[House Report 110-783]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-783
======================================================================
PAYCHECK FAIRNESS ACT
_______
July 28, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. George Miller of California, from the Committee on Education and
Labor, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1338]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
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, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Paycheck Fairness Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Women have entered the workforce in record numbers over
the past 50 years.
(2) Despite the enactment of the Equal Pay Act in 1963, many
women continue to earn significantly lower pay than men for
equal work. These pay disparities exist in both the private and
governmental sectors. In many instances, the pay disparities
can only be due to continued intentional discrimination or the
lingering effects of past discrimination.
(3) The existence of such pay disparities--
(A) depresses the wages of working families who rely
on the wages of all members of the family to make ends
meet;
(B) undermines women's retirement security, which is
often based on earnings while in the workforce;
(C) prevents the optimum utilization of available
labor resources;
(D) has been spread and perpetuated, through commerce
and the channels and instrumentalities of commerce,
among the workers of the several States;
(E) burdens commerce and the free flow of goods in
commerce;
(F) constitutes an unfair method of competition in
commerce;
(G) leads to labor disputes burdening and obstructing
commerce and the free flow of goods in commerce;
(H) interferes with the orderly and fair marketing of
goods in commerce; and
(I) in many instances, may deprive workers of equal
protection on the basis of sex in violation of the 5th
and 14th amendments.
(4)(A) Artificial barriers to the elimination of
discrimination in the payment of wages on the basis of sex
continue to exist decades after the enactment of the Fair Labor
Standards Act of 1938 (29 U.S.C. 201 et seq.) and the Civil
Rights Act of 1964 (42 U.S.C. 2000a et seq.).
(B) These barriers have resulted, in significant part,
because the Equal Pay Act has not worked as Congress originally
intended. Improvements and modifications to the law are
necessary to ensure that the Act provides effective protection
to those subject to pay discrimination on the basis of their
sex.
(C) Elimination of such barriers would have positive effects,
including--
(i) providing a solution to problems in the economy
created by unfair pay disparities;
(ii) substantially reducing the number of working
women earning unfairly low wages, thereby reducing the
dependence on public assistance;
(iii) promoting stable families by enabling all
family members to earn a fair rate of pay;
(iv) remedying the effects of past discrimination on
the basis of sex and ensuring that in the future
workers are afforded equal protection on the basis of
sex; and
(v) ensuring equal protection pursuant to Congress'
power to enforce the 5th and 14th amendments.
(5) The Department of Labor and the Equal Employment
Opportunity Commission have important and unique
responsibilities to help ensure that women receive equal pay
for equal work.
(6) The Department of Labor is responsible for--
(A) collecting and making publicly available
information about women's pay;
(B) ensuring that companies receiving Federal
contracts comply with anti-discrimination affirmative
action requirements of Executive Order 11246 (relating
to equal employment opportunity);
(C) disseminating information about women's rights in
the workplace;
(D) helping women who have been victims of pay
discrimination obtain a remedy; and
(E) being proactive in investigating and prosecuting
equal pay violations, especially systemic violations,
and in enforcing all of its mandates.
(7) The Equal Employment Opportunity Commission is the
primary enforcement agency for claims made under the Equal Pay
Act, and issues regulations and guidance on appropriate
interpretations of the law.
(8) With a stronger commitment by the Department of Labor and
the Equal Employment Opportunity Commission to their
responsibilities, increased information about the provisions
added by the Equal Pay Act of 1963, wage data, and more
effective remedies, women will be better able to recognize and
enforce their rights.
(9) Certain employers have already made great strides in
eradicating unfair pay disparities in the workplace and their
achievements should be recognized.
SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.
(a) Bona-Fide Factor Defense and Modification of Same Establishment
Requirement.--Section 6(d)(1) of the Fair Labor Standards Act of 1938
(29 U.S.C. 206(d)(1)) is amended--
(1) by striking ``No employer having'' and inserting ``(A) No
employer having'';
(2) by striking ``any other factor other than sex'' and
inserting ``a bona fide factor other than sex, such as
education, training, or experience''; and
(3) by inserting at the end the following:
``(B) The bona fide factor defense described in subparagraph (A)(v)
shall apply only if the employer demonstrates that such factor (i) is
not based upon or derived from a sex-based differential in
compensation; (ii) is job-related with respect to the position in
question; and (iii) is consistent with business necessity. Such defense
shall not apply where the employee demonstrates that an alternative
employment practice exists that would serve the same business purpose
without producing such differential and that the employer has refused
to adopt such alternative practice.
``(C) For purposes of subparagraph (A), employees shall be deemed to
work in the same establishment if the employees work for the same
employer at workplaces located in the same county or similar political
subdivision of a State. The preceding sentence shall not be construed
as limiting broader applications of the term `establishment' consistent
with rules prescribed or guidance issued by the Equal Opportunity
Employment Commission.''.
(b) Application of Provisions.--Section 6(d)(1) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 206(d)(1)) is further amended by
adding at the end the following: ``The provisions of this subsection
shall apply to applicants for employment if such applicants, upon
employment by the employer, would be subject to any provisions of this
section.''.
(c) Nonretaliation Provision.--Section 15 of the Fair Labor Standards
Act of 1938 (29 U.S.C. 215(a)(3)) is amended--
(1) in subsection (a)(3), by striking ``employee has filed''
and all that follows and inserting ``employee--
``(A) has made a charge or filed any complaint or
instituted or caused to be instituted any
investigation, proceeding, hearing, or action under or
related to this Act, including an investigation
conducted by the employer, or has testified or is
planning to testify or has assisted or participated in
any manner in any such investigation, proceeding,
hearing or action or in an investigation conducted by
the employer, or has served or is planning to serve on
an industry Committee; or
``(B) has inquired about, discussed or disclosed the
wages of the employee or another employee.''; and
(2) by adding at the end the following:
``(c) Subsection (a)(3)(B) shall not apply to instances in which an
employee who has access to the wage information of other employees as a
part of such employee's essential job functions discloses the wages of
such other employees to individuals who do not otherwise have access to
such information, unless such disclosure is in response to a complaint
or charge or in furtherance of an investigation, proceeding, hearing,
or action under section 6(d) or an investigation conducted by the
employer. Nothing in this subsection shall be construed to limit the
rights of an employee provided under any other provision of law.''.
(d) Enhanced Penalties.--Section 16(b) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(b)) is amended--
(1) by inserting after the first sentence the following:
``Any employer who violates section 6(d) shall additionally be
liable for such compensatory damages or punitive damages as may
be appropriate, except that the United States shall not be
liable for punitive damages.'';
(2) in the sentence beginning ``An action to'', by striking
``either of the preceding sentences'' and inserting ``any of
the preceding sentences of this subsection'';
(3) in the sentence beginning ``No employees shall'', by
striking ``No employees'' and inserting ``Except with respect
to class actions brought to enforce section 6(d), no
employee'';
(4) by inserting after the sentence referred to in paragraph
(3), the following: ``Notwithstanding any other provision of
Federal law, any action brought to enforce section 6(d) may be
maintained as a class action as provided by the Federal Rules
of Civil Procedure.''; and
(5) in the sentence beginning ``The court in''--
(A) by striking ``in such action'' and inserting ``in
any action brought to recover the liability prescribed
in any of the preceding sentences of this subsection'';
and
(B) by inserting before the period the following: ``,
including expert fees''.
(e) Action by Secretary.--Section 16(c) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(c)) is amended--
(1) in the first sentence--
(A) by inserting ``or, in the case of a violation of
section 6(d), additional compensatory or punitive
damages,'' before ``and the agreement''; and
(B) by inserting before the period the following: ``,
or such compensatory or punitive damages, as
appropriate'';
(2) in the second sentence, by inserting before the period
the following: ``and, in the case of a violation of section
6(d), additional compensatory or punitive damages'';
(3) in the third sentence, by striking ``the first sentence''
and inserting ``the first or second sentence''; and
(4) in the last sentence--
(A) by striking ``commenced in the case'' and
inserting ``commenced--
``(1) in the case'';
(B) by striking the period and inserting ``; or'';
and
(C) by adding at the end the following:
``(2) in the case of a class action brought to enforce
section 6(d), on the date on which the individual becomes a
party plaintiff to the class action.''.
SEC. 4. TRAINING.
The Equal Employment Opportunity Commission and the Office of Federal
Contract Compliance Programs, subject to the availability of funds
appropriated under section 11, shall provide training to Commission
employees and affected individuals and entities on matters involving
discrimination in the payment of wages.
SEC. 5. NEGOTIATION SKILLS TRAINING FOR GIRLS AND WOMEN.
(a) Program Authorized.--
(1) In general.--The Secretary of Labor, after consultation
with the Secretary of Education, is authorized to establish and
carry out a grant program.
(2) Grants.--In carrying out the program, the Secretary of
Labor may make grants on a competitive basis to eligible
entities, to carry out negotiation skills training programs for
girls and women.
(3) Eligible entities.--To be eligible to receive a grant
under this subsection, an entity shall be a public agency, such
as a State, a local government in a metropolitan statistical
area (as defined by the Office of Management and Budget), a
State educational agency, or a local educational agency, a
private nonprofit organization, or a community-based
organization.
(4) Application.--To be eligible to receive a grant under
this subsection, an entity shall submit an application to the
Secretary of Labor at such time, in such manner, and containing
such information as the Secretary of Labor may require.
(5) Use of funds.--An entity that receives a grant under this
subsection shall use the funds made available through the grant
to carry out an effective negotiation skills training program
that empowers girls and women. The training provided through
the program shall help girls and women strengthen their
negotiation skills to allow the girls and women to obtain
higher salaries and rates of compensation that are equal to
those paid to similarly-situated male employees.
(b) Incorporating Training Into Existing Programs.--The Secretary of
Labor and the Secretary of Education shall issue regulations or policy
guidance that provides for integrating the negotiation skills training,
to the extent practicable, into programs authorized under--
(1) in the case of the Secretary of Education, the Elementary
and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.),
the Carl D. Perkins Vocational and Technical Education Act of
1998 (20 U.S.C. 2301 et seq.), the Higher Education Act of 1965
(20 U.S.C. 1001 et seq.), and other programs carried out by the
Department of Education that the Secretary of Education
determines to be appropriate; and
(2) in the case of the Secretary of Labor, the Workforce
Investment Act of 1998 (29 U.S.C. 2801 et seq.), and other
programs carried out by the Department of Labor that the
Secretary of Labor determines to be appropriate.
(c) Report.--Not later than 1 year after the date of enactment of
this Act, and annually thereafter, the Secretary of Labor and the
Secretary of Education shall prepare and submit to Congress a report
describing the activities conducted under this section and evaluating
the effectiveness of such activities in achieving the purposes of this
Act.
SEC. 6. RESEARCH, EDUCATION, AND OUTREACH.
The Secretary of Labor shall conduct studies and provide information
to employers, labor organizations, and the general public concerning
the means available to eliminate pay disparities between men and women,
including--
(1) conducting and promoting research to develop the means to
correct expeditiously the conditions leading to the pay
disparities;
(2) publishing and otherwise making available to employers,
labor organizations, professional associations, educational
institutions, the media, and the general public the findings
resulting from studies and other materials, relating to
eliminating the pay disparities;
(3) sponsoring and assisting State and community
informational and educational programs;
(4) providing information to employers, labor organizations,
professional associations, and other interested persons on the
means of eliminating the pay disparities;
(5) recognizing and promoting the achievements of employers,
labor organizations, and professional associations that have
worked to eliminate the pay disparities; and
(6) convening a national summit to discuss, and consider
approaches for rectifying, the pay disparities.
SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN THE
WORKPLACE.
(a) In General.--There is established the Secretary of Labor's
National Award for Pay Equity in the Workplace, which shall be awarded,
as appropriate, to encourage proactive efforts to comply with this Act.
(b) Criteria for Qualification.--The Secretary of Labor shall set
criteria for receipt of the award, including a requirement that an
employer has made substantial effort to eliminate pay disparities
between men and women, and deserves special recognition as a
consequence of such effort. The secretary shall establish procedures
for the application and presentation of the award.
(c) Business.--In this section, the term ``employer'' includes--
(1)(A) a corporation, including a nonprofit corporation;
(B) a partnership;
(C) a professional association;
(D) a labor organization; and
(E) a business entity similar to an entity described in any
of subparagraphs (A) through (D);
(2) an entity carrying out an education referral program, a
training program, such as an apprenticeship or management
training program, or a similar program; and
(3) an entity carrying out a joint program, formed by a
combination of any entities described in paragraph (1) or (2).
SEC. 8. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION.
Section 709 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-8) is
amended by adding at the end the following:
``(f)(1) Not later than 18 months after the date of enactment of this
subsection, the Commission shall--
``(A) complete a survey of the data that is currently
available to the Federal Government relating to employee pay
information for use in the enforcement of Federal laws
prohibiting pay discrimination and, in consultation with other
relevant Federal agencies, identify additional data collections
that will enhance the enforcement of such laws; and
``(B) based on the results of the survey and consultations
under subparagraph (A), issue regulations to provide for the
collection of pay information data from employers as described
by the sex, race, and national origin of employees.
``(2) In implementing paragraph (1), the Commission shall have as its
primary consideration the most effective and efficient means for
enhancing the enforcement of Federal laws prohibiting pay
discrimination. For this purpose, the Commission shall consider factors
including the imposition of burdens on employers, the frequency of
required reports (including which employers should be required to
prepare reports), appropriate protections for maintaining data
confidentiality, and the most effective format for the data collection
reports.''.
SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND PAY EQUITY DATA
COLLECTION.
(a) Bureau of Labor Statistics Data Collection.--The Commissioner of
Labor Statistics shall continue to collect data on women workers in the
Current Employment Statistics survey.
(b) Office of Federal Contract Compliance Programs Initiatives.--The
Director of the Office of Federal Contract Compliance Programs shall
ensure that employees of the Office--
(1)(A) shall use the full range of investigatory tools at the
Office's disposal, including pay grade methodology;
(B) in considering evidence of possible compensation
discrimination--
(i) shall not limit its consideration to a small
number of types of evidence; and
(ii) shall not limit its evaluation of the evidence
to a small number of methods of evaluating the
evidence; and
(C) shall not require a multiple regression analysis or
anecdotal evidence for a compensation discrimination case;
(2) for purposes of its investigative, compliance, and
enforcement activities, shall define ``similarly situated
employees'' in a way that is consistent with and not more
stringent than the definition provided in item 1 of subsection
A of section 10-III of the Equal Employment Opportunity
Commission Compliance Manual (2000), and shall consider only
factors that the Office's investigation reveals were used in
making compensation decisions; and
(3) shall reinstate the Equal Opportunity Survey, as required
by section 60-2.18 of title 41, Code of Federal Regulations,
designating not less than half of all nonconstruction
contractor establishments each year to prepare and file such
survey, and shall review and utilize the responses to such
survey to identify contractor establishments for further
evaluation and for other enforcement purposes as appropriate.
(c) Department of Labor Distribution of Wage Discrimination
Information.--The Secretary of Labor shall make readily available (in
print, on the Department of Labor website, and through any other forum
that the Department may use to distribute compensation discrimination
information), accurate information on compensation discrimination,
including statistics, explanations of employee rights, historical
analyses of such discrimination, instructions for employers on
compliance, and any other information that will assist the public in
understanding and addressing such discrimination.
SEC. 10. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated $15,000,000 to carry out this
Act.
Purpose
When President Kennedy signed the Equal Pay Act (EPA) into
law in 1963 he observed that the statute ``adds to our laws
another structure basic to democracy'' and ``affirms our
determination that when women enter the labor force they will
find equality in their pay envelope.'' \1\ Forty-five years
later, women have made tremendous progress in the workplace.\2\
They comprise almost half of this country's workforce and more
than 6 million businesses are owned by women.\3\ Despite these
gains, women continue to be held back by wage discrimination.
As a result of loopholes in the law and weak sanctions for
violations, the EPA is ineffective in combating unequal pay.
Women working full-time year-round earn 77 cents for every
dollar earned by a man.\4\ The Paycheck Fairness Act, H.R. 1338
modernizes the EPA and brings the country one step closer to
ensuring that women earn equal pay for equal work.
---------------------------------------------------------------------------
\1\ U.S. Equal Employment Opportunity Commission, ``The Equal Pay
Act Turns 40,'' available at: http://www.eeoc.gov/epa/anniversary/epa-
40.html.
\2\ 29 USC Sec. 206(d)
\3\ U.S. Small Business Association, Women in Business: A
Demographic Review of Women's Business Ownership (Aug. 2006), available
at: http://www.sba.gov/ADVO/research/rs280tot.pdf.
\4\ Jody Feder & Linda Levine, CRS Report, Pay Equity Legislation
in the 110th Congress, at 1 (May 2, 2008)
---------------------------------------------------------------------------
Pay disparity's long-term impact on women's lifetime
earnings is substantial and can cost a woman anywhere from
$400,000 to $2 million over her lifetime.\5\ H.R. 1338 will
strengthen the EPA to make it a more effective means to combat
wage discrimination. Specifically the bill: (1) expands the
establishment requirement so female employees to look beyond
their physical workplace to find a male comparator; (2) extends
anti-retaliation protections so employees are free to discuss
or disclose salary information; (3) clarifies the affirmative
defense of `any factor other sex'; (4) establishes a grant
program to fund training programs for women on employer/
employee negotiations; (5) directs the Secretary of Labor to
conduct studies and provide information to employers, labor
organizations and the general public on ways to eliminate pay
disparities; (6) permits the Secretary of Labor to offer
technical assistance to employers when carrying out wage
evaluations; (7) makes it easier for women to join class action
lawsuits ; (8) mandates that the Equal Employment Opportunity
Commission (EEOC) survey available pay data and issue
regulations to provide for the collection of pay data from
employers, which identifies workers by sex, race and national
origin; and (9) codifies the use of the Equal Opportunity
Survey (EO) by Office of Federal Contract Compliance (OFCCP)
for non-construction workers.
---------------------------------------------------------------------------
\5\ Institute for Women's Policy Research, Memo to John Roberts:
The Gender Gap is Real (2005).
---------------------------------------------------------------------------
Committee Action Including Legislative History and Votes in Committee
105TH CONGRESS
Senator Thomas Daschle (D-SD) introduced S. 71, the
Paycheck Fairness Act, on January 21, 1997. The bill had 23
cosponsors and was referred to the Committee on Labor and Human
Resources. Congresswoman Rosa DeLauro (D-CT) introduced H.R.
2023, the Paycheck Fairness Act, on June 24, 1997. The bill had
95 cosponsors and was referred to the Committee on Education
and the Workforce. H.R. 2023 was then referred to the
Subcommittees on Workforce Protections and Employer-Employee
Relations. No further action was taken on either bill.
106TH CONGRESS
Senator Thomas Daschle (D-SD) introduced S. 74, the
Paycheck Fairness Act, on January 19, 1999. The bill had 31
cosponsors and was referred to the Committee on Health,
Education, Labor, and Pensions. Congresswoman Rosa DeLauro (D-
CT) introduced H.R. 541, the Paycheck Fairness Act, on February
3, 1999. The bill was referred to the Committee on Education
and the Workforce and the Subcommittees on Workforce
Protections and Employer-Employee Relations.
The Senate Committee on Health, Education, Labor, and
Pensions held a hearing on gender-based wage discrimination on
June 8, 2000. The hearing, ``Examining the Bureau of Labor
Statistics Report which Provides a Full Picture of the Gender-
Based Wage Gap, the reasons for these Gaps and the Impact this
Discrimination has on Women and Families, and the Effectiveness
of Current Laws and Proposed Legislative Solutions, and S. 74,
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,'' featured testimony from Dr.
Katherine Abraham, Commissioner, Bureau of Labor Statistics;
Dr. June O'Neill, professor of economics and finance, Baruch
College, Zicklin School of Business; Dr. Heidi Hartmann,
Director, Institute for Women's Policy Research; Anita
Hattiangadi, economist, Employment Policy Foundation; Barbara
Berish Brown, partner, Paul, Hastings, Janofsky & Walker, LLP;
Judith Applebaum, vice president and director of employment
opportunities, National Women's Law Center; and Gail Shaffer,
chief executive officer, Business and Professional Women/USA.
Testimony was submitted for the record by Irasema Garza,
Director, Women's Bureau, U.S. Department of Labor.
107TH CONGRESS
Senator Thomas Daschle (D-SD) introduced S. 77, the
Paycheck Fairness Act, on January 22, 2001. The bill had 32
cosponsors and was referred to the Committee on Health,
Education, Labor, and Pensions. Congresswoman Rosa DeLauro (D-
CT) introduced H.R. 781, the Paycheck Fairness Act, on February
22, 2001. The bill had 196 cosponsors and was referred to the
Committee on Education and the Workforce. Once in committee, it
was referred to the Subcommittees on Workforce Protections and
Employer-Employee Relations. No further action was taken on
either bill.
108TH CONGRESS
Senator Thomas Daschle (D-SD) introduced S. 76, the
Paycheck Fairness Act, on January 7, 2003. The bill had 20
cosponsors and was referred to the Committee on Health,
Education, Labor, and Pensions. Congresswoman Rosa DeLauro (D-
CT) introduced H.R. 1688, the Paycheck Fairness Act, on April
9, 2003. The bill had 116 cosponsors and was referred to the
Committee on Education and the Workforce. The committee
referred it to the Subcommittees on Workforce Protections and
Employer-Employee Relations. No further action was taken on any
bill.
109TH CONGRESS
On April 19, 2005, Congresswoman Rosa DeLauro (D-CT)
introduced the Paycheck Fairness Act. The bill had 111
cosponsors and was referred to the Committee on Education and
the Workforce. The Committee referred it to the Subcommittees
on Workforce Protections and Employer-Employee Relations. The
same day that Congresswoman DeLauro introduced her bill,
Senator Hillary Rodham Clinton (D-NY) introduced S. 841, the
Paycheck Fairness Act. The bill had 18 cosponsors and was
referred to the Committee on Health, Education, Labor, and
Pensions. No further action was taken on either bill.
110TH CONGRESS
On March 6, 2007, Congresswoman Rosa DeLauro (D-CT)
introduced H.R. 1338, the Paycheck Fairness Act. The bill has
230 cosponsors and was referred to the Committee on Education
and Labor, where it was referred to the Subcommittee on
Workforce Protections. That same day, Senator Hillary Rodham
Clinton (D-NY) introduced S. 766, the Paycheck Fairness Act.
The bill has 22 cosponsors and was referred to the Committee on
Health, Education, Labor, and Pensions.
On Thursday, April 12, 2007, the Senate Committee on
Health, Education, Labor, and Pensions held a hearing titled
``Closing the Gap: Equal Pay for Women Workers.'' The hearing
examined enforcement of the Equal Pay Act of 1963, the Fair Pay
Act and the Paycheck Protection Act. At the hearing the
following people presented testimony: Evelyn Murphy, President,
WAGE Project, Inc. and Resident Scholar of the Women's Research
Center at Brandeis University; Jocelyn Samuels, Vice President
for Education and Employment at the National Women's Law
Center; Dr. Philip Cohen, Associate Professor and Director of
Graduate Studies for the Department of Sociology at the
University of North Carolina; and Barbara Brown, Attorney at
Paul Hastings.
On Tuesday, April 24, 2007, the House Committee on
Education and Labor conducted a hearing on gender based wage
discrimination. At this hearing, ``Strengthening the Middle
Class: Ensuring Equal Pay for Women,'' the Committee heard
testimony describing the scope and causes of gender-based wage
disparity.\6\ Witnesses included: Congresswoman Rosa DeLauro
(D-CT); Congresswoman Eleanor Holmes Norton (D-D.C. Del.);
Catherine Hill, Research Director for the American Association
of University Women; Heather Boushey, Senior Economist at the
Center for Economic and Policy Research; Dedra Farmer,
Plaintiff in the Wal-Mart sex-discrimination class action
lawsuit; and Diana Furchtgott-Roth, Director of the Center for
Employment Policy at the Hudson Institute.
---------------------------------------------------------------------------
\6\ U.S. Census Bureau, U.S. Bureau of Labor Statistics, Annual
Demographic Survey (Aug. 2006).
---------------------------------------------------------------------------
On Wednesday, July 11, 2007, the House Labor Subcommittee
on Workforce Protections held a legislative hearing on H.R.
1338, ``The Paycheck Fairness Act.'' The hearing focused on
H.R. 1338 and the wage disparity that exists from the moment
men and women enter the workforce--a disparity that only grows
over time.\7\ Witnesses included: Evelyn Murphy, President,
WAGE Project, Inc. and Resident Scholar of the Women's Research
Center at Brandeis University; Joseph Sellers, Partner with the
law firm of Cohen, Milstein, Hausfeld & Toll, PLLC; Marcia
Greenberger, Co-President of the National Women's Law Center;
and Camille A. Olson, Partner at Seyfarth Shaw, LLP.
---------------------------------------------------------------------------
\7\ The Paycheck Fairness Act (H.R. 1338), 110th Congress, 1st
Sess. (2007) (opening statement of Congresswoman Lynn Woolsey [D-CA])
---------------------------------------------------------------------------
Committee on Education and Labor Full Committee mark-up of the Paycheck
Fairness Act
On Thursday, July 24, 2008, the Committee on Education and
Labor met for a full committee markup of H.R. 1338. The
Committee adopted by voice vote an amendment in the nature of a
substitute offered by Chairman Miller and reported the bill
favorably as amended by a vote of 26-17 to the House of
Representatives.
The Miller amendment incorporates the provisions of H.R.
1338 with the following modifications:
Adds language to the bill's findings section about
the EEOC's role in combating gender-based wage discrimination.
Narrows the `any factor other than sex' standard
to provide that the bona fide factor defense shall only apply
if the employer demonstrates that the such factor is not
derived from or based upon a sex-based differential in
compensation; is job-related with respect to the position in
question; and is consistent with business necessity.
Changes the establishment requirement from a
nationwide standard to a countywide standard and further
provides that consistent with EEOC rules and guidance,
establishment could be broader than county when, for example,
there is a central administrative unit making hiring and pay
decisions for employees in different locations.
Retains the anti-retaliation protections for
employees who discuss or disclose wage information but limits
when those protections will extend to employees who have access
to payroll information as part of an essential function of
their job. These employees, such as payroll and human resources
personnel, are not protected if they disclose that payroll
information to employees who do not otherwise have access to
that information. However, their disclosure of wages will be
protected if they: (1) disclose wage information with another
employee who also has access to wage information such as their
supervisor; (2) disclose their own wages; or (3) disclose wage
information in response to or in furtherance of an internal
employer or governmental investigation.
