    [House Hearing, 117 Congress]
    [From the U.S. Government Publishing Office]

                        FIGHTING FOR FAIRNESS: EXAMINING
                            LEGISLATION TO CONFRONT
                            WORKPLACE DISCRIMINATION

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

                                 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 SEVENTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                 HEARING HELD IN WASHINGTON, DC, MARCH 18, 2021

                                   __________

                                Serial No. 117-3

                                   __________

          Printed for the use of the Committee on Education and Labor

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

              Available via: edlabor.house.gov or www.govinfo.gov

                                   __________

                       U.S. GOVERNMENT PUBLISHING OFFICE
    43-871 PDF                 WASHINGTON : 2022

    -----------------------------------------------------------------------------------

                        COMMITTEE ON EDUCATION AND LABOR

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

    RAUL M. GRIJALVA, Arizona            VIRGINIA FOXX, North Carolina,
    JOE COURTNEY, Connecticut              Ranking Member
    GREGORIO KILILI CAMACHO SABLAN,      JOE WILSON, South Carolina
      Northern Mariana Islands           GLENN THOMPSON, Pennsylvania
    FREDERICA S. WILSON, Florida         TIM WALBERG, Michigan
    SUZANNE BONAMICI, Oregon             GLENN GROTHMAN, Wisconsin
    MARK TAKANO, California              ELISE M. STEFANIK, New York
    ALMA S. ADAMS, North Carolina        RICK W. ALLEN, Georgia
    MARK De SAULNIER, California         JIM BANKS, Indiana
    DONALD NORCROSS, New Jersey          JAMES COMER, Kentucky
    PRAMILA JAYAPAL, Washington          RUSS FULCHER, Idaho
    JOSEPH D. MORELLE, New York          FRED KELLER, Pennsylvania
    SUSAN WILD, Pennsylvania             GREGORY F. MURPHY, North Carolina
    LUCY Mc BATH, Georgia                MARIANNETTE MILLER-MEEKS, Iowa
    JAHANA HAYES, Connecticut            BURGESS OWENS, Utah
    ANDY LEVIN, Michigan                 BOB GOOD, Virginia
    ILHAN OMAR, Minnesota                LISA C. Mc CLAIN, Michigan
    HALEY M. STEVENS, Michigan           DIANA HARSHBARGER, Tennessee
    TERESA LEGER FERNANDEZ, New Mexico   MARY E. MILLER, Illinois
    MONDAIRE JONES, New York             VICTORIA SPARTZ, Indiana
    KATHY E. MANNING, North Carolina     SCOTT FITZGERALD, Wisconsin
    FRANK J. MRVAN, Indiana              MADISON CAWTHORN, North Carolina
    JAMAAL BOWMAN, New York, Vice-Chair  MICHELLE STEEL, California
    MARK POCAN, Wisconsin                Vacancy
    JOAQUIN CASTRO, Texas                Vacancy
    MIKIE SHERRILL, New Jersey
    JOHN A. YARMUTH, Kentucky
    ADRIANO ESPAILLAT, New York
    KWEISI MFUME, Maryland

                       Veronique Pluviose, Staff Director
                      Cyrus Artz, Minority Staff Director
                                     ------
                SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES

                      SUZANNE BONAMICI, Oregon, Chairwoman

    ALMA S. ADAMS, North Carolina        RUSS FULCHER, Idaho, Ranking
    JAHANA HAYES, Connecticut                Member
    TERESA LEGER FERNANDEZ, New Mexico   GLENN THOMPSON, Pennsylvania
    FRANK J. MRVAN, Indiana              LISA C. Mc CLAIN, Michigan
    JAMAAL BOWMAN, New York              VICTORIA SPARTZ, Indiana
    KWEISI MFUME, Maryland               SCOTT FITZGERALD, Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  VIRGINIA FOXX, North Carolina (ex
      (ex officio)                           officio)

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                   ALMA S. ADAMS, North Carolina, Chairwoman

    MARK TAKANO, California              FRED KELLER, Pennsylvania,
    DONALD NORCROSS,New Jersey             Ranking Member
    PRAMILA JAYAPAL, Washington          ELISE M. STEFANIK, New York
    ILHAN OMAR, Minnesota                MARIANNETTE MILLER-MEEKS, Iowa
    HALEY M. STEVENS, Michigan           BURGESS OWENS, Utah
    MONDAIRE JONES, New York             BOB GOOD, Virginia
    JOHN A. YARMUTH, Kentucky            MADISON CAWTHORN, North Carolina
    ROBERT C. ``BOBBY'' SCOTT, Virginia  MICHELLE STEEL, California
                                         VIRGINIA FOXX, North Carolina (ex
                                             officio)

                               C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on March 18, 2021...................................     1

    Statement of Members:
        Bonamici, Hon. Suzanne, Chairwoman, Subcommittee on Civil
          Rights
          and Human Services.........................................     1
            Prepared statement of....................................     5
        Adams, Hon. Alma S., Chairwoman, Subcommittee on Workforce
          Protections................................................     6
            Prepared statement of....................................     7
        Fulcher, Hon. Russ, Ranking Member, Subcommittee on Civil
          Rights
          and Human Services.........................................     8
            Prepared statement of....................................     9
        Keller, Hon. Fred, Ranking Member, Subcommittee on Workforce
          Protections................................................    10
            Prepared statement of....................................    11

    Statement of Witnesses:
        Bakst, Dina, Co-Founder and Co-President of A Better Balance.    24
            Prepared statement of....................................    26
        Goss Graves, Fatima, President and CEO of the National
          Women's Law Center.........................................    92
            Prepared statement of....................................    95
        McCann, Laurie, Senior Attorney with AARP Foundation.........    12
            Prepared statement of....................................    14
        Olson, Camille, Esq., Partner, Seyfarth Shaw LLP.............    52
            Prepared statement of....................................    54

    Additional Submissions:
        Chairwoman Bonamici:
            Letter in support of the PWFA from Leading Private-Sector

              Employers dated March 15, 2021.........................   151
            Letter in support of the PWFA dated March 15, 2021.......   153
            Letter from Working IDEAL................................   160
        Chairwoman Adams:
            Letter from The Center for WorkLife Law..................   168
            Letter from the NETWORK Lobby for Catholic Social Justice   174
            Letter in support of the PUMP for Working Mothers Act
              dated
              March 18, 2021.........................................   176
            Letter in support of the PFA dated February 3, 2021......   179
            Prepared statement of Nikia Sankofa, Executive Director
              of the
              U.S. Breastfeeding Committee...........................   184
        Bowman, Hon. Jamaal, a Representative in Congress from the
          State of New York:
            Letter from the Consortium for Citizens with Disablities.   191
        Foxx, Hon. Virginia, a Representative in Congress from the
          State of North Carolina:
            Letter from Littler Workplace Policy Institute...........   193
        Hayes, Hon. Jahana, a Representative in Congress from the
          State of Connecticut:
            Letter from the Equal Rights Advocates...................   197
        Jones, Hon. Mondaire, a Representative in Congress from the
          State of New York:
            Letter from the American Association of University Women.   200
        Leger Fernandez, Hon. Teresa, a Representative in Congress
          from the State of New Mexico:
            Letter from the National Partnership for Women & Families   202
            Prepared statement from Physicians for Reproductive
              Health.................................................   207
        Stevens, Hon. Haley M., a Representative in Congress from the
          State of Michigan:
            Letter from the NETWORK Lobby for Catholic Social Justice   209
        Questions submitted for the record by:
            Chairwoman Adams.........................................   215
            Omar, Hon. Ilhan, a Representative in Congress from the
              State of
              Minnesota

            Scott, Hon. Robert C. "Bobby", a Representative in
              Congress from the State of Virginia....................   215
            Spartz, Hon. Victoria, a Representative in Congress from
              the State of Indiana...................................   245
        Responses to questions submitted for the record by:
            Ms. Bakst................................................   212
            Ms. Goss Graves..........................................   214
            Ms. Olson................................................   245

                        FIGHTING FOR FAIRNESS: EXAMINING
                            LEGISLATION TO CONFRONT
                            WORKPLACE DISCRIMINATION

                                  ----------

                            Thursday, March 18, 2021

                      House of Representatives,
       Subcommittee on Civil Rights and Human Services,
                 Subcommittee on Workforce Protections,
                              Committee on Education and Labor,
                                                        Washington, DC.
        The subcommittees met, pursuant to notice, at 10:15 a.m.
    via Zoom, Hon. Suzanne Bonamici (Chairwoman of the Subcommittee
    on Civil Rights and Human Services) presiding.
        Present: Representatives Bonamici, Adams, Scott, Norcross,
    Hayes, Stevens, Leger Fernandez, Jones, Mrvan, Bowman, Yarmuth,
    Mfume, Fulcher, Keller, Thompson, Stefanik, Miller-Meeks, Good,
    McClain, Fitzgerald, Cawthorn, and Foxx.
        Staff present: Tylease Alli, Chief Clerk; Phoebe Ball,
    Disability Counsel; Ilana Brunner, General Counsel; David
    Dailey, Counsel to the Chairman; Ijeoma Egekeze, Professional
    Staff; Alison Hard, Professional Staff; Sheila Havenner,
    Director of Information Technology; Eli Hovland, Policy
    Associate; Carrie Hughes, Director of Health and Human
    Services; Eunice Ikene, Labor Policy Advisor; Ariel Jona,
    Policy Associate; Andre Lindsay, Policy Associate; Richard
    Miller, Director of Labor Policy; Max Moore, Staff Assistant;
    Mariah Mowbray, Clerk/Special Assistant to the Staff Director;
    Udochi Onwubiko, Labor Policy Counsel; Kayla Pennebecker, Staff
    Assistant; Veronique Pluviose, Staff Director; Carolyn Ronis,
    Civil Rights Counsel; Theresa Thompson, Professional Staff;
    Banyon Vassar, Deputy Director of Information Technology; Cyrus
    Artz, Minority Staff Director; Courtney Butcher, Minority
    Director of Member Services and Coalitions; Rob Green, Minority
    Director of Workforce Policy; Georgie Littlefair, Minority
    Legislative Assistant; John Martin, Minority Workforce Policy
    Counsel; Hannah Matesic, Minority Director of Operations;
    Carlton Norwood, Minority Press Secretary; and John
    Witherspoon, Minority Professional Staff Member.
        Chairwoman Bonamici. The Joint Hearing of the Subcommittee
    on Civil Rights and Human Services and the Subcommittee on
    Workforce Protections will come to order. Welcome everyone. I
    note that a quorum is present. The subcommittees are meeting
    today to hear testimony on Fighting for Fairness, Examining
    Legislation to Confront Workplace Discrimination.
        This is an entirely remote hearing. All microphones will be
    kept muted as a general rule to avoid unnecessary background
    noise. Members and witnesses will be responsible for unmuting
    themselves when they are recognized to speak, or when they wish
    to seek recognition.
        I also ask that Members please identify themselves before
    the speak. Members should keep their cameras on while in the
    proceeding. Members shall be considered present in the
    proceeding when they are visible on camera, and they shall be
    considered not present when they are not visible on camera. The
    only exception to this is if they are experiencing technical
    difficulty, and inform the committee staff of such difficulty.
        If any Member experiences technical difficulties during the
    hearing you should stay connected on the platform, make sure
    you are muted, and use your phone to immediately call the
    committee's IT Director whose number was provided in advance.
    Should the Chair experience technical difficulty, or need to
    step away to vote on the floor, Dr. Adams is Chair of the
    Subcommittee on Workforce Protections, or another majority
    Member of one of the subcommittees if she's not available is
    hereby authorized to assume the gavel in the Chair's absence.
        This is again, an entirely remote meeting. And as such the
    committee's hearing room is officially closed. Members who
    choose to sit with their individual devices in the hearing room
    must wear headphones to avoid feedback, echoes and distortion
    resulting from more than one person on the software platform
    sitting in the same room.
        Members are also expected to adhere to social distancing,
    and safe healthcare guidelines including the use of masks, hand
    sanitizer and wiping down their areas, before and after their
    presence in the hearing room. In order to ensure that the
    committee's five-minute rule is adhered to, staff will be
    keeping track of time using the committee's field timer.
        The field timer will appear in its own thumbnail picture
    and will be named 001_timer. There will not be a one-minute
    remaining warning. The field timer will sound its audio alarm
    when time is up. Members and witnesses are asked to wrap up
    promptly when their time has expired.
        A roll call is not necessary to establish a quorum in
    official proceedings conducted remotely or with remote
    participation, but the committee has made it a practice
    whenever there is an official proceeding with remote
    participation for the clerk to call the roll to help make clear
    who is present at the start of the proceeding.
        Members should say their name before announcing they are
    present. This helps the Clerk, and also helps those watching
    the platform and the livestream who may experience a few
    seconds delay.
        At this time, I ask the Clerk to call the roll.
        The Clerk. Chairwoman Bonamici?
        Chairwoman Bonamici. Present.
        The Clerk. Chairwoman Adams?
        Chairwoman Adams. Present.
        The Clerk. Mr. Scott?
        Mr. Scott. Present.
        The Clerk. Mr. Takano?
        [No response.]
        The Clerk. Mr. Norcross?
        [No response.]
        The Clerk. Ms. Jayapal?
        [No response.]
        The Clerk. Mrs. Hayes?
        Mrs. Hayes. Present.
        The Clerk. Ms. Omar?
        [No response.]
        The Clerk. Ms. Stevens?
        [No response.]
        The Clerk. Ms. Leger Fernandez?
        [No response.]
        The Clerk. Mr. Jones?
        Mr. Jones. Present.
        The Clerk. Mr. Mrvan?
        Mr. Mrvan. Present.
        The Clerk. Mr. Bowman?
        Mr. Bowman. Present.
        The Clerk. Mr. Yarmuth?
        Mr. Yarmuth. Present.
        The Clerk. Mr. Mfume?
        [No response.]
        The Clerk. Ranking Member Fulcher?
        Mr. Fulcher. Fulcher here.
        The Clerk. Ranking Member Keller?
        Mr. Keller. Keller is here.
        The Clerk. Mr. Thompson?
        Mr. Thompson. Mr. Thompson is here.
        The Clerk. Ms. Stefanik?
        Ms. Stefanik. Present.
        The Clerk. Mrs. Miller-Meeks?
        [No response.]
        The Clerk. Mr. Owens?
        [No response.]
        The Clerk. Mr. Good?
        Mr. Good. Good is here.
        The Clerk. Mrs. McClain?
        [No response.]
        The Clerk. Mrs. Spartz?
        [No response.]
        The Clerk. Mr. Fitzgerald?
        Mr. Fitzgerald. I'm here.
        The Clerk. Mr. Cawthorn?
        Mr. Cawthorn. I am present thank you.
        The Clerk. Mrs. Steel?
        [No response.]
        The Clerk. Chairwoman Bonamici that concludes the roll
    call.
        Chairwoman Bonamici. Thank you very much.
        Mr. Norcross. Don Norcross is here Madam Chairwoman.
        Chairwoman Bonamici. Did somebody seek to be recognized?
        Mr. Norcross. Donald Norcross. I am present.
        Chairwoman Bonamici. Thank you, Mr. Norcross. Pursuant to
    Committee Rule 8(c), opening statements are limited to the
    subcommittee Chairs and Ranking Members. This allows us to hear
    from our witnesses sooner and provides all Members with
    adequate time to ask questions.
        I recognize myself now for the purpose of making an opening
    Statement.
        Every worker should be able to earn a living free from
    discrimination. But unfortunately, many women, people of color,
    older workers, workers with disabilities, and LGBTQ workers
    still experience persisted discrimination in the workplace,
    including pay disparities, limited opportunities, and
    harassment.
        Today's hearing will examine four legislative solutions to
    protect workers from various forms of workplace discrimination.
    The Pregnant Workers Fairness Act, the Protecting Older Workers
    Against Discrimination Act, the Paycheck Fairness Act, and the
    Providing Urgent Maternal Protections for Nursing Mothers Act.
        Women are on the front lines of the Coronavirus pandemic as
    essential workers, risking their lives every day to provide for
    our communities. At the same time, women are being forced out
    of the labor market.
        In September 2020, four times more women left the labor
    force than men. The experiences of women of color are even
    harsher. As a mom and a policymaker, I know how important it is
    to protect the economic security of pregnant workers and
    working families.
        It is unacceptable that in 2021 pregnant workers can still
    be forced to choose between a healthy pregnancy, or a paycheck.
    One simple accommodation, such as providing seating, water, and
    bathroom breaks, would allow them to stay safe on the job
    during their pregnancy.
        The Pregnant Workers Fairness Act clearly establishes
    nationwide a pregnant worker's right to reasonable
    accommodations and guarantees that pregnant workers can seek
    those accommodations without facing discrimination or
    retaliation in the workplace.
        It is a long overdue fix to the inadequate patchwork of
    protections under existing law. This bipartisan bill passed the
    House with overwhelming support in the 116th Congress, and I
    welcome the opportunity to work with my Republican colleagues
    to move this bill forward in a bipartisan manner again this
    year.
        Pregnant workers are not the only workers facing
    discrimination on the job. Older workers are also vulnerable to
    workplace discrimination and have become increasingly
    vulnerable to discrimination during the COVID-19 pandemic.
        Congress recognized the need to protect older workers from
    discrimination when in 1967 it enacted the Age Discrimination
    and Employment Act. But the Supreme Court severely eroded those
    protections in 2009 through its 5-4 decision in Gross v. FBL
    Financial Services.
        In that case the court imposed a higher burden of proof
    than courts have previously required for age discrimination
    cases, and because of the court's opinion in Gross, workers
    must now prove that age discrimination was the sole motivating
    cause for their employer's adverse action, rather than just a
    motivating factor in their employer's adverse action.
        The Protecting Older Workers Against Discrimination Act is
    a bipartisan legislative fix that would restore the pre-2009
    standard in age discrimination claims, thereby aligning the
    burden of proof with the same standards for proving
    discrimination based on sex, race, religion, and national
    origin.
        Congress passed this bill with bipartisan support last
    Congress, and just this morning I joined Chairman Scott and
    Congressman Davis in reintroducing it.
        Finally, I'd like to voice my strong support for the two
    other bipartisan bills under discussion today. The Paycheck
    Fairness Act, which this subcommittee and the Workforce
    Protection Subcommittee, also enthusiastically advanced last
    Congress, and the PUMP Act, which I know Chairwoman Adams will
    cover in detail.
        The four bills we are discussing today take important steps
    toward workplace gender equity, healthy pregnancies, and
    improving the economic security of all workers. I thank the
    witnesses for their time today and I yield to the Ranking
    Member Mr. Fulcher for his opening Statement.
        [The statement of Chairwoman Bonamici follows:]

