you 
can be fired or you're violating a rule in some way, it means 
that people are less likely to do it at all.
    That's what happened with Lilly Ledbetter. That's why 20 
years went by and she didn't know that she was making so much 
less than everybody around her. You know, so for those work 
places, what you have seen now is some employees really saying 
I'm ready to talk to people about what I'm making because right 
now all of the pay information lies in the hands of an 
employer.
    Ms. STEVENS. Well, and we have also seen that we are at 
some of the lowest levels in union participation and in union 
organizing and I am wondering depending on your knowledge if 
you could kind of comment a little bit around the importance of 
being able to collectively bargain and to have it, having a 
strong labor unionizing presence in the work place.
    Ms. GOSS GRAVES. I mean, one of the things that we know is 
that union workplaces have lower pay gaps. Right. Have smaller 
pay gaps. So we know that part of the effect of unionization is 
having both more transparency around wages and inability to 
have some collective shifts.
    It doesn't eliminate it entirely, right. You still need 
more. But it is some protection in the fact that we have seen a 
tax on unions just at the same time that we have seen a wage 
gap not really budge in so many years is really related.
    I just want to raise one more point that I forgot to raise 
earlier. You know, the anti-retaliation provision in the 
Paycheck Fairness Act, it not require that workers go around 
saying their wages, right. It is just that you can't be 
penalized if you are talking about your wages. There's a big 
difference there.
    Ms. STEVENS. Yes, great. Well, we are certainly here for 
the working families of this country and the working men and 
women and to make their lives better. And to protect their tax 
payer dollars and what is going into their pocket versus what 
is not. and, Ms. Rowe-Finkbeiner, I was wondering if you could 
answer quickly for me what is the wage gap between working 
mothers and working fathers and if you could just delineate 
between single working moms if you have it and single working 
fathers and married mothers versus married fathers.
    Ms. ROWE-FINKBEINER. That's an excellent question. Moms are 
making 71 cents to every dollar that dads make and then when 
you look at what is happening with moms of color, they're 
experiencing increased and significant wage hits on top of 
that. And so when we look at the impact of that on the family, 
we see that we have children significantly suffering as well as 
moms and families.
    Ms. STEVENS. Yes. And why--so just if you could shed a 
little bit of light from your vantage and your background. Why 
is it important to encourage negotiating skills and training 
programs for women and girls as the Paycheck Fairness Act does? 
Why is it also important that we remedy the flaws in the Equal 
Pay Act?
    Ms. ROWE-FINKBEINER. It's absolutely essential that we 
eliminate the flaws so that our economy, our families and our 
businesses can thrive. And I just want to go back to what is 
happening with moms. Why are we experiencing these wage gaps, 
what is happening with women, what is happening with women of 
color? And there are a lot of implicit bias decisions happening 
over and over and over again. And training can help shine a 
bright light on that and eradicate that.
    So we need things like the Paycheck Fairness Act. We also 
need to move forward a stronger infrastructure for working 
families in the United States of America. That includes passing 
the Family Act which was introduced yesterday. Passing the 
Healthy Families Act which is sick days. Making sure childcare 
is more affordable. Childcare costs more than college in the 
United States of America right now. Making sure that you have a 
livable wage for every one including tipped workers.
    So we need to move forward an infrastructure that is strong 
for families that includes the Paycheck Fairness Act and that 
allows our tax payer dollars to be well spent.
    One of the things I didn't mention is that TANF dollars 
would be significantly decreased if we have pay parity. So we 
see that if we have pay parity we will save tax payer dollars. 
Businesses will be happy, I'll be happy. Women will be happy. 
And everybody will celebrate. So we really hope that you pass 
the Paycheck Fairness Act yesterday.
    Ms. STEVENS. Fabulous. Well, just as I am about to yield 
back the remainder of my time, I will reemphasize how important 
and vital your voices are here today. Thank you.
    Chairwoman BONAMICI. Thank you representative. Now I 
recognize Representative Omar from Minnesota for her 5 minutes.