Deletes what was originally Section 7 of the bill,
which directed the Secretary of Labor to develop voluntary
guidelines for employers to evaluate job categories based on
characteristics such as skill, education and responsibility.
Additionally, the following amendments were offered but not
adopted:
Representative Cathy McMorris Rodgers (R-WA)
offered an amendment to the amendment in the nature of a
substitute which would have substituted the text of H.R. 6025
for the H.R. 1338. The amendment was ruled to be not germane
because it did not deal with the subject matter of the
underlying bill, which was to address pay discrimination
against women.
Representative Tom Price (R-GA) offered an
amendment to the amendment in the nature of a substitute which
would have required the Secretary of Labor to conduct a study
on how the bill would affect recruitment and hiring by
employers. The Price amendment would have delayed
implementation of the underlying bill for 90 days while the
study was being conducted. The amendment failed by a vote of
17-26.
Representative Price (R-GA) offered a second
amendment to the amendment in the nature of a substitute which
would have limited the amount of attorneys' fees that could be
awarded in a suit brought under the Equal Pay Act. However,
attorneys' fees are already limited to only those which are
reasonable, and the amendment raised separation of powers
issues. The amendment was defeated by a vote of 17-25.
Ranking Member Howard McKeon (R-CA) offered an
amendment to the amendment in the nature of a substitute which
would have required the Bureau of Labor Statistics to report to
Congress on the price of gasoline and its effect on women
workers within 90 days of enactment of the bill. Chairman
Miller ruled that Ranking Member McKeon's amendment was not
germane; Mr. McKeon appealed the Chairman's ruling, and the
McKeon appeal was defeated by a vote of 16-25.
Summary
The Paycheck Fairness Act of 2007 updates and strengthens
the EPA. Due to weaknesses in the law, the landmark 1963
legislation has not lived up to its original purpose. Women
working full-time earned just 58.9 cents to the dollar that men
earned when the EPA was passed in 1963. The wage gap has
narrowed slightly since then--but persists as a significant
problem for American women. Today women on average earn just 77
cents to the dollar that men earn.\8\ H.R. 1338 is a critical
step forward in the fight to eliminate pay disparity which
``depresses wages and living standards for employees necessary
for their health and efficiency; prevents maximum utilization
of the available labor resources; tends to cause labor
disputes, thereby burdening, affecting, and obstructing
commerce; and constitutes an unfair method of competition.''
\9\ Congress has a responsibility to amend the EPA and
modernize the law so that it can better achieve its intended
purpose.
---------------------------------------------------------------------------
\8\ U.S. Bureau of Labor Statistics data on full-time workers, See,
Feder & Levine, supra note 4 at 3.
\9\ P.L. 88-38.
---------------------------------------------------------------------------
H.R. 1338 builds upon the EPA and closes numerous loopholes
that have enabled unscrupulous employers to evade liability
under the law. The bill strengthens the penalties available
under the EPA to include compensatory and punitive damages. The
bill prohibits retaliation against workers who discuss or
disclose salary information \10\; it expands the establishment
requirement so that an employee can find a comparator at any
workplace in the same county; it clarifies that one of the
employer affirmative defenses against a disparity in pay must
be related to the job in question and consistent with business
necessity; and it reforms the class-action standard so that
women with claims of unequal pay will automatically be part of
a class action lawsuit unless they chose to ``opt-out'' of the
case.
---------------------------------------------------------------------------
\10\ Section 3(c) 2 provides that employees who have access to wage
information of other employees as part of an essential job junction are
not protected if they disclose the wages to workers who do not
otherwise have access to such information. These employees' wage
disclosures are protected if they disclose those wages to an employee
who also has access to that information, disclose their own wages, or
disclose wages in the or disclose wages in response to or in
furtherance of a government or internal employer investigation.
---------------------------------------------------------------------------
The bill also strengthens the role government will play in
combating wage discrimination. It accomplishes this by
increasing the role of the EEOC and the Department of Labor
(DOL). H.R. 1338 authorizes additional training for EEOC staff
on recognizing and remedying wage discrimination, requires DOL
to collect data and codifies the use of the EO Survey by OFCCP
for non-construction contractors. Finally, H.R. 1338 authorizes
DOL to award competitive grants to be used for salary
negotiation education and training programs for women and
girls.
Statement And Committee Views
The Committee on Education and Labor is committed to
protecting the rights of workers in the workplace. Forty-five
years after the passage of the EPA, women continue to earn less
than men for the same work. The long-term impact of pay
disparity on women's earnings is substantial and can cost a
woman anywhere from $400,000 to $2 million over her
lifetime.\11\ Women have been unable to utilize the protections
afforded under the EPA because loopholes and ineffective
sanctions have all but paralyzed the law. H.R. 1338 strengthens
the EPA to more effectively combat wage discrimination. The
bill builds upon Congress' efforts forty-five years ago when
the EPA was enacted and is another step forward to close the
wage gap between men and women.
---------------------------------------------------------------------------
\11\ Institute for Women's Policy Research, Memo to John Roberts:
The Gender Gap is Real (2005).
---------------------------------------------------------------------------
A. HISTORY OF THE EQUAL PAY ACT
In 1963, Congress first \12\ addressed the issue of unequal
pay when it passed the EPA as an amendment to the Fair Labor
Standards Act (FLSA).\13\ The purpose of the legislation was
broadly remedial to eliminate once and for all gender-based
discriminatory pay practices:
\12\ There was support for ``equal pay'' dating back to World War I
when the War Board enforced regulations requiring pay equity. See:
Elizabeth Wyman, The Current Framework of Sex/Gender Discrimination
Law: The Unenforced Promise of Equal Pay Acts: A National Problem and
Possible Solution from Maine, 55 Me. L. Rev. 23 (2004). In addition,
Congress had considered ``equal pay'' bills as early as 1955, and the
Kennedy and the two previous administrations supported equal pay
legislation as well. House Committee on Education and Labor, House
Report No. 309 (May 20, 1963) as found in House Committee on Education
and Labor, Legislative History of the Equal Pay Act of 1963, U.S.
Government Printing Office (December 1963), at 36, 59, 66, 67.
\13\ 29 U.S.C. Sec. 206(d).
The objective of the legislation is to insure that
those who perform tasks which are determined to be
equal shall be paid equal wages. The wage structure of
all too many segments of American industry has been
based on an ancient but out moded belief that a man,
because of his role in society, should be paid more
than a woman even though his duties are the same. This
bill would provide, in effect, that such an outmoded
belief can no longer be implemented and that equal work
will be rewarded with equal wages.\14\
---------------------------------------------------------------------------
\14\ Senate Committee on Labor and Public Welfare, Senate Report
No. 176 (May 13, 1963) as found in, Legislative History of the Equal
Pay Act of 1963, supra note 12 at 42.
As with minimum wages, overtime and the protection of child
laborers, the EPA enshrined ``equal work for equal pay
regardless of sex'' as another fair labor standard in the
FLSA.\15\ Other versions of equal pay legislation had been
introduced in 1963 and before, but because DOL had already
developed ``a now familiar system of regulations and procedures
for investigation, administration and enforcement,'' Congress
decided that a simple expansion of the FLSA to include pay
equity was the ``most efficient and least difficult course of
action.'' \16\ Upon introduction of the bill, Senator McNamara
stated:
---------------------------------------------------------------------------
\15\ Introduction of S. 409, Senator McNamara, House Committee on
Education and Labor as found in, Legislative History of the Equal Pay
Act of 1963, supra note 12 at 1, 10-11.
\16\ Id.
---------------------------------------------------------------------------
Such a utilization serves two purposes: First, it
eliminates the need for a new bureaucratic structure to
enforce equal pay legislation. And second, compliance
should be made easier because of both industry and
labor's long-established familiarity with existing fair
labor standards provisions.\17\
---------------------------------------------------------------------------
\17\ Id. See also: House Report 309, as found in Legislative
History of the Equal Pay Act of 1963, supra note 12 at 43.
Some legislators felt that the bill legislation did not go
far enough but voted for it because it was ``a good start * * *
in eliminating the unfairness of unequal pay.'' \18\
---------------------------------------------------------------------------
\18\ Id,at 66.
---------------------------------------------------------------------------
In passing the EPA, Congress intended that ``men and women
doing the same job under the same working conditions * * *
[would] receive equal pay.'' \19\ Representative Frelinghuysen
elaborated on the standard:
---------------------------------------------------------------------------
\19\ Comments of Representative Frelinghuysen as found in,
Legislative History of the Equal Pay Act, supra note 12 at 43.
* * * the jobs in dispute must be the same in work
content, effort, skill and responsibility requirements,
and in working conditions * * * it is not intended to
compare unrelated jobs, or jobs that have been
historically and normally considered by the industry to
be different.\20\
---------------------------------------------------------------------------
\20\Id. at 11.
At the same time, ``equal pay for equal work'' did not mean
that the jobs in question had to be identical. They were to be
similar in terms of ``work content, effort, skill and
responsibility requirements and in working conditions.'' \21\
---------------------------------------------------------------------------
\21\ Representative Frelinghuysen, ``jobs in dispute must be same
in work content, effort, skill and responsibility requirements and in
working conditions.'' Id. at 83; Representative Powell, citing the
International Labor Organization Constitution which provides ``men and
women should receive equal remuneration for work of equal value.'' Id.
at 11; Representative Dwyer, referring to the ``same kind of work'' Id,
at 61; Representative Donohue referring to ``similar jobs.'' Id. at 68;
Senator McNamara, ``it is not the intent of the Senate that jobs must
be identical.'' Id. at 91. See also, 29 C.F.R. Sec. 1629.13 defining
equal work as work that is ``substantially equal.''
---------------------------------------------------------------------------
In addition, the floor debate made clear that under the
EPA, discrimination against one individual would be actionable
and a showing of a pattern and practice of discrimination would
not be required. Senator McNamara stated:
It is inconceivable that this Congress should write
legislation that would permit selective discrimination
which, without doubt, would occur mostly likely against
those individuals who are least able to protest. It is
certainly the intent of the Senate that an employer
will have violated this act if he discriminates against
one employee, just as he will violate it if he
discriminates against many.\22\
---------------------------------------------------------------------------
\22\ Id. at 16, 81.
While the EPA was aimed at eradicating wage differentials
based on sex, it was not intended to limit other kinds of pay
inequity not based on gender. As such, even though the employee
might show that the employer's wages were unequal as compared
to a man, the EPA does provide employers with affirmative
defenses to justify the differences in pay if such differences
are based on: (1) seniority systems; (2) merit systems; (3)
systems that measure earnings by quality or quantity of
production; or (4) ``any factor other than sex.'' \23\
---------------------------------------------------------------------------
\23\ 29 U.S.C. Sec. 206(d)(1).
---------------------------------------------------------------------------
While the last affirmative defense was written broadly,
Congress intended that any proffered reason for a pay
differential be a bona fide one. In addition, the drafters made
sure that the employer was shouldered with the burden of
proving the legitimacy of its practice,\24\ making clear that
these affirmative defenses were never intended to ``shield
employers who have a plan or system in place that is devised to
evade the law.'' \25\
---------------------------------------------------------------------------
\24\ Legislative History of the Equal Pay Act, supra note 12 at 16.
\25\ Id.
---------------------------------------------------------------------------
B. EPA, TITLE VII, AND SECTION 1981
On July 2, 1964, President Lyndon Johnson signed the Civil
Rights Act of 1964 \26\ into law. The Act was historic
legislation prohibiting discrimination in employment, among
other things, on the basis of race, color, religion, national
origin and sex.\27\ While the EPA and Title VII--passed only
one year apart--both prohibit sex discrimination in pay and
provide overlapping coverage, there are distinct differences
between the application of Title VII and the EPA in sex-based
wage discrimination cases.\28\
---------------------------------------------------------------------------
\26\ P.L. 88-352.
\27\ 42 U.S.C. Sec. 2000e et. seq.
\28\ Feder & Levine, supra note 4 at 8. In terms of coverage, under
EPA all employees are covered so long as the employer has at least
$500,000 in annual revenue. 29 U.S.C. Sec. 203(s)(1)(A)(ii). Under
Title VII, employees who work for an employer with fewer than 15
employees will fall outside of Title VII's requirements. 42 U.S.C.
Sec. 2000e(b).
---------------------------------------------------------------------------
Statute of Limitations/Exhaustion of Administrative
Remedies: Under the EPA, an aggrieved person has 2 years (or 3
years in a case of a willful violation) from the date of any
instance of unequal pay to file a claim in court.\29\ Under
Title VII, a worker must file her claim within 180 days of a
violation.\30\ Specifically, following the Supreme Court's
decision in Ledbetter v. Goodyear Tire & Rubber Company,
Inc.,\31\ in cases of pay discrimination, she must file her
charge within 180 days of the employer's decision to pay her a
salary based on sex (rather than, as long-standing law had
held, 180 days after each discriminatory paycheck).
---------------------------------------------------------------------------
\29\ 29 U.S.C. Sec. 255.
\30\ 42 U.S.C. Sec. 2000e-5(e)(1). This deadline is extended to 300
days if the charge is also covered by a state or local
antidiscrimination law. Id.
\31\ 127 S. Ct. 2162 (2007).