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

        Every worker should be able to earn a living free from
    discrimination, but unfortunately, many women, people of color, older
    workers, workers with disabilities, and LGBTQ workers still experience
    persistent discrimination in the workplace including, pay disparities,
    limited opportunities, and harassment. Today's hearing will examine
    four legislative solutions to protect workers from various forms of
    workplace discrimination, including: the Pregnant Workers Fairness Act,
    the Protecting Older Workers Against Discrimination Act, the Paycheck
    Fairness Act, and the Providing Urgent Maternal Protections for Nursing
    Mothers Act.
        Women are on the frontlines of the coronavirus pandemic as
    essential workers, risking their lives every day to provide for our
    communities. At the same time, women are being forced out of the labor
    market. In September 2020, four times more women left the labor force
    than men. The experiences of women of color are even harsher.
        As a mom and a policymaker, I know how important it is to protect
    the economic security of pregnant workers and working families. It is
    unacceptable that in 2021, pregnant workers can still be forced to
    choose a healthy pregnancy or a paycheck when simple accommodations--
    such as providing seating, water, and bathroom breaks--would allow them
    stay safe on the job during their pregnancy.
        The Pregnant Workers Fairness Act clearly establishes nationwide a
    pregnant worker's right to reasonable accommodations and guarantees
    that pregnant workers can seek those accommodations without facing
    discrimination or retaliation in the workplace. It is a long overdue
    fix to the inadequate patchwork of protections under existing law. This
    bipartisan bill passed the House with overwhelming support in the 116th
    Congress, and I welcome the opportunity to work with my Republican
    colleagues to move this bill forward in a bipartisan manner again this
    year.
        Pregnant workers are not the only workers facing discrimination on
    the job. Older workers are also vulnerable to workplace discrimination
    and have become increasingly vulnerable to discrimination during the
    COVID-19 pandemic.
        Congress recognized the need to protect older workers from
    discrimination when in 1967 it enacted the Age Discrimination in
    Employment Act. The Supreme Court severely eroded those protections in
    2009, however, through its 5-4 decision in Gross v. FBL Financial
    Services, Inc. In that case the court imposed a higher burden of proof
    than courts had previously required for age discrimination cases.
    Because of the Court's opinion in Gross, workers must now prove that
    age discrimination was the sole motivating cause for their employer's
    adverse action, rather than just a motivating factor in their
    employer's adverse action.
        The Protecting Older Workers Against Discrimination Act is a
    bipartisan legislative fix that would restore the pre-2009 standard in
    age discrimination claims, thereby aligning the burden of proof with
    the same standards for proving discrimination based on sex, race,
    religion, and national origin. Congress passed this bill with
    bipartisan support last Congress, and just this morning I joined
    Chairman Scott and Congressman Davis in reintroducing it.
        Finally, I would like to voice my strong support for the two other
    bipartisan bills under discussion today: the Paycheck Fairness Act,
    which this Subcommittee and the Workforce Protections Subcommittee also
    enthusiastically advanced last Congress. And the PUMP Act, which I know
    Chairwoman Adams will cover in detail. The four bills we are discussing
    today take important steps toward workplace gender equity, healthy
    pregnancies, and improving the economic security of all workers.
        I want to thank all the witnesses for their time today, and I yield
    to the Ranking Member, Mr. Fulcher for his opening Statement.
                                     ______

        Mr. Fulcher your sound is not clear, so we'll give you just
    a moment to see if we can hear you clearly. Mr. Fulcher would
    you like to try again? OK I recognize Mr. Fulcher. You have
    five minutes for your opening Statement. Mr. Fulcher it's still
    not clear. In the interest of time I'm going to go to
    Chairwoman Adams and then come right back to you and that will
    give you five minutes to work on your sound.
        I recognize Chairwoman Adams for five minutes for your
    opening Statement.
        Chairwoman Adams. Thank you, Madam Chair. In addition to
    the Pregnant Worker's Fairness Act, and Protecting Older
    Workers Against Discrimination Act, today's hearing will also
    examine the Paycheck Fairness Act, and the PUMP for Nursing
    Mothers Act, both of which are partially, or fully under the
    jurisdiction of the Subcommittee on Workforce Protections.
        These bills address issues of basic fairness for women in
    the workplace. Today women earn on an average 82 cents on the
    dollar compared to white men. The wage gap is even worse for
    women of color. For example, black women earn an average of 63
    cents on the dollar, Native women earn average of 60 cents on
    the dollar, and Latino women earn an average of 55 cents on the
    dollar compared to white men.
        The wage gap persists in nearly every line of work,
    regardless of education, experience, occupation, industry, or
    job title, and that's unacceptable. From the North Carolina
    House to the U.S. House for three decades, I've been fighting
    to close the gender wage gap.
        Fifty-eight years have passed since the Equal Pay Act was
    enacted, and it's been 10 years since President Obama signed
    into law the Lilly Ledbetter Fair Pay Act, yet the promise of
    equal pay for equal work remains unfulfilled, or unfilled--
    unfulfilled excuse me.
        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 the gender-based wage disparity once
    and for all. The Paycheck Fairness Act would require employers
    to prove that a pay disparity exists for legitimate reasons,
    ban retaliation against workers who discuss their wages, allow
    more workers to participate in class action lawsuits against
    systemic pay discrimination, prohibit employers from seeking
    the salary history of perspective employees, and develop a wage
    data collection system.
        And provide a system to businesses to improve equal pay
    practices. The House passed this legislation with support of
    seven House Republicans in the 116th Congress, and we look
    forward to passing it again this year.
        Nursing workers are in need of protections in the
    workplace, to be able to maintain breast feeding when they
    return to work. More than 10 years ago the Break Time for
    Nursing Mothers Act was enacted, requiring employers to provide
    eligible nursing workers with unpaid break time, and a clean
    private space to pump.
        Unfortunately, gaps in the law limit the number of workers
    entitled to these protections, and our workers can hold their
    employers accountable when they violate these requirements. The
    PUMP for Nursing Mothers Act is a bipartisan bill that closes
    gaps that excluded nearly nine million employees who are
    exempted from overtime protections.
        The bill also ensures nursing workers have access to
    appropriate remedies when their employees fail to provide break
    time and appropriate pumping space. It also clarifies that if
    an employee is not completely relieved of duty during a break,
    that time is considered hours worked for the purposes of
    minimum wage and overtime requirements.
        Every worker who chooses to nurse understands the
    importance of being able to express breast milk, and the severe
    health consequences of failing to do so. This legislation is a
    simple improvement to existing law that will have a meaningful
    impact on nursing workers across the country.
        I strongly support all four bills under discussion today,
    and I will now yield back to you Madam Chair.
        [The statement of Chairwoman Adams follows:]

    Statement of Hon. Alma S. Adams, Chairwoman, Subcommittee on Workforce
                                  Protections

        In addition to the Pregnant Workers Fairness Act and the Protecting
    Older Workers Against Discrimination Act, today's hearing will also
    examine the Paycheck Fairness Act and the PUMP for Nursing Mothers Act,
    both of which are partially or fully under the jurisdiction of the
    subcommittee on Workforce Protections.
        These bills address issues of basic fairness for women in the
    workplace.
        Today, women earn, on average, 82 cents on the dollar compared to
    all men. The wage gap is even worse for women of color. For example,
    Black women earn an average of 63 cents on the dollar, Native women
    earn an average of 60 cents on the dollar, and Latina women earn an
    average of 55 cents on the dollar compared to white men. The wage gap
    persists in nearly every line of work, regardless of education,
    experience, occupation, industry, or job title.
        That is unacceptable. From the North Carolina House to the U.S.
    House, for three decades, I have been fighting to close the gender wage
    gap.
        Fifty-eight years have passed since the Equal Pay Act was enacted,
    and it's been ten years since President Obama signed into law the Lilly
    Ledbetter Fair Pay Act, yet the promise of equal pay for equal work
    remains unfulfilled.
        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 the gender-based wage disparity once and for all.
        The Paycheck Fairness Act would:

       Require employers to prove that a pay disparity exists for
            legitimate reasons;

       Ban retaliation against workers who discuss their wages;

       Allow more workers to participate in class action lawsuits
            against systemic pay discrimination;

       Prohibit employers from relying on the salary history of
            prospective employees; and

       Develop wage data collection systems and provide assistance
            to businesses to improve equal pay practices.

        The House passed this legislation with support of 7 House
    Republicans in the 116th Congress, and we look forward to passing it
    again his year.
        Nursing workers also need protections in the workplace to be able
    to maintain breastfeeding when they return to work.
        More than ten years ago, the Break Time for Nursing Mothers Act was
    enacted, requiring employers to provide eligible nursing workers with
    unpaid break time and a clean, private space to pump. Unfortunately,
    gaps in the law limit the number of workers entitled to these
    protections and how workers can hold their employers accountable when
    they violate these requirements.
        The PUMP for Nursing Mothers Act is a bipartisan bill that closes
    gaps that excluded nearly 9 million employees who are exempted from
    overtime protections. The bill also ensures nursing workers have access
    to appropriate remedies when their employers fail to provide break time
    and appropriate pumping space. It also clarifies that, if an employee
    is not completely relieved of duty during a break, that time is
    considered hours worked for the purposes of minimum wage and overtime
    requirements.
        Every worker who chooses to nurse understands the importance of
    being able to express breast milk and the severe health consequences of
    failing to do so. This legislation is a simple improvement to existing
    law that will have a meaningful impact on nursing workers across the
    country.
        I strongly support all four bills under discussion today and I will
    now yield to the Ranking Member, Mr. Keller.
                                     ______

        Chairwoman Bonamici. Thank you, Chair Adams, and I now
    recognize Ranking Member Fulcher for five minutes for your
    opening Statement.
        Mr. Fulcher. Thank you, Madam Chair. I think I understand
    now how some of our remote students feel with their struggles
    in learning remotely. Thank you to all of our witnesses for
    joining us here today. Thank you again Madam Chair.
        We all agree that discrimination in America's workplace is
    wrong and should not be tolerated. That's why there are laws
    prohibiting such egregious behavior. And while the reported
    intent behind this legislation is admiral, good intentions
    don't always bring good policy.
        Good policy comes from thorough examination and bipartisan
    collaboration. This hearing is far from thorough as we are
    considering all at once four separate and distinct bills that
    make significant changes to very important laws.
        It's also not bipartisan. If my colleagues across the aisle
    were truly interested in bipartisan collaboration on these
    bills, they would have allowed more than one Republican witness
    to testify. This will not result in a fair or adequate
    examination of the underlying issues, and it certainly misses
    the mark regarding today's hearing title ``Fighting for
    Fairness.''
        Although today's hearing will cover a number of bills, I'll
    comment on one bill that is particularly troubling. The so-
    called Protecting Older Workers from Discrimination Act is just
    another empty promise wrapped in a convenient title. There's no
    evidence of data that suggests this bill is needed.
        It's already against the law to discriminate in the
    workplace because of an individual's age. Congress has enacted
    significant laws prohibiting the employment discrimination,
    including the Age Discrimination Employment Act, the Americas
    with Disabilities Act, and Rehabilitation Act, and the Civil
    Rights Act.
        Additionally, employment trends for older workers are
    positive in recent decades. In 2019 older workers earn 7
    percent more than the median income for all workers compared to
    20 years ago when older workers earned 23 percent less than the
    median for all workers.
        In Idaho today, workers 45 to 64 are earning 19.6 percent
    more than all workers in the State. This trend is expected to
    continue as we recover economically from COVID-19. The only
    parties likely to win if the bill is enacted into law are the
    trial lawyers. The bill will increase frivolous legal claims
    against business owners, thereby taking away valuable resources
    from efforts to prevent harassment and discrimination.
        The bill disregards current law. Real world workplace
    solutions, and Supreme Court precedent ultimately rewarding
    trial lawyers at the expense of older Americans. I thank the
    witnesses for being here today. I hope as Members of this
    Committee we'll be able to work together in the future on real
    solutions to real problems. Madam Chair I yield back.
        [The statement of Ranking Member Fulcher follows:]

     Statement of Hon. Russ Fulcher, Ranking Member, Subcommittee on Civil
                           Rights and Human Services

        Republicans and Democrats agree that discrimination in any form is
    wrong. It should not be tolerated in America's workplaces. That's why
    there are laws prohibiting such egregious behavior. And while the
    purported intent behind the legislation before us is admirable, good
    intentions don't always bring good policy.
        Good policy comes from thorough examination and bipartisan
    collaboration. This hearing is far from thorough, as we are considering
    all at once, four separate and distinct bills that make significant
    changes to very important laws.
        It's also not bipartisan. If Democrats were truly interested in
    bipartisan collaboration on these bills, they would have allowed more
    than ONE Republican witness to testify. This will not result in a fair
    or adequate examination of the underlying issues and certainly misses
    the mark regarding today's hearing title `fighting for fairness.'
        Although today's hearing will cover a number of bills, I'll comment
    on one bill that is particularly troubling. The so-called Protecting
    Older Workers Against Discrimination Act is just another empty promise
    from Democrats wrapped in a convenient title.
        There is no evidence or data that suggests this bill is needed. It
    is already against the law to discriminate in the workplace because of
    an individual's age. Congress has enacted significant laws prohibiting
    employment discrimination, including the Age Discrimination in
    Employment Act, the Americans with Disabilities Act, the Rehabilitation
    Act, and the Civil Rights Act.
        Additionally, employment trends for older workers are positive in
    recent decades. In 2018, older workers earned 7 percent more than the
    median income for all workers, compared to 20 years ago when older
    workers earned 23 percent less than the median for all workers. In
    Idaho today, workers 45 to 64 years old are earning 19.6 percent more
    than all workers in the State. This trend is expected to continue as we
    recover economically from COVID-19.
        The only parties who will `win,' in nearly all cases if the bill is
    enacted into law, are trial lawyers. The bill will also increase
    frivolous legal claims against business owners. These undeserving
    claims will take valuable resources away from efforts to prevent
    harassment and discrimination.
        This bill being pushed by Democrats disregards current law, real-
    world workplace situations, and Supreme Court precedent; ultimately
    rewarding trial lawyers at the expense of older Americans.
        I thank the witnesses for being here today. I hope as Members of
    this Committee, we will be able to work together in the future on real
    solutions to real problems instead of gifting trial lawyers a payout
    under the guise of `protecting' older workers. I yield back.
                                     ______