    Ms. OMAR. Thank you, Chairwoman. Happiness and prosperity 
for all is a really exciting conversation to be part of. I am 
grateful to all of your for being here and for being part of 
this critical conversation that will move us toward getting 
prosperity for all.
    Ms. GOSS GRAVES.it is great to see you. I know that you 
brought intersectionality into your testimony and in it, you 
address that the pay gaps actually greater for women of color. 
The statistics you shared in increased pay gap for black, 
Latino, Native American women were quite shocking. 61 cents to 
the dollar for black women, 53 cents for Latinos and 58 cents 
for Native American women.
    Clearly the pay gap is compounded by racial gap. And it 
should be obvious to all of us that this is the--this is a 
problem that extends beyond the work place. You see the impact 
everywhere you look in our society. Women of color are less 
likely to have quality of healthcare coverage, a little more 
than 20 percent of households of color experience hunger and at 
some point, that doubles the rate of white households.
    When it comes to planning for the future, working women of 
color are much less likely to have access to employer sponsored 
retirement plan. And home ownership rates among people of color 
are also comparatively low. In fact in Minneapolis, the city 
that I represent was listed as having the widest gap when 
looking at white and black home ownership rates last year.
    Minneapolis in Minnesota is also one of the most segregated 
and, you know, when it comes to the racial disparity gap is 
among the highest. So I ask you, do you agree that the gender 
gap is not only holding us back as black women but amplifying 
racial inequalities?
    Ms. GOSS GRAVES. I mean, there is no question. You know, I 
wake up thinking about this. The idea that black women make 
only 61 percent of white man's wages, that is an issue for 
them, yes. It's an issue for their whole families and black 
women are more likely to be sole or co-bread winners so it is 
an issue automatically. Their salaries is for them but it's 
also for their families and its entire communities. It ties to 
whether or not people have healthcare, it ties to whether or 
not people are really able to actually afford the childcare 
they need to work in the jobs that they need. It ties to 
whether or not communities can be collectively stable and 
really thrive.
    So we, you know, it is dealing with this issue which is a 
fundamental issue of discrimination but it is a fundamental 
issues of economic security and justice more broadly.
    Ms. OMAR. And so when we are addressing equality in this 
country, this is right as an immigrant, as a refugee, all I 
heard about was the access to justice and equality in the 
United States.
    But it seems like we often forget to address that in our 
policies. And so by implementing this, how do you see that it 
will systematically change the way we see ourselves as equal 
members of society?
    Ms. GOSS GRAVES. You know, when Congress first passed the 
Equal Pay Act, that's really what they were saying. They were 
saying if you are doing the same job you deserve to be paid the 
same wage. And what we have learned over the last 5 decades is 
we did not go far enough. Our law wasn't effective enough.
    So part of what passing the Paycheck Fairness Act right now 
would do, is send a really loud signal not just to employers 
about their conduct and the requirement that they pay people 
the first time, but really to women in this country and 
especially women of color in this country that they are seen, 
that they are and that their right to be able to work with 
dignity and with equity is a core value to this country and to 
this Congress.
    Ms. OMAR. Because, you know, I know that we have talked 
about this before, empowerment really isn't about just saying, 
right, that we deserve access to equal things but it's also 
about removing the barriers that allow us not to be empowered 
and to be equalized in society.
    So I thank you all for your testimony and appreciate this 
critical conversation we are having and bringing prosperity for 
all. Thank you.
    Chairwoman BONAMICI. Thank you, representative. I now 
recognize Representative Trone from Maryland for 5 minutes for 
his questions.
    Mr. TRONE. I thank you very much, I appreciate you coming 
out. Mrs. Goss Graves, we heard earlier from Congressman Don 
Beyer at the first, on the first panel that pay equity makes 
good business sense and that makes all the sense in the world 
to me.
    But investing in policies that ensure equity between women, 
men and women is simply good for business. Companies that hire 
and retain retains key. More women gain a competitive edge, 
diversity of thought leads to better problems solving, better 
ideas, better decisions. Basically better results. That's a win 
for everybody.
