[Congressional Record Volume 149, Number 57 (Wednesday, April 9, 2003)]
[Senate]
[Pages S5073-S5075]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HARKIN (for himself, Ms. Mikulski, Mr. Kennedy, Mrs. 
        Boxer, Mr. Akaka, Mr. Leahy, Mrs. Murray, Mr. Feingold, and Mr. 
        Durbin):
  S. 841. A bill to amend the Fair Labor Standards Act of 1938 to 
prohibit discrimination in the payment of wages on account of sex, 
race, or national origin, and for other purposes; to the Committee on 
Health, Education, Labor, and Pensions.
  Mr. HARKIN. Mr. President, on behalf of myself and Senators Murray, 
Kennedy, Mikulski, Durbin, Leahy, Akaka, Feingold and Boxer, I am 
introducing the Fair Pay Act.
  April 15, tax day, is also Equal Pay Day. If you add what women made 
last year and so far this year, that would be the same amount men made 
in all of last year. In other words, it takes women 16 months to make 
what men make in 12.
  There's been a lot of tax talk from Congress and the White House 
lately. We've got more than 1 million people out of work. And we've got 
millions of families struggling to make ends meet. The White House 
believes a new $750 billion tax cut for the rich is the solution.
  I disagree. One way we can put more money in the pockets of working 
families--pay women what they're worth. Nearly 40 years after the Equal 
Pay Act became law, women are still paid only 76 cents for every dollar 
a man earns.
  Working women at all income and education levels are affected by the 
wage gap. Last year, the GAO found that the pay gap continues to effect 
women in management and that, for these women, the pay gap has actually 
widened since 1995.
  Regardless of education, the impact is the same. These women work as 
hard as men, but have less money to pay the bills, to put food on the 
table, or to save for their retirement or their child's education. That 
is simply wrong and it must end. We must close the wage gap once and 
for all.
  First, we need to do a better job by enforcing and strengthening the 
penalties for the law that demands equal pay for equal work. That's why 
I support the Paycheck Fairness Act, sponsored by Senator Daschle and 
Congresswoman DeLauro.
  Another part of discrimination against women in the work place is the 
historic pattern of undervaluing and underpaying so-called ``women's 
jobs.''
  Millions of women today working in female-dominated jobs--as social 
workers, teachers, child care workers and nurses--are ``equivalent'' in 
skills, effort, responsibility and working conditions to similar jobs 
dominated by men. But these women aren't paid the same as men.
  That's what the Fair Pay Act--that Congresswoman Norton and I are 
reintroducing today--would address. Unfairly low pay in jobs dominated 
by women is un-American, it is discriminatory and our bill would make 
it illegal.
  20 States have ``fair pay'' laws and policies in place for their 
employees, including my State of Iowa. And Iowa had a Republican 
legislature and Governor when this bill passed into law. So, ending 
wage discrimination against women in a nonpartisan issue.
  Some say we don't need any more laws; market forces will take care of 
the wage gap. If we had relied on market forces we would have never 
passed the Equal Pay Act, the Civil Rights Act, the Family Medical 
Leave Act or the Americans with Disabilities Act.
  I first introduced the Fair Pay Act in 1996 after the Iowa Business 
and Professional Women alerted me to this problem. And as long as I'm 
in the U.S. Senate I will continue to fight to pass this important 
legislation so we can end wage discrimination against women once and 
for all.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

[[Page S5074]]

                                 S. 841

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

     SECTION 1. SHORT TITLE AND REFERENCE.

       (a) Short Title.--This Act may be cited as the ``Fair Pay 
     Act of 2003''.
       (b) Reference.--Except as provided in section 8, whenever 
     in this Act an amendment or repeal is expressed in terms of 
     an amendment to, or repeal of, a section or other provision, 
     the reference shall be considered to be made to a section or 
     other provision of the Fair Labor Standards Act of 1938 (29 
     U.S.C. 201 et seq.).

