[Congressional Record (Bound Edition), Volume 154 (2008), Part 13]
[House]
[Pages 17467-17470]
[From the U.S. Government Publishing Office, www.gpo.gov]




                         PAYCHECK FAIRNESS ACT

  The SPEAKER pro tempore. Pursuant to House Resolution 1388 and rule 
XVIII, the Chair declares the House in the Committee of the Whole House 
on the state of the Union for the consideration of the bill, H.R. 1338.

                              {time}  1610


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the state of the Union for the consideration of the bill 
(H.R. 1338) 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, with Mr. Capuano in 
the chair.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to the rule, the bill is considered 
read the first time.
  The gentleman from California (Mr. George Miller) and the gentleman 
from California (Mr. McKeon) each will control 30 minutes.
  The Chair recognizes the gentleman from California (Mr. George 
Miller).
  Mr. GEORGE MILLER of California. Mr. Speaker, I yield myself such 
time as I may consume.
  Mr. Speaker, Members of the House, in 1963 this Nation passed the 
Equal Pay Act, and it was passed to end discriminatory practices in 
paying men and women differently for performing the same job. The law's 
principle is that men and women should be paid based upon their merits, 
not upon an employer's prejudices.
  Before the Equal Pay Act, women in the workplace were paid 59 cents 
on the dollar compared to their male counterparts for performing the 
same jobs. Although the wage gap between men and women has narrowed 
since the Equal Pay Act was passed, gender-based pay wage 
discrimination remains a very significant problem for women.
  According to the Census Bureau, women make 77 cents for every dollar 
earned by a man. Just as disturbing is that African American women only 
earn 60 cents on the dollar, and Hispanic women earn an astonishing 55 
cents on the dollar compared to their male counterparts.
  Those figures do not just tell us what they lose in their wages on a 
daily basis, on a weekly basis, and on a monthly basis. But we must 
also understand that this wage disparity costs a woman anywhere from 
$400,000 to $2 million over a lifetime in lost wages and will follow 
her into retirement with lower retirement benefits, and will follow her 
into the Social Security system with lower Social Security benefits.
  These women pay a great price because the law still allows employers 
to pay these individuals on a discriminatory basis for the jobs that 
they produce. But today this House has an opportunity to take a 
critical step to ensure that the Equal Pay Act lives up to its promise: 
equal work for equal pay, equal pay for equal work.
  The Paycheck Fairness Act will strengthen the Equal Pay Act and close 
many of the loopholes that have allowed employers to avoid 
responsibility of engaging in discriminatory pay practices. Currently, 
an employer can refute a pay discrimination claim if he proves that the 
difference in pay is based upon any factor other than sex. They can 
pull any defense out of the air that they want, even if the factors are 
not related to the job. What we say is that they must provide a real 
business justification for not paying that equal wage. It must be 
related to the work.
  They will have to show that any gender-based wage differential is 
job-related, not based on or derived from sex-based differentials, and 
is consistent with the business necessity.
  H.R. 1338 will also prohibit employers from retaliating against 
employees who discuss their pay. We all remember the Lilly Ledbetter 
case. She did not know that she was being discriminated on every pay 
period because her fellow employees were unable to discuss their 
paychecks with her because that's the way the corporation kept the 
discriminatory practice secret and hidden from Lilly Ledbetter. We 
would not allow that to continue to happen.
  The bill would also put gender-based discrimination sanctions on 
equal footing with other forms of discrimination by allowing women to 
sue for punitive damages, in addition to compensatory damages, just as 
business and workers may do under section 1981 for race or national 
origin discrimination. If we are serious about closing the gender pay 
gap, we must get serious about punishing those who would otherwise 
scoff at the current weak sanctions under the current law.

                              {time}  1615

  The Paycheck Fairness Act will require the Department of Labor to 
continue collecting pay information based upon gender. It also creates 
a program designed to help strengthen the negotiating skills of girls 
and women.
  Any wage gap based upon gender is unacceptable, especially in these 
tough economic times. For families living near or under the poverty 
line, equal