    So what are some other factors that make pay equity you 
think good for business? Now we are talking a lot about team 
member but on the other side also.
    Ms. GOSS GRAVES. One of the things that happened a decade 
ago when this Congress passed the Ledbetter Fair Pay Act is 
that new attention and awareness to equal pay happened as well. 
And so now people are thinking about it and concerned about it 
and employers know that in order to recruit and retain top 
talent, they have to be paying fair wages. And so that is an 
important incentive that is out there and that is driving some 
employers.
    That's why 100, more than 100 employers signed the White 
House Equal Pay Pledge. It's why you have seen some people not 
just do pay audit but then announce the results, right. They've 
said I just wanted to tell everyone that I have looked, I have 
done an audit and we pay fairly because they know that 
consumers care about it and that the people they are trying to 
recruit and retain care about it.
    And I wish that you could always just legislate for like 
the handful of employers who are going to, you know, do the 
right thing and only be motivated by those things. I think what 
is happening right now is some employer are making decisions 
that are not good for business, they are not good for workers 
by lowering discrimination to thrive.
    Mr. TRONE. Excellent. Agreed. Mrs. Yang, no one is arguing 
we should allow pay differences based on education training, 
experience, Equal Pay Act already allows it. And the Paycheck 
Fairness Act would not change that. But the law exists now so 
without clarifying that factors other than sex must be job 
related, seems to me that could be used as a pretext for 
discrimination. Am I wrong about that?
    And why is it important that employers use factors other 
than sex to be connected to legitimate business reasons?
    Ms. YANG. Thank you for that question. You are not wrong. 
Currently courts have allowed employers to justify pay 
differences between men and women doing substantially the same 
work in the same working conditions by reasons including random 
decisions as well as reasons that themselves had bias. And we 
have heard about some of that today, the ways in which 
negotiation can be conducted in a way that actually 
disadvantages women. So even when women try to negotiate, they 
can face a backlash. You know, she should just be happy she has 
this job. Who does she think she is? That is very real for 
women in the workplace.
    And when we see prior salary relied upon or other sort of 
end specified market forces, what you often have is that 
individuals who may be people of color, they may be under paid 
in the market for a variety of reasons. So you're introducing 
those discriminatory factors into the next job as well as 
random factors.
    And all the Paycheck Fairness Act is trying to do is get 
employers to really pay attention to what is the consequences 
of the pay system that they set up and are responsible for. So 
it's important for employers to actually look at whether the 
skills and experiences they're valuing truly are related to the 
job because sometimes they're not. And this requires employers 
to take that step which they should already be taking, but 
unfortunately not often enough. Often it is easy to rely on 
legacy practices.
    We think we know that this type of personality will be 
successful but in fact, when you look at the data and what kind 
of prior experience and skills correlated with say your best 
sales people, it might tell a very different story than the 
system you've set up.
    So this really just encourages employer who are in the 
better position to understand how their system works, to take 
that proactive action and set up fair pay policies rather than 
putting the burden on individual workers who are in the last 
safe position to address these issues.
    Mr. TRONE. Excellent. Thank you. I yield the balance.
    Chairwoman BONAMICI. Thank you, representative. I now 
recognize Representative Lee from Nevada for 5 minutes for her 
questions.
    Ms. LEE. Thank you, Chairwoman, for having this hearing and 
thank all of the witnesses for being here. I am from Nevada. I 
have had a career in helping our most at risk student's 
graduate from high school and we have found that the most 
significant risk factors for students dropping out is poverty.
    I actually sat through a hearing yesterday sort of rivaling 
this one in length. I think it actually beat it. I will get 
quicker so we can beat it. That focused on investment and 
education. A number of my colleague across the aisle 
continually raise concerns that despite increased investment in 
education our schools still continue to struggle.