---------------------------------------------------------------------------
Burden of Proof: When alleging discrimination under the
EPA, an employee is required to show that a man and a woman
working in the same establishment and doing substantially the
same job are receiving unequal pay. However, she does not bear
the burden of proving that the employer intentionally committed
wage-based gender discrimination. Once the employee has made a
showing of unequal pay, the burden of proof shifts to the
employer to show that the pay inequity is not due to gender
discrimination.\32\
---------------------------------------------------------------------------
\32\ ``Overview of the Equal Pay Act,'' AAUW.Www.aauw.org/advocay/
laf/lafnetwork/library/payequity_epa.efm.
---------------------------------------------------------------------------
By contrast, under Title VII a plaintiff must typically
prove that the employer intentionally discriminated against
her, and she retains the burden of proving discrimination
throughout the case. However, unlike an EPA complainant, a
Title VII plaintiff is not required to demonstrate that she
performed substantially the same (or equal) work as higher paid
males, so long as she has other evidence of discrimination such
as proof that a man worked fewer hours or evidence that she
would have been paid more had she been a man.\33\
---------------------------------------------------------------------------
\33\ Id.
---------------------------------------------------------------------------
Damages: A plaintiff who successfully proves wage
discrimination under the EPA can only recover backpay, and
unless the employer can show that it acted in good faith, an
equal amount in liquidated damages.\34\ Conversely, under Title
VII a plaintiff is entitled to backpay, compensatory
damages,\35\ as well as punitive damages \36\ for
``intentional'' wage discrimination.\37\ Title VII damages
compensatory and punitive damages do have monetary ``caps,''
which vary depending on the size of the employer.\38\ However,
in no event may these damages exceed $300,000.\39\
---------------------------------------------------------------------------
\34\ 29 U.S.C. Sec. 216.
\35\ Feder & Levine, supra note 4 at 6, which state that
compensatory damages include such items as pain and suffering, medical
expenses and emotional distress.
\36\ Id. Punitive damages may be recovered when the employer acted
with malice or reckless indifference.
\37\ Id.
\38\ Id.
\39\ Id.
---------------------------------------------------------------------------
Section 1981: While it does not cover sex-based
discrimination, Section 1981 is worth comparing as well. Passed
as part of the Civil Rights Act of 1866, Section 1981 forbids
discrimination on the basis of race or national origin in the
making and enforcement of contracts.\40\ Such contracts may be
between employee and employer or between businesses. Plaintiffs
in Section 1981 cases may recover compensatory and punitive
damages. But, unlike Title VII, those damages are not limited.
Under current law, an employee receiving unequal pay for equal
work on the basis of race may recover punitive damages without
an arbitrary statutory limit, for example, but one receiving
unequal pay on the basis of sex cannot.
---------------------------------------------------------------------------
\40\ 42 U.S.C. 1981(a).
---------------------------------------------------------------------------
C. WOMEN CONTINUE TO EARN LESS THAN MEN
While progress has been made, ``equal pay for women is not
yet a reality in our country.'' \41\ As previously noted a
woman working full-time, year-round earns 77 cents for every
dollar a male earns.\42\ Pay disparity can be even worse for
minority women. Compared to men, African American women earn 66
cents to the dollar; Latinas earn 55 cents to the dollar; and
Asian-American women earn slightly more than 80 cents to the
dollar.\43\ Each year, pay inequity causes American families to
lose $200 billion in income, resulting in an annual loss to
each working woman's family of more than $4,000.\44\
---------------------------------------------------------------------------
\41\ Closing the Gap: Pay Equity for Women Workers, Hearing Before
the U.S. Senate Health, Education, Labor and Pensions Committee
Education and Labor Committee, 110th Cong., 1st Sess. (2007) (written
testimony of Jocelyn Samuels, Vice President for Education and
Employment, National Women's Law Center, at 1) [Hereinafter Samuels'
Testimony].
\42\ Supra note 6.
\43\ Perspectives on Wage Inequality and Workplace Solutions,
Hearing Before the Education and Labor Committee, 110th Cong., 1st
Sess. (2007) (written testimony of Business and Professional Women/USA
and Business and Professional Women's Foundation at 4) (Hereinafter
Business and Professional Women's Testimony).
\44\ Equal Pay for Working Families, National and State Data on the
Pay Gap and Its Costs, A Joint Research Project of the AFL-CIO and the
Institute for Women's Policy Research at 1 (1999).
---------------------------------------------------------------------------
In April 2007, the American Association of University Women
(AAUW) released a study finding that not only do men earn more
than women at the outset of their careers, but the wage gap
grows wider as women age.\45\ Women one year out of college
make 80 percent of what men earn, and 10 years later, make only
69 percent.\46\ As compared to men with only a high school
diploma, women with graduate degrees earn only slightly more
($41,995 compared to $40,822).\47\
---------------------------------------------------------------------------
\45\ Judy Goldberg Day and Catherine Hill, Behind the Pay Gap,
Association of American University Women (AAUW) (April 23, 2007).
\46\ Id.
\47\ Business and Professional Women's Testimony at 3.
---------------------------------------------------------------------------
Many argue that the wage gap is the result of `women's
choices,' including the choice of college major and
occupation.\48\ However the AAUW study found that different
choices do not fully explain the pay gap:
---------------------------------------------------------------------------
\48\ Strengthening the Middle Class: Ensuring Equal Pay for Equal
Work, Hearing Before the Education and Labor Committee, 110th Cong.,
1st Sess. (2007) (written testimony of Heather Boushey, Senior
Economist at the Center for Economic and Policy Research, at 1)
[hereinafter Boushey Testimony].
[AAUW's] analysis showed that men and women's
different choices can explain only some of the wage
gap. After controlling for factors like experience,
educational attainment, enrollment status, GPA,
institution selectivity, age, race/ethnicity, region,
marital status and children, a five percent difference
in the earnings of male and female college graduates is
unexplained. It is reasonable to assume that this
---------------------------------------------------------------------------
difference is the product of discrimination.
Furthermore, AAUW's analysis showed that in almost every
field in which women work, those working full-time earn less
than men, although the size of the gap varies.\49\ Controlling
for this similar set of factors, ten years after graduation
there is a twelve percent difference in the earnings of recent
male and female college graduates that is unexplained and
attributable only to gender.\50\ The General Accounting Office
(GAO) in a 2000 study came to a similar conclusion and found
that women on average earn only 80 percent of what men earn,
even after considering factors that can impact earnings such as
marital status, race, children and income, work patterns such
as experience and hours worked.\51\ The 20 percent pay gap
between men and women was unexplained.\52\
---------------------------------------------------------------------------
\49\ Strengthening the Middle Class: Ensuring Equal Pay for Equal
Work, Hearing Before the Education and Labor Committee, 110th Cong.,
1st Sess. (2007) (written testimony of Catherine Hill, Research
Director at the American Association of University Women, at 1)
[hereinafter Hill Testimony].
\50\ Id. at 4.
\51\ United States General Accounting Office, Women's Earnings:
Work Patterns Partially Explain Difference Between Men's and Women's
Earnings, GAO-04-35 (Oct. 2003).
\52\ Id.
---------------------------------------------------------------------------
Pay disparity increases and follows women throughout their
careers. A Carnegie Mellon University study \53\ found that
male students who graduated with masters degrees earned
starting salaries approximately $4,000 higher than their female
counterparts. Professor Deborah Brake offered this example in
her testimony before the Committee: if a 22-year-old man
initially earns $30,000 and the female earns $25,000 and they
receive identical 3-percent annual raises, the pay gap would
widen to $15,000 by the time the workers reach 60, with a total
difference of $361,171 over their employment lives. If the male
earns 3-percent annual interest on the difference, the total
disparity would be $568,834.\54\ Moreover, this pay gap not
only impacts women's annual earnings but also has a significant
impact on her retirement savings, including employer pension
plans, percentage-based employer contributions to retirement
savings plans and even Social Security.\55\
---------------------------------------------------------------------------
\53\ Linda Babcock and Sara Laschever, ``Women Don't Ask:
Negotiations and the Gender Divide'' (2003). See also, The Lilly
Ledbetter Fair Pay Act of 2007, Hearing Before the Education and Labor
Committee, 110th Cong., 1st Sess. (2007) (written testimony of Deborah
Brake, Law Professor at the University of Pittsburgh Law School, at 2)
[hereinafter Brake Testimony].
\54\ Brake Testimony, at 2.
\55\ Id.
---------------------------------------------------------------------------
The wage gap is a threat to this country's middle class and
the loss of women's income represents a ``huge loss to the
economy in unrealized consumption and investment, as well as
reduced tax revenues to governments at all levels.'' \56\ With
seventy percent of all mothers in the labor force,\57\ and with
married mothers typically providing over one-third of the
family income,\58\ now more than ever, women's participation in
the labor market is necessary for families to survive.\59\
While more families have a working wife, family income has
failed to grow as much as it did in the decades just after
World War II.\60\ Prior to the early 1970's, a married-couple's
family income grew by 3 percent per year on average and income
growth was about the same for families with and without a
working wife. However, since then, income for married-couple
families without a working wife grew at an annual average rate
of just 0.1 percent, while the income growth for families with
a working wife grew by less than one-percent.\61\
---------------------------------------------------------------------------
\56\ Id.
\57\ Boushey at 3. Id. at 5.
\58\ Boushey Testimony, at 4. See also, Bureau of Labor Statistics
2005.
\59\ Id.
\60\ Id.
\61\ Id. at 4-5.
---------------------------------------------------------------------------
a. Pay discrimination is difficult to detect
In today's workplace, pay discrimination is often extremely
difficult to detect: ``Unlike most personnel actions, the
results of which are readily evident to many employees, the
levels of compensation paid to an employee are rarely known to
co-workers.'' \62\ Employees typically do not have access to
information which would raise a suspicion of pay
discrimination, and workplaces often discourage, if not
outright prohibit, discussions between employees about
salaries.\63\ As Justice Ginsburg observed in Ledbetter v.
Goodyear Tire & Rubber Co., ``comparative pay information * * *
is often hidden from the employee's view.'' \64\ Employee
compensation is regularly kept confidential by employers and
may only be known by the individual employee, payroll staff and
manager(s).\65\ In addition, many employers have policies
prohibiting salary discussions.\66\ One-third of private sector
employers have adopted specific rules prohibiting employees
from discussing their wages with co-workers.\67\ Only one in
ten employers has adopted a pay openness policy.\68\ Finally,
for those employees who do know what their colleagues earn,
they often lack information about the contributing factors that
might influence pay levels, including performance, education
and/or training.
---------------------------------------------------------------------------
\62\ The Paycheck Fairness Act, H.R. 1338, Hearing Before the
Education and Labor Committee, Subcommittee on Workforce Protections,
110th Cong. 1st Sess. (written testimony of Joseph M. Sellers, Cohen
Milstein, Hausfeld & Toll PLLC at 15). [Hereinafter Sellers Testimony].
\63\ Id.
\64\ Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 617 (2007)
(Ginsburg, J. dissenting). See also, Sellers Testimony at 15.
\65\ Sellers Testimony.
\66\ Id.
\67\ The Lilly Ledbetter Fair Pay Act of 2007, Hearing Before the
Education and Labor Committee, 110th Cong., 1st Sess. (2007) (written
testimony of Wade Henderson, President and CEO of the Leadership
Conference on Civil Rights, at 3) [hereinafter Henderson Testimony].
\68\ Id.
---------------------------------------------------------------------------
Pay discrimination is rarely accompanied by circumstances
suggestive of gender discrimination.\69\ Disparate pay might
not begin with a woman's initial salary determination but can
readily develop with a decision to increase the pay of male
colleagues. While employees are normally aware of which
employees receive promotions, they are less likely to know when
colleagues receive a pay raise.\70\ For example, an employee
who receives a three-percent raise would have no reason to
suspect pay discrimination when she does not know about the
raises her colleagues earn.\71\
---------------------------------------------------------------------------
\69\ Brake Testimony at 4.
\70\ Id.
\71\ Id. at 5.
---------------------------------------------------------------------------
Discussions about wages are necessary to identify pay
disparity, ``absent ready access to the pay levels of their co-
workers and the factors that led to those pay levels, most
employees lack the knowledge needed to make a viable claim of
pay discrimination under the EPA.'' \72\ Once a lawsuit is
filed, discovery of wage data is available to help aggrieved
employees develop their case; however, in order to learn more
about employee salaries, however women need to have some basis
to file suit in the first place. However, because employees
lack knowledge about pay levels and the reasons behind
different employer pay decisions ``only a small percentage [of
claims] make specific allegations of pay discrimination.'' \73\
---------------------------------------------------------------------------
\72\ Sellers Testimony at 16.
\73\ Sellers Testimony. See also, Equal Employment Opportunity
Commission, EEOC Litigation Statistics FY 1997 to FY 2006, Available at
http: www.eeoc.gov/stats/litigation.html (out of 403 suits filed in
2006, only 10 included EPA claims).
---------------------------------------------------------------------------
b. Lack of data on pay disparity
Data collection is a critical component understanding what
is really happening with women's wages workplace. In addition,
sufficient data about pay discrimination is an invaluable tool
for those agencies--such as the EEOC and the OFCCP--charged
with enforcing employment discrimination laws such as the EPA.
However, experts agree that these agencies have minimal
information about gender-based disparities in pay.\74\
Additionally, the Bush Administration has halted (or attempted
to halt) many of the data collection initiatives already in
place for collecting information about women and men's wages.