[[Page 17468]]

pay for women will make a significant difference in that family's well-
being.
  By allowing wage discrimination to continue, we hold down women, 
their families, and harm the American economy as a whole. Today, we 
have a chance to rectify those practices. Today, we have a chance to 
ensure that, in fact, women will receive equal pay for equal work as 
they do not now receive in the workplace because of the barriers that 
have been erected to their being able to prosecute those individuals 
who engage in a discriminatory practice.
  Today, we are taking up this bill. And no one is more responsible for 
the House consideration of this legislation than Congresswoman Rosa 
DeLauro. I thank her for her tireless leadership on this bill, and the 
230 cosponsors who are taking a strong stand against unequal pay. 
Congresswoman DeLauro has worked over a decade trying to get the 
Congress to pay attention to this problem that women face in the 
workplace, to this economic devastation that takes place against women 
in the workplace, the discriminatory practices that women face in the 
workplace, but there was no response in this body to her pleas. There 
was no response to the practices against these women in this body. 
Today there is. Today, this Congress, this House has an opportunity to 
finally enforce the Equal Pay Act and to make sure that women no longer 
have to suffer the discrimination of unequal pay.
  Mr. Chairman, I reserve the balance of my time.
  Mr. McKEON. Mr. Chairman, I rise in opposition to the bill and I 
yield myself such time as I may consume.
  Discrimination in the workplace is wrong. Paying women lower wages 
for the same work is wrong. It's also illegal. Congress enacted 
protections to ensure equal pay for equal work in 1963 when the Equal 
Pay Act was added to the Fair Labor Standards Act. Congress acted again 
to protect women and all Americans from workplace discrimination with 
enactment of title VII of the Civil Rights Act. Together, these laws 
offer women protections against workplace discrimination, and strong 
remedies should they be subject to illegal employment practices.
  Yet we're here today debating a bill that has been touted as 
necessary to protect women from being underpaid. Supporters of the bill 
would have you believe that unless this legislation is enacted, 
employers are free to pay women less money for doing the same job as 
their male counterparts. Nothing could be further from the truth.
  H.R. 1338 isn't needed to protect women from wage discrimination; 
such protections are already included in the law. No, this bill is 
about something entirely different. Rather than addressing the real 
concerns of working families, issues like health care, a lack of 
workplace flexibility, and yes, the high price of gasoline, this bill 
invites more and costlier lawsuits.
  The bill opens EPA claims to unlimited compensatory damages, even in 
cases where there was clearly no intentional discrimination. The 
majority will offer an amendment today that attempts to mask this trial 
lawyer boondoggle. But make no mistake about it, at the end of the day 
this bill will invite more lawyers to bring more law suits because it 
offers them the promise of a bigger payday. H.R. 1338 will breed 
litigation in other ways as well, from encouraging class action 
lawsuits to expanding liability.
  I'm also concerned that this bill has been put forward using 
misleading claims to justify its dangerous consequences. Supporters 
will repeat over and over the statistic that women earn just 77 cents 
on the dollar. Mr. Chairman, if a woman earned 77 cents on the dollar 
doing the same job as a man, it would be a travesty--and it would be 
illegal.
  What supporters of this bill won't tell you is that the 77 percent 
figure does not compare one man and one woman doing the same job. To 
argue that a woman only makes 70 cents on the dollar doing the same 
work as her male counterpart is to distort reality. The 77 percent 
figure is based on 2005 Census data looking at median earnings of all 
women and men who work at least 35 hours per week.
  Interestingly, if you look at 2006 data from the U.S. Department of 
Labor comparing men and women who work 40 hours per week, women 
actually earn 88 cents on the dollar. The wage gap is much narrower, 
but the existence of a gap is still troubling.
  However, last year the Education and Labor Committee heard testimony 
that cited an article published in The American Economic Review which 
found that when data on demographics, education, scores on the Armed 
Forces Qualification Test, and work experience are added, the wage 
ratio rises to 91.4 percent. The addition of variables measuring 
workplace and occupational characteristics, as well as child-related 
factors, causes the wage ratio to rise to 95.1 percent. When the 
percentage female in the occupation is added, the wage ratio becomes 
97.5 percent, a far less significant difference.
  In another study, researchers from the University of Chicago and 
Cornell University found almost no difference in the pay of male and 
female top corporate executives when accounting for size of firm, 
position in the company, age, seniority, and experience.
  So before we use the 77 percent figure to justify new legal 
``gotchas,'' I think we need a better understanding of the scope of any 
actual pay disparity and why such a disparity exists.
  Luckily, there are steps we could take right now, right here, that 
would ease the strain on working women. Republicans have proposed a 
bill, the American Energy Act, that embraces our ``all of the above'' 
approach to the energy reform. It would unlock America's vast energy 
resources, increasing the production of American-made energy and 
reducing foreign nations' stranglehold on our economic and national 
security.
  Republicans recognize that we need comprehensive solutions to solve 
our energy crisis and ease the strain on working families brought by 
high energy costs. Unfortunately, the majority has refused to allow a 
vote on commonsense energy reform. Now we're poised to go home for a 
month without voting on real energy reforms. We're about to pass a bill 
that will bring a major payday to trial lawyers, but will do nothing to 
ease the pocketbook concerns of hardworking American families.
  Mr. Chairman, I am strongly opposed to H.R. 1338; it's the wrong bill 
at the wrong time. We shouldn't be here giving handouts to trial 
lawyers; we should be voting on energy solutions for American families.
  Mr. Chairman, I reserve the balance of my time.
  Ms. LINDA T. SANCHEZ of California. At this time, I am pleased to 
yield 1 minute to the distinguished majority leader, the gentleman from 
Maryland (Mr. Hoyer).
  Mr. HOYER. I thank the gentlelady for yielding.
  I must say to my friend on the other side of the aisle, I believe 
it's never the wrong time to do the right thing, and this is the right 
thing.
  My friend mentions trial lawyers. Trial lawyers are in the business 
of redressing grievances. Juries and judges are in the business of 
deciding whether the grievance deserves redress, not trial lawyers. 
Trial lawyers raise the issue. Judgments are not given by trial 
lawyers, but by judges and juries.
  Equal pay for equal work. When we put the principle as bluntly as 
that, I doubt that anyone in America would disagree. It's a basic ideal 
of fairness. Is there a woman on this floor that believes they ought to 
be paid less than the men that do exactly the same kind of work? And I 
would suggest the answer to that is no, whether they're staffers or 
Members. I hope there is not a female page who watches these 
proceedings that believes that they are less valuable than the male 
pages that serve this House. They are equally valued, irrespective of 
gender.
  The value of work lies in a job well done, not in the gender of the 
worker; but within my lifetime, it was a radical notion. For decades, 
it was perfectly acceptable for women to earn less simply because they 
were women.
  We celebrated the 60th anniversary of the integration of the Armed 
Forces just a few days ago. Colin Powell