    A recent study by the National Center for Children and 
Poverty found that close to 43 percent of children live in 
families with incomes that are insufficient to meet basic 
needs. And given that 63 percent of women are in sole bread 
winner or co-bread winner in their families, I would like to 
ask Ms. Goss Graves, can you comment on how this wage gap 
perpetuates inter-generational poverty and ultimately 
educational outcomes for students?
    Ms. GOSS GRAVES. Well, we know that 1 in 8 women live in 
poverty and those numbers look worse for certain groups of 
women of color and the ability to have wages that are fair and 
that and this long standing wage gap that two have that has not 
shrunk in the last decade in any way that is meaningful is 
absolutely tied to the ability for people to live out of 
poverty I'll say.
    And that's especially given the extra penalty that people 
who are mothers or people who are caregiving generally face. So 
just as people are transitioning into parenthood, as fathers 
sometimes get a pay bump, mothers get a pay cut, right. When 
there have been studies that show that people view mothers and 
value their abilities less and pay them less.
    So all of that combined when you add to it the fact that we 
are lacking the range of policies that would really make it 
possible for people to work and to care and to thrive. It makes 
it a real challenge. So the Paycheck Fairness Act is a critical 
piece of the range of things that we need to do to reduce those 
poverty rates that you've made.
    Ms. LEE. Thank you. Ms. Rowe-Finkbeiner, would you add, 
like to add anything to that?
    Ms. ROWE-FINKBEINER. Yes. I think it is important to look 
at what is happening with women and wage hits. And so I 
referenced this study that I love a little bit before. I want 
to share a little bit more about that because it really shares 
what is going on in America.
    Cornell University did a study. They had two resumes with 
equal job experiences, equal everything and the mom was hired 
80 percent less of the time than the non-mom and to Ms. Goss 
Graves point, the dad was hired more. The mom for a highly paid 
job was offered $11,000 less. The dad was offered $6,000 more.
    Right now when we look at the structure of family in 
America, the nuclear family is a thing of the past if it ever 
even was really a thing. And we know that we have to have the 
wages of women to boost our economy, to lift our children and 
importantly--now I'm on a roll we have to make sure that our 
prior wages aren't used to predict our future wages. And this 
is one of the things that is critically important in this bill.
    We cannot have our past salary be used for future wages. 
Because if we are working our way up, if we are facing an 
uphill battle and wages and discrimination and there is massive 
hiring and wage discrimination, then that past salary history 
being used to predict future history just puts us in a cycle of 
poverty.
    So that is a key essential part of the Paycheck Fairness 
Act that we 150 percent support at Moms Rising and the million 
members of Moms Rising are cheering right now just knowing that 
you are considering it. Thank you.
    Ms. LEE. Thank you. I just want to add in Nevada, if the 
wage gap were closed, women could afford 56 more weeks of food 
for her family or eight and a half additional months of rent. 
Given those statistics, could you comment on what the impact of 
closing the wage gap would be on retirement savings and Social 
Security? Ms. Rowe.
    Ms. ROWE-FINKBEINER. Over a woman's lifetime, depending on 
where you are in the pay scale, you're losing $400,000 to $2 
million over your lifetime due to the wage gap. This means that 
we have a significantly higher number of women who are elderly 
living in poverty than men who are elderly living in poverty. 
And so if we close the wage gap, it's actually an 
intergenerational benefit to women and to our economy and to 
our families.
    And as we look at what is happening with our country, we 
are facing a silver tsunami where we have a massive aging 
population and it's time right now to make sure that we close 
the wage gap before it is too late. I mean, it is already too 
late for many families but it is getting worse not better. And 
to the many points that have been raised in this room about is 
prior law sufficient, it's absolutely not sufficient. And in 
fact, as we are looking at an economy where we have greater and 
greater gaps between the very wealthy and everyone else, the 
wage gap is becoming a more dire, more emergent situation for 
the families of America that we must solve now. So thank you.
    Ms. LEE. Thank you. I yield.
    Chairwoman BONAMICI. Thank you, representative. I now 
recognize Representative Underwood from Illinois for 5 minutes 
for her questions.