        Chairwoman Adams. Thank you very much Ranking Member
    Fulcher and I now recognize the Ranking Member of the
    Subcommittee on Workforce Protections, Mr. Keller, for the
    purposes of making an opening Statement.
        Mr. Keller. Thank you to both of our Chairwomen, Ranking
    Member Fulcher and to all our witnesses for joining us today.
    I'd first like to associate myself with the remarks made by
    Ranking Member Fulcher about the structure of the hearing
    unfolding here today.
        Only allowing the minority to invite one witness for a
    legislative hearing covering four different bills, is far from
    unifying, and will not result in a thorough bipartisan
    examination of the important topics before us. I'd like to
    comment specifically on one of the bills being discussed today,
    H.R. 7. Equal work deserves equal pay, regardless of the sex of
    the employee.
        In America this is the law. Paying women less than men for
    equal work is wrong and illegal. If employers are doing so,
    they are wrong, and they are breaking the law. No one here
    disagrees with that fact. That's why Congress enacted the Equal
    Pay Act of 1963, which made it illegal to pay different wages
    to women for equal work.
        The following year Congress enacted even broader,
    nondiscrimination laws making it illegal for employers to
    discriminate because of race, color, national origin, religion
    and sex, in Title VII of the Civil Rights Act. These landmark
    laws are important affirmation of who we are and what we
    believe as a country, that workplace discrimination is
    repugnant and illegal, and quite frankly, discrimination of any
    kind in our country is unacceptable.
        H.R. 7, the so-called Paycheck Fairness Act is a false
    promise that creates opportunities and advantages for trial
    lawyers, not for working women. Instead of treating sex
    discrimination charges with the seriousness they deserve, the
    Paycheck Fairness Act is designed to make it easier for trial
    lawyers to bring more suits of questionable validity for the
    purpose of siphoning off unlimited pay days from settlements
    and jury awards, lining their own pockets and dragging women
    through tedious, never-ending legal turmoil.
        The Paycheck Fairness Act offers no new or meaningful
    protections against pay discrimination, rather it dramatically
    limits the ability of employers to defend themselves against
    claims of discrimination based on pay disparities that result
    from legitimate factors.
        Just 2 months ago the women's labor force participation
    rate hit a 33 year low, the lowest it's been since 1988. At a
    time when women are leaving the work force in droves, largely
    due to COVID-19, and lengthy school closures, the last thing we
    should be doing is dragging working women through never-ending
    legal turmoil while making it easier for trial lawyers to score
    unlimited pay days.
        All employees should be valued for their recognizable
    contributions to the American work force and economy. Instead
    of working on redundant laws to line the trial lawyer's
    pockets, this committee should be focused on policies that
    foster individual freedom, innovation, and progressive economic
    policies so all workers and jobseekers have opportunities to
    achieve life-long success. Thank you and I yield back.
        [The statement of Ranking Member Keller follows:]

        Statement of Hon. Fred Keller, Ranking Member, Subcommittee on
                             Workforce Protections

        Thank you, to both of our Chairwomen, Ranking Member Fulcher, and
    to all our witnesses for joining us today.
        I'd first like to associate myself with the remarks made by Ranking
    Member Fulcher about the structure of the hearing unfolding here today.
    Only allowing the minority to invite one witness for a `legislative'
    hearing covering four different bills is far from `unifying' and will
    not result in a thorough, bipartisan examination of the important
    topics before us.
        I'd like to comment specifically on one of the bills being
    discussed today, H.R. 7. Equal work deserves equal pay, regardless of
    the sex of the employee. In America, this is the law. Paying women less
    than men for equal work is wrong and illegal. Employers who continue to
    do so are wrong and they are breaking the law. No one here disagrees
    with that fact.
        That's why Congress enacted the Equal Pay Act of 1963, which made
    it illegal to pay different wages to women for equal work. The
    following year, Congress enacted even broader nondiscrimination laws,
    making it illegal for employers to discriminate because of race, color,
    national origin, religion, and sex in Title VII of the Civil Rights
    Act.
        These landmark laws are an important affirmation of who we are and
    what we believe as a country: that workplace discrimination is
    repugnant and illegal.
        H.R. 7, the so-called Paycheck Fairness Act, is a false promise
    that creates opportunities and advantages for trial lawyers-not for
    working women. Instead of treating sex discrimination charges with the
    seriousness they deserve, the `Paycheck Fairness' Act is designed to
    make it easier for trial lawyers to bring more suits 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 turmoil.
        The `Paycheck Fairness' Act offers no new or meaningful protections
    against pay discrimination. Rather, it dramatically limits the ability
    of employers to defend against claims of discrimination based on pay
    disparities that result from legitimate factors.
        Just two months ago, the women's labor force participation rate hit
    a 33-year low, the lowest it's been since 1988. At a time when women
    are leaving the work force in droves, largely due to COVID-19 and
    lengthy school closures, the last thing we should be doing is dragging
    working women through never-ending legal turmoil while making it easier
    for trial lawyers to score unlimited paydays.
        All employees should be valued for their recognizable contributions
    to the American work force and economy. Instead of working to line
    trial lawyers' pockets, this Committee should be focused on polices
    that foster individual freedom, innovation, and pro-growth economic
    policies so all workers and job seekers have opportunities to achieve
    life-long success.
                                     ______

        Chairwoman Bonamici. Thank you Ranking Member Keller.
    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 Word format by 5
    p.m. on April 1, 2021.
        I will now introduce the witnesses. Ms. Laurie McCann is a
    Senior Attorney with AARP Foundation Litigation. Her principle
    responsibilities include litigation and amicus curiae
    participation for AARP on a broad range of age discrimination
    and other employment issues. McCann is a noted speaker on the
    Aging Workforce.
        Ms. Dina Bakst is Co-Founder and Co-President of A Better
    Balance, a leading national legal advocacy organization
    headquartered in New York City. A Better Balance is dedicated
    to advancing the rights of working families, promoting fairness
    in the workplace, and helping workers across the economic
    spectrum care for themselves and their families without risking
    their economic security.
        Ms. Camille Olson is a partner in 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.
        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 working across a
    broad set of issues central to women's lives, including income
    security, health and reproductive rights, education access, and
    workplace justice.
        We appreciate the witnesses for participating today, and we
    look forward to your testimony. Let me remind the witnesses
    that we have read your witness Statements and they will appear
    in full in the hearing record. Pursuant to Committee Rule 8(d)
    and committee practice, you are each asked to limit your oral
    presentation to a five-minute summary of your written
    Statement. I also wanted to remind the witnesses that pursuant
    to Title 18 of the U.S. Code, Section 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. During your
    testimony, staff will be keeping track of the time and will use
    a chime to signal when one minute is left and when time is up
    entirely. They will sound a short chime when there is one
    minute left and a longer chime when time is up. Please be
    attentive to the time and wrap up when your time is over and
    then re-mute your system. If you experience any technical
    difficulties during your testimony or later in the hearing,
    please stay connected on the platform, make sure you are muted
    and use your phone to immediately call the committee's IT
    director, whose number been provided in advance. We will let
    all the witnesses make their presentations before we move to
    Member questions, and when answering a question, please
    remember to unmute your microphone. I will first recognize Ms.
    McCann.

         STATEMENT OF LAURIE McCANN, SENIOR ATTORNEY WITH AARP
                       FOUNDATION, WASHINGTON DC

        Ms. McCann. Chairs Adam and Bonamici, Ranking Members
    Fulcher and Keller and Members of the committee. On behalf of
    our nearly 38 million members, and all older Americans, AARP
    thanks you for inviting us to testify concerning the need to
    confront workplace discrimination, and the role The Protecting
    Older Workers Against Discrimination Act would play in doing
    so.
        For older individuals, age discrimination is the most
    significant barrier to both getting and staying employed. The
    COVID-19 pandemic has only amplified age discrimination. High
    and persistent unemployment, compounded by the health risks of
    COVID-19 threatens the retirement security of older workers,
    especially women over the age of 55.
        A key reason age discrimination remains stubbornly
    persistent is because ageism in our culture remains stubbornly
    entrenched, quite possibly ageism is one of the last acceptable
    forms of prejudice in our society.
        Too often courts fail to interpret the Age Discrimination
    Employment Act as a remedial civil rights statute which then
    results in its protections being weakened. Perhaps the worst
    example of the increasingly cramped reading of the ADEA by the
    courts is Gross versus FBL Financial Services, a more than 10
    year-old Supreme Court decision and the impetus of the POWADA
    legislation.
        Not long after the decision I accompanied Jack Gross as he
    visited Members of this body to encourage passage of the very
    same legislation we are discussing today.
        Mr. Gross's employer underwent a merger after he had had a
    successful 30 year career. Older workers who did not accept a
    buyout were demoted and replaced by younger workers.
        Jack went to court and a jury awarded him about $47,000.00
    in lost compensation. So when his case was appealed to the
    Supreme Court, the court rules that the ADEA requires a much
    stricter showing of causation than other forms of
    discrimination.
        It was no longer enough to prove that age was one of the
    motivating factors behind an employer's conduct, the court
    rules that older workers must prove that age was a decision but
    for cause for the employer's actions.
        The Gross decision has made it far more difficult for older
    workers to get their day in court, and even more difficult to
    prevail. I just explained how in Jack's own case, he won under
    the motivating factor framework, but after the Supreme Court
    changed the rules and required him to retry his case under the
    new higher standards, he lost, despite having proven the same
    facts with the same parties in the same court as before.
        In another case from Jack's home State of Iowa, an older
    employer brought an age discrimination case both under the ADEA
    and the Iowa Civil Rights Act. Under the ADEA Gross's but for
    standard governed, but under the Iowa State law workers need
    only show that discrimination was a motivating factor in the
    adverse treatment.
        A single court applying the different standards to the very
    same set of facts reached opposite conclusions. The worker lost
    her ADEA case due to Gross, but her State law claim survived.
        The Gross decision has sent a terrible message to employers
    and the court, that age discrimination isn't as wrong as other
    forms of discrimination, that some age discrimination is OK, as
    long as the employer can point to other lawful motives that may
    have also played a role, employers will escape liability
    altogether.
        In this manner the Gross decision undermined Congress's
    mandate for how they expected the ADEA to be enforced, that age
    discrimination would play no role in employment decision.
    POWADA does not expand civil rights, it has long been a
    bipartisan straightforward restoration of the standard that was
    in effect before 2009.
        Discrimination is discrimination, and POWADA clarified
    Congress's intent that no amount of unlawful discrimination in
    the workplace is acceptable. Congress should pass POWADA as
    soon as possible. Thank you again for inviting AARP to testify.
        [The prepared Statement of Ms. McCann follows:]

                      Prepared statement of Laurie McCann
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Bonamici. Thank you for your testimony, and we
    will now hear from Ms. Bakst. Ms. Bakst you are recognized for
    five minutes for your testimony.

       STATEMENT OF DINA BAKST, CO-FOUNDER AND CO-PRESIDENT OF A
                             BETTER BALANCE

        Ms. Bakst. Thank you to the chairs, Ranking Members, and
    distinguished Members of the subcommittee for the opportunity
    to testify today in support of the Pregnant Workers Fairness
    Act, and the PUMP for Nursing Mothers Act.
        A Better Balance is a national legal advocacy organization
    dedicated to advancing justice so workers can care for
    themselves and their loved ones without risking their economic
    security. We founded A Better Balance 15 years ago because we
    recognized that a lack of fair and supportive workplace laws
    and policies, the care crisis, was disproportionately harming
    women, especially black and Latino mothers in low-wage jobs.
        This bias and inflexibility often kicks in when women
    become pregnant, and then snowballs until lasting economic
    disadvantage. We call this the pregnancy penalty, and since day
    one A Better Balance has recognized it as a key barrier to
    gender equality in America.
        We've heard from thousands of women in both the public and
    private sector on our free legal help line who have experienced
    the harsh blow of the pregnancy penalty. Armanda Legros, a
    mother on Long Island who was forced out of her job at an
    armored truck company because her employer would not
    accommodate her lifting restriction.
        Without an income she struggled to feed her newborn and her
    young child. As she told the Senate Help Committee in 2014
    ``Once my baby arrived, just putting food on the table for him
    and my 4 year old was a challenge. I was forced to use water in
    his cereal at times because I could not afford milk.''
        Years later we're still hearing the same stories of
    pregnant women who are fired, or forced out instead of being
    granted temporary, reasonable accommodations. This time it's
    with a global pandemic in the backdrop that has forced millions
    of women to risk their health, or leave the workplace, with a
    lack of paid leave and childcare exacerbating these challenges.
        At the height of the pandemic we heard from Tasia, a
    pregnant retail worker in Missouri who called us because a
    store's water fountain was shut down due to COVID-19 safety
    concerns. To avoid dehydration, which can lead to significant
    health consequences during pregnancy, she asked her manager if
    she could keep a water bottle behind the counter. He refused.
        Worried about the health of her pregnancy she left her job.
    Sarah, a healthcare worker in Kansas, resorted to pumping milk
    in her car just once a day after her boss disparaged her for
    pumping at work. She frequently became engorged and suffered
    from painful clogged milk ducts. Her milk supply dropped.
        This took place in spite of the fact that at least of her
    coworkers regularly took smoke groups multiple times a day.
    Why, nearly 10 years later was Tasia in the same position as
    Armanda? Why didn't Sarah have any recourse when she needed to
    pump?
        Why have we heard from hundreds more women in the same
    exact position? The answer is gaps in the law itself. Neither
    the Pregnancy Discrimination Act, nor the Americans With
    Disabilities Act provide an explicit right for pregnant workers
    with no limitations, and need accommodations to maintain a
    healthy pregnancy?
        In our 2019 report, long overdue, we found that pregnant
    workers are losing two-thirds of their pregnancy accommodation
    cases because the 2015 Supreme Court case, Young versus UPS,
    laid out an overly complicated burdensome standard requiring
    pregnant workers to jump through legal hoops and prove
    discrimination to get something as simple as a water bottle.
        This standard is unfair and a barrier to justice,
    especially for black and Latino women in low-wage, inflexible
    and physically demanding jobs who need timely accommodations to
    protect their health and their paycheck. Alternatively, the
    Americans With Disabilities Act covers those with disabilities,
    but a worker with a routine pregnancy who needs an
    accommodation to prevent a complication is completely out of
    luck.
        The Pregnant Worker Fairness Act would finally put an end
    to the second class treatment and ensure that pregnant workers
    have an affirmative right to workplace accommodations. I was
    honored to testify in this legislation in October 2019, which
    passed in the House this past September with overwhelming
    bipartisan support, in the midst of a global pandemic and
    [inaudible] session.
        There is simply no reason for it not to pass again without
    delay. The 2010 Breaktime for Nursing Mothers Law is also
    falling well short due to broad exclusions and weak enforcement
    mechanisms. Due to where the law is placed in the Fair Labor
    Standards Act, nearly 9 million women of child-bearing age are
    excluded from the law's protections.
        Those who are covered have no effective remedy for
    violations of the law. One Federal judge put it best, calling
    the Breaktime Law's remedy ``toothless'', and the law's
    incentive to terminate a breastfeeding worker, rather than
    accommodate her, ``an absurdity.''
        Extensive research shows that breastfeeding has immense
    benefits for mothers and children from preventing breast cancer
    in moms, to preventing obesity and asthma in children. While
    most women start out breastfeeding, the numbers sharply drop as
    time goes on.
        This is often because women lack the workplace supports to
    continue breastfeeding. The PUMP Act will change that by
    closing gaps in the law, and finally guaranteeing fair
    treatment to nursing mothers. As Armanda told the Senate Help
    Committee, having a baby should not mean losing your job. It
    should not lead to fear and financial dire straits.
        In 2021 women in America should not be forced to choose
    between becoming a mother and earning a paycheck. Passage of
    these critical measures is long overdue. Thank you.
        [The prepared Statement of Ms. Bakst follows:]

                        Prepared statement of Dina Bakst
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Bonamici. Thank you for your testimony and next
    we will hear from Ms. Olson. Ms. Olson you are recognized for
    five minutes for your testimony.

