[Congressional Record Volume 147, Number 7 (Monday, January 22, 2001)]
[Senate]
[Pages S336-S338]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DASCHLE (for himself, Ms. Mikulski, Mr. Kennedy, Mr. 
        Harkin, Mr. Wellstone, Ms. Landrieu, Mrs. Lincoln, Mr. Akaka, 
        Mr. Breaux, Mr. Cleland, Mr. Durbin, Mr. Inouye, Mr. Kerry, Mr. 
        Leahy, Mr. Reid, Mr. Sarbanes, Mr. Schumer, and Mr. Johnson):
  S. 77. A bill to amend the Fair Labor Standards Act of 1938 to 
provide more effective remedies to victims of discrimination in the 
payment of wages on the basis of sex, and for other purposes; to the 
Committee on Health, Education, Labor, and Pensions.


                         paycheck fairness act

  Mr. DASCHLE. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 77

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Paycheck Fairness Act''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) Women have entered the workforce in record numbers.
       (2) Even today, women earn significantly lower pay than men 
     for work on jobs that require equal skill, effort, and 
     responsibility and that are performed under similar working 
     conditions. These pay disparities exist in both the private 
     and governmental sectors. In many instances, the pay 
     disparities can only be due to continued intentional 
     discrimination or the lingering effects of past 
     discrimination.
       (3) The existence of such pay disparities--
       (A) depresses the wages of working families who rely on the 
     wages of all members of the family to make ends meet;
       (B) prevents the optimum utilization of available labor 
     resources;
       (C) has been spread and perpetuated, through commerce and 
     the channels and instrumentalities of commerce, among the 
     workers of the several States;
       (D) burdens commerce and the free flow of goods in 
     commerce;
       (E) constitutes an unfair method of competition in 
     commerce;
       (F) leads to labor disputes burdening and obstructing 
     commerce and the free flow of goods in commerce;
       (G) interferes with the orderly and fair marketing of goods 
     in commerce; and
       (H) in many instances, may deprive workers of equal 
     protection on the basis of sex in violation of the 5th and 
     14th amendments.
       (4)(A) Artificial barriers to the elimination of 
     discrimination in the payment of wages on the basis of sex 
     continue to exist more than 3 decades after the enactment of 
     the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) 
     and the Civil Rights Act of 1964 (42 U.S.C. 2000a et seq.).
       (B) Elimination of such barriers would have positive 
     effects, including--

[[Page S337]]

       (i) providing a solution to problems in the economy created 
     by unfair pay disparities;
       (ii) substantially reducing the number of working women 
     earning unfairly low wages, thereby reducing the dependence 
     on public assistance; and
       (iii) promoting stable families by enabling all family 
     members to earn a fair rate of pay;
       (iv) remedying the effects of past discrimination on the 
     basis of sex and ensuring that in the future workers are 
     afforded equal protection on the basis of sex; and
       (v) ensuring equal protection pursuant to Congress' power 
     to enforce the 5th and 14th amendments.
       (5) With increased information about the provisions added 
     by the Equal Pay Act of 1963 and wage data, along with more 
     effective remedies, women will be better able to recognize 
     and enforce their rights to equal pay for work on jobs that 
     require equal skill, effort, and responsibility and that are 
     performed under similar working conditions.
       (6) Certain employers have already made great strides in 
     eradicating unfair pay disparities in the workplace and their 
     achievements should be recognized.

     SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.

       (a) Required Demonstration for Affirmative Defense.--
     Section 6(d)(1) of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 206(d)(1)) is amended by striking ``(iv) a 
     differential'' and all that follows through the period and 
     inserting the following: ``(iv) a differential based on a 
     bona fide factor other than sex, such as education, training 
     or experience, except that this clause shall apply only if--
       ``(I) the employer demonstrates that--

       ``(aa) such factor--

       ``(AA) is job-related with respect to the position in 
     question; or
       ``(BB) furthers a legitimate business purpose, except that 
     this item shall not apply where the employee demonstrates 
     that an alternative employment practice exists that would 
     serve the same business purpose without producing such 
     differential and that the employer has refused to adopt such 
     alternative practice; and

       ``(bb) such factor was actually applied and used reasonably 
     in light of the asserted justification; and

       ``(II) upon the employer succeeding under subclause I, the 
     employee fails to demonstrate that the differential produced 
     by the reliance of the employer on such factor is itself the 
     result of discrimination on the basis of sex by the employer.