    Ms. UNDERWOOD. Thank you, Madame Chair, for the opportunity 
to join this panel and thank you to our witnesses for being 
here today. Ms. Goss Graves, I want to thank you and the 
National Women's Law Center staff who came by to brief me on 
the Paycheck Fairness Act last week in preparation for the 
hearing. Thank you for that as well.
    The gender pay gap in my district is shockingly bad. For 
every dollar that men in Lindenhurst or Sugar Grove or even 
Sherwood make, women make 71 cents. And, Ms. Goss Graves and 
Ms. Yang, how quickly are we making progress on closing the 
gender pay gap?
    Ms. GOSS GRAVES. In the last decade we haven't made very 
much progress at all. You know, it has inched up like a penny. 
You know, and so what we really need is sort of a bit of a shot 
in the arm to actually get this going and closing now. So we 
are not making the progress we need.
    Ms. UNDERWOOD. OK. Ms. Yang, did you have anything to add 
to that?
    Ms. YANG. I think that one of the important things that we 
need to remember about this Paycheck Fairness Act is that right 
now we are letting equality be left to chance, right. At the 
EEOC we did not hear from the overwhelming majority of people 
who were experiencing pay discrimination. You can see the data 
in your own district that there are problems but we at the 
agency were hearing about things because of happenstance.
    Somebody found a paper on a copier that had salary 
information. Somebody sent a misdirected email. So we were 
relying on happenstance to learn about discrimination. So it 
was vital to me at the EEOC that we move forward with the pay 
data collection because that would shine a light on the 
problems.
    And to the point earlier Ms. Olson made about the utility 
of the data, we carefully studied. We had a pilot effort, we 
had two rounds of public comment to ensure that data would be 
useful to the agency. And if you had for example a hospital you 
would see that we have pay bands. So doctors would be at the 
top higher pay bands. Nurses would be in different pay bands 
and the EEOC has decades of experience looking at this data.
    We have used it to successfully identify patterns of hiring 
discrimination by looking at demographic differences as well as 
promotions where often we may see African Americans are hired 
only at entry level positions and even though they are the most 
qualified for the next level supervisor, you see very different 
patterns.
    So having that information really is one of the critical 
solutions to understanding where pay data exists so that we can 
then fix those problems.
    Ms. UNDERWOOD. Thank you. In addition to stronger penalties 
for gender discrimination at work, we need to offer solutions 
and resources that do help working families.
    Gender discrimination at work does take many forms 
including pay discrimination, sexual misconduct, harassment and 
abuse. One of my first actions once I came to Congress was to 
pass an amendment to the rules package that helps to prevent 
the misuse of non-disclosure agreements for work place 
harassment and assault.
    I want to talk about measures like secret settlements and 
mandatory arbitration that are used to silence victims of 
gender discrimination. Ms. Goss Graves, would--could non-
disclosure agreements and mandatory arbitration be used to 
silence or pressure victims or pay discrimination and if so how 
do we prevent that?
    Ms. GOSS GRAVES. Yes, I mean, discrimination thrives in the 
dark and that is one of the things that we have seen over the 
last year with Me Too going viral and Times Up, we have seen a 
lot of attention around the really serious harm of non-
disclosure agreements and forced arbitration and what that has 
meant and it makes people feel isolated.
    They think that they're the only one who is experiencing 
this sort of discrimination and it allows a--an employer who is 
doing the wrong thing to continue to do in the dark.
    You know, one of the things is, you know, there is a long 
standing bill called the Arbitration Fairness Act that would 
actually say you can't force people into these secret 
settlements. You can't force people into this mandatory type of 
arbitration. You know, many people--it's a condition of 
employment, right. The idea is like you start this job, you 
sign this paperwork and in that paperwork you have no idea you 
have signed away all of your rights to be able to have your day 
in court so to speak or sometimes tell anyone about the 
discrimination that you've experienced. So that has to change.
