[Congressional Record Volume 157, Number 53 (Tuesday, April 12, 2011)]
[Senate]
[Pages S2389-S2391]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. HARKIN (for himself, Mr. Leahy, Mr. Kerry, Mr. Akaka, Mrs.
Boxer, Mrs Murray, Mr. Lautenberg, and Mr. Merkley):
S. 788. 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, today Americans observe Equal Pay Day--the
date that marks the extra days that women must work into 2011 in order
to equal what men earned in 2010. On this day, I am proud to introduce
the Fair Pay Act of 2011, a bill I have introduced every Congress since
1996.
In 1963, Congress enacted the Equal Pay Act to end unfair
discrimination against women in the workforce. While we have made
progress toward this important goal, nearly half a century later, too
many women still do not get paid what men do for the same or nearly the
same work. On average, a woman makes only 77 cents for every dollar
that a man makes. That translates into an average of $400,000 over her
lifetime that a woman loses because of unequal pay practices. The
circumstances are even worse for Latinas and women of color.
This is wrong, it is unjust, and it threatens the economic security
of our families. The fact is millions of Americans are dependent on a
woman's pay-check just to get by, to put food on the table, pay for
child care, and deal with rising health care bills. Two-thirds of
mothers bring home at least a quarter of their family's earnings. In
many families, a woman is the sole breadwinner.
The evidence shows that discrimination accounts for much of the pay
gap, and our laws have not done enough to prevent this discrimination
from occurring. That is why passage of the Lilly Ledbetter Fair Pay Act
was a critical first step, and why it is important to pass the Paycheck
Fairness Act, introduced today by Senator Mikulski and Representative
DeLauro, of which I am a proud original cosponsor. There are too many
loopholes and barriers to effective enforcement of our existing laws.
We need to strengthen penalties and give women the tools they need to
confront discrimination.
At the same time, we must recognize that the problem of unequal pay
goes beyond insidious discrimination. As a nation, we unjustly devalue
jobs traditionally performed by women, even when they require
comparable skills to jobs traditionally performed by men.
Today, millions of female-dominated jobs--for example, social
workers, teachers, child care workers and nurses--are equivalent in
skills, effort, responsibility and working conditions to similar jobs
dominated by men. But, the female-dominated jobs pay significantly
less. This is inexplicable. Why is a housekeeper worth less than a
janitor? Why is a parking meter reader worth less than an electrical
meter reader? Why is a social worker worth less than a probation
officer?
To address this more subtle, deep-rooted discrimination, today I am
joining with Representative Eleanor Holmes Norton to introduce the Fair
Pay Act, which will ensure that employers provide equal pay for jobs
that are equivalent in skill, effort, responsibility and working
conditions.
This important legislation would also require employers to publicly
disclose their job categories and their pay scales, without requiring
specific information on individual employees. If we give women
information about what their male colleagues are earning, they can
negotiate a better deal for themselves in the workplace.
Right now, women who believe they are the victim of pay
discrimination must file a lawsuit and endure a drawn-out legal
discovery process to find out whether they make less than the man
working beside them. With pay statistics readily available, this
expensive process could be avoided.
The number of lawsuits would surely go down if employees could see up
front whether they are being treated fairly. In fact, I once asked
Lilly Ledbetter: if the Fair Pay Act had been law, would it have
averted her wage discrimination case? She said that with the
information about pay scales that the bill provides, she would have
known that she was a victim of discrimination and could have tried to
address the problem sooner, rather than suffering a lifelong drop in
her earnings and a trip all the way to the Supreme Court to try to make
things right.
On this Equal Pay Day, let us make sure that what happened to Lilly
never happens again by recommitting to eliminate discrimination in the
workplace and make equal pay for equal work a reality. America's
working women and the families that rely on them deserve fairness on
the job. Hopefully, soon, we can achieve true equality in the workplace
so there is no need to commemorate equal pay day any more.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
[[Page S2390]]
S. 788
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
(a) Short Title.--This Act may be cited as the ``Fair Pay
Act of 2011''.
(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) In 2009, a woman in the United States working in a
full-time, year-round job earned 77 cents for every dollar
earned by a man working in a full-time, year-round job.
(B) A 2007 study found that - even when accounting for key
factors generally known to influence earnings such as race,
educational attainment, and experience - nearly half (49.3
percent) of the pay gap can be explained by differences in
the industries and occupations that men and women work in,
and 41 percent of the pay gap cannot be accounted for but may
be partially explained by discrimination in the workplace.
(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) Artificial barriers to the elimination of
discrimination in compensation based upon sex, race, and
national origin continue to exist more than 4 decades after
the passage of section 6(d) of the Fair Labor Standards Act
of 1938, the Equal Pay Act of 1963, and the Civil Rights Act
of 1964 (42 U.S.C. 2000a et seq.). 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 for purposes of subparagraph (B)(iv). 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 (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:
``(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) (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) (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:
``(f) In any action brought under this section for a
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) Records.--Section 11(c) (29 U.S.C. 211(c)) is amended--
(1) by inserting ``(1)'' after ``(c)''; and
(2) by adding at the end the following:
``(2) Every employer subject to section 6(h) shall preserve
records that document and
[[Page S2391]]
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).''.
(b) Small Business Exemptions.--Section 11(c) (as amended
by subsection (a)) is further amended by adding at the end
the following:
``(3) 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 paragraph (8), 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.''.
(c) Protection of Confidentiality.--Section 11(c) (as
amended by subsections (a) and (b)) is further amended by
adding at the end the following:
``(4) The rules and regulations promulgated by the Equal
Employment Opportunity Commission under paragraph (8),
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.''.
(d) Use; Inspections; Examination; Regulations.--Section
11(c) (as amended by subsections (a) through (c)) is further
amended by adding at the end the following:
``(5) The Equal Employment Opportunity Commission may
publish any information and data that the Equal Employment
Opportunity Commission obtains pursuant to the provisions of
paragraph (3). 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.
``(6) 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 paragraph (3).
``(7) 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 paragraph (3) to any person upon payment of a
charge based upon the cost of the service.
``(8) The Equal Employment Opportunity Commission shall
issue rules and regulations prescribing the form and content
of reports required to be submitted under paragraph (3) 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 paragraph (3), 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.
______