     ``An employer that is not otherwise in compliance with this 
     paragraph may not reduce the wages of any employee in order 
     to achieve such compliance.''.
       (b) Application of Provisions.--Section 6(d)(1) of the Fair 
     Labor Standards Act of 1938 (29 U.S.C. 206(d)(1)) is amended 
     by adding at the end the following: ``The provisions of this 
     subsection shall apply to applicants for employment if such 
     applicants, upon employment by the employer, would be subject 
     to any provisions of this section.''.
       (c) Elimination of Establishment Requirement.--Section 6(d) 
     of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)) is 
     amended--
       (1) by striking ``, within any establishment in which such 
     employees are employed,''; and
       (2) by striking ``in such establishment'' each place it 
     appears.
       (d) Nonretaliation Provision.--Section 15(a)(3) of the Fair 
     Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)) is 
     amended--
       (1) by striking ``or has'' each place it appears and 
     inserting ``has''; and
       (2) by inserting before the semicolon the following: ``, or 
     has inquired about, discussed, or otherwise disclosed the 
     wages of the employee or another employee, or because the 
     employee (or applicant) has made a charge, testified, 
     assisted, or participated in any manner in an investigation, 
     proceeding, hearing, or action under section 6(d)''.
       (e) Enhanced Penalties.--Section 16(b) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 216(b)) is amended--
       (1) by inserting after the first sentence the following: 
     ``Any employer who violates section 6(d) shall additionally 
     be liable for such compensatory or punitive damages as may be 
     appropriate, except that the United States shall not be 
     liable for punitive damages.'';
       (2) in the sentence beginning ``An action to'', by striking 
     ``either of the preceding sentences'' and inserting ``any of 
     the preceding sentences of this subsection'';
       (3) in the sentence beginning ``No employees shall'', by 
     striking ``No employees'' and inserting ``Except with respect 
     to class actions brought to enforce section 6(d), no 
     employee'';
       (4) by inserting after the sentence referred to in 
     paragraph (3), the following: ``Notwithstanding any other 
     provision of Federal law, any action brought to enforce 
     section 6(d) may be maintained as a class action as provided 
     by the Federal Rules of Civil Procedure.''; and
       (5) in the sentence beginning ``The court in''--
       (A) by striking ``in such action'' and inserting ``in any 
     action brought to recover the liability prescribed in any of 
     the preceding sentences of this subsection''; and
       (B) by inserting before the period the following: ``, 
     including expert fees''.
       (f) Action by Secretary.--Section 16(c) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 216(c)) is amended--
       (1) in the first sentence--
       (A) by inserting ``or, in the case of a violation of 
     section 6(d), additional compensatory or punitive damages,'' 
     before ``and the agreement''; and
       (B) by inserting before the period the following: ``, or 
     such compensatory or punitive damages, as appropriate'';
       (2) in the second sentence, by inserting before the period 
     the following: ``and, in the case of a violation of section 
     6(d), additional compensatory or punitive damages'';
       (3) in the third sentence, by striking ``the first 
     sentence'' and inserting ``the first or second sentence''; 
     and
       (4) in the last sentence--
       (A) by striking ``commenced in the case'' and inserting 
     ``commenced--
       ``(1) in the case'';
       (B) by striking the period and inserting 
     ``; or''; and
       (C) by adding at the end the following:
       ``(2) in the case of a class action brought to enforce 
     section 6(d), on the date on which the individual becomes a 
     party plaintiff to the class action''.

     SEC. 4. TRAINING.

       The Equal Employment Opportunity Commission and the Office 
     of Federal Contract Compliance Programs, subject to the 
     availability of funds appropriated under section 9(b), shall 
     provide training to Commission employees and affected 
     individuals and entities on matters involving discrimination 
     in the payment of wages.

     SEC. 5. RESEARCH, EDUCATION, AND OUTREACH.

       The Secretary of Labor shall conduct studies and provide 
     information to employers, labor organizations, and the 
     general public concerning the means available to eliminate 
     pay disparities between men and women, including--
       (1) conducting and promoting research to develop the means 
     to correct expeditiously the conditions leading to the pay 
     disparities;
       (2) publishing and otherwise making available to employers, 
     labor organizations, professional associations, educational 
     institutions, the media, and the general public the findings 
     resulting from studies and other materials, relating to 
     eliminating the pay disparities;
       (3) sponsoring and assisting State and community 
     informational and educational programs;
       (4) providing information to employers, labor 
     organizations, professional associations, and other 
     interested persons on the means of eliminating the pay 
     disparities;
       (5) recognizing and promoting the achievements of 
     employers, labor organizations, and professional associations 
     that have worked to eliminate the pay disparities; and
       (6) convening a national summit to discuss, and consider 
     approaches for rectifying, the pay disparities.

     SEC. 6. TECHNICAL ASSISTANCE AND EMPLOYER RECOGNITION 
                   PROGRAM.