    Ms. UNDERWOOD. Thank you. Yesterday I stood with many of my 
Democratic colleagues to introduce the Family Act which would 
ensure that workers have access to paid family leave and 
medical leave. How would enacting the Family Act affect the 
gender wage gap, Ms. Goss Graves?
    Ms. GOSS GRAVES. Well, we know that there is a motherhood 
and caregiver penalty, right. And one of the things is the 
transition to parenthood is that you're already making less and 
so many people do not have access to paid family and medical 
leave.
    So having a national standard that says that people could 
actually do what people are doing which is both working and 
care and have the time off they need to care for themselves, to 
care for their family members in those serious situations is 
critical. And we look at it as a suite of issues that need to 
happen really all at once.
    It is overdue to finally raise wages including tipped 
workers, to finally have the paid family and medical leave, to 
finally ensure that people who are working aren't experiencing 
discrimination in the same job and to have things like access 
to child care and other work support so that people can do what 
they're doing which is engaging in work and care.
    Ms. UNDERWOOD. Thank you so much. Thank you, Madame Chair.
    Chairwoman BONAMICI. Thank you, representative. We have now 
concluded member questions. I want to remind my colleagues that 
pursuant to committee practice, materials for submission to the 
hearing record must be submitted to the committee clerk within 
14 days following the last day of the hearing, preferably in 
Microsoft Word format.
    The materials submitted must address the subject matter of 
the hearing. Only a member of the committee or an invited 
witness may submit materials for inclusion in the hearing 
record. Documents are limited to 50 pages each and documents 
longer than 50 pages will be incorporated into the record via 
an internet link that you must provide to the committee clerk 
with the required timeframe. Please recognize that years from 
now the link may no longer work.
    Again, I want to thank the witnesses so much for your 
participation today. What we have heard is very valuable. 
Members of the committees may have some additional questions 
for you. We ask the witness to please respond to those 
questions in writing. The hearing record will be held open for 
14 days to receive those responses and I remind my colleagues 
that pursuant to committee practice, witness questions for the 
hearing record must be submitted to the majority committee 
staff or committee clerk within 7 days. The questions submitted 
must address the subject matter of the hearing.
    And I now recognize the distinguished ranking member of the 
Workforce Protections Subcommittee, Mr. Byrne, for the purpose 
of making a closing Statement.
    Mr. BYRNE. Thank you, Madame Chairman, and let me 
congratulate you on this hearing. You have done an excellent 
job and I appreciate your leadership.
    Chairwoman BONAMICI. Thank you, representative.
    Mr. BYRNE. When I think about this issue, I think about my 
grandmother. My grandfather was shot and killed when my mother 
was a baby and my grandmother went to work in the early `20's. 
Imagine the workplace of the early `20's for a woman. It wasn't 
just equal pay, many jobs they wouldn't even let her think 
about applying for.
    Then my mom had to work too, and she was a bookkeeper. She 
may have had marginally better environment than my grandmother 
but not much, just to be honest with you.
    My wife works. I would say she has a much better 
environment than my mother worked in but still as some of you 
have talked about today, we haven't gotten to the point where 
we have gotten exactly where we needed to go.
    But when I think about this most, I think about my two 
daughters and my daughter-in-law, all who work and a 2-year-old 
granddaughter. And we want for those young women and that 
little girl who will grow up to be a young woman, the workplace 
where they are paid for the true value of what they provide. 
Everybody on this committee wants that. Everybody.
    The question is how do we get there? I have just got to say 
I have looked at this bill and I have listened to Ms. Olson 
with her substantial expertise and it looks like it was written 
by and for the plaintiff's layers. That is what it looks like 
and I practiced in this area for a long time myself.
    I want something that is really going to help women, not 
something that is really going help lawyers. And I think if we 
work together on this and come up with a bipartisan bill, which 
this is not, then we actually could improve the environment for 
those young women in my family.
    So I hope over the next several months we can do that 
important work because at the end of the day we should be about 
the people and not about the process. With that I yield back.
    Chairwoman BONAMICI. Thank you, Mr. Byrne, and I now 
recognize the chairwoman of the Workforce Protections 
Subcommittee, Ms. Adams, for the purpose of making a closing 
Statement.