      STATEMENT OF CAMILLE OLSON, ESQ., PARTNER, SEYFARTH SHAW LLP

        Ms. Olson. Thank you. Good morning subcommittee Members. As
    an employment attorney at Seyfarth Shaw, I work with companies
    nationwide to ensure they maintain legally compliant employment
    policies and practices. I've also litigated numerous cases
    alleging violations of Title XII, the ADA, the ADEA and the
    Equal Pay Act.
        My written testimony contains my analysis of the four
    pieces of legislation under consideration. Today I will discuss
    a number of significant concerns with the Paycheck Fairness Act
    and POWADA. I will also discuss opportunities to strengthen the
    Equal Pay Act.
        First, with respect to the Paycheck Fairness Act, I'd like
    to share three of those opportunities and concerns now. H.R. 7
    presume all employee pay rates result from employer
    discrimination and rewrites existing legal standards, remedies,
    and class action procedures contained in the Equal Pay Act.
        First H.R. 7 effectively eliminates the factor other than
    sex defense. Under the Equal Pay Act, most courts currently
    require an employer to prove that any pay difference is
    business or job related. If the employer cannot do so, the
    Plaintiff prevails without any showing of discriminatory intent
    under the Equal Pay Act.
        Under H.R. 7, an employer would also be required to prove
    with respect to every pay differential, not only that the
    reason was business or job related, but also that it paid
    differently because of a business necessity, that the business
    necessity explain 100 percent of any pay difference, and the
    business necessity was not derived from a sex-based
    differential in compensation.
        Even if an employer meets these high burdens, it still
    loses. If years later a litigant identifies an alternative
    employment practice that would have serve the same purpose
    without a wage difference. But what if the alternative offered
    in litigation is when implemented less efficient, more costly,
    or an unproven alternative in a time sensitive project that
    needed immediate staffing.
        Is the employer's proven business necessity now rejected?
    Under H.R. 7 the answer is yes. Similarly, H.R. 7 would require
    employers to ignore an employee's competitive job offer, or
    salary expectations unless it can prove that the higher
    competitive wage offer, or salary expectation is not the result
    of historical wage discrimination by prior or other employers.
    This by definition, is an impossible burden.
        Second, H.R. 7 goes too far by prohibiting an employer from
    considering prior salary information volunteered by the
    applicant at the outset of the application process. The
    majority of courts of appeals recognize justifiable reasons for
    considering an applicant's prior salary as a factor other than
    sex.
        Third, H.R. 7's expansion of available remedies and class
    action procedures under the Equal Pay Act is unwarranted. For
    example, H.R. 7's unlimited compensatory and punitive damages
    far exceed the available remedies under Title VII and are in
    addition to significant penalties that already exist under the
    Equal Pay Act.
        Despite these Stated concerns, there are opportunities to
    improve the Equal Pay Act. For example, adding language that
    expressly States the pay differential between workers
    performing the same work must be based on business or job-
    related reasons. Providing employees with an express protection
    against retaliation from engaging in reasonable activities
    related to a good faith belief that an unlawful wage disparity
    may exist.
        And providing employers with incentives to engage in
    voluntary self-critical jobs and compensation analysis. Moving
    on to one other bill before you today POWADA, I must note it is
    not legislation designed to strengthen the ADEA or the rights
    of older workers, notwithstanding its title.
        Instead it attempts to import into the ADEA, the ADA, the
    Rehab Act, and Title VII for retaliation purposes the concept
    of mixed motive discrimination. But a mixed motive theory does
    not provide workers under any statute with any job-related
    monetary or injunctive relief. It is a run at the U.S. victory
    for a worker. It only provides for attorney's fees.
        And for all the reasons discussed from my testimony, a
    mixed motive theory is inappropriate to apply to these statutes
    or for determining retaliation under Title VII. Subcommittee
    Members thank you for the opportunity to share my perspective
    with you today.
        [The prepared Statement of Ms. Olson follows:]

                      Prepared statement of Camille Olson
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Bonamici. Thank you for your testimony. And
    finally, we'll hear from Ms. Goss Graves. Ms. Goss Graves
    you're recognized for five minutes for your testimony.

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

        Ms. Goss Graves. Thank you Chair Bonamici, Chair Adams,
    Ranking Member Fulcher, Ranking Member Keller, and Chair Scott
    and Ranking Member Foxx, and all the Members of the committee
    for the opportunity to submit this testimony today on the
    Paycheck Fairness Act and the Pregnant Workers Fairness Act.
        I'm Fatima Goss Graves, President and CEO at the National
    Women's Law Center. This hearing on workplace fairness really
    couldn't come at a more critical time. Women, and particularly
    women of color, have been bearing the brunt of the pandemic and
    economic recession, as essential workers who are risking their
    lives for minimum wage, and too low wages, as those who have
    disproportionately born the devastation of job losses and those
    who are shouldering the majority of responsibility of
    caregiving without necessary supports.
        In many ways the last year has only heightened the
    importance of proactive efforts to address gender waste gaps
    and discrimination. Workers are more desperate to keep a
    paycheck at any cost. They are less willing to uncover and
    challenge discrimination and workplace abuses, and often face
    retaliation for doing so.
        Again, the pandemic is also likely to deepen the challenges
    women already faced in hiring and promotion and advancement.
    And at the same time workers have fewer resources to formally
    challenge this discrimination. We know that there is a pay gap
    across occupations including front line workers. It amounts to
    about 10,000 per year with even higher losses for women of
    color.
        That gap means that Latinos lose well over a million over
    their lifetime compared to white non-Hispanic men. COVID-19
    also has brought home the many ways pregnant workers are
    already left unprotected on the job. Pregnant workers are doing
    essential work, and frontline jobs like home health aides and
    nursing assistant jobs are physically demanding and come with
    even greater risk during COVID.
        No one should have to choose between a paycheck and a
    healthy pregnancy. But without a clear Federal standard many
    pregnant workers will continue to be denied accommodations and
    pushed out of work. And we've already heard today the point
    that discrimination is already against the law. That's of
    course the case, and now for five plus decades.
        But the truth is we know that the ways that our laws aren't
    working and allow discrimination to continue to persist. States
    have moved forward because Congress has not. We have thirty
    States and the District of Columbia have passed bills, or
    issued executive orders to explicitly grant pregnant employees,
    or certain categories of pregnant employees the right to
    reasonable accommodations at work.
        On equal pay we've seen a similar movement. Since 2016
    we've had fourteen States plus several localities prohibit
    employers from relying on prior salary information to set new
    salaries. And new research shows that these laws are working to
    narrow gender and racial wage gaps and increase wages for women
    and black workers.
        Multiple States have tightened legal loopholes that allowed
    employers to justify paying women less for equal work. In
    addition, pay discrimination because it's often cooped in
    secrecy and seldom obvious to the person directly affected.
    States and localities around the country are taking measures in
    recent years to bring paid practices into the light.
        Nineteen States passed laws protecting employee's rights to
    talk about how much they make. Three States have passed laws
    requiring businesses to provide salary information to
    applicants during the hiring process, and States, including
    California and New Jersey have enacted pay date of recording
    requirements.
        Globally we've seen movement too. In Europe we've seen
    legislation requiring analysis and reporting of compensation
    data, and public disclosure of wage gaps. And research shows
    the positive effects of these mandates on driving employer pay
    analysis and closing dates gap.
        But it's not enough for States to pass laws, and it's not
    enough for global corporations to feel any direct pressure to
    address their U.S. pay practices because of other countries
    like the U.K. And it's also not enough for some employers to
    voluntarily take steps to close the wage gaps, although we have
    been heartened to see that happen.
        This country deserves robust baseline protections in our
    Federal law that actually work. So the Paycheck Fairness Act is
    definitely part of this response. When it bars retaliation and
    gets workers who talk about pay and requires employers to
    report pay data, that's promoting both transparency and
    compliance.
        When it prohibits employers from relying on salary history
    to set new pay, it prevents pay discrimination from following
    people from job to job. When it closed the loopholes in the
    law, it actually ensures that our pay discrimination laws work,
    and ensures women can receive the same robust remedies for sex-
    based pay discrimination.
        We just believe we can't build back an economy that works
    for everyone without ensuring all women can work with the
    quality, safety, and dignity. Thank you for the opportunity to
    testimony, and my full written testimony is submitted for the
    record. I look forward to any questions.
        [The prepared Statement of Ms. Goss Graves follows:]