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Wage rate differentials exist between equivalent jobs 
     segregated by sex, race, and national origin in Government 
     employment and in industries engaged in commerce or in the 
     production of goods for commerce.
       (2) The existence of such wage rate differentials--
       (A) depresses wages and living standards for employees 
     necessary for their health and efficiency;
       (B) prevents the maximum utilization of the available labor 
     resources;
       (C) tends to cause labor disputes, thereby burdening, 
     affecting, and obstructing commerce;
       (D) burdens commerce and the free flow of goods in 
     commerce; and
       (E) constitutes an unfair method of competition.
       (3) Discrimination in hiring and promotion has played a 
     role in maintaining a segregated work force.
       (4) Many women and people of color work in occupations 
     dominated by individuals of their same sex, race, and 
     national origin.
       (5)(A) A General Accounting Office analysis of wage rates 
     in the civil service of the State of Washington found that in 
     1985 of the 44 jobs studied that paid less than the average 
     of all equivalent jobs, approximately 39 percent were female-
     dominated and approximately 16 percent were male dominated.
       (B) A study of wage rates in Minnesota using 1990 Decennial 
     Census data found that 75 percent of the wage rate 
     differential between white and non-white workers was 
     unexplained and may be a result of discrimination.
       (6) Section 6(d) of the Fair Labor Standards Act of 1938 
     prohibits discrimination in compensation for ``equal work'' 
     on the basis of sex.
       (7) Title VII of the Civil Rights Act of 1964 prohibits 
     discrimination in compensation because of race, color, 
     religion, national origin, and sex. The Supreme Court, in its 
     decision in County of Washington v. Gunther, 452 U.S. 161 
     (1981), held that title VII's prohibition against 
     discrimination in compensation also applies to jobs that do 
     not constitute ``equal work'' as defined in section 6(d) of 
     the Fair Labor Standards Act of 1938. Decisions of lower 
     courts, however, have demonstrated that further clarification 
     of existing legislation is necessary in order effectively to 
     carry out the intent of Congress to implement the Supreme 
     Court's holding in its Gunther decision.
       (8) Artificial barriers to the elimination of 
     discrimination in compensation based upon sex, race, and 
     national origin continue to exist more than 3 decades after 
     the passage of section 6(d) of the Fair Labor Standards Act 
     of 1938 and the Civil Rights Act of 1964. Elimination of such 
     barriers would have positive effects, including--
       (A) providing a solution to problems in the economy created 
     by discrimination through wage rate differentials;
       (B) substantially reducing the number of working women and 
     people of color earning low wages, thereby reducing the 
     dependence on public assistance; and
       (C) promoting stable families by enabling working family 
     members to earn a fair rate of pay.

     SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS.

       (a) Amendment.--Section 6 (29 U.S.C. 206) is amended by 
     adding at the end the following:
       ``(h)(1)(A) Except as provided in subparagraph (B), no 
     employer having employees subject to any provision of this 
     section shall discriminate, within any establishment in which 
     such employees are employed, between employees on the basis 
     of sex, race, or national origin by paying wages to employees 
     in such establishment in a job that is dominated by employees 
     of a particular sex, race, or national origin at a rate less 
     than the rate at which the employer pays wages to employees 
     in such establishment in another job that is dominated by 
     employees of the opposite sex or of a different race or 
     national origin, respectively, for work on equivalent jobs.
       ``(B) Nothing in subparagraph (A) shall prohibit the 
     payment of different wage rates to employees where such 
     payment is made pursuant to--
       ``(i) a seniority system;
       ``(ii) a merit system;
       ``(iii) a system that measures earnings by quantity or 
     quality of production; or
       ``(iv) a differential based on a bona fide factor other 
     than sex, race, or national origin, 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 if 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, 
     race, or national origin by the employer.
       ``(C) The Equal Employment Opportunity Commission shall 
     issue guidelines specifying criteria for determining whether 
     a job is dominated by employees of a particular sex, race, or 
     national origin. Such guidelines shall not include a list of 
     such jobs.
       ``(D) An employer who is paying a wage rate differential in 
     violation of subparagraph (A) shall not, in order to comply 
     with the provisions of such subparagraph, reduce the wage 
     rate of any employee.
       ``(2) No labor organization or its agents representing 
     employees of an employer having employees subject to any 
     provision of this section shall cause or attempt to cause 
     such an employer to discriminate against an employee in 
     violation of paragraph (1)(A).
       ``(3) For purposes of administration and enforcement of 
     this subsection, any amounts owing to any employee that have 
     been withheld in violation of paragraph (1)(A) shall be 
     deemed to be unpaid minimum wages or unpaid overtime 
     compensation under this section or section 7.
       ``(4) In this subsection:
       ``(A) The term `labor organization' means any organization 
     of any kind, or any agency or employee representation 
     committee or plan, in which employees participate and that 
     exists for the purpose, in whole or in part, of dealing with 
     employers concerning grievances, labor disputes, wages, rates 
     of pay, hours of employment, or conditions of work.
       ``(B) The term `equivalent jobs' means jobs that may be 
     dissimilar, but whose requirements are equivalent, when 
     viewed as a composite of skills, effort, responsibility, and 
     working conditions.''.
       (b) Conforming Amendment.--Section 13(a) (29 U.S.C. 213(a)) 
     is amended in the matter before paragraph (1) by striking 
     ``section 6(d)'' and inserting ``sections 6(d) and 6(h)''.