---------------------------------------------------------------------------
\74\ The Paycheck Fairness Act, H.R. 1338, Hearing Before the
Education and Labor Committee, Subcommittee on Workforce Protections,
110th Cong. 1st Sess. (written testimony of Evelyn Murphy, President of
the WAGE Project) [hereinafter Murphy Testimony]. The Paycheck Fairness
Act, H.R. 1338, Hearing Before the Education and Labor Committee,
Subcommittee on Workforce Protections, 110th Cong. 1st Sess. (written
testimony of Marcia Greenberger, Co-President of the National Women's
Law Center) [hereinafter Greenberger Testimony].
---------------------------------------------------------------------------
Bureau of Labor Statistics (BLS) Employment Statistics: For
over forty years, BLS has been collecting data on female
workers and comparing them to their male counterparts. This
data has formed the basis for its monthly report on the
employment situation.\75\ In 2005 BLS stopped collecting this
data, citing employer inconvenience.\76\ In response, Congress
passed (and the President signed into law) the 2006 Labor HHS
appropriations bill,\77\ which contained a provision mandating
BLS to continue to collect data on women workers.\78\ This
language was retained for FY07 through a continuing resolution
\79\ and is also part of the 2008 Labor-HHS Appropriations bill
passed by both the House and Senate but vetoed by the
President.\80\
---------------------------------------------------------------------------
\75\ BLS Plans to Drop Data on Women From Payroll Survey Creates
`Firestorm', BNA Daily Labor Report (March 7 2005).
\76\ ``BLS has found that employers often to not have gender
information in the same place they have earnings information.''
Statement of Commissioner Kathleen Utgoff, supra note 76.
\77\ PL-109-149 (December 2006).
\78\ The 2007 Labor-HHS appropriations bill was passed as part of a
Continuing Resolution, and this provision went unchanged. The provision
is contained in the 2008 Labor-HHS Appropriations bill passed by both
the House and Senate but vetoed by the President.
\79\ H.J. Res.20, which then became P.L. 110-5 on February 15,
2007.
\80\ H.R. 3043.
---------------------------------------------------------------------------
Recognizing the value of collecting these statistics, the
Paycheck Fairness Act requires BLS to continue to gather these
statistics.
Equal Employment Opportunity Commission (EEOC): The EEOC
was created by the Civil Rights Act of 1964, and was given
litigation enforcement authority in 1972.\81\ Experts agree
that enhanced data collection by the EEOC, whose mission is to
eliminate unlawful employment discrimination by the enforcement
of anti-discrimination laws, is essential.\82\ The Paycheck
Fairness Act requires the EEOC to survey existing data and
determine what additional data is needed to enhance enforcement
of the law.
---------------------------------------------------------------------------
\81\ EEOC, 35 Years of Ensuring the Promise of Opportunity,
available at: http://www.eeoc.gov/abouteeoc/35th/history/index.html
\82\ National Women's Law Center, Comment Letter on Affirmative
Action and Nondiscrimination Obligations of Contractors and
Subcontractors; Equal Opportunity Survey (March 28, 2006) (letter on
file with author).
---------------------------------------------------------------------------
Office for Federal Contract Compliance programs (OFCCP):
OFCCP is unique in that it is required by law to affirmatively
conduct reviews to ensure that contractors with federal
contracts are in compliance with equal employment measures,
including Executive Order 11246, which prohibits discrimination
in employment on the basis of race, color, religion, national
origin and gender. About one-fifth of the labor force works for
an employer who contacts with the federal government.\83\
---------------------------------------------------------------------------
\83\ Id.
---------------------------------------------------------------------------
Equal Opportunity Survey: The EO Survey was developed over
three Administrations to ensure nondiscrimination in federal
employment. It was intended to track employment data and to
improve the enforcement of anti-discrimination requirements--
including gender-based wage discrimination--of federal
contractors.\84\ Prior to the EO survey, OFCCP conducted
targeted compliance reviews. Because of limited resources,
OFCCP only reviews approximately four percent of contractors
each year.\85\
---------------------------------------------------------------------------
\84\ Id.
\85\ Id. at 2.
---------------------------------------------------------------------------
The EO Survey was designed to enable OFCCP to be far more
effective in detecting and remedying wage discrimination and in
encouraging self-awareness and self-evaluation among
contractors as a means of increasing compliance.\86\ It was
developed to query employers on an annual basis (to be
eventually sent to at least one-half of all contractors each
year) about their affirmative action program activities, their
personnel actions (e.g. hires and promotions) and their
compensation of full-time employees, all aggregated by job
group, race and gender.\87\
---------------------------------------------------------------------------
\86\ Id.
\87\ Id.
---------------------------------------------------------------------------
The first survey was sent out in 2000 during the Clinton
Administration, but the Bush Administration which took office
soon after, did not take any action on the surveys that were
returned and did not follow-up on those surveys that were not
returned.\88\ In 2003 and 2004, it sent out fewer and fewer
surveys until 2005, when it failed to send out any at all. In
January 2006, the OFCCP proposed eliminating the EOC survey
altogether.\89\ The Paycheck Fairness Act would codify this
very important enforcement tool for the OFCCP.
---------------------------------------------------------------------------
\88\ Id.
\89\ 71 Fed. Reg. 3373 (Jan. 20, 2006).
---------------------------------------------------------------------------
Standards in Conducting Systematic Wage Discrimination
Analysis: As a way of measuring more effectively whether or not
employers were engaged in gender-based wage discrimination, the
Clinton Administration developed a methodology to be used in
the OFCCP's compliance reviews. The OFCCP asked employers to
provide data on its pay levels (or pay grades), and then using
the data, compared wages based on race, ethnicity and gender.
If there were any pay disparities, the OFCCP requested
employers to correct them.
Generally, employers were not supportive of this analysis,
arguing that differences in wages between men and women did not
necessarily prove that they were engaging in gender-based
discrimination. As a result, the Bush Administration published
a formal guidance document that expressly prohibited OFCCP from
using a ``pay grade'' analysis in conducting its compliance
reviews. Under this guidance, OFCCP is required to conduct
time-consuming analyses, including the gathering of anecdotal
evidence before determining that a contractor is engaging in
wage discrimination.\90\
---------------------------------------------------------------------------
\90\ 71 Fed. Reg. 35124 (June 16, 2006).
---------------------------------------------------------------------------
The Paycheck Fairness Act acknowledges that the ``pay
grade'' analysis is a useful tool (even if it does not prove
wage discrimination, it indicates some evidence of it), and
simply provides that OFCCP, ought to be allowed to use it,
along with other tools, when performing compliance reviews.
This section does not impose the ``pay grade'' methodology as
the sole means the OFCCP can use in determining if contractors
for federal contracts are in compliance, but encourages its use
in conjunction with other tools.
c. Women are less likely to negotiate
Further contributing to the wage gap is the failure of high
numbers of women to negotiate for higher salaries and
promotions: ``most women hardly negotiate when they get a job
offer * * * because they look at the offer as the goal, not the
beginning of a relationship.'' \91\ While negotiation is a
contributing factor to the wage gap, it does not justify
gender-based pay discrimination. As the Supreme Court noted:
``Congress enacted the Equal Pay Act * * * recognizing the
weaker bargaining position of many women and believing that
discrimination in wage rates represented unfair employer
exploitation of this source of cheap labor.'' \92\
---------------------------------------------------------------------------
\91\ Pallavi Gogoi, For Women, a Failure to Negotiate, Business
Week (April 22, 2005) (quoting Lee E. Miller, co-author of A Woman's
Guide to Successful Negotiation).
\92\ Corning Glass Works v. Brennan, 417 U.S. 188, 206
(1974)(citing the 2nd Circuit decision, 474 F.2d 226, 234 (1973).
---------------------------------------------------------------------------
Researchers have found there are several reasons women fail
to negotiate for themselves in the workplace.\93\ Women often
do not promote their own interests, choosing instead to focus
on others and believing that employers will recognize and
reward them for good work. In addition, the culture in many
workplaces ostracizes women who are ambitious and advance
themselves. A study \94\ conducted by Harvard University and
Carnegie Mellon University examined the starting salaries of
MBA men and women who recently graduated from top business
schools. Researchers noted that there was no difference between
the salaries negotiated by men and women in jobs where
``compensation standards were relatively clear to potential
hires.'' \95\ However, in jobs where salaries were not clear,
``male MBAs negotiated salaries that were $10,000 higher, on
average, than those negotiated by female MBAs.'' \96\
---------------------------------------------------------------------------
\93\ Linda Babcock, Nice Girls Don't Ask, Harvard Business Review
(Oct. 2003).
\94\ Dina W. Pradel, Hannah Riley Bowles and Kathleen McGinn, When
Gender Changes the Negotiation, Harvard Business School (Feb. 13,
2006).
\95\ Id.
\96\ Id.
---------------------------------------------------------------------------
The wage gap which occurs with the initial salary remains
with a female worker throughout her career; over a 30-year
career with an annual 3 percent raise, a woman loses
$600,000.\97\ The study did find, however, that women tend to
be more successful when negotiating on behalf of others. Put in
the position of negotiating for another employee, women were
able to secure compensation that was 18 percent greater than
what they negotiated for themselves.\98\
---------------------------------------------------------------------------
\97\ Id.
\98\ Id.
---------------------------------------------------------------------------
Researchers concluded that the hesitation women have in
advocating for themselves is not unreasonable. Women who
initiate negotiations with their employer are responded to
differently than men, and ``both men and women were likely to
subtly penalize women who asked for more * * * '' \99\
---------------------------------------------------------------------------
\99\ Shankar Vedantam, Salary, Gender and the Social Cost of
Haggling, Wash. Post (July 30, 2007) at A07.
---------------------------------------------------------------------------
While all employees have an economic incentive to
negotiate, women are more likely to consider the risk involved
and ``those risks are higher for women than for men.'' \100\
Employers have a responsibility to ensure that men and women
are compensated equally for equal work. Consequently, if a man
asks for a raise or negotiates a higher salary during the
hiring process, women who perform the same or a substantially
similar job should have their compensation levels adjusted
accordingly. Furthermore, programs must be created to help
strengthen the negotiation skills of girls and women. Linda
Babcock one of the authors of the Carnegie Mellon study has
begun a pilot project with the Girl Scouts creating a new
`badge' for negotiation. This project seeks to help girls learn
negotiating by observing adults, practicing themselves and
teaching negotiation skills to others.\101\ H.R. 1338
authorizes the Secretary of Labor to award competitive grants
aimed at training girls and women on negotiation skills, an
important tool in ending gender-based wage discrimination.
---------------------------------------------------------------------------
\100\ Id.
\101\ ``PROGRESS and Girl Scouts Create New Badge to Teach
Negotiation Skills,'' available at: http://www.heinz.cmu.edu/whatsnew/
archives/2006/girl--scouts.html (last visited July 22, 2008).
---------------------------------------------------------------------------
D. THE EQUAL PAY ACT HAS BEEN INEFFECTIVE IN ERADICATING PAY DISPARITY
A plaintiff raising a claim under the EPA carries a heavy
burden of proof in establishing a case for gender-based
discrimination. To make out a prima facie case, she must not
only show that a pay disparity exists between employees of the
same ``establishment,'' but she must also identify specific
employees of the opposite sex holding equal positions who were
paid higher wages.\102\ Courts will look to whether the work
between the plaintiff and her comparator(s) was ``equal or
substantially equal * * * considering such factors as skill,
effort, responsibility and working conditions.'' \103\
---------------------------------------------------------------------------
\102\ Greenberger Testimony at 5.
\103\ Sellers Testimony at 3.
---------------------------------------------------------------------------
While a plaintiff does not have to demonstrate the work was
identical, she has to show that it is somewhere between similar
and identical. As such, the meaning of ``equal work'' has
generated significant uncertainty about what a woman must
demonstrate when comparing herself to a co-worker in order to
satisfy this standard.\104\ Courts often compare ``superficial
features of the jobs and overlook fundamental similarities that
are masked by trivial differences.'' \105\
---------------------------------------------------------------------------
\104\ Id.
\105\ Id. at 4.
---------------------------------------------------------------------------
In addition, the courts have tended to define ``equal
work'' very strictly despite the clear intent of Congress that
the EPA be remedial and that ``equal work'' means similar not
identical.\106\ In her testimony before the House Subcommittee
on Workforce Protections, Marcia Greenberger, co-president of
the National Woman's Law Center cited Angelo v. Bacharach
Instrument Company \107\ as one of many examples. In that case
female ``bench assemblers'' in light assembly alleged that they
were paid less than men who were classified as ``heavy
assemblers.'' An engineering expert testified--along with the
women--that the jobs were substantially the same in terms of
``skill, effort and responsibility.'' Despite this, the court
held that the jobs were comparable but not equal.\108\
---------------------------------------------------------------------------
\106\ Wyman, supra note 12, See also, Greenberger Testimony.
\107\ 555 F2d 1164 (3rd Cir. 1977).
\108\ Id. See as well: Noel v. Medtronic Electromedics, Inc., 973
F. Supp 1206 (Dist. Co. 1997), where a plaintiff failed to prove her
prima facie case (substantial identity of job functions) when she
showed that some but not all of her and her male comparator's job
functions were identical.