                    Prepared statement of Fatima Goss Graves
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairwoman Bonamici. Thank you for your testimony.
        Under Committee Rule 9(a), we will now question witnesses
    under the five-minute rule. After the Chairs and Ranking
    Members, I will recognize Members of both subcommittees in the
    order of their seniority on the full committee.
        Again, to make sure that the Members' five-minute rule is
    adhered to the staff will be keeping track of time and the
    timer will sound when the time has expired. Please be attentive
    to the time and wrap up when your time is over and then re-mute
    your microphone.
        And as chair, I recognize myself for five minutes.
        We have discussed how reasonable accommodations do not need
    to be, nor are they typically complicated or costly. But when
    pregnant workers do not have access to the accommodations they
    need, they are forced to choose between their financial
    security and their pregnancy, and the results can be
    devastating.
        Ms. Bakst can you describe which pregnant workers are most
    negatively affected by the lack of a reasonable accommodation?
        Ms. Bakst. Absolutely, thank you. So, the pregnant workers
    who are most negatively affected are women in low-age
    inflexible and physically demanding jobs, disproportionately
    black and Latino women who work in both the private and State
    employers.
        Many low-income workers can't work from home. Millions
    remain in the work force with women of color disproportionately
    represented in frontline, often low-wage jobs such as fast
    food, retail, home health, and State police officers, where
    they continue to fact structural biases that prevent them from
    caring for themselves and their loved ones, and maintaining
    their economic security.
        When a low-income pregnant worker loses her income, she
    doesn't have access to job protective leave, too often doesn't
    have access to fall back on, so she spirals into deeper
    economic trouble with lasting economic and health consequences.
    We've seen workers who've lost their health insurance, forcing
    them to delay or avoid critical pre or post-natal care.
        Or leaving them with crippling medical bills. Others like
    Armanda struggling to feed their families, or others wind up
    homeless. Some prospects of promotion, advancement and
    retirement savings also disappear, especially as it becomes
    more difficult to re-enter the work force after becoming a
    mother, exacerbating their gender wage gap, and many mothers
    falling deeper into poverty.
        Preserving pregnant workers economic security is especially
    important at a time when the COVID-19 pandemic has
    disproportionately again for women of color and low-wage jobs,
    with many experts suggesting that it could take years to undo
    the economic damage.
        And many will have experienced long-term hits to their
    careers, earnings, and retirement security. While the PWFA was
    needed before the pandemic, it has taken on a new urgency as a
    critical measure to keep women health and attached to the work
    force.
        Chairwoman Bonamici. Thank you Ms. Bakst. I know you
    mentioned a bit in your oral testimony, but can you briefly
    talk about what kind of health complications can arise when
    pregnant workers don't have a reasonable accommodation? And I
    do want to allow time for another question, so if you could be
    brief thanks.
        Ms. Bakst. Sure. Look, pregnancy accommodations are a
    crucial tool to address our Nation's maternal and infant health
    crisis right. Just I'll never forget a pregnant cashier who
    fainted and collapsed on the retail floor due to dehydration
    because her employer wouldn't let her carry a water bottle.
        A former client, Tasha Morell in Tennessee, was forced to
    continue heavy lifting while pregnant and working in a factory
    and wound up miscarrying. And just this past year one court
    held that a pregnant worker with complications including
    preeclampsia, was unprotected, and not entitled to
    accommodations because she didn't have a disability.
        This is absurd. These accommodations are low-cost, often
    with low or no cost, but with high impact having to prevent
    miscarriage, pre-term birth, low birth weight, preeclampsia,
    birth defects, and the racial disparities and maternal health
    outcomes are truly just staggering.
        Chairwoman Bonamici. Thank you very much. And I'm going to
    have to move on, and I know that my home State of Oregon has
    passed at the State level, similar legislation, which was
    broadly supported, including by the business community because
    it's given them certainty about what they need to do to
    accommodate pregnant workers.
        So, my home State of Oregon has one of the most rapidly
    aging populations in the country, and I've heard from workers
    particularly in the technology industry who have been dismissed
    or denied employment because of their age.
        But investigations by the U.S. Equal Employment Opportunity
    Commission often take years to complete, and age discrimination
    is as we heard in the testimony often very challenging to
    prove. So, Ms. McCann, can you explain how the change in the
    standard of proof in the 2009 Gross decision, and I note that
    Mr. Jack Gross was with us when we had a hearing on this in the
    last Congress.
        How has that adversely affected age discrimination in
    employment claims? And are ADEA claims more difficult to prove
    after the Gross decision, and if so, how? And there's not a lot
    of time left if you could be brief.
        Ms. McCann. Sure. So, I think there's three ways that it's
    negatively impacted age claims. One as I said, it sends a
    message to the courts that age discrimination is not as wrong,
    and that translates into bad decisions. In the mixed motive
    framework, once the age discrimination Plaintiff is able to
    prove that there age did motivate the employer's actions, they
    cannot prevail unless they are also able to prove that another
    factor did not influence the adverse decision, which is an
    almost impossible task for the older worker.
        Chairwoman Bonamici. And Ms. McCann, I'm sorry but I have
    to set a good example and cut myself off because I'm out of
    time, but I look forward to continuing the conversation. I'm
    sure you will get other questions.
        Ms. McCann. Understood OK.
        Chairwoman Bonamici. And I now recognize Ranking Member
    Fulcher for the purpose of questioning the witnesses for five
    minutes.
        Mr. Fulcher. Thank you, Madam Chair. I've got a question
    for Ms. Olson if I may. I just want to touch on what I think
    could be a significant real-world application here. So, Ms.
    Olson thank you for your testimony.
        When Congress considers a piece of legislation, I believe
    we should be absolutely clear about how the legislation would
    affect the American people, and when it comes to protecting
    Older Workers Against Discrimination Act, my experience tells
    me that most workers filing lawsuits, even if successful, will
    not likely recover any damages, but their attorneys will be
    awarded costs and fees. Is that your sense with this?
        Ms. Olson. Thank you for your question. And the answer is
    yes. It's not just my sense, and it's not just the majority. No
    worker under a mixed motive theory, whether it's brought under
    Title VII, the Age Discrimination Employment Act, or any other
    act, receives any monetary remedy.
        That is why you don't see many of the mixed motives cases
    that are brought, so to amend the Age Discrimination Employment
    Act, or any of the other acts that are at issue here with the
    language from POWADA, is going to do nothing to help workers.
        That's true today. That's true today under Title VII in
    terms of mixed motive that's available for certain types of
    causes of action, and that would be true tomorrow with respect
    to older workers. And if I just might note. If you look after
    the Gross decision in 2009, 10 years after it, the average
    percentage of EEOC charges that are age case, age charges, 21
    percent.
        The ten years prior to Gross it was 22 percent, virtually
    the same. Since Gross I have counted at least twenty-two
    different Court of Appeals decisions that have granted summary
    judgment under the Gross standard for Plaintiff, or reverse
    summary judgment for Defendant, saying the ultimate question of
    whether the Plaintiff's termination was a result of age must go
    to a jury.
        So, I don't see the need, and I don't see the benefits.
    Most importantly, under POWADA, for a mixed motive theory in
    either the Age Act, or any other statute that's considered
    under POWADA.
        Mr. Fulcher. Ms. Olson thank you for that. You mentioned
    mixed motive claims, and so my next question is kind of two
    stage, but it brings that in. In 2013 the Supreme Court ruled
    that mixed motive claims are not allowed in Title VII
    retaliation cases.
        And retaliation cases are especially ill-suited to include
    mixed motive claims. So from a policy perspective could you
    explain if and why the court's 2013 decision was sensible, and
    also this is the second part of the question, based on your
    experience as a litigator, what concerns would you have in
    allowing mixed motive claims in these retaliation cases?
        Ms. Olson. Thanks for your question. The concern I have is
    limitless, never-ending litigation that's going to go beyond
    summary judgment but will not result in an award for anybody in
    terms of a worker alleging retaliation.
        In terms of why it's not suited, why mixed motive isn't
    suited for retaliation claims, it's because the mixed motive
    says if a person--if retaliation, or an element of retaliation,
    such as the engaging in a protected activity is 1 percent, it's
    in the room. It's in the air. It's relevant.
        It was close in time the protected activity that was
    engaged in. That becomes part of a potential motive for a jury
    to determine, even if everybody agrees that the reason the
    employer took the action was not for retaliatory basis. Even
    so, even if everyone agrees that the reason was a good reason,
    it was not retaliation, the fact that the prima facia case in a
    retaliation claim includes the fact that the Plaintiff engaged
    in a protected activity, sometime close in time, that leads you
    to a potential jury verdict, and a potential result that again
    is not going to benefit the worker because they get no monetary
    damages.
        They get no employment injunctive relief for themselves,
    even if their lawyers win that case.
        Mr. Fulcher. OK Ms. Olson, just thank you for that. I could
    do about 10 more questions but thank you for your answers. I've
    run out of my time. You were very clear on this, and I greatly
    appreciate your testimony. Madam Chair I yield back.
        Chairwoman Bonamici. Thank you, Ranking Member Fulcher. I
    next recognize Chair Adams for five minutes for your questions.
        Chairwoman Adams. Thank you, Madam, Chair, and thank you to
    all the witnesses for your testimony. 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 bona fide job related factor, such as
    education, training or experience that is consistent with
    business necessity.
        So, can you give us examples of how this business defense
    has historically been applied in ways that perpetuate gender-
    based waves of discrimination?
        Ms. Goss Graves. Sure. The first thing I just want to
    remind everyone is that there are already defenses embedded in
    the Equal Pay Act that go beyond the factor of sex. So, we're
    not talking about thinks like experience or education, or
    different specific skills. Those are listed out specifically.
        What we're talking about is the factor other than sex, and
    there what we have seen is some employers pointing to vague
    notions of the market, or the ability to negotiate more, even
    though there's all of this research that shows that women are
    often penalized when they negotiate. They are considered to be
    too mean or bossy when they engage in behavior that's
    considered typically male behavior.
        Or sometimes, people just point to the fact that men make
    more in the market. And so, what the factor other than sex
    defense would do is tighten the number of reasons and
    justifications for people paying people who were basically
    doing the same thing, different salaries.
        Chairwoman Adams. So, Ms. Olson claims that H.R. 7 pushes
    the EPA to heights that would essentially obliterate the other
    factor, other than sex affirmative defense, out of the statute.
    Is this the case?
        Ms. Goss Graves. It certainly does not, but it does
    actually require a legitimate business justification, and
    require that it be tested. It's not enough for an employer to
    just say here's a business justification. It's important for
    that justification to be tested so that you don't have someone
    doing something that basically is a proxy for sex
    discrimination.
        Otherwise, the factor other than sex, would continue to be
    such a large loophole it swallows the whole requirement that
    you pay people equal wages for doing equal jobs.
        Chairwoman Adams. Thank you. Ms. Bakst I've heard some
    concerning reports of workers who are currently eligible for
    breastfeeding protections being denied accommodations during
    the pandemic. Why are workplace accommodations for nursing
    mothers to pump breastmilk even more important now during the
    pandemic as workplaces reopen?
        Ms. Bakst. Sorry about that.
        Chairwoman Adams. Oh, that's all right, go ahead.
        Ms. Bakst. That's right. And at A Better Balance we've also
    heard concerning reports as well where the pandemic seems to be
    used as an excuse by some employers to dodge their legal
    responsibilities to breastfeeding employees, even when
    providing breaktime and space is no harder than it was before.
        It is essential that employers follow the law, and provide
    breaktime and space to their breastfeeding employees during the
    pandemic because hundreds of thousands of women have left the
    work force as a result of caregiving responsibilities and
    pregnancy discrimination, providing support for new mothers is
    critical to helping women get back into the workplace.
        The pandemic has laid bare the systemic barriers that
    prevent women from staying in the workplace and thriving.
    Breaktime and space are part of a broader range of solutions.
    We need to support mothers so they can work and care for their
    families without risking their economic security.
        Chairwoman Adams. Thank you, ma'am. Madam Chair I yield
    back.
        Chairwoman Bonamici. Thank you, Chair Adams. I next
    recognize Ranking Member Keller for five minutes for your
    questions.
        Mr. Keller. Thank you, Madam Chair. Ms. Olson I want to
    thank you and all the other witnesses for your testimony, but
    under H.R. 7 to defend against a claim of pay discrimination,
    an employer must show the pay differential is a business
    necessity, even after showing this, the employer defense does
    not apply if the Plaintiff can demonstrate an alternative
    business practice would not result in a pay differential.
        Do you agree the business necessity requirement in H.R. 7
    is unworkable, and makes it nearly impossible for a business
    owner to defend against a pay discrimination claim?
        Ms. Olson. Unequivocally, it does make it impossible. It is
    unworkable. And I really have to correct the record on the last
    couple of questions and answers. Business necessity is not
    currently part of the Equal Pay Act, and in addition experience
    and special skills are not enumerated factors in the Equal Pay
    Act, notwithstanding what's been said in this hearing.
        The only factors that are enumerated are seniority, merit
    and productivity, and other factors similar to those other than
    sex.
        Mr. Keller. Thank you. I appreciate that. Also, you State
    in your testimony Ms. Olson employers of all sizes need clear
    guidance and predictable outcomes when applying the law to
    their employment policies and practices. In your view, does
    H.R. 7 provide clear guidance and predictability?
        Ms. Olson. It absolutely does not, and I would tell you
    that if you look at my testimony which is quite detailed, that
    I included 9 different examples on pages 9 through 14 of
    specific real-life cases where an employer could not show
    business necessity.
        Ms. Graves just mentioned that the business is required to
    test. So, if a business determines that it is going to pay more
    for an applicant because of their years of experience, or their
    seniority at another employer, which they believe is relevant
    to the job, how is that tested?
        Business necessity has never been part of the Equal Pay
    Act. Job related and business related has always been part of
    the factors other than sex, as all the Court of Appeals that
    I've cited in my testimony have noted, and that's how employers
    are in fact understanding the Equal Pay Act, and applying their
    pay practices.
        What is business related? That employers know. What is a
    business necessity? It's not defined. It's nothing defined by
    any witness here. It's not defined by any court cases, and as I
    described in my testimony, does that mean the business can't
    live without it? How does an employer show when an applicant
    says, ``I won't become employed unless my pay is $1.00 more an
    hour because I've got five more years of experience, or I've
    got more education than someone.
        Those are factors that fall under the factors other than
    sex affirmative defense. How does an employer show that to
    business necessity? And even if they can they lose if later on
    in litigation a litigant says what? You could have made up the
    difference by increasing everybody's pay.
        What the Paycheck Fairness does in terms of business
    necessity and the other unworkable changes to the Equal Pay
    Act, is it disadvantages all workers who have higher
    qualifications, and seek, and employers believe justifiably,
    have qualifications that relate to their business and the job,
    and want to pay them for that.
        Mr. Keller. Thank you. That answered actually the questions
    I had regarding experience and other business-related factors,
    education, productivity, job skills. But I have another
    question Ms. Olson. H.R. 7 provides for unlimited compensatory
    and punitive damages, and it also expands class action lawsuits
    for pay discrimination claims.
        Will these provisions address pay discrimination in the
    workplace, or will they merely encourage costly litigation that
    will benefit trial lawyers?
        Ms. Olson. There's no question that changing the class
    action procedure under the current Equal Pay Act from a
    collective action to a Rule 23 class action will slow recovery,
    will slow the course of litigation, will not allow the
    litigants to actually focus on--and the difference is currently
    under the Equal Pay Act, if a collective action is brought,
    which is a class action procedure, the court sends out a notice
    to all potential workers and says, do you want to be part of
    this?
        And if so, just send back in a form. Anybody who sends back
    in a form then is part of it, and you focus on that group of
    individuals to determine whether the case will be settled, or
    it will be litigated, but on real facts.
        In a Rule 23 class action it is my day to day experience
    that employers spend hundreds of thousands of dollars, if not
    millions of dollars on class certification, procedural
    arguments that take years to be resolved before anyone ever
    gets the resolution.
        And in terms of unlimited compensatory and punitive
    damages, remember the Equal Pay Act is a strict liability. You
    don't have to prove intentional discrimination. It already
    allows double damages. It allows Plaintiffs to go back 3 years
    of willful, as opposed to 300 days for a charge of
    discrimination under Title VII.
        These damages are greater and different than any other
    damages we see in any discrimination law and are unnecessary
    under the Equal Pay Act.
        Mr. Keller. Thank you. I appreciate that and I yield back.
        Chairwoman Bonamici. Thank you, Ranking Member Keller. And
    next we have the Chairman of the Full Committee on Education
    Leader, Mr. Scott from Virginia you're recognized for five
    minutes for your questions.
        Mr. Scott. Thank you. First, I'd like to ask Ms. Goss
    Graves, we've heard a lot of confusing things about the
    Paycheck Fairness Act. Can you tell me what the differences are
    in recovery now and what the differences in recovery and
    process would be if the bill would pass?
        Ms. Goss Graves. Right now, under the Equal Pay Act you are
    allowed to get back pay for 2 years. And in particular types of
    conduct, sometimes that amount can be doubled. If you're
    talking about a low-wage worker, what that means effectively is
    that the amount that they can recover under the Equal Pay Act
    might not actually cover their actual costs from experiencing
    pay discrimination.
        Under Title VII of the Civil Rights Act, damages have been
    capped, and not adjusted at any point in time in over three
    decades. And so, what that actually means is that if someone is
    bringing a pay discrimination claim, their damages are
    arbitrarily limited. They don't actually match what they have
    experienced.
        Mr. Scott. And how does the Paycheck Fairness Act fix that?
        Ms. Goss Graves. So, what the Paycheck Fairness Act would
    do is allow people to recover the full amount of their damages,
    the full amount that they are injured. And so, I just wanted to
    correct one thing. You know the use of the term unlimited
    doesn't actually apply.
        The limit is actually your injury, so it is never
    unlimited.
        Mr. Scott. And how is that compared to other forms of
    discrimination?
        Ms. Goss Graves. Well one of the differences is that if you
    were bringing a race-based claim, there is an alternative
    outside of the Civil Rights Act by being able to bring a claim
    under Section 1981.
        And so right now there's this weird conundrum where for
    sex-based pay discrimination claims you have this sort of
    limit, and you don't have a current similar vehicle similar to
    1981.
        Mr. Scott. What's wrong with asking about salary history?
        Ms. Goss Graves. So, here's the thing about salary history.
    The reason, it's less about asking, but it's really how you're
    going to use it right? The reason why employers want to ask
    about salary history is because they want to match salaries. If
    you were making $100,000.00 in your last job, you should make
    $100,000.00 in your next job.
        But the truth of the matter is we know that women start off