       (a) Guidelines.--
       (1) In general.--The Secretary of Labor shall develop 
     guidelines to enable employers to evaluate job categories 
     based on objective criteria such as educational requirements, 
     skill requirements, independence, working conditions, and 
     responsibility, including decisionmaking responsibility 
     and de facto supervisory responsibility.
       (2) Use.--The guidelines developed under paragraph (1) 
     shall be designed to enable employers voluntarily to compare 
     wages paid for different jobs to determine if the pay scales 
     involved adequately and fairly reflect the educational 
     requirements, skill requirements, independence, working 
     conditions, and responsibility for each such job with the 
     goal of eliminating unfair pay disparities between 
     occupations traditionally dominated by men or women.
       (3) Publication.--The guidelines shall be developed under 
     paragraph (1) and published in the Federal Register not later 
     than 180 days after the date of enactment of this Act.
       (b) Employer Recognition.--
       (1) Purpose.--It is the purpose of this subsection to 
     emphasize the importance of, encourage the improvement of, 
     and recognize the excellence of employer efforts to pay wages 
     to women that reflect the real value of the contributions of 
     such women to the workplace.
       (2) In general.--To carry out the purpose of this 
     subsection, the Secretary of Labor shall establish a program 
     under which the Secretary shall provide for the recognition 
     of employers who, pursuant to a voluntary job evaluation 
     conducted by the employer, adjust their wage scales (such 
     adjustments shall not include the lowering of wages paid to 
     men) using the guidelines developed under subsection (a) to 
     ensure that women are paid fairly in comparison to men.
       (3) Technical assistance.--The Secretary of Labor may 
     provide technical assistance to assist an employer in 
     carrying out an evaluation under paragraph (2).
       (c) Regulations.--The Secretary of Labor shall promulgate 
     such rules and regulations as may be necessary to carry out 
     this section.

     SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN 
                   THE WORKPLACE.

       (a) In General.--There is established the Alexis Herman 
     National Award for Pay Equity in the Workplace, which shall 
     be evidenced by a medal bearing the inscription ``Alexis 
     Herman National Award for Pay Equity in the Workplace''. The 
     medal shall be of such design and materials, and bear such

[[Page S338]]

     additional inscriptions, as the Secretary of Labor may 
     prescribe.
       (b) Criteria for Qualification.--To qualify to receive an 
     award under this section a business shall--
       (1) submit a written application to the Secretary of Labor, 
     at such time, in such manner, and containing such information 
     as the Secretary may require, including at a minimum 
     information that demonstrates that the business has made 
     substantial effort to eliminate pay disparities between men 
     and women, and deserves special recognition as a consequence; 
     and
       (2) meet such additional requirements and specifications as 
     the Secretary of Labor determines to be appropriate.
       (c) Making and Presentation of Award.--
       (1) Award.--After receiving recommendations from the 
     Secretary of Labor, the President or the designated 
     representative of the President shall annually present the 
     award described in subsection (a) to businesses that meet the 
     qualifications described in subsection (b).
       (2) Presentation.--The President or the designated 
     representative of the President shall present the award under 
     this section with such ceremonies as the President or the 
     designated representative of the President may determine to 
     be appropriate.
       (d) Business.--In this section, the term ``business'' 
     includes--
       (1)(A) a corporation, including a nonprofit corporation;
       (B) a partnership;
       (C) a professional association;
       (D) a labor organization; and
       (E) a business entity similar to an entity described in any 
     of subparagraphs (A) through (D);
       (2) an entity carrying out an education referral program, a 
     training program, such as an apprenticeship or management 
     training program, or a similar program; and
       (3) an entity carrying out a joint program, formed by a 
     combination of any entities described in paragraph (1) or 
     (2).

     SEC. 8. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT 
                   OPPORTUNITY COMMISSION.

       Section 709 of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e-8) is amended by adding at the end the following:
       ``(f)(1) Not later than 18 months after the date of 
     enactment of this subsection, the Commission shall--
       ``(A) complete a survey of the data that is currently 
     available to the Federal Government relating to employee pay 
     information for use in the enforcement of Federal laws 
     prohibiting pay discrimination and, in consultation with 
     other relevant Federal agencies, identify additional data 
     collections that will enhance the enforcement of such laws; 
     and
       ``(B) based on the results of the survey and consultations 
     under subparagraph (A), issue regulations to provide for the 
     collection of pay information data from employers as 
     described by the sex, race, and national origin of employees.
       ``(2) In implementing paragraph (1), the Commission shall 
     have as its primary consideration the most effective and 
     efficient means for enhancing the enforcement of Federal laws 
     prohibiting pay discrimination. For this purpose, the 
     Commission shall consider factors including the imposition of 
     burdens on employers, the frequency of required reports 
     (including which employers should be required to prepare 
     reports), appropriate protections for maintaining data 
     confidentiality, and the most effective format for the data 
     collection reports.''.

     SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated such sums as may be 
     necessary to carry out this Act.
                                 ______