[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

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          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 [email protected]. 
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.]

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