    making less from the earliest points in their career. So,
    setting your new salary on the salary you might have made at
    the last job is a way to guarantee that you never get out of
    the cycle of making unfair pay.
        Mr. Scott. And we've heard about the employer having to
    prove that once you've shows the difference in salary, the
    employer has to prove that there is a non-gender reason for the
    differential. It seems to me that an employee can't possibly
    know what's wrong with requiring the employer to show--after
    you show him the difference, the employer is the only one that
    knows why there's a difference.
        Ms. Goss Graves. I mean basically all of the salary
    information lies in the hands really of the employer. The
    employer knows why they're paying people doing the same thing
    different wages. What we want to do is put the incentive so
    that the employer pays people correctly the first time.
        That's what we're trying to incentivize here. And I just
    wanted to correct one thing, because I don't want to confuse
    the committee, and I'm happy to give a longer written response.
    And that is so currently under the Equal Pay Act you were
    right, it's seniority. I was using experience as a shorthand.
        The Paycheck Fairness Act makes very clear as examples
    around education, experience, and skill. I have yet to hear the
    example that is not an example that you wouldn't want to test
    and probe further, for paying people doing the same thing
    different wages.
        And these ideas from employers really do have to be tested
    in some way.
        Mr. Scott. Thank you. Ms. McCann have you heard anything
    about the POWADA that you wanted to respond to?
        Ms. McCann. Yes, thank you. I think Ms. Olson's testimony
    ignores three important facts. One, that Congress has
    determined that any amount of discrimination is too much. And
    that the goal of civil rights protections is not more
    litigation, it's less discrimination.
        And although she makes a lot of the fact of in a mixed
    motive case the victim does not receive back pay or
    reinstatement, she ignores the fact that the injunctive relief
    and declaratory relief that is available to a successful mixed
    motive Plaintiff goes a long way in deterring future
    violations.
        And that there are two goals to every civil rights statute.
    One is compensation, but the other is deterring future
    violations. And what POWADA recognizes is that no age
    discrimination, no amount of discrimination should be
    tolerated. Thank you for the opportunity.
        Mr. Scott. Thank you. Yield back.
        Chairwoman Bonamici. Thank you, Mr. Chairman. Next, we're
    going to recognize Mr. Thompson from Pennsylvania for five
    minutes for your questions.
        Mr. Thompson. Chairwoman, thank you very much. Thank you,
    Ms. Olson, for being here today to you know discuss these
    issues. I would say it would have been nice to see a more
    balance of witnesses. Just for the record I agree with Ranking
    Member Keller on that. If we're going to pursue bipartisan
    solutions, we need to have everybody at the table, so.
        But thank you Ms. Olson for being here today to discuss
    these important issues. As you know two Federal laws currently
    prohibit discrimination wages, and the terms and conditions of
    employment based on sex. Thus, equal pay for equal work is
    already required by Federal law.
        Now I was reading your testimony, you mentioned how much
    time and effort businesses put in to determining workers
    various pay levels which they must do to recruit and retain
    high quality workers. All said, that's the responsibility, the
    duty of the employer.
        So, my first question in your experience does it help a
    business succeed and thrive to pay a worker more or less
    depending on their gender?
        Ms. Olson. It hurts everyone. And that's why employers in
    my experience, not only don't do that, the vast majority don't,
    but they take, they have a deep commitment to ensuring that all
    workers are paid appropriately with respect to jobs and
    business related factors that relate to the work that they are
    doing.
        There's absolutely no benefit. What are some of the
    deterrents to doing it besides litigation? Motivating your
    employees, ensuring that you have retention of your workers,
    and ensuring that the morale of workers who work together in
    teams more than they ever did, whether it's virtually or side
    by side, are able to do so productively, and in a way that
    fosters usually a joint or team effort.
        So, there's absolutely no motivation to doing so, and there
    would be no reason to do so.
        Mr. Thompson. So, you really touched on with your response
    also identifying the importance of offering appropriate
    compensation to all employees right, to be able to have that as
    much as qualified and trained, but reliable work force.
        Ms. Olson. Yes, it's absolutely correct Congressman.
    Without doing that you know this is a very mobile work force.
    People move from job to job more than they ever did in the
    history of the American workplace.
        And today employers spend an enormous amount of effort to
    not just conduct pay audits, but to also review starting pay
    decisions and the impact of a hot job market on existing long-
    term employees, to make sure that there aren't inconsistencies
    that perhaps should be addressed.
        Things that are differences in pay based on business or
    job-related factors, but nevertheless employers are saying I
    want to make sure that we've got this. They're also doing a lot
    on the information gap. A lot of the issue here relates to how
    do we capture, digitize, memorialize, pay decisions and factors
    to make sure they can be identified and explained?
        The Paycheck Fairness Act goes far beyond that. What it is
    does is it says I want you to test every reason. I want you to
    tell me and prove that you had to pay that worker more for that
    extra experience. That you had to pay that worker more for that
    extra education, or for the seniority of another employer, or
    that you had to hire that employee because they told you they
    wouldn't take the job unless they were paid more than what you
    were offering.
        And you've got to show the business necessity. You've got
    to not only show that, but you've got to show that you didn't
    have the ability to perhaps raise everybody's wages to that
    level. How does an employer do that and compete in the
    marketplace for workers?
        It can't. You know, you heard some of the other witnesses
    today talk about employer need to test. How do you test when an
    applicant comes to you and says I understand you're offering,
    let's just say $50,000.00 a year for this position? But my
    qualifications are higher. I'm making more today, and I have
    this special expertise.
        How does an employer test that that meets a business
    necessity standard to pay that worker more than somebody who is
    a current employee? What's going to happen? That worker is not
    going to get the extra pay offered to them, everyone is going
    to suffer.
        Mr. Thompson. Thank you, Ms. Olson. You're really focused
    on I think what the motivation incentives for employers really
    to compensate their employees well and how important that is.
    So, thank you very much. Madam Chair I yield back.
        Chairwoman Bonamici. Thank you, Mr. Thompson. Our next
    representative is Representative Hayes from Connecticut for
    five minutes for your questions.
        Ms. Hayes. Thank you, Madam, Chair, and thank you for
    holding this very important hearing today. Madam Chair I'd like
    to submit a document from the Equal Rights Advocates in support
    of the Paycheck Fairness Act for the record.
        Chairwoman Bonamici. Without objection.
        Ms. Hayes. Thank you. My questions today really speak to
    the Pregnant Workers Fairness Act. I've spoken at other
    hearings before about my time in the classroom during my
    pregnancy where I needed unscheduled bathroom breaks, which
    seems like a reasonable accommodation, but when you are in a
    building and you need another teacher, or another faculty
    member to come and relieve you so that you can go to the
    bathroom it becomes an unnecessary hardship.
        I've seen so many of my colleagues in the profession suffer
    with urinary tract infections, or long-term urinary retention
    problems, and other complications caused by what seems like
    just an accommodation that people can reasonably--that
    employers can reasonably make.
        So, this is something that we all have to be intentional
    about, and make sure that we are working to promote those kinds
    of practices. Because when you're in a building with 1,400
    kids, it's not very easy to just walk out of your assigned
    post, or your classroom to use the bathroom.
        My questions today are for Ms. Bakst. You know women across
    the country still face the impossible choice, risk your
    paycheck or your employment. You shouldn't have to take time
    off from work just because you need to be able to use the
    bathroom.
        So, Ms. Bakst can you provide us with the economic
    consequences experienced by employees when they are denied a
    reasonable accommodation, or perhaps pushed out of a job
    prematurely because those accommodations cannot be met?
        Ms. Bakst. Sorry yes, certainly. So you know it is, it's
    truly hard to believe that in 2021 that you know pregnant
    workers are routinely still being denied bathroom breaks and
    water bottles, and are forced to choose between maintaining a
    healthy pregnancy and earning a paycheck.
        And what we've seen over and over and over again, the
    profound health and economic consequences of this decision. It
    seems so simple. Oh, it's just you know, this discreet period
    of time. It's not. It lasts, it spirals. We call--it snowballs
    into lasting devastating economic consequences for women.
        It pushes too many women deeper into poverty because they
    are losing their paychecks in a moment that they, you know, so
    many women when they get pushed out, they say I tried to
    reapply for a job. Who is going to hire me?
        Then, you know, they're a new mother and they've been
    detached from the work force and finding a job is incredibly,
    you know, they face heightened challenges. And so, these
    economic consequences force them to really risk their ability
    to support their families, put a you know, a roof over their
    head, put food on the table, have adequate supports that they
    need.
        And all because they simply needed to maintain their health
    during their pregnancy. And this is--it's unacceptable, and as
    you said you know we've worked in almost 30 States. Similar
    laws are on the books in 30 States. It's been recognized as you
    know, a no-brainer essentially as this modest accommodation can
    go such a long way to help women stay healthy and attached to
    the work force.
        Ms. Hayes. Thank you. I heard similar stories about that
    from women across my State. In one incident we had a
    firefighter who was placed on an unrequested, unpaid leave
    because of her pregnancy, despite her--she wanted to work. She
    tried to make every available, make suggestions, and try to
    work with the employer, and she was just denied and placed on
    an unrequested leave.
        Also, in my district back in 2008, we had six low-wage
    black women who were working in a warehouse that suffered a
    miscarriage, despite asking for reasonable accommodations and
    providing the necessary, the required documentation from their
    medical provider.
        So, these cases demonstrate for me that the current law is
    not sufficient to protect pregnant workers from harm. Ms. Bakst
    can you help us to understand why bringing a pregnancy related
    reasonable accommodation claim under the Americans With
    Disability Acts existing legal standard is insufficient for
    preventing pregnancy discrimination?
        Ms. Bakst. Absolutely. Sorry. So absolutely. So, there are
    two main problems with the Americans Disability Act. This is an
    important law that guarantees reasonable accommodations for
    workers with disabilities. The problems here are first of all
    pregnancy is not recognized as a disability under the Americans
    With Disabilities Act.
        So, for pregnant workers who are not disabled yet, right,
    who have a pregnancy with a health need to prevent
    complications, they're forced out. They have no luck. And the
    second is most pregnancy related complications are not
    recognized as ADA eligible accommodations.
        Preeclampsia, high-risk----
        Ms. Hayes. Ms. Bakst, I'm sorry. I want to continue but it
    looks like my time has run out, but you said something that
    from your words, from your mouth to God's ears, pregnancy is
    not a disability. With that Madam Chair I yield back.
        Chairwoman Bonamici. Thank you representative. And if Ms.
    Bakst could submit the rest of the answer in writing unless
    somebody asks. Next, we're going to go to Representative
    Stefanik from New York. You're recognized for five minutes for
    your questions.
        Ms. Stefanik. Thank you, chairwoman. Ms. Olson, you suggest
    providing employers incentives to engage in voluntary self-
    evaluations to proactively identify and address any pay
    disparities attributed to the sex of employees. How widespread
    are compensation self-evaluations, and are there reasons they
    are not more prevalent?
        Ms. Olson. Thank you for your question. They are becoming
    more widespread. They are not prevalent Congresswoman Stefanik,
    and one of the deterrents that employers have to engaging in
    them is the uncertain status that self-critical analyses have
    under the law in terms of discoverability, and that's one of
    the problems, and that's one of the issues.
        And so yes, more and more employers engage in these audits.
    These audits are usually ones that require that decisions that
    are important to assist in analyzing not just pay, but also the
    jobs and whether the jobs should be compared, and then
    identifying relevant factors.
        Ms. Stefanik. So, let me ask you this. Let's look at a
    State that does have that at the State level. Massachusetts law
    encourages proactive self-evaluations by providing employers a
    safe harbor if they conduct good faith evaluations and take
    concrete steps to eliminate any pay disparities.
        Do you believe that expanding this model will lead
    employers across the country to use self-evaluation and improve
    their compensation practices?
        Ms. Olson. The answer is simple and straightforward yes. It
    definitely will, and I can speak from experience in working
    with employers those that do it and would have a lot more
    certainty, and would do it even more robustly if they had that
    certainty in terms of the audits, and that proactive reason--
    additional reason to do them.
        And those that aren't doing them now or aren't doing them
    as frequently would do them more often. There's no question
    about that, because the benefit would be so clear, and the
    outlines of any risks they're not having a risk of doing the
    audit in terms of privilege would be right in front of them and
    they could weigh it clearly and move forward with the audit, so
    absolutely.
        Ms. Stefanik. My next question is on strengthening the
    existing prohibition on sex-based discrimination. You made
    several recommendations to improve current law under the Equal
    Pay Act. One of those recommendations is to add a clear
    requirement that a pay differential must be business related
    which is consistent with the majority of U.S. Circuit Courts of
    Appeals have held.
        How would this change strengthen the Equal Pay Act, and
    provide predictability and clarity for employers and workers?
        Ms. Olson. It would strengthen the Equal Pay Act and
    provide clarity by being written into the statute. As I said in
    my testimony, the majority of Courts of Appeals, but not all,
    already attach that requirement to the statutory language
    factor other than sex.
        This would make it universal. It would make it so that this
    would not be something that people were litigating over, and
    this would provide clear definition because a factor other than
    sex, that is job or business related, is something that is a
    standard that employers clearly can understand and use,
    business necessity isn't.
        Ms. Stefanik. And then I want to ask about the wage history
    issue which is important. In your testimony you discuss various
    scenarios where H.R. 7's outright prohibition on considering a
    perspective employer's higher salary can actually function to
    disadvantage job applicants including women.
        Do these same concerns exist if perspective employees are
    empowered to share their prior salary at any point during the
    hiring process and employers are permitted to act on this
    information when voluntarily provided?
        Ms. Olson. So that's a great question. So, the answer is it
    depends if the Equal Pay Act is not amended to include business
    necessity, then an employer can act on a voluntarily shared job
    expectation or wage expectation without concern.
        But if that were appropriate under the Equal Pay Act as
    amended, but the employer still had to show business necessity
    and that you know it was not just a business necessity, but it
    was also the least impactful in terms of the opposite sex, I'm
    not sure that job expectations of an applicant can ever be
    considered at any stage of the process as the Paycheck Fairness
    Act is written.
        Without business necessity yes. It absolutely can be.
        Ms. Stefanik. Thank you, Ms. Olson. My time is expired.
    Yield back.
        Chairwoman Bonamici. Thank you. And I now recognize
    Representative Stevens from Michigan for five minutes for your
    questions.
        Ms. Stevens. Thank you so much and thank you for this
    important hearing. There are about 4.2 million women between
    the ages of 19 and 25 who are covered as dependents on a
    parent's employer sponsored health plan. And my understanding
    is that insurance companies in the large group market and self-
    insured employer plans are currently exempt from Federal
    requirements that guarantee dependents have coverage of crucial
    health services such as labor, delivery, and maternity care.
        Ms. Goss Graves.do you think you could explain this
    loophole, and how it relates to the intersection between the
    Affordable Care Act and the Pregnancy Discrimination Act?
        Ms. Goss Graves. You know you are right that there is this
    terrible loophole. When a non-spouse dependent is denied
    maternity coverage on an employee's health plan, that has been
    held not to violate the Pregnancy Discrimination Act because as
    the theory goes it represents sex discrimination against the
    dependent, not against the employee.
        And the Pregnancy Discrimination Act only protects
    employees from sex discrimination. It doesn't protect their
    dependents. And so you are correct that insurance companies,
    both in the large group market, and who are self-insured
    employer plans, are exempt from covering maternity care as an
    essential benefit, but they may be required to provide
    dependent maternity coverage under Section 1557 of the
    Affordable Care Act, which bans discrimination in healthcare
    programs and activities that receive Federal funds.
        So that is for some piece, that might be through a range of
    legislation that have attempted to address this loophole on
    dependent coverage, and the gap is not acceptable for sure.
        Ms. Stevens. Yes. And then let's also just give you an
    opportunity if you don't mind to respond to some of the claims
    that Ms. Olson has made regarding the Paycheck Fairness Act for
    you Ms. Goss Graves.
        Ms. Goss Graves. Well I'd like to remind people that pay is
    one of those things where that is cloaked in a lot of secrecy.
    All of the information nearly is lying with the employer. And
    employees typically don't have a reason for knowing that they
    are making less at all, or certainly why they are making less.
        And so, employers have all the information in addition to
    having the decisionmaking power. So, while I totally agree that
    the incentives should be that they want to pay people right the
    first time, and pay equally, there is lots of business case
    reasons for doing so. They just don't always do it.
        And I wanted to get if I have a minute, to give a couple
    more examples of the types of things we see in fact, other than
    sex, that we are worried about. You know, you might have an
    employer arguing that they're paying someone more because they
    have potential, or because they see something in that man, or
    something else that is vague and not specific.
        Those are the types of things that you really want to be
    sure are vetted and don't become just another proxy for sex.
    And there's a reason that the Paycheck Fairness Act lists very
    specifically things like education and experience because those
    are typical things that are totally fine to pay different wages
    for as long as they are actually themselves aren't sex-based
    reasons.
        So, if you don't usually pay differently for experience,
    you shouldn't just because you're now in a certain situation
    dealing with a woman and you want to pay her. You know that's
    the only additional type of vetting that would be important.
        Ms. Stevens. Great thank you. And Madam Chair I'd also like
    to enter to the record a letter from the Network Lobby for
    Catholic Social Justice in support of the Pregnant Workers
    Fairness Act.
        Chairwoman Bonamici. Without objection.
        Ms. Stevens. Thank you. And with one minute remaining, Ms.
    Bakst I just wanted to quickly ask you why pregnant workers
    have struggled to get accommodations under the ADA?
        Ms. Bakst. Yes again, I mean it's just pregnancy is not a
    disability. And pregnancy related at the ADA was expanded in
    2008, the Americans With Disabilities Amendment Act, and there
    was a lot of you know, hope that more pregnant workers with
    complications would be covered under that law.
        And you know many have been covered under that law, but too
    many have been left out because courts are saying your
    complications are not serious enough to warrant accommodations.
        So, I mean crazy like hypos are core cases that women with
    severe bleeding you know, all sorts of health conditions, and
    courts are saying sorry you don't qualify for ADA coverage, and
    that's absurd.
        Ms. Stevens. Thank you so much and I yield back. Thanks
    Madam Chair.
        Chairwoman Bonamici. Thank you. I next recognize
    Representative from Iowa for five minutes for your questions.
        Ms. Miller-Meeks. Thank you so much Madam Chairwoman. Thank
    you to all the panelists for being here. Ms. Olson my question