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spoke, and he indicated that he was too small to really remember the 
ramifications of that executive order, but he said to himself, how 
strange it would seem today to think that men and women would be 
segregated by unit and by housing because of the color of their skin. 
It is equally wrong to make distinctions of gender in payment for 
services.
  Thanks to the hard work of generations of women advocates, we've 
closed that gap from 61 cents back in 1963 to 77 cents on the dollar 
today. Being 77 percent right is not enough, we need to be 100 percent 
right. We need to pay dollar for dollar for work performed.
  In fact, it depends on staying hidden, it depends on keeping women in 
the dark. Because, of course, it's against the law not to pay equally, 
but if you don't know that you're being discriminated against, how can 
your grievances be redressed? In fact, the Constitution of the United 
States says, as all of us know, that Americans are guaranteed the right 
to petition the Congress of the United States for redress of 
grievances, and yet we keep people in the dark as to whether or not, in 
fact, they are aggrieved.
  By now, we have all heard about the Lilly Ledbetter case. Ms. 
Ledbetter was a supervisor at a tire plant in Alabama, and for years 
she was paid less than her male coworker. I would be interested if any 
Member of this House is prepared to come to this well or stand at one 
of these microphones and say it was right to pay a supervisor that was 
a woman less than a supervisor who was a man. And if you do come to 
this well and say that, I look forward to debating you on that issue.
  But Lilly Ledbetter had no way of knowing that she was being paid 
differently. She didn't know the truth. And by the time she found out, 
years after the discrimination began, the court said it was too late, 
time had run, statute of limitations gone, insurance run out. She 
didn't have the right to redress her justifiable grievance.
  Her case is hardly unique. Justice Ginsburg has written that 
``comparative pay information is often hidden from the employee's 
view.'' In many workplaces, merely asking a coworker about his or her 
pay is a firing offense. Far from protecting privacy, rules like that 
can protect an employer's power to discriminate.
  And should we say, well, I know the employer discriminated, but we 
don't want to have a lawyer take that case because, after all, we don't 
like lawyers, they bring to our attention wrongdoing, they ask for 
redress of grievances, they petition the jury and the court; this is 
wrong. You know, a famous individual from my State, Justice Thurgood 
Marshall, did that. He was a trial lawyer. And he petitioned the court 
and said, it is wrong to segregate blacks and whites, it is wrong to 
give secondary education to African Americans, just as lawyers come and 
say it's wrong to discriminate on gender as opposed to quality of work.
  In many workplaces, as I've said, merely asking a coworker about his 
or her pay is a firing offense. That's why this bill, the Paycheck 
Fairness Act, is so necessary. It is time to do the right thing. It may 
be too late for some, but it's the right time for many.
  It amends the Equal Pay Act to bar retaliation against employees who 
share or inquire about pay information. It strengthens sanctions 
against discriminatory employers--which have not been adjusted for 17 
years. It clarifies acceptable reasons for differences in pay related 
to factors other than gender. And it authorizes additional training for 
Equal Employment Opportunity Commission staff to better identify and 
handle wage disputes.

