[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.
                                 ______