    is directed to you from my own personal experience. I'm
    currently a physician, but I've had you know numerous jobs as I
    paid myself through nursing school, my masters in education,
    collaborating that with the military.
        I had two pregnancies, very healthy pregnancies thank
    goodness, which I did one during an internship, one during a
    residency, breastfed and pumped for both of those children up
    until about 18 months.
        And so, in medicine there are differences in pay scale that
    has been brought up before between women and men, but when you
    look at the factors it's specialty hours and leave. And so, my
    question is there was a Harvard University Scholars published
    in 2018, a study on best bus and train operators working for
    the Massachusetts Bay Transportation Authority, and I think
    this was eluded to earlier.
        All the employees in the study were covered by the same
    collective bargaining agreements, working under the same
    seniority system. The study found that this caused male
    operators, the wage difference excuse me, of 11 cents gap was
    found my male operators taking fewer unpaid hours and choosing
    to work more overtime.
        And if briefly, if you can say in your experience working
    with issues related on compensation, are the Harvard studies'
    findings relevant to the debate on H.R. 7?
        Ms. Olson. Thank you for your question. And what I would
    say to that is there's no question that certain job related
    factors that relate specifically to experience and expertise,
    and some of the other factors that were discussed today, are
    related to differences in pay, and that those are factors that
    are considered because they're job or business related.
        Other facts that aren't job or business related are not
    currently allowed under the Equal Pay Act and would not be and
    should not be part of compensation systems and in my experience
    they are not.
        Ms. Miller-Meeks. And how would H.R. 7 how would that
    impact like bonuses or recruitment bonuses, or you know,
    recruiting and hiring somebody from another company, you know,
    if these stipulations are in place and paying somebody a higher
    wage each time that you're looking at bringing an employee on,
    or giving a bonus, you have to look at all these other factors
    and wages.
        Ms. Olson. The difficulty with H.R. 7 is it basically says
    look at the job they're hired to do. Pay everyone the same.
    Because if you differentiate based on hire or better
    qualifications or experience, or education, or something
    special about their background, or the fact that they tell you
    they will not come to your employment unless you pay them more
    than what you originally offered in your starting pay.
        You're not going to be able to prove that that was a
    business necessity.
        Ms. Miller-Meeks. Thank you so much.
        Ms. Olson. And courts don't serve as super personnel
    department to second guess every employer's decision with
    respect to pay. So, if I'm an employer, what am I going to do?
    Am I going to give bonuses? Am I going to pay people
    differently? If I do so, I'm just going to let myself open to
    endless litigation at whose detriment? Those employees who
    actually have special skills, who actually have special
    expertise who bring something extra that is worth paying for.
        Ms. Miller-Meeks. And to that end H.R. 7 directs the
    Department of Labor's Office of Federal Contract Compliance
    Programs to implement a survey of all non-construction Federal
    contractors to pay, collect pay data and other employment-
    related data, including hiring, termination and promotion data.
        And given our previous question, should we also not have
    data on leave, unpaid or paid, family leave, hours worked
    overtime, loan repayment, length of service, seniority, and you
    can feel free to answer that. And if there's time Ms. Goss I
    would love to have your input also. And with that I'll yield my
    time after you have answered, thank you so much.
        Ms. Olson. I would just say very quickly that the kind of
    data that's being requested goes far beyond any of the--under
    H.R. 7, goes far beyond the Equal Pay Act, and its specific
    goals. It also was Stated that employers don't currently
    collect promotion data. Data of national origin. And in terms
    of your question to be able to really understand what are
    making the differences in pay?
        Are they legitimate business-related or job-related
    factors? You can't really get that in the kind of two-page form
    that the government is talking about implementing in H.R. 7. It
    would be useless. It would have no utility. And that's what the
    EEOC found when it collected the 2017 and 2018 EEO one
    component to data.
        Chairwoman Bonamici. The time has expired, so I'm going to
    go next to Representative Leger Fernandez for five minutes for
    your questions.
        Ms. Leger Fernandez. Thank you Chairs Bonamici and Adams
    and thank you to the witnesses for joining us today. You know
    we're here today to talk about fairness or perhaps we should
    say a lack of fairness. And you know it strikes me that the
    testimony provided for legislators would you know, lawmakers
    must hear, which is how has the existing law failed to achieve
    its goals, and how can we fix those gaps, right? That's our
    job.
        And I must admit the examples provided by the witnesses are
    compelling. And the data is compelling. Women carried the brunt
    of job losses during the pandemic, losing a net 5.4 million
    jobs. And we need to make it easier for women to get back to
    work, including pregnant women.
        I liked the point that was made earlier that States are
    moving in the right direction, including my State of New
    Mexico, which passed the Pregnant Woman Accommodation Act with
    bipartisan support last year but all women in every State must
    have similar protection.
        So, Ms. Bakst, explain again how the Pregnant Workers
    Fairness Act will ensure that Latina women especially don't
    have to choose between their health and job security.
        Ms. Bakst. Yes thank you for the question. And as I pointed
    out earlier you know this is still disproportionately impacts
    women of color, and Latina women especially right. And you know
    we heard earlier that the wage gap for Latina women is you know
    the most pronounced of any of the wage gaps that we have heard
    earlier.
        And part of that I believe has to do with it's a multi,
    there are many reasons for the wage gap, but discrimination is
    part of that. And when pregnant women are pushed off the job
    because they have to be forced to choose between following
    doctor's orders and protecting their health, and risking their
    jobs, you know, they are going to suffer profound health, you
    know, and economic consequences.
        Latino women are often the times of jobs that are
    congregated are often, put them in that position, right? These
    are jobs that are often less safe, you know, more physically
    demanding, and so the nature of those jobs require an
    affirmative accommodation protection to help them protect their
    paycheck and maintain their health.
        Ms. Leger Fernandez. So, in some senses these are the
    essential workers that we're giving lots of thanks to these
    days, and what we're asking in this law is to give more than
    thanks, but actually respect and accommodation. Chair Bonamici
    I'd ask unanimous consent to submit two items into the record.
    The first is a letter from the National Partnership for Women
    and Families in support of all the bills before us. The second
    is testimony from Physicians for Reproductive Health in support
    of the Pregnant Workers Fairness Act.
        Chairwoman Bonamici. Without objection.
        Ms. Leger Fernandez. OK. So, for every dollar paid to white
    men, Latino women earn only 55 cents, and Native American women
    earn only 60 cents right. They have the latest of the equal pay
    days in the year. Ms. Goss Graves, in your testimony you
    pointed out that 60 percent of workers in the private sector
    nationally are either forbidden, or strongly discouraged from
    discussing their pay with their colleagues.
        You were talking about this a bit earlier, but can you
    explain a little bit more why that is the case, and what, why
    Congress must act to protect workers from retaliation in
    discussing their pay with their coworkers.
        Ms. Goss Graves. Well despite the fact that we have laws
    like the National Labors Relations Act, some employers just
    maintain policies that say that you can't talk about your wages
    to anyone, to your coworkers, and that you can't make inquiries
    even about wages.
        And so, what that means is that employees are left in the
    dark. And it's a thing that I think isn't good for
    organizations, because I think you'll have some employees
    guessing about where they stand, assuming that they're being
    paid less because they are operating without any information.
        So the Paycheck Fairness Act would prohibit these sorts of
    retaliatory bands where people are told, and sometimes made to
    sign documents that say you won't talk about your wages, and
    there will be a penalty if you do.
        Ms. Leger Fernandez. So, the issue of full disclosure is
    good for everybody is what you're saying. I wanted to see if
    you wanted to take some time. We ran out of time to answer the
    question about data. We have a few seconds left.
        Ms. Goss Graves. Sure. Thank you for that. Because that's
    you know, sunshine is a good disinfectant, and that's one of
    the reasons to provide that data. It will make our civil rights
    enforcement agencies stronger. It will enable them to identify
    trends, sectors that seem like outliers, and sometimes
    employers that seem like outliers.
        But it also I think will be important for employers.
    Sometimes employers might think they were doing the right
    thing, but actually doing an analysis, taking a look allows
    them to make a correction, the sort of corrections that I think
    Ms. Olson says her clients want to make.
        Ms. Leger Fernandez. Thank you. I yield back.
        Chairwoman Bonamici. Thank you. I now recognize the Ranking
    Member of the full committee, Representative Foxx five minutes
    for your questions.
        Ms. Foxx. Thank you, Madam, Chairwoman, and I thank the
    witnesses for their testimony on these important issues for
    workers around the country. Ms. Olson, from your experience
    studying the issue of compensation and advising clients, are
    employers diligent in fulfilling their legal responsibility not
    to pay different wages because of the sex of the employee?
        And what steps do employers take to ensure they're not
    discriminating in this manner?
        Ms. Olson. Thank you for your question. Here's how I would
    answer it. The vast majority of employers that I work with,
    that I know others are working with on these issues through
    both general groups where we talk and share best practices, are
    all working with employers who have a deep commitment to equal
    pay.
        And that commitment comes not just from the law, but from
    wanting to do the right thing for their employees, which is
    also good for their business. And the kinds of things that
    they're doing, which is a consistent engrained sort of
    practices throughout their workplace include education and
    training and development of managers, tools to assist managers,
    in ensuring that whether they're interviewing a new employee,
    or a potential employee, or whether they're doing a performance
    review which is going to relate to a merit increase
    potentially.
        Those decisions are focused on legitimate business-related
    reasons, not any other reasons that would not be relevant.
    They're also building new career frameworks within their
    compensation system. They're also reviewing their job
    descriptions against job requisitions, against also job
    requirements to make sure there's accuracy and validity in
    terms of what's being done.
        They're also including different stages of a review on a
    regular basis, individual manager decisions as well as overall
    compensation decisions in any year to make sure that in fact
    there aren't inequities that aren't able to be explained by a
    business-related factor other than sex.
        Ms. Foxx. Thank you very much. Your experience is the same
    as mine. Ms. Olson H.R. 7 directs the EEOC to collect this
    employee pay day on many levels, including hiring and
    termination, et cetera. A similar data collection was mandated
    by the Obama Administration, which the EEOC later discontinued.
        Do you agree that requiring this additional reporting of
    the employee pay day to the Federal Government will create
    large compliance costs with doubtful utility in combating pay
    discrimination?
        Ms. Olson. Thank you and the answer is I do. And I do based
    on the analysis that was done at the time of just the subset of
    the information that H.R. 7 would have employer collect. And
    just the subset of it. Just information on pay for example, the
    estimate was 700 million for employers to put in place for
    policies and practices, and changes to the HRIS system.
        The EEOC itself says it had to invest over 5 million
    dollars in changing its own system to be able to accept the
    data, even after it was accepted in 2019, September 2019 for
    2017 and 2018, after review of the data the EEOC determined
    that it really had no benefit or utility.
        So collecting data for data sake in a very high-level,
    without getting into specific job titles, and job functions to
    be able to compare jobs that are actually equal, or
    substantially similar, and then also identifying business-
    related factors without doing that analysis, the data is
    costly, but useless.
        Ms. Foxx. There's a difference between data and
    information. In 2013 Ms. Olson, the Supreme Court in a national
    decision said that in retaliation cases, lessening the
    causation standard could contribute to the filing of frivolous
    claims which would siphon resources from efforts by employers,
    administrative agencies to ``combat workplace discrimination.''
        Do you agree with the Supreme Court's comment on lessening
    the causation standard in retaliation cases? And if so, how
    does this relate to the Protecting Older Workers Against
    Discrimination Act?
        Ms. Olson. The current standards that are present with
    respect to both retaliation under Title VII, as well as the Age
    Discrimination Employment Act, and I see my time is almost up,
    so if I could finish this sentence, is appropriate and has led,
    in my experience, to litigation that has been successful when
    it should be with respect to showing that employers used
    inappropriate factors in terms of their decisionmaking. I don't
    believe a change in the law is necessary or would be helpful to
    workers.
        Ms. Foxx. Thank you very much. I can't see the time, but
    Madam Chair I'll assume that I'm out of time and yield back.
        Chairwoman Bonamici. That is correct. I now recognize
    Representative Jones from New York for five minutes for your
    questions.
        Mr. Jones. Thank you, Madam Chair, and thanks, also to
    Chair Adams for both of your leaderships. The issues raised
    here today impact far too many people in this country.
    According to a study by the Center for American Progress, women
    are the primary sole, or co-bread winners in 64 percent of
    families.
        I was raised by a single mom who worked long hours for low
    pay to provide for our family, so wage and gender issues hit
    especially close to home for me. When I hear about the gender
    and racial pay gap, I think about the hard-working women who,
    like my own mother when I was growing up, have to provide for
    their families.
        In my district, in Westchester and Rockland Counties where
    it is extremely expensive to live, and where low wages are
    therefore particularly burdensome on families, single mothers
    are the sole breadwinners in 13 percent of households. So, Ms.
    Goss Graves, some of my colleagues on the other side of the
    aisle insert that in seeking to correct the injustice of the
    gender wage gap, the Paycheck Fairness Act will actually harm
    business. Can you address this claim?
        Ms. Goss Graves. I actually think that Ms. Olson made the
    case for why paying people fairly is actually a business good.
    It is a thing that will help you retain your talented
    employees. It is a thing that will help you ensure you have
    more diverse rooms.
        But not every employer is there. So, we can't you know, I
    think Congress can't craft laws for the best-minded employer
    that is going to always make the right business decisions. It
    has to craft laws that ensure that the incentives are there for
    people to be paid fairly the first time.
        A really tough thing to accomplish in the area of pay
    because it is so secret, and because all of the information
    lies with the employer, so we can't be in a situation where
    it's just sort of trust us, we got this, we have to be in a
    situation where there is information that our civil rights
    enforcement agencies have, and where employees can have
    conversations about their own pay, something has to give so
    that it can be detected when unfairness is happening.
        Mr. Jones. In short there's no defensible reason to
    maintain the status quo. Data shows that black women typically
    make only 63 percent, excuse me, 63 cents. Latinos only 55
    cents, for every dollar paid to a white man. And it's clear to
    me that we need to strengthen the Equal Pay Act to ensure that
    women, and especially women of color are compensated fairly for
    their work.
        Madam Chair, I ask unanimous consent to enter into the
    record a letter from the American Association of University
    Women urging support for the Paycheck Fairness Act.
        Chairwoman Bonamici. Without objection.
        Mr. Jones. There's no excuse for discrimination of any kind
    in the workplace. That includes age discrimination, which is
    one of the most common, and sadly most accepted forms of
    discrimination in the workplace. This too is personal for me.
        My grandmother had to work well past the age of retirement
    just to pay for the high cost of prescription drugs, and
    medical procedures not fully covered by Medicare, which by the
    way is why we need Medicare for all.
        One of the jobs my grandmother took was as a food service
    worker in the East Ramapo Central School District, a job she
    worked after my grandfather had died of cancer. I shudder to
    think what would have happened had her perspective employer
    determined she was simply too elderly to take the job.
        I represent parts of Westchester and Rockland Counties.
    According to the 2020 census data in my district over 171,000
    of my constituents are seniors. And so, Ms. McCann when an
    individual brings a claim for multiple forms of employment
    discrimination such as gender, race and age, how do courts
    currently sort out the different standards of proofs and
    remedies in cases such as these?
        And does the Protecting Older Workers Against
    Discrimination Act clarify and simply the adjudication of such
    claims?
        Ms. McCann. Yes. Right now confusion reigns when someone
    brings a claim with multiple protective categories, so like an
    older woman like your grandmother, the courts have applied two
    causation standards.
        And in fact some courts have gone so far to say they're not
    going to recognize intersectional claims because the very
    presence of the Title VII claim, the gender claim, means that
    age could not be a but for cause of the discrimination.
        What POWADA would do would replace that confusion with
    uniformity because all of the statutes would have materially
    identical causations standard already, would now be subject to
    the same standard causation standard.
        Mr. Jones. Thank you, Ms. McCann. Madam Chair I yield back.
        Chairwoman Bonamici. Thank you. I now recognize
    Representative Good from Virginia for five minutes for your
    questions.
        Mr. Good. Thank you Chairman and thank you to all of our
    witnesses. You know I think that the four of these acts combine
    together, and it is unfortunate we have to consider them
    together, versus separately, but the acts would better be
    called the Trial Lawyer Fairness Acts, or Protecting Trial
    Lawyer Acts.
        These bills purport to correct problems that are largely
    not existent. They purport to fix issues that have been
    corrected by laws that have been placed for decades. These
    alleged discriminations that we're hearing about were
    eradicated largely before I entered the workplace some 30 plus
    years ago.
        The fact is that most employers, virtually all employers,
    pay the same amount for the same work, for all people when
    considering factors such as experience, skills, performance,
    and other objective job-related criteria.
        And that's true because it's simply required in a
    competitive marketplace, and to try to retain the most talented
    work force for the organization to be as successful as it can
    be, and frankly it is the law now.
        These bills seem to flow from a lack of understanding by
    our majority on the true practices that exist at virtually all
    businesses, and perhaps that's from a lack of business
    experience. I spent nearly 20 years in the corporate world, and
    working through these issues, and applying these issues in a
    fair, non-discriminatory way because I wanted the business and
    my employees to be as successful as possible.
        Or worse yet, this flows from a deliberate intent to be
    dishonest in representing the facts, or just an outright
    hostility toward businesses and employers in general. It's been
    reported that at the close of 2020, 8 million small businesses
    remain closed today because of the extreme government efforts
    to crush the economy through these ridiculous lockdowns,
    shutdowns, and restrictions on businesses.
        The NFIB has reported, in my home State of Virginia, 25
    percent of businesses have closed. And according to Yelp they
    estimate that 60 percent of the businesses that have closed in
    2020 are unlikely rather, to reopen ever again. So, my question
    for Ms. Olson, do you think that these bills that are proposed
    before us today, do you think that these will help these
    businesses to reopen?
        Ms. Olson. Thank you for your question. I appreciate it
    Representative Good. I don't believe that burdening employers
    with the unworkable, and unattainable requirements of the
    Paycheck Fairness Act will help workers in these businesses, or
    any businesses across America, and I strongly oppose it.
        With respect----
        Mr. Good. Excuse me, go ahead continue. No, you continue.
        Ms. Olson. With respect to POWADA I've described in my