---------------------------------------------------------------------------
a. Establishment
The EPA states that to assert a claim, a plaintiff must
find a male comparator within the same physical location is
paid more; and courts have interpreted this provision
strictly.\109\ Plaintiffs must ``demonstrate that pay disparity
exists between employees in the same ``establishment''--that
is, a distinct physical place of business rather than * * * an
entire business or ``enterprise'' which may include several
separate places of business.'' \110\ This means that an
employer who has two stores in nearby towns can legally pay the
male manager in store A more than female manager in store B
despite the fact that they do the exact same job.
---------------------------------------------------------------------------
\109\ Meeks v. Computer Ass'n Int'l, 15 F. 3rd 1013, 1017 (courts
presume that multiple offices are not a single establishment unless
unusual circumstances are demonstrated.)
\110\ Samuels Testimony at 5 (citing Meeks v. Computer Ass'n Int'l,
15 F.3d at 232).
---------------------------------------------------------------------------
The establishment requirement contributes to the difficulty
that plaintiffs face when asserting an EPA claim. It limits the
ability of women to bring an EPA claim, since many times, women
might not have a true comparator in their physical workplace.
Today's employers are much different than they were forty-five
years ago when the EPA was first enacted. Many have multiple
facilities at which the same jobs are performed, and some
locations may have only one person in a certain position (i.e.
manager, or supervisor).
The establishment requirement has particularly inhibited
the ability of women who occupy higher level positions in the
workplace to assert an EPA claim. In these cases, employers
have been able to successfully assert that women in higher-
level positions have unique job duties and therefore have no
comparator in the same establishment.\111\ In fact, as one
commentator noted, women in ``administrative, managerial and
executive positions have experienced a high rate of dismissal
of their EPA claims because their jobs are more easily viewed
as unique and therefore lack an appropriate comparator.'' \112\
---------------------------------------------------------------------------
\111\ Sellers Testimony at 15. (citing Juliene James, The Equal Pay
Act in the Courts: A De-Facto White-Collar Exemption, 79 N.Y.U.L. REV.
1873 (2004)).
\112\ Id.
---------------------------------------------------------------------------
This is clearly illustrated by the court's decision in
Georgen-Saad v. Texas Mutual Insurance Company.\113\ In that
case, the complainant was a senior vice-president of finance
who was being paid less than the other senior-vice presidents
in the company. The court rejected the Georgen-Saad's claim
that any of the positions required ``equal skill, effort and
responsibility,'' and elaborated:
---------------------------------------------------------------------------
\113\ 195 F. Supp. 2d 853 (W.D.Tex. 2002).
According to Defendant, there are no male comparators
working in a position requiring equal skill, effort,
and responsibility under similar working conditions.
The Court agrees. The sealed exhibits filed with
Defendant's Motion for Summary Judgment include job
descriptions for the Senior Vice Presidents of
Investments, Insurance Services, Underwriting Services,
Underwriting and Policy Holder Services, Public
Affairs, Internal Audit, Benefits/Loss Prevention,
Administration, Data Processing Services, and Branch
Operations/Marketing.
The assertion that any one of these jobs requires
``equal skill, effort, and responsibility'' as
Plaintiff's Senior Vice President of Finance position
cannot be taken seriously. These are Senior Vice
Presidents in charge of different aspects of
Defendant's operations; these are not assembly-line
workers or customer-service representatives. In the
case of such lower-level workers, the goals of the
Equal Pay Act can be accomplished due to the fact that
these types of workers perform commodity-like work and,
therefore, should be paid commodity-like salaries.
However, the practical realities of hiring and
compensating high-level executives deal a fatal blow to
Equal Pay Act claims.\114\
---------------------------------------------------------------------------
\114\ Id. at 856.
In 1986, the EEOC issued regulations interpreting the
definition of establishment under the EPA.\115\ The regulation
in part provides that an establishment can encompass more than
a single physical establishment when the employer has a central
administrative unit charged with making salary and employee
decisions. In Grumbine v. United States \116\ the Court held
that for purposes of the EPA, `the establishment' was the Civil
Service in its entirety and that a woman could not be paid less
than a man merely because she worked in a different location.''
\117\
---------------------------------------------------------------------------
\115\ 29 C.F.R. 1620.9 provides: (a) Although not expressly defined
in the FLSA, the term ``establishment'' had acquired a well settled
meaning by the time of enactment of the Equal Pay Act. It refers to a
distinct physical place of business rather than to an entire business
or ``enterprise'' which may include several separate places of
business. Accordingly, each physically separate place of business is
ordinarily considered a separate establishment. (b) In unusual
circumstances, two or more portions of a business enterprise, even
though located in a single physical place of business, may constitute
more than one establishment. For example, the facts might reveal that
these portions of the enterprise are physically segregated, engaged in
functionally separate operations, and have separate employees and
maintain separate records. Conversely, unusual circumstances may call
for two or more distinct physical portions of a business enterprise
being treated as a single establishment[emphasis supplied]. For
example, a central administrative unit may hire all employees, set
wages, and assign the location of employment; employees may frequently
interchange work locations; and daily duties may be virtually identical
and performed under similar working conditions. Barring unusual
circumstances, however, the term "establishment" will be applied as
described in paragraph (a) of this section.
\116\ 586 F.Supp. 1144 (D.C. 1984). Note, the U.S. Claims Court in
Molden v. U.S., 11 Cl.Ct. 604 (1987) distinguished the D.C. court's
application of establishment nationwide. It stated that: ``Grumbine
adopted an evaluation on a nationwide basis in order to give effect to
the legislative purpose of providing equal pay for equal work. In
contrast, defendant has acknowledged in the case at bar that plaintiffs
have demonstrated equal skill, effort, and responsibility with other
employees in the two Chicago offices.'' As a result ``there [was] no
need to expand the definition of an ``establishment'' to include the
Civil Service in its entirety as in Grumbine.''
\117\ Id.
---------------------------------------------------------------------------
The plaintiff in Grumbine was a Regional Counsel of Customs
Service working in Baltimore, Maryland and was the only female
among the nine Regional Counsels. The counsels were spread out
among nine regions; however the eight males were paid more than
the one female counsel. Consequently, the plaintiff raised a
claim of pay discrimination under the EPA. The government
argued that the Regional Counsels each worked in different
``establishments'' for purposes of the EPA. The court rejected
this defense and found: \118\ ``It would hardly make sense to
permit an employer to rely on geographic ``establishment''
concept in defense of an equal pay practice when that employer
has itself adopted a uniform, non-geographic pay policy and
system.'' \119\
---------------------------------------------------------------------------
\118\ Id.
\119\ Id. at 1148.
---------------------------------------------------------------------------
Courts apply the EEOC regulation to apply establishment can
include more than one physical location. In 2000, a court \120\
held that a female district sales manager in the Dallas/Fort
Worth facility could compare herself other district sales
managers in the State of Texas for purposes of the plaintiff's
EPA claim. The plaintiff in the case had no comparator in her
physical establishment. As a result, the court reasoned that
limiting her comparators to a single physical establishment
``would effectively permit a large employer with national
operations to exempt its managerial staff (each of whom is in
charge of a single facility) from the reach of the EPA.'' \121\
The 5th Circuit held that a school district with 182 schools
was a single establishment for purposes of an EPA claim \122\
as were thirteen elementary schools operated by a single school
district near Houston Texas.\123\
---------------------------------------------------------------------------
\120\ Vickers v. Intern'l Baking Co., 2000 U.S. Dist. LEXIS 17995
(N.D. Tex.).
\121\ Id. at *15.
\122\ Marshall v. Dallas Indep. Sch. Dist., 605 F.2d 191, 194 (5th
Cir. 1979).
\123\ 519 F.2d 53 (5th Cir. 1975).
---------------------------------------------------------------------------
Numerous courts have recognized that there is a trend in
the law interpreting ``establishment'' to include all places of
business of one corporation or a multi-employer.\124\ Under
these circumstances the courts have recognized that
accountability flows from the decision making structure. It is
clear that the single-location establishment interpretation is
an unworkable standard in today's workplace and threatens to
eliminate a large number of women from the Act's protections.
---------------------------------------------------------------------------
\124\ Brownlee v. Gay & Taylor Inc., 642 F.Supp. 347, 350 (D. Kan.
1986); Vickers v. Intern'l Baking Co., 2000 U.S. Dist. LEXIS 17995
(N.D. Tex.).
---------------------------------------------------------------------------
Recognizing that the single-site establishment has limited
women's ability to assert an EPA claim, H.R. 1338 expands where
a worker can look to find a comparator. Under the bill, a woman
can look to a similarly situated male co-worker anywhere in the
same county or similar political subdivision of a state.
Workplaces in the same county operate under the same cost of
living and labor market conditions. County-wide comparisons are
already the law in Illinois under the state's Equal Pay
Act.\125\ However, consistent with EEOC rules and guidance,
including 29 CFR 1620.9, the bill does not restrict courts from
applying establishment more broadly than county.
---------------------------------------------------------------------------
\125\ ILL. 93rd G.A., P.L. 93-6
---------------------------------------------------------------------------
b. Any factor other than sex
Under the EPA, employers can affirmatively defend and
justify unequal pay if it is based on: (1) seniority systems;
(2) merit systems; (3) systems that measure earnings by quality
or quantity of production; or (4) ``any factor other than
sex.'' \126\ Historically, courts have interpreted the ``any
factor other than sex'' criteria so broadly that it embraces an
almost limitless number of factors, so long as they do not
involve sex.\127\ Consequently, it is the fourth affirmative
defense that has posed the ``greatest problems for women
pressing an EPA claim,'' \128\ and employers have been able to
prevail in these cases by asserting a range of ``other than
sex'' factors.
---------------------------------------------------------------------------
\126\ 629 U.S.C. Sec. 206(d)(1).
\127\ See for example: Fallon v. Ill, 882 F. 2d 1206 (7th Cir.
1989); AAUW supra note 34.
\128\ Wyman, supra note 12 at34.
---------------------------------------------------------------------------
Moreover, there is no consensus among the circuit courts as
to whether a factor other than sex under the EPA needs to be
business related, and the Supreme Court has failed to resolve
this issue. It denied certiorari in the case of Randolph Cent.
Sch. Dist. v. Aldrich \129\ with three justices dissenting and
acknowledging the conflict among the circuits.\130\
---------------------------------------------------------------------------
\129\ 506 U.S. 965 (1992).
\130\ Id.
---------------------------------------------------------------------------
To the detriment of an effective Equal Pay Act, many courts
have found that the ``factors other than sex'' need not be
business-related or even related to the particular position in
question. In addition, employers are able to successfully raise
factors such as market forces and prior salaries (even if they
are based on a discriminatory wage) that in themselves
undermine the goals of the Equal Pay Act.\131\ Marcia
Greenberger explains:
---------------------------------------------------------------------------
\131\ Corning Glass Works 417 U.S. 188 (1974); Greenberger
Testimony at 6.
Cases such as these undermine both the spirit and
analytical approach of the Equal Pay Act. What was
intended to be an affirmative defense for an employer--
a defense that demands that the employer carry the
burden of proving that its failure to pay equal wages
for equal work is based on a legitimate reason--has
instead been converted by these courts into a
requirement merely that an employer articulate some
obstensibly nondiscriminatory basis for its
decisionmaking. Because their basis can so easily mask
criteria that are at bottom based on sex, the courts'
failure to engage in searching analysis circumvents the
burden Congress intended employers to bear.\132\
---------------------------------------------------------------------------
\132\ Greenberger Testimony at 6-7.
To ensure a broadly remedial statute, designed to eradicate
the gender pay gap for women and men performing equal work, the
Equal Pay Act's affirmative defense of a factor other than sex
must be clarified to require that the factor be job-related,
not derived or based upon a sex-based differential, and
consistent with business necessity. A review of court cases
reveals the loopholes that these reforms would fix.
Job-Relatedness: In Boriss v. Addison Farmers Insurance
Co.,\133\ the plaintiff brought an EPA claim alleging that in
the ten years she worked for the employer as an underwriter,
she was paid less than her male colleagues while performing
substantially equal work. When comparing the plaintiff to three
of her male colleagues, the employer alleged that the
difference in pay was due to factors other than sex, including
more underwriting experience and a college education, even
though a college degree was not a prerequisite for the
position.
---------------------------------------------------------------------------
\133\ 1993 U.S. Dist. LEXIS 10331.
---------------------------------------------------------------------------
The court found that the employer successfully met its
burden; the difference in pay was due to a ``factor other than
sex.'' It noted, but did not consider, the fact that the higher
salaries of the male employees were based on the pay they
received at their prior employment.\134\ In the end, it relied
on a very broad interpretation of the ``factor other than sex''
and that the factor need not be related to the ``requirements
of the particular position in question, nor that it be a
`business-related' reason.'' \135\ All that needs to be
evaluated is ``whether the factor is discriminatorily applied
or if it causes a discriminatory effect.'' \136\
---------------------------------------------------------------------------
\134\ Id. at 23.
\135\ Id. citing, Covington v. SIU, 816 F.2d 317, 321-22 (1987).
See also, Fallon v. State of IL, 882 F.2d 1206 (7th Cir. 1989).
\136\ Id.
---------------------------------------------------------------------------
In addition, the court held that employers can lawfully pay
a male more than a similarly situated female employee if the
motivation is to induce the male worker to take the job and/or
if employers take into account what the employee was making at
his prior job. Despite the fact that these situations may
result in female employee[s] being paid less, the court stated
that none of these situations violate the EPA.