                              {time}  1630

  I want to recognize my colleague Congresswoman DeLauro for working so 
hard for so long and so passionately to bring this bill to the floor.
  I urge all of my colleagues to support it. It's the right time. It's 
the right place. It's the right time.
  Mr. McKEON. Mr. Chairman, I yield myself such time as I may consume.
  My good friend the majority leader mentioned trial lawyers. I'm not a 
lawyer. I know we have a lot of them here in the House, and I am not 
particularly against lawyers. I think they perform a good service.
  One of the things that we did in subcommittee is we thought maybe we 
should be able to limit trial lawyers' pay when they take some of these 
claims, and we even had an amendment that we presented that we would 
limit the trial lawyers to $2,000 an hour. We thought maybe that would 
be reasonable. Every Democrat voted against that. And when we took it 
to the Rules Committee to bring it here to the floor, we were denied 
the opportunity of discussing that here on the floor. So maybe that's 
why the other side feels that we are against trial lawyers, because we 
wanted to limit their pay to $2,000 an hour. Anyway, we were not able 
to discuss that here and we won't be able to have that amendment here 
today.
  Mr. Chairman, I am happy to yield 3 minutes at this time to the 
ranking member on the subcommittee over this issue, the gentleman from 
South Carolina (Mr. Wilson).
  Mr. WILSON of South Carolina. Mr. Chairman, thank you for this 
opportunity to speak on H.R. 1338.
  I want to thank the ranking member of the committee, Representative 
Buck McKeon of California, for his leadership here today.
  I know we can all agree that discrimination in the workplace is 
unacceptable. That is why employment discrimination, including pay 
discrimination, based on gender is already prohibited by law. As an 
attorney myself, I believe there are already considerable legal 
ramifications for discrimination in our Federal laws, which makes the 
legislation we are considering here today unnecessary and redundant.
  Additionally, it seems the premise for bringing this bill to the 
floor today is in response to potential wage gaps between men and women 
in the workforce. I would remind my colleagues that research into this 
issue, including a report by the Government Accountability Office, GAO, 
concluded that the ``wage gap'' was not simply derived from sex 
discrimination or pay discrimination. In fact, the reasons for such a 
gap can be numerous.
  But to the bill itself, I am concerned that this legislation will not 
strengthen current laws or improve workplace protections but rather 
create additional and greater potential for individuals, well-meaning 
or otherwise, to abuse these protections in our courts.
  This bill does two very damaging things to current law. It allows for 
unlimited compensatory and punitive damages for claims brought under 
the Equal Pay Act, and it does not require proof of intent to 
discriminate in those claims. These two components could have 
unintended consequences for employers and employees, and they make it 
more attractive for unsubstantiated claims before the courts.
  I welcome a healthy debate on employee and employer protections in 
the workplace. In fact, I would hope that before going forward, the 
debate on these issues would be more open where both the minority and 
majority might have greater opportunity to offer amendments to 
strengthen legislation and address the real concern of America's 
hardworking families.
  I want to thank Ranking Member Buck McKeon for his leadership, and I 
encourage my colleagues to oppose this legislation. American workers 
deserve reasonable protections that are enforced. This bill would 
undermine those efforts in America's workforce.
  Ms. LINDA T. SANCHEZ of California. Mr. Chairman, I move that the 
Committee do now rise.
  The motion was agreed to.
  Accordingly, the Committee rose; and the Speaker pro tempore (Ms. 
Woolsey) having assumed the chair, Mr. Capuano, Chairman of the 
Committee of the Whole House on the state of the Union, reported that 
that Committee, having had under consideration the bill (H.R. 1338) 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, had come to no resolution 
thereon.

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