    written testimony at length, and in an abbreviated form given
    my five minutes, in my verbal testimony as well, how POWADA is
    not what it represents itself to be. It is not a worker
    friendly statute. It is a trial lawyer friendly statute.
        Under mixed motive cases it is unquestioned that a worker
    will not receive any injunctive relief that will help itself,
    or any monetary relief as a result of a mixed motive case. With
    respect to issues that have covered in terms of the Pregnant
    Workers Fairness Act as well as the PUMP Act, I've included my
    commentary with respect to those in my written testimony, and I
    would say that there is unquestioned support for employers to
    provide reasonable accommodations for pregnant workers,
    including nursing mothers.
        There are issues with respect to those various statutes or
    bills that I've described, that I know these committees have
    worked together before on, and to fix certain issues, and I am
    hopeful that that will continue after today in terms of
    ensuring that both pregnant workers and nursing mothers have
    the opportunity to be sure to have reasonable accommodations in
    the workplace.
        Mr. Good. Thank you. When these businesses are unable to
    operate, to reopen, to successfully operate, that discriminates
    against all workers and that eliminates wages for all workers
    in the business's ability to provide for the workers who can
    provide for their families.
        At a time of high unemployment, global economic
    uncertainty, tightening Federal regulations, do we think that
    will stimulate the economy, create jobs, or lead to more
    growth, adding more regulation, more burdensome regulations for
    employers?
        Ms. Olson. It will not lead to more growth in either
    businesses or worker wages, and that's the problem with the
    Paycheck Fairness Act for example.
        Mr. Good. Yes PFA, H.R. 7 that you're referring to, you
    know, it says it requires employers to show that pay
    differential for employees based on experience is a business
    necessity, and it's just really----
        Chairwoman Bonamici. Representative your time has expired.
        Mr. Good. It's incredible to hear the majority talk about
    business necessity with the way that they treated businesses--
    --
        Chairwoman Bonamici. Representative your time has expired.
        Mr. Good. ----in lockdowns and in this hearing today. Thank
    you.
        Chairwoman Bonamici. I'm going to recognize Mr. Bowman from
    New York for five minutes for your questions.
        Mr. Bowman. Thank you, Madam, Chair, and thank you to all
    the witnesses. Ms. Bakst, you discussed the impact that the
    PUMP Act could have for black mothers in particular. As you
    know that black mothers and pregnant women disproportionately
    remain in the work force and face less than accommodating
    workplace environments.
        In your estimation how much of the black maternal health
    crisis might be attributed to the lack of these necessary
    accommodations in the workplace?
        Ms. Bakst. Thank you for the question. You know providing
    accommodations for more specifically, time and space to pump
    breast milk, you know, is one important tool to help black
    women, black mothers, stay healthy and attach to the work
    force, along with the Pregnant Worker Fairness Act which I
    mentioned earlier some of the health impacts, and the
    pronounced impacts that we heard from COVID about the
    likelihood, the higher risk of complications pregnant workers
    face, disproportionately black and Latino women as a result of
    not getting, of developing COVID.
        So, these accommodations in the workplace are critically,
    critically important, especially now, to help them maintain
    their health and hang on to their paychecks.
        Mr. Bowman. Thank you for that. Ms. McCann, you have Stated
    that the EEOC must do more to fight ageism and that ADEA has
    become a second-class civil rights law. Is it the case that
    ADEA provides less protection than other civil rights laws?
        Ms. McCann. Thank you for the question. Well that certainly
    was not Congress's intent when it enacted the ADA, and modeled
    its substantive prohibition, directly on Title VII. In fact,
    Title VII substantive prohibitions were lifted in hoc verba as
    the Supreme Court said from Title VII.
        But what we've seen is over the last couple decades Supreme
    Court cases like Gross and others have whittled away at the
    ADEA's protections and have focused on any small differences
    between the ADA and Title VII to weaken the ADA's protection to
    narrow, to expand its affections and narrow its protection.
        Mr. Bowman. Thank you very much. Ms. Graves, Ms. Olson
    suggests that incentivizing employers to conduct self-audits
    would be enough to address amoral and economically damaging pay
    inequities. Why is this approach insufficient in your opinion?
        Ms. Goss Graves. Well you know so we've had equal pay laws
    for over five decades. It's not a new idea that you can't pay
    people unfair wages. What we are actually trying to do is
    ensure that people, ensure that our civil rights enforcement
    agencies have the sort of information that allow them to be
    effective.
        So, it's an odd idea that you would have a safe harbor for
    an obligation that is over 50 years old, and the other real
    challenge is at the heart of our laws are the individuals who
    were being paid unfairly. So a safe harbor might allow an
    employer to do the right thing going forward, but for that
    individual who's not able to recover, that is a giant deal,
    especially when you're talking about women of color where the
    age gap is so large and so stark.
        Mr. Bowman. Thank you very much. I yield back the rest of
    my time. Thank you.
        Chairwoman Bonamici. Thank you very much. And for
    everyone's awareness we have next Mr. Fitzgerald and then Mr.
    Yarmuth, and then unless other Members return, we will do
    closing Statements. I now recognize Representative Fitzgerald
    for five minutes for your questions.
        Mr. Fitzgerald. Thank you, Madam Chair. Just real briefly,
    I know a lot of the questions have already been asked, but the
    one that--the area that really stands out to me is I mean this
    bill will kill the Christmas bonus. And the Christmas bonus is
    something that's determined in many different ways based on the
    employer. Often times it's kind of a consensus compensation,
    that's based on how the company does throughout the entire
    year.
        And it looks like H.R. 7 would simply stop that practice
    dead in its tracks. And I'm just wondering if Ms. Olson would
    like to comment on that aspect of this bill.
        Ms. Olson. Yes. You're right, you know. Any employer is
    going to be concerned about making any differences in pay
    between employees based on objection and subjective business
    and job-related factors if H.R. 7 were the law.
        Because once you do that, even if you could show it was a
    business necessity, which again I believe is an impossible
    burden, one that's undefined, one that employers are going to
    have to guess as to how to comply with. The employer would also
    have to show that they weren't able to give the highest amount
    of that Christmas bonus to all employees.
        How is that not possible? And if an employer can't show
    that, that they wouldn't have gone bankrupt, what are they to
    do? It's going to eliminate the ability for employers to
    actually make differentiating payments to employees based on
    their individual contributions to the business, and that's not
    what the American economic system is about.
        It's not about what job you have. It's about what job you
    have and what you bring to it.
        Mr. Fitzgerald. Yes Madam Chair a lot of families really
    depend on that Christmas bonus, that end of the year bonus, and
    if this bill takes that off the shelf, I think it's--there's
    going to be a lot of people very upset. I yield back my time.
    Thank you.
        Chairwoman Bonamici. Thank you representative. I now
    recognize Representative Yarmuth for five minutes for your
    questions. Thank you for your patience.
        Mr. Yarmuth. Thank you, Madam Chair. Thanks to all the
    witnesses for your testimony, and my colleagues, for your
    questions. Ms. Bakst, Kentucky has accommodations similar to
    those in the Pregnant Workers Fairness Act, and in the last
    Congress GLI, which is our Greater Louisville Inc., which is
    our Chamber of Commerce, testified in favor of this bill.
        Are you familiar with their testimony? And could you expand
    on, if you are, why they felt this was such an important step
    forward for mothers, perspective mothers?
        Ms. Bakst. Sure. Yes. So, there were a few reasons I recall
    she laid out in her testimony. The first being employee
    retention, right, that this is a tool especially now you know
    to keep women healthy and attached to the work force.
        Clarity in the law right, that you know we have Supreme
    Court standard, Young versus UPS that requires, as I said
    earlier, pregnant workers to jump through hoops to provide
    tremendous confusion for employers.
        We came together you know with a U.S. Chamber in good
    faith, and this is why the Chamber termed, and other business
    groups are supportive of this bill, because it provides clarity
    in the law. And you know running a free legal help line, we
    help women in States with these laws, and we're able to avoid
    litigation and help them stay healthy and on the job.
        And this is a preventative tool, and exactly how the law
    should work.
        Mr. Yarmouth. All right thank. And I think in our case we
    are right on the Ohio River, right across from Indiana. I think
    you said about 30 States now have these accommodations. I don't
    think Indiana had those accommodations, so we had workers going
    back and forth trying to deal with different laws and
    accommodations which is not easy.
        Ms. Bakst. Yes. And for multi-State employers operating in
    Kentucky and Indiana, you need a clear Federal law, right?
    That's why we need a clear Federal law from employers.
        Mr. Yarmouth. And you know I think you know we talked so
    much about desirability of having bipartisanship that in the
    last Congress we had 100 Republicans who actually supported
    this legislation, so it seems that we have a golden opportunity
    to do something that is overwhelmingly bipartisan.
        This community supports, the women's groups support, and I
    think it would be a very significant step forward. Ms. Goss
    Graves, I think your organization provided a lot of the data
    that we've been throwing around today on the disparity in wages
    between white men and black women, white women, Native women,
    and Latina women.
        And if I'm correctly assessing it, it showed that of the
    gaps, so when we're talking about 60 percent, 60 cents on a
    dollar for Latino women to white men, almost 40 percent of that
    gap was basically unattributable to all of the things that
    we've been talking about, and Ms. Olson has been talking about
    with experience and the differences in occupations and so
    forth.
        My question is, and it's kind of off the wall, so I
    apologize for that. You may not have the data. But do you have
    any indication. We know that black women, Latina women, often
    are disproportionately in lower wage jobs in the hospitality
    industry and so forth. Do you have any idea about how much of
    the wage gap would be corrected, or closed by a $15.00 national
    minimum wage?
        Ms. Goss Graves. You know I don't have that statistic
    offhand. What I can tell you though is we've done analyses of
    States that have higher minimum wages, including one fair wage,
    and have found that in those States the gap is smaller.
        Mr. Yarmuth. I was hoping that would be your answer, and I
    think that as we move forward on discussing raising the minimum
    wage, that we take that into account, that this is one of the
    ways that we can help correct some of this wage gap that exists
    between men and women.
        I have no further questions, so Madam Chair I yield back
    the balance of my time.
        Chairwoman Bonamici. Thank you representative Yarmuth.
    Next, we have Representative Cawthorn. You're recognized for
    five minutes for your questions.
        Mr. Cawthorn. Thank you, Madam Chair. It really does mean a
    lot. I appreciate everyone who is on this call. You know I
    think it is absolutely imperative that we as Americans, that
    our employers and our government treat everyone with honor,
    dignity, and respect, treat them all fair, and under the law.
        But I was--let me ask a question of Ms. Olson. Under the
    Equal Pay Act, does a Plaintiff have to prove discriminatory
    intent in order for her to win her case? If not, does this make
    the Equal Pay Act claims easier to prove, and do you have any
    other followup thoughts on that?
        Ms. Olson. You're right Representative. Under the Equal Pay
    Act, it is the only employment discrimination statute that does
    not require a showing of discriminatory intent. As a result,
    it's sometimes referred to as a strict liability statute. In
    addition, unlike the other statutes, under the Equal Pay Act
    the employer bears the burden, and not just production, but
    persuasion.
        All the plaintiff has to show under the Equal Pay Act is
    that they're performing a job that is the same as somebody else
    and that they're paid differently. That's it. No other
    evidence. No other taint or suggestion of discrimination, just
    that they're paid differently, and then all the burden goes to
    the employer.
        Mr. Cawthorn. Well Ms. Olson thank you very much for your
    answer. Let me do one followup question on that. So, in my
    district I know I have a lot of companies who will reward high
    performing workers you know, with end of the year bonuses or
    maybe other incentives.
        Do you believe that H.R. 7 would endanger these kinds of
    payments and rewards? And if that is the case, you know, how do
    these employers work to retain these high-level employees and
    encourage them to work harder than their coworkers?
        Ms. Olson. It absolutely would because any time an employer
    makes a payment to a worker, whether it's a bonus, it's an
    incentive, or it's an increase in pay, or some other benefit,
    that is due to let's just say to that particular individual's
    contributions that are extra, or that are better than another
    worker, and maybe it's because they're a better teammate.
        Maybe because they showed leadership on a particular
    project. Those aren't quantifiable objective factors, and yet
    why would an employer risk all this litigation, and unkept
    punitive and compensatory damages and class actions to reward
    its employees for those good qualities that are exhibited in
    the workplace to help all workers and the business?
        They risk litigation if they do that.
        Mr. Cawthorn. Well you know that's something, especially
    you know, with knowing with the Equal Pay Act, they really
    don't have to prove discriminatory intent or some of the
    litigation they would be facing. I know the district scare a
    lot of the employees in my district, so Ms. Olson I genuinely
    appreciate your expertise and your time. Thank you for coming
    out to our committee and thank you for enlightening myself on
    some of these issues.
        So, everyone thank you very much and Madam Chairman I yield
    back the remainder of my time.
        Chairwoman Bonamici. Thank you and I see no other Members.
    So, we'll move on. 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, so by close of business
    on April 1 of 2021, preferably in Microsoft Word format.
        The materials submitted must address the subject matter of
    the subject matter of the hearing. Only a Member of the
    subcommittee, or subcommittees, or an invited witness may
    submit materials for inclusion into 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, but please
    recognize that in the future that link may not work.
        Pursuant to House rules and regulations, items for the
    record should be submitted to the Clerk electronically by
    emailing submissions to edandlabor.hearings@mail.house.gov.
    Member offices are encouraged to submit materials to the inbox
    before the hearing, or during the hearing at the time the
    Member makes the request.
        Again, I want to thank all of our witnesses for their
    participation today. Members of the subcommittees may have some
    additional questions for you. We ask the witnesses to please
    respond to these questions in writing. The hearing record will
    be held open for 14 days to receive these responses, and I
    remind my colleagues that pursuant to committee practice,
    witness questions for the hearing 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. So, I now want to recognize the distinguished
    Ranking Member of the Subcommittee on Workforce Protections,
    Mr. Keller for a closing Statement.
        Mr. Fulcher. Madam Chair I think Mr. Keller has stepped
    out.
        Chairwoman Bonamici. OK. I don't see Mr. Keller, so I will
    recognize the chair of the Subcommittee on Workforce
    Protection, Dr. Adams for the purpose of making a closing
    Statement.
        Chairwoman Adams. Thank you, Madam Chair. I also want to
    give my thanks again to our witnesses for joining us today.
    Today's hearing confirmed that women across the country
    continue to face discrimination in the workplace on multiple
    fronts. Women, particularly women of color, still face
    persistent gender-based wage discrimination even after 12 years
    of the Better Fair Pay Act, and 58 years of the Equal Pay Act.
        And far too many nursing workers still do not have basic
    protections to ensure that they can take the time at work to
    pump in clean, private spaces. This discrimination has serious
    consequences for our entire economy, particularly as women are
    disproportionately pushed out of the work force during the
    pandemic.
        Simply put, we cannot continue to rob nearly half of our
    Nation's work force of the wages they deserve, force women to
    work far more just to be paid fairly and penalize nursing
    workers. Congress has a moral responsibility to pass the
    Paycheck Fairness Act and the PUMP for Nursing Mothers Act, in
    addition to the Pregnant Workers Fairness Act, and the
    Protecting Older Workers Against Discrimination Act.
        We've got to take action to ensure that basic workplace
    fairness for women and nursing workers and take meaningful
    steps to finally end gender-based workplace discrimination once
    and for all. Madam Chair I yield back and thank you very much.
        Chairwoman Bonamici. Thank you, Chair Adams. And I now
    recognize the distinguished Ranking Member of the Subcommittee
    on Civil Rights and Human Services Mr. Fulcher, for the purpose
    of making a closing Statement.
        Mr. Fulcher. Thank you, Madam Chair, and to the witnesses
    for providing the testimony. I spent two years in the
    workplace, largely as someone who had a lot of employees, and
    so I always learn from these testimonies and I thank you for
    participating.
        Just my brief takeaway. We've already got laws on the books
    that address discrimination in the workplace. Age
    Discrimination and Employment Act, Americans With Disabilities
    Act, The Rehabilitation Act, Civil Rights Act, and employment
    trends for older workers in America are up, both in terms of
    the employment rate and in terms of pay.
        The winners here are the trial lawyers. And I know that my
    colleagues across the aisle really like the trial lawyers, and
    so do I. I like them too, just not quite enough to support
    legislation that otherwise is a solution in search of a
    problem. Madam Chair I yield.
        Chairwoman Bonamici. Thank you very much Ranking Member
    Fulcher. And I, hold on just one moment. There's just one issue
    we're trying to clarify. Hold briefly please. All right. Thank
    you for your patience.
        I would now recognize myself for the purpose of making a
    closing Statement.
        I also want to thank our witnesses for being here, for your
    compelling testimony today. Our discussions confirm that we are
    still a long way from eradicating discrimination in the
    workplace, particularly for women and older Americans, and the
    testimony established that the laws we have on the books are
    not working.
        I do want to note that I request unanimous consent to enter
    a letter into the record from a coalition of stakeholders in
    support of the Pregnant Workers Fairness Act without objection.
    And I also request unanimous consent to enter a letter into the
    record from the business community in support of the Pregnant
    Workers Fairness Act, also without objection.
        I also would like to note that during the opening Statement
    Ranking Member Fulcher you noted that a concern about only
    having one witness. I know we were talking about four bills
    today. I would like to place onto the record that the minority
    did not actually ask for a second witness, and had they done
    that we would have certainly considered that request.
        So today we heard about how pregnant workers across the
    country continue to be denied access to reasonable workplace
    accommodations, despite more than four decades of Federal law
    providing equal treatment on the job.
        We also heard how older workers face unreasonable obstacles
    that prevent them from holding employers accountable for age
    discrimination. It is passed time for Congress to take action
    to make sure that all workers can earn a living without fear of
    discrimination.
        Our discussion today made clear that we must swiftly pass
    the Protective Older Workers Against Discrimination Act to
    restore protections against age discrimination for older
    workers. Put us back to where we were. Restore those
    protections, so people who are discriminated against can get
    relief. And we must pass the Pregnant Workers Fairness Act, so
    pregnant workers do not have to choose between healthy
    pregnancies and their wages.
        These bills, along with the Paycheck Fairness Act and the
    PUMP for Nursing Mothers Act should not be partisan. They
    affect women and people of all parties and all backgrounds.
    Each of us, but disproportionately women of color, and Latin
    women we know that.
        Each of us should agree, now more than ever, we must take
    these bold steps to protect our Nation's most vulnerable
    workers, and make sure that all workers can succeed on the job.
        There being no further business, and I've already noted the
    possibility of additional questions, without objection the
    hearing now stands adjourned. Thank you again.
        [Additional submissions by Chairwoman Bonamici follow:]
       [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        [Whereupon, at 12:40 p.m., the subcommittees were
    adjourned.]

                                [all]