In addition, just this year, in the case of Warren v. Solo
Company,\137\ reaffirmed its position that the Defendant need
not show that a ``factor other than sex'' is related to the
requirements of the particular position or a ``business-
related'' decision, when it found that unequal pay was
justified because the male employee had a college degree and
two masters degrees, despite the fact that the degrees were
unrelated to the jobs they were both performing.
---------------------------------------------------------------------------
\137\ 516 F. 3d 627 (7th Cir. 2008).
---------------------------------------------------------------------------
Derived from or based upon sex-based differentials: In
1974, the Supreme Court held that ``market forces''--such as
the value given by the market to men's and women's work or the
more effective bargaining power that men historically have--
cannot be cited as a factor other than sex to evade
liability.\138\ The court in Corning Glass Works noted that the
company's decision to pay women less for the same work men
performed ``took advantage of the market and was illegal under
the EPA.'' \139\
---------------------------------------------------------------------------
\138\ 417 U.S. 188 (1974). See, Greenberger Testimony at 6.
\139\ Id.
---------------------------------------------------------------------------
Despite clear direction from the Supreme Court, lower
courts, as recently as 2006, have accepted market forces as a
defense to a pay disparity. In Merillat v. Metal Spinners,
Inc.,\140\ for example, the plaintiff, who had been with the
company for nearly 20 years, was promoted to a Senior Buyer
position in the materials department. Around that time, the
employer created a new position entitled ``Vice President of
Procurement and Materials Management.'' While the duties of
both jobs were similar, the new position also included managing
materials department employees (including the plaintiff). The
job was offered to a male with a starting salary of $62,500. At
that time, the plaintiff earned $49,800, and she helped to
train the new employee for his position.
---------------------------------------------------------------------------
\140\ 470 F.3d 685 (7th Cir. 2006).
---------------------------------------------------------------------------
The Merillat plaintiff brought an EPA claim against the
employer who asserted the affirmative defense that the pay
disparity was due to factors other than sex such as education,
experience and market forces. The employer alleged that the
plaintiff was paid more, in part because of education and
experience, but also because his salary represented the market
rate for the position in question. The court agreed and held
that the pay disparity was due to factors other than sex,
including education, experience and ``the market forces at the
time of [his] hire.'' \141\ The court noted that it had
previously ``held that an employer may take into account market
forces when determining the salary of an employee,'' \142\
although cautioning in a footnote against employers taking
advantage of market forces to justify discrimination.
---------------------------------------------------------------------------
\141\ Id. at 698.
\142\ Id. at 697.
---------------------------------------------------------------------------
Similarly, the 3rd Circuit, in the case of Hodgson v.
Robert Hall Clothes,\143\ found that the employer was justified
in paying the female workers less than the male workers because
the ``economic benefits to the employer justified a wage
differential even where the men and women were performing the
same task.'' \144\ In Hodgson, the court was comparing the
higher wages of male sales people working in the men's
department of a store with the lower wages being paid to female
sales people working in the ladies' department.
---------------------------------------------------------------------------
\143\ 473 F. 2d 589 (3rd Cir. 1973).
\144\ Id, In addition, in this case females were not allowed to
apply to work in the men's department.
---------------------------------------------------------------------------
In finding for the employer, the court based its decision
on the fact that the men's department was more profitable than
the ladies' department even though the products sold by the
women were of lesser quality and cost less than the goods sold
in the men's department. It concluded: ``Without a more
definite indication from Congress, it would not seem wise to
impose the economic burden of higher compensation on employers.
It could serve to weaken their competitive position.'' \145\
---------------------------------------------------------------------------
\145\ Id. at 596.
---------------------------------------------------------------------------
Some courts have also held that it is acceptable for an
employer to pay male employees more than similarly situated
female employees based on the higher prior salaries enjoyed by
the male workers. In addition, employers can successfully
justify paying a male employer more if the higher salary is a
business tactic to lure [or retain] an employee.
In Drury v. Waterfront Media, Inc.\146\ the plaintiff was
hired as the Director of Project Management, responsible for
organizing and managing all corporate projects, at a salary of
$85,000 with an annual bonus of $15,000, and $25,000 in stock
options (in her previous position, she had earned $85,000).
Over a year later she was promoted to Vice-President of
Production and Operations with a salary of $95,000 and a bonus
potential of $20,000.
---------------------------------------------------------------------------
\146\ 2007 U.S. Dist. LEXIS 18435 (S.D.N.Y. Mar. 8, 2007).
---------------------------------------------------------------------------
However, another vice-president (for customer service) was
paid $110,000 with the possibility of a $25,000 bonus and
$50,000 in stock options. This difference was the basis of the
plaintiff's equal pay claim. In asserting its affirmative
defense, however, the employer claimed that it was forced to
pay the male vice-president more, not based on any sex-based
wage differential but in order to lure him away from his prior
employer. The court agreed and held that ``salary matching and
experience-based compensation are reasonable, gender-neutral
business tactics, and therefore qualify as ``a factor other
than sex.'' \147\
---------------------------------------------------------------------------
\147\ Id.
---------------------------------------------------------------------------
The same conclusion was reached in Glunt v. GES Exposition
Services,\148\ where the plaintiff brought a claim that her
employer violated the EPA in two ways. First, she alleged that
in her capacity as a project coordinator she was paid less than
three male co-workers while performing essentially the same
function. Second, she alleged that after being promoted to
account executive, her employer failed to raise her salary to a
level parallel to the starting salaries of the three male
account executives. The court found that in each case, factors
other than sex justified the employer paying Glunt less than
her similarly situated male co-workers.
---------------------------------------------------------------------------
\148\ 123 F. Supp. 2d 847 (D. Md. 2000).
---------------------------------------------------------------------------
In its decision the court noted that ``offering a higher
starting salary in order to induce a candidate to accept the
employer's offer over competing offers has been recognized as a
valid factor other than sex justifying a wage disparity.''
\149\ Furthermore, ``prior salary may be one of several gender-
neutral factors employed in setting the higher salary of a male
coming in from the outside.'' \150\ In cases where a male
employee is transferred or reassigned, ``it is widely
recognized that an employer may continue to pay [a transferred
or reassigned employee] his or her previous higher wage without
violating the EPA, even though the current work may not justify
the higher wage.'' \151\
---------------------------------------------------------------------------
\149\ Id. at 859.
\150\ Id.
\151\ Id.
---------------------------------------------------------------------------
Several other court decisions have similarly upheld such
pay disparities. In Horner v. Mary Institute \152\ the Eighth
Circuit Court allowed a private school to justify paying a male
teacher it wanted to hire from the outside more pay because
such payment was necessary to secure him for the position. In
Englemann v. NBC,\153\ the Court found that ``salary matching''
was a valid defense to pay disparity; and in Sobol v. Kidder,
Peabody & Co.,\154\ the Court held that a pay disparity is
permissible when an employer paid males more as a ``premium to
attract and hire talented new bankers.'' \155\
---------------------------------------------------------------------------
\152\ 613 F. 2d 706 (8th Cir.)
\153\ 1996 U.S. Dist. LEXIS 1865 (S.D.N.Y. 1996).
\154\ 49 F. Supp. 2d 208, 220 (S.D.N.Y. 1999)
\155\ Id.
---------------------------------------------------------------------------
Finally, in Kouba v. Allstate Ins. Co.,\156\ and Wernsing
v. Department of Human Services,\157\ the courts allowed the
employer to use prior salaries as a justifiable ``factor other
than sex.'' In Kouba, the Ninth Circuit found that the employer
had shown that the prior salary at issue corresponded roughly
to ``the employee's ability * * * and predict [ed] a new
employee's performance as a sales agent,'' while in Wernsing,
the Seventh Circuit upheld the policy of the Illinois
Department of Human Services that based its salary levels on
prior earnings.
---------------------------------------------------------------------------
\156\ 691 F. 2d 873 (9th Cir. 1982)
\157\ 427 F. 3rd 466 (7th Cir. 2005).
---------------------------------------------------------------------------
In all of these cases, the courts essentially relied upon
``market force'' or ``prior pay'' arguments for pay
differentials between men and women without requiring further
evidence of the nature of that market force. Such evidence
might include, for example, evidence that women's earnings in a
given position are not frequently or consistently lower than
men's, thereby demonstrating that the lower pay offer to a
woman at hiring did not piggy-back on a sex-based differential.
While market forces may be a legitimate basis for determining
pay, market forces tainted with sex discrimination are not. The
broadly remedial purpose of the EPA is undermined where a
seemingly gender-neutral excuse for unequal pay between
similarly situated employees of opposite sex is based on or
derived from a sex-based differential.
Business Necessity: Under Title VII, in order to justify an
employment practice that has the effect of discriminating
against an employee on the basis of race, color, religion,
national origin or sex (a disparate impact case), an employer
must assert that the practice is consistent with business
necessity. Like a disparate impact case, cases brought under
the EPA, do not require a showing of intent. So a practice
(which includes the payment of wages) that may be ``fair in
form but discriminatory in operation'' \158\ is prohibited
under Title VII. The same is true with regard to the EPA.
---------------------------------------------------------------------------
\158\ Griggs v. Duke Power, 515 F.2d 86 (4th Cir. 1975).
---------------------------------------------------------------------------
Both Title VII and the EPA afford the employer
opportunities to defend their practices, but as previously
explained, the ``factor other than sex'' defense under the EPA
has been interpreted by the courts so broadly that nearly any
explanation for a wage differential is acceptable.\159\ This is
one of the main reasons that the EPA is ineffective.
---------------------------------------------------------------------------
\159\ AAUW supra note 34.
The business necessity defense originated in the case of
Griggs v. Duke Power Co,\160\ decided in 1975. In that case,
the Supreme Court determined that an employment practice, which
resulted in the exclusion of black employees from certain jobs
could only be justified in the case of business necessity
(``The touchstone is business necessity.'').\161\ However,
because the Court also introduced the concept of ``job
relatedness,'' and appeared to use the two concepts
interchangeably, there was some confusion over the years as
what the correct standard should be.\162\ This culminated in
the case of Wards Cove Packing Co., Inc. et. al. v. Antonio et.
al.,\163\ where the Court abandoned the concept of business
necessity altogether:
---------------------------------------------------------------------------
\160\ 401 U.S. 424 (1971).
\161\ Id. at 431.
\162\ See: Earl M. Maltz, The Legacy of Griggs v. Duke Power Co.: A
Case Study in the Impact of a Modernist Statutory Precedent, 1994 Utah
L. Rev. 1353(1994) at pp. 1371-1372.
\163\ 490 U.S. 642 (1989)
---------------------------------------------------------------------------
* * * the dispositive issue is whether a challenged
practice serves, in a significant way the legitimate
employment goals of the employer [citations omitted].
The touchstone of this inquiry is a reasoned review of
the employer's justification for his use of the
challenged practice. A mere insubstantial justification
will not suffice * * * At the same time, though, there
is no requirement that the challenged practice be
``essential'' or ``indispensible'' to the employer's
business.\164\
---------------------------------------------------------------------------
\164\ Id. at 659.
Congress responded, with the passage of the Civil Rights
Act of 1991, which overturned Wards Cove Packing and its
brethren and enshrined the business necessity defense into law
in Title VII disparate income cases.\165\ Under 42 U.S.C.
2000e(o)(1)(B) business necessity requires employment practices
to ``bear a significant relationship to a business objective of
the employer.'' \166\ For the purposes of showing business
necessity, ``unsubstantiated opinion and hearsay are not
sufficient; demonstrable evidence is required.'' \167\
Subsequent cases applying the business necessity standard
illustrate that the more rigorous showing an employer must make
to justify disparate treatment furthers the remedial purposes
of Title VII.\168\
---------------------------------------------------------------------------
\165\ 42 U.S.C. Sec. 2000e(o)(1).
\166\ In 42 U.S.C. Sec. 2000e(o)(1)(A), Congress also established
the business necessity standard in case of employment practices
involving selection: ``the practice must bear a significant
relationship to successful performance of the job.'' Since EPA cases
involve wages and wage scales, it is highly unlikely that a
circumstance will arise where this definition will be applied.
\167\ 42 U.S.C.Sec. 2000e(o)(2).
\168\ Lanning v. SEPTA, 308 F. 3d 286 (3rd Cir. 2002); United
States v. Delaware, 2004 U.S. Dist. LEXUS 4560 (D. Del 2004).
---------------------------------------------------------------------------
The Paycheck Fairness Act seeks to strengthen the EPA by
insisting that the ``factor other than sex defense * * * be
confined to business practices shown to serve compelling and
legitimate interests of the employer.'' \169\ Requiring an
employer to show that a job is consistent with business
necessity applies a term that is already specifically defined
in civil rights law \170\ and thereby provides workers and
employers with a known legal standard for assessing pay
disparities.
---------------------------------------------------------------------------
\169\ Sellers Testimony.
\170\ 42 U.S.C. Sec. 2000e(o)(1).
---------------------------------------------------------------------------
c. Class actions
The EPA requires plaintiffs to affirmatively `opt-in' to a
class action lawsuit. This is contrary to other employment
discrimination laws, which allow women with a pay
discrimination claim within a certified class to `opt-out' of a
multiple-claim case pursuant to Rule 23 of the Federal Rules of
Civil Procedure.\171\ Title VII, for example, provides for
claimants to `opt-out' of multi-party claims.\172\
---------------------------------------------------------------------------
\171\ Sellers Testimony at 10.
\172\ 42 U.S.C. Sec. 2000e-2(n).