     SEC. 4. PROHIBITED ACTS.

       Section 15(a) (29 U.S.C. 215(a)) is amended--
       (1) by striking the period at the end of paragraph (5) and 
     inserting a semicolon; and
       (2) by adding after paragraph (5) the following new 
     paragraphs:
       ``(6) to discriminate against any individual because such 
     individual has opposed any act or practice made unlawful by 
     section 6(h) or because such individual made a charge, 
     testified, assisted, or participated in any manner in an 
     investigation, proceeding, or hearing to enforce section 
     6(h); or
       ``(7) to discharge or in any other manner discriminate 
     against, coerce, intimidate, threaten, or interfere with any 
     employee or any other person because the employee inquired 
     about, disclosed, compared, or otherwise discussed the 
     employee's wages or the wages of any other employee, or 
     because the employee exercised, enjoyed, aided, or encouraged 
     any other person to exercise or enjoy any right granted or 
     protected by section 6(h).''.

     SEC. 5. REMEDIES.

       (a) 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 subsection (d) or (h) of section 
     6 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'', by striking 
     ``No employees'' and inserting ``Except with respect to class 
     actions brought under subsection (f), no employee'';
       (4) in the sentence beginning ``The court in'', 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
       (5) by striking ``section 15(a)(3)'' each place it occurs 
     and inserting ``paragraphs (3), (6), and (7) of section 
     15(a)''.
       (b) 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 
     subsection (d) or (h) of section 6, 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 
     subsection (d) or (h) of section 6, additional compensatory 
     or punitive damages''; and
       (3) in the third sentence, by striking ``the first 
     sentence'' and inserting ``the first or second sentence''.
       (c) Fees.--Section 16 (29 U.S.C. 216) is amended by adding 
     at the end the following:

[[Page S5075]]

       ``(f) In any action brought under this section for 
     violation of section 6(h), the court shall, in addition to 
     any other remedies awarded to the prevailing plaintiff or 
     plaintiffs, allow expert fees as part of the costs. Any such 
     action may be maintained as a class action as provided by the 
     Federal Rules of Civil Procedure.''.

     SEC. 6. RECORDS.

       (a) Technical Amendment.--Section 11(c) (29 U.S.C. 211(c)) 
     is amended by inserting ``(1)'' after ``(c)''.
       (b) Records.--Section 11(c) (as amended by subsection (a)) 
     is further amended by adding at the end the following:
       ``(2)(A) Every employer subject to section 6(h) shall 
     preserve records that document and support the method, 
     system, calculations, and other bases used by the employer in 
     establishing, adjusting, and determining the wage rates paid 
     to the employees of the employer. Every employer subject to 
     section 6(h) shall preserve such records for such periods of 
     time, and shall make such reports from the records to the 
     Equal Employment Opportunity Commission, as shall be 
     prescribed by the Equal Employment Opportunity Commission by 
     regulation or order as necessary or appropriate for the 
     enforcement of the provisions of section 6(h) or any 
     regulation promulgated pursuant to section 6(h).''.
       (c) Small Business Exemptions.--Section 11(c) (as amended 
     by subsections (a) and (b)) is further amended by adding at 
     the end the following:
       ``(B)(i) Every employer subject to section 6(h) that has 25 
     or more employees on any date during the first or second year 
     after the effective date of this paragraph, or 15 or more 
     employees on any date during any subsequent year after such 
     second year, shall, in accordance with regulations 
     promulgated by the Equal Employment Opportunity Commission 
     under subparagraph (F), prepare and submit to the Equal 
     Employment Opportunity Commission for the year involved a 
     report signed by the president, treasurer, or corresponding 
     principal officer, of the employer that includes information 
     that discloses the wage rates paid to employees of the 
     employer in each classification, position, or job title, or 
     to employees in other wage groups employed by the employer, 
     including information with respect to the sex, race, and 
     national origin of employees at each wage rate in each 
     classification, position, job title, or other wage group.''.
       (d) Protection of Confidentiality.--Section 11(c) (as 
     amended by subsections (a) through (c)) is further amended by 
     adding at the end the following:
       ``(ii) The rules and regulations promulgated by the Equal 
     Employment Opportunity Commission under subparagraph (F), 
     relating to the form of such a report, shall include 
     requirements to protect the confidentiality of employees, 
     including a requirement that the report shall not contain the 
     name of any individual employee.''.
       (e) Use; Inspections; Examinations; Regulations.--Section 
     11(c) (as amended by subsections (a) through (d)) is further 
     amended by adding at the end the following:
       ``(C) The Equal Employment Opportunity Commission may 
     publish any information and data that the Equal Employment 
     Opportunity Commission obtains pursuant to the provisions of 
     subparagraph (B). The Equal Employment Opportunity Commission 
     may use the information and data for statistical and research 
     purposes, and compile and publish such studies, analyses, 
     reports, and surveys based on the information and data as the 
     Equal Employment Opportunity Commission may consider 
     appropriate.
       ``(D) In order to carry out the purposes of this Act, the 
     Equal Employment Opportunity Commission shall by regulation 
     make reasonable provision for the inspection and examination 
     by any person of the information and data contained in any 
     report submitted to the Equal Employment Opportunity 
     Commission pursuant to subparagraph (B).
       ``(E) The Equal Employment Opportunity Commission shall by 
     regulation provide for the furnishing of copies of reports 
     submitted to the Equal Employment Opportunity Commission 
     pursuant to subparagraph (B) to any person upon payment of a 
     charge based upon the cost of the service.
       ``(F) The Equal Employment Opportunity Commission shall 
     issue rules and regulations prescribing the form and content 
     of reports required to be submitted under subparagraph (B) 
     and such other reasonable rules and regulations as the Equal 
     Employment Opportunity Commission may find necessary to 
     prevent the circumvention or evasion of such reporting 
     requirements. In exercising the authority of the Equal 
     Employment Opportunity Commission under subparagraph (B), the 
     Equal Employment Opportunity Commission may prescribe by 
     general rule simplified reports for employers for whom the 
     Equal Employment Opportunity Commission finds that because of 
     the size of the employers a detailed report would be unduly 
     burdensome.''.

     SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSISTANCE 
                   PROGRAM; REPORT TO CONGRESS.

       Section 4(d) (29 U.S.C. 204(d)) is amended by adding at the 
     end the following:
       ``(4) The Equal Employment Opportunity Commission shall 
     conduct studies and provide information and technical 
     assistance to employers, labor organizations, and the general 
     public concerning effective means available to implement the 
     provisions of section 6(h) prohibiting wage rate 
     discrimination between employees performing work in 
     equivalent jobs on the basis of sex, race, or national 
     origin. Such studies, information, and technical assistance 
     shall be based on and include reference to the objectives of 
     such section to eliminate such discrimination. In order to 
     achieve the objectives of such section, the Equal Employment 
     Opportunity Commission shall carry on a continuing program of 
     research, education, and technical assistance including--
       ``(A) conducting and promoting research with the intent of 
     developing means to expeditiously correct the wage rate 
     differentials described in section 6(h);
       ``(B) publishing and otherwise making available to 
     employers, labor organizations, professional associations, 
     educational institutions, the various media of communication, 
     and the general public the findings of studies and other 
     materials for promoting compliance with section 6(h);
       ``(C) sponsoring and assisting State and community 
     informational and educational programs; and
       ``(D) providing technical assistance to employers, labor 
     organizations, professional associations and other interested 
     persons on means of achieving and maintaining compliance with 
     the provisions of section 6(h).
       ``(5) The report submitted biennially by the Secretary to 
     Congress under paragraph (1) shall include a separate 
     evaluation and appraisal regarding the implementation of 
     section 6(h).''.

     SEC. 8. CONFORMING AMENDMENTS.

       (a) Congressional Employees.--
       (1) Application.--Section 203(a)(1) of the Congressional 
     Accountability Act of 1995 (2 U.S.C. 1313(a)(1)) is amended--
       (A) by striking ``subsections (a)(1) and (d) of section 6'' 
     and inserting ``subsections (a)(1), (d), and (h) of section 
     6''; and
       (B) by striking ``206 (a)(1) and (d)'' and inserting ``206 
     (a)(1), (d), and (h)''.
       (2) Remedies.--Section 203(b) of such Act (2 U.S.C. 
     1313(b)) is amended by inserting before the period the 
     following: ``or, in an appropriate case, under section 16(f) 
     of such Act (29 U.S.C. 216(f))''.
       (b) Executive Branch Employees.--
       (1) Application.--Section 413(a)(1) of title 3, United 
     States Code, as added by section 2(a) of the Presidential and 
     Executive Office Accountability Act (Public Law 104-331; 110 
     Stat. 4053), is amended by striking ``subsections (a)(1) and 
     (d) of section 6'' and inserting ``subsections (a)(1), (d), 
     and (h) of section 6''.
       (2) Remedies.--Section 413(b) of such title is amended by 
     inserting before the period the following: ``or, in an 
     appropriate case, under section 16(f) of such Act''.

     SEC. 9. EFFECTIVE DATE.

       The amendments made by this Act shall take effect 1 year 
     after the date of enactment of this Act.
                                 ______