    Ms. ADAMS. Thank you, Madame Chair, and thank you to our 
ranking member as well and to all of you for your testimony and 
to all the advocates here in Congress and on the ground working 
to ensure equal wages for equal work.
    Now throughout this hearing, we have heard how women, 
particularly women of color continue to face gender based wage 
discrimination even after 10 years of the Lilly Ledbetter Fair 
Pay Act and 56 years of the Equal Pay Act.
    So it is clear from the discussion today that we have got 
to act now. We can't continue to rob $5 billion each year from 
nearly half of our Nation's work force, shortchange families 
and children by financially penalizing mothers and force women 
to work 10 years more or up to 23 years more for women of color 
just to be paid fairly.
    Congress has an obligation to pass the Paycheck Fairness 
Act and end gender based pay discrimination once and for all. I 
would remind all of my colleagues on both sides of the aisle 
that if you are a member the U.S. House, if you are member of 
the Senate, if you are a male or female, we get the same check. 
So we need to think about that.
    Most of us here have--well, everybody here has had a mom. 
You have one or you have had one and most of us or many of us 
have had sisters or we have sisters and nieces and daughters 
and wives. So I just can't imagine that we would not advocate 
for them to be paid less for the same work just because they 
are women.
    So I want to thank all of you again. I hope that we can 
maintain a system where your gender can--does not have to 
determine your salary. The discussion today was an important 
step toward ending that shameful reality and so I look forward 
to helping to shape an America where everyone receives equal 
pay for equal work. Thank you. Thank you, Madame Chair, I yield 
back.
    Chairwoman BONAMICI. Thank you, Representative Adams. I now 
recognize the distinguished ranking member of the Civil Rights 
and Human Services Subcommittee, Mr. Comer, for the purpose of 
making a closing Statement.
    Mr. COMER. Thank you, Madame Chair. I want to thank the 
witnesses for a good discussion today and I want to thank our 
members for asking some really important questions.
    Ms. Olson, I especially want you to know how much your 
expertise shed light on this bill in particular. This is an 
important issue, but this is a legislative hearing. Your 
presentation of opportunities and shortcomings was particularly 
constructive, so I thank you for that.
    I will be brief, but I want to emphasize again that women 
are changing the workplace for the better and as the economy 
continues to improve, those contributions are going to become 
even more important.
    Thank you again for being here and, Madame Chair, I yield 
back
    Chairwoman BONAMICI. Thank you, Mr. Ranking Member. And I 
now recognize myself of the purpose of making my closing 
Statement. I want to thank the witnesses again for being here 
for your valuable contributions.
    Today women make up nearly half of our work force. 64 
percent of mothers in the United States are either the sole 
family breadwinner or a co-bread winner. Their wages pay for 
rent, groceries, childcare, healthcare. Closing the wage gap is 
an economic imperative. It's good for working families and it 
will help lift families out of poverty.
    Today's hearing on persistent gender based wage 
discrimination addresses the very injustice that is facing 
millions of working families. Our witnesses described how 
insufficient enforcement and loopholes in the Equal Pay Act and 
the Title VII of the Civil Rights Act result in barriers to 
detecting wage discrimination and to holding employers 
accountable.
    We heard how gender wage discrimination has far reaching 
and long term effects for our economy, our children and our 
families. Most importantly, we heard how Congress can provide 
workers with the tools they need to close the gender pay gap 
and achieve wage equality by passing the Paycheck Fairness Act.
    By addressing the problematic loopholes in current law, by 
empowering workers to better detect and combat wage 
discrimination and by creating mechanisms for better pay data 
transparency we can restore the original intent of the Equal 
Pay Act and finally after all these decades make equal pay for 
equal work a reality.
    There being no further business, without objection, the 
committee stands adjourned.
    [Additional submissions by Chairwoman Bonamici follow:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    [Whereupon, at 1:04 p.m., the subcommittees were 
adjourned.]

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