---------------------------------------------------------------------------
Allowing plaintiffs to opt-out, rather than requiring them
to affirmatively opt-in, is important. The current EPA rule
excludes women who may not be aware they have a claim and also
excludes women who may even be aware they have a claim but are
afraid that they will be retaliated against in the workplace if
they affirmatively opt in. H.R. 1338 puts claimants under the
EPA in the same position as other victims of discrimination who
automatically become part of a class-action unless they
affirmatively opt-out of the class.\173\
---------------------------------------------------------------------------
\173\ Sellers Testimony at 11
---------------------------------------------------------------------------
d. Damages
Damages under the original EPA are limited to backpay and
liquidated damages in the form of double back pay. No
compensatory or punitive damages are available, and liquidated
damages may only be recovered if the employer fails to
demonstrate good faith and reasonable grounds for believing it
was in compliance with the Act.\174\ By contrast, Title VII of
the Civil Rights Act (Title VII) permits successful
complainants to recover compensatory and punitive damages.
---------------------------------------------------------------------------
\174\ ``. . . if the employer shows to the satisfaction of the
court that the act or omission giving rise to such action was in good
faith and that he had reasonable grounds for believing that his act or
omission was not a violation of the Fair Labor Standards Act of 1938,
as amended [29 USCS Sec. Sec. 201 et seq., generally; for full
classification, consult USCS Tables volumes], the court may, in its
sound discretion, award no liquidated damages or award any amount
thereof not to exceed the amount specified in section 16 of such Act
[29 USCS Sec. 216].'' 29 USCS Sec. 260. In addition, one commentator
has stated that even when ``liquidated damages are unavailable . . .
the amounts available to compensate plaintiffs tend to be
insubstantial.'' Greenberger Testimony at 7.
---------------------------------------------------------------------------
EPA sanctions are inadequate and ``deprive women subjected
to pay discrimination of full relief.'' \175\ In addition, they
do nothing to deter future discrimination in the workplace and
are often viewed by employers simply as the cost of doing
business. Joseph Sellers, testifying before the Subcommittee on
Workforce Protections in July 2007, explained:
---------------------------------------------------------------------------
\175\ Id.
The remedy fails to provide an adequate incentive for
employers to engage regularly in the examination of
their own compensation practices and to investigate and
address any pay disparities that may be detected. Even
the payment of lost wages doubled where an employer has
failed to demonstrate it acted in good faith permits
employers to tolerate the risk that employment
practices resulting in gender-based pay disparities
will be detected and challenged, as they can compute
precisely the economic exposure and determine whether
it is a tolerable cost of doing business.\176\
---------------------------------------------------------------------------
\176\ Sellers Testimony.
Damages under Title VII are capped and can be no more than
$300,000.\177\ These caps do little to further the actual
purpose of punitive damages, which is to punish the defendant
and deter future misconduct by the defendant and others
similarly situated.\178\ As such, the Paycheck Fairness Act
does not limit damages in this regard.
---------------------------------------------------------------------------
\177\ Id.
\178\ The Ineffectiveness of Capped Damages in Cases of Employment
Discrimination: Solutions Toward Deterrence; Ruggles, Vanessa;
Connecticut Public Interest Law Journal; Vol. 6:1 at 147 (2006) citing
Kemezy v. Peters, 79 F.3d 33, 34 (7th Cir. 1996) (noting that
``deterrence is a purpose of punishment, rather than, as the
formulation implies, a parallel purpose, along with punishment itself,
for imposing the specific form of punishment that is punitive
damages'')
---------------------------------------------------------------------------
The unfairness of damage limitations is illustrated in
Brady v. Wal-Mart Stores, Inc.\179\ where the plaintiff Patrick
Brady brought a suit against Wal-Mart and the store manager,
alleging violations of the American with Disabilities Act (ADA)
and the New York Human Rights Law. In his suit, Brady, who has
cerebral palsy, claimed Wal-Mart subjected him to adverse work
conditions and a hostile work environment based on his
disability. The jury agreed with Brady and awarded him a
settlement for back pay and emotional pain and suffering, and
$5 million award in punitive damages. Unfortunately, the ADA's
remedies are capped and the judge was required to reduce the
award to $300,000.\180\ In his opinion, Judge Orenstein stated
that his ruling ``respects the law, but it does not achieve a
just result,'' \181\ especially for one of the biggest
companies in America.\182\
---------------------------------------------------------------------------
\179\ 2005 U.S. Dist. LEXIS 12151 (2005).
\180\ Id.
\181\ Brady, 2005 U.S. Dist. LEXIS 12151, at 10, aff'd 2008 U.S.
App. LEXIS 13850 (2d Cir.).
\182\ Supra note at 180.
---------------------------------------------------------------------------
Punitive damages, especially uncapped punitive damages, are
necessary to deter unscrupulous businesses from harming workers
and consumers to gain a competitive advantage.\183\ Often,
without punitive damages, a business may treat its labor
violations as merely a cost of doing business. Furthermore,
empirical studies conducted by the US Department of Justice's
Bureau of Justice Statistics estimated that from 1991-92 and in
the years 1996 and 2001, punitive damages were awarded in less
than one percent of all civil actions.\184\ Juries awarded
punitive damages in only 5.7 percent of tort and contract cases
when the plaintiff prevailed at trial.\185\ The Department of
Justice also studied awards made in the nation's seventy-five
largest counties in 2001 and found that out of seventy products
liability cases, plaintiffs received punitive damages in only
three cases. Out of three-hundred and eleven medical
malpractice cases, plaintiffs received punitive damages in just
fifteen cases.\186\
---------------------------------------------------------------------------
\183\ In Defense of Punitive Damages in Products Liability: Testing
Tort Anecdotes with Empirical Data; Rustad, Michael; Iowa Law Review;
78 at 12 (1992-1993).
\184\ Bureau of Justice Statistics, U.S. Dept. of Justice, Civil
Justice Survey of State Courts, 1992: Civil Jury Cases and Verdicts in
Large Counties, Bureau of Justice Statistics Special Report NCJ 154346
(July 1995) [hereinafter ``Bureau of Justice Statistics July 1995''];
Bureau of Justice Statistics, U.S. Dept. of Justice, Civil Justice
Survey of State Courts, 1996: Civil Trial Cases and Verdicts in Large
Counties, 1996, Bureau of Justice Statistics Bulletin, NCJ 173426
(Sept. 1999) [hereinafter ``Bureau of Justice Statistics September
1999'']; Bureau of Justice Statistics, U.S. Dept. of Justice, Civil
Justice Survey of State Courts, 2001: Civil Trial Cases and Verdicts in
Large Counties, 2001, NCJ 202803 (Apr. 2004) [hereinafter ``Bureau of
Justice Statistics April 2004'']; Bureau of Justice Statistics, U.S.
Dept. of Justice, Civil Justice Survey of State Courts, 2001: Tort
Trials and Verdicts in Large Counties, 2001, NCJ 206240 (Nov. 2004)
[hereinafter ``Bureau of Justice Statistics November 2004'']; Bureau of
Justice Statistics, U.S. Dept. of Justice, Civil Justice Survey of
State Courts, 2001: Punitive Damage Awards in Large Counties, 2001, NCJ
208445 (Mar. 2005) [hereinafter ``Bureau of Justice Statistics March
2005'']
\185\ Brief of Amici Curiae in support of respondent in Philip
Morris USA v Mayola Williams No. 05-1256 at 5.
\186\ Id at 9.
---------------------------------------------------------------------------
There is precedent for uncapped damages against employers
who discriminate;\187\ damages awarded under Section 1981 for
race or national origin discrimination are not subject to
statutory limitations.
---------------------------------------------------------------------------
\187\ 42 U.S.C. Sec. 1981.
---------------------------------------------------------------------------
Still, even in those cases, courts generally do not award
unjustifiable or excessive damages and base relief based on
sound factors, such as the willfulness or egregiousness of the
violation \188\ and the effectiveness of damages as a
deterrent.\189\ Because decisions are made by each court on a
case by case basis, courts are able to strike the needed
balance between assessing penalties based upon particular facts
and circumstances and assessing the severity of the
discrimination.\190\
---------------------------------------------------------------------------
\188\ Court found it improper to award punitive damages in the
absence of evidence of egregious conduct, willfulness, or malice on the
part of the employer. Beauford v. Sisters of Mercy-Province of Detroit,
Inc. 816 F2d. 1104 (6th Cir. 1987)
\189\ The appellate court reduced the punitive award amount when it
found that the employer's discriminatory act was minor and quickly
remedied. Circuit court reasoned that a higher amount would remove
monetary incentive to remedy minor violations, and would remove
incentive from escalating minor discrimination into major
discrimination. Lust v. Sealy, Inc., 383 F3d. 580 (7th Cir. 2004); See
also, Jones v. Western Geophysical Co., 761 F.2d 1158 (5th Cir. 1985)
(Employer who has been found to have engaged in racial discrimination
need not pay punitive damages to plaintiff if said employer is taking
steps to eliminate discrimination, and if evidence against employer is,
at times, ambiguous and does not necessarily lead to the conclusion
that the employer behaved maliciously in practice of racial
discrimination); Beauford v. Sisters of Mercy-Province of Detroit,
Inc., 816 F.2d 1104 (6th Cir. 1987) (holding that it was improper to
award punitive damages to employee alleging race discrimination without
evidence that employer acted egregiously, willfully, or maliciously in
failing to promote an plaintiff because of his race); Stephens v. South
Atlantic Canners, Inc., 848 F.2d 484 (4th Cir. 1988) (holding that
extraneous materials submitted to the jury relating to discharged
employee's infractions warranted reversal of punitive damages issued
against his former employer in his discriminatory discharge case
brought under 42 USCS Sec. 1981 and Title VII.); Edward v. Jewish
Hospital, 855 F.2d 1345 (8th Cir. 1988) (Court denied reducing punitive
damages award of $25,000 to reflect reduction in actual damages from
$50,000 to $1 nominal damages because of lack of a general
proportionality rule requiring nominal damages to invalidate punitive
damages award.)
\190\ The Court distinguished the need to address levels of
discrimination in terms of appropriate amount for recovery, reasoning
that a higher amount would remove monetary incentive to remedy minor
violations, and would remove incentive from escalating minor
discrimination into major discrimination. Lust v. Sealy, Inc., 383 F3d.
580 (7th Cir. 2004)
---------------------------------------------------------------------------
The Paycheck Fairness Act provides for uncapped damages and
as such ``redresses the deficiencies in the remedies available
under the EPA [and] eliminates a shortcoming of the EPA that
has long diminished in its value as a vehicle for addressing
unlawful pay disparities.'' \191\ Longstanding judicial
discretion under Sec. 1981 directly addresses these concerns of
frivolous and excessive claims for relief.\192\
---------------------------------------------------------------------------
\191\ Testimony of Joseph Sellers at 14.
\192\ See generally, Jones v. Western Geophysical Co., 761 F.2d
1158 (5th Cir. 1985) (Employer who has been found to have engaged in
racial discrimination need not pay punitive damages to plaintiff if
said employer is taking steps to eliminate discrimination, and if
evidence against employer is, at times, ambiguous and does not
necessarily lead to the conclusion that the employer behaved
maliciously in practice of racial discrimination); Beauford v. Sisters
of Mercy-Province of Detroit, Inc., 816 F.2d 1104 (6th Cir. 1987)
(holding that it was improper to award punitive damages to employee
alleging race discrimination without evidence that employer acted
egregiously, willfully, or maliciously in failing to promote an
plaintiff because of his race); Stephens v. South Atlantic Canners,
Inc., 848 F.2d 484 (4th Cir. 1988) (holding that extraneous materials
submitted to the jury relating to discharged employee's infractions
warranted reversal of punitive damages issued against his former
employer in his discriminatory discharge case brought under 42 USCS
Sec. 1981 and Title VII.); Edward v. Jewish Hospital, 855 F.2d 1345
(8th Cir. 1988) (Court denied reducing punitive damages award of
$25,000 to reflect reduction in actual damages from $50,000 to $1
nominal damages because of lack of a general proportionality rule
requiring nominal damages to invalidate punitive damages award.)
---------------------------------------------------------------------------
e. Retaliation for discussing or disclosing salary information
The EPA does not explicitly protect employees who discuss
or disclose salary information. As previously noted, many
employers discourage and may even have workplace policies
against the sharing of salary information. This makes it
extremely difficult to detect pay discrimination. For example,
Lilly Ledbetter was paid less than her male co-workers for
years but she did not realize it. A company policy prohibited
her from discussing her pay with her co-workers. The only
reason she discovered the pay discrimination when someone sent
her an anonymous note.\193\
---------------------------------------------------------------------------
\193\ Ledbetter supra note 65.
---------------------------------------------------------------------------
The National Labor Relations Act (NLRA) prohibits
retaliation against employees \194\ who share salary
information for the purposes of union organizing. Section 7
protects the right of employees to join a union and ``engage in
* * * concerted activities for the purpose of collective
bargaining or other mutual aid or protection * * *'' \195\
Concerted activity includes the right to discuss wages, hours
and other terms and conditions of employment.\196\ It also bans
blanket prohibitions on discussing wages.\197\ Even with the
National Labor Relations Board's recent turn to roll back
worker protections, this basic rule has been upheld.\198\
However, supervisors are not protected under the NLRA and can
be prevented and reprimanded for discussing and/or sharing
salary information.
---------------------------------------------------------------------------
\194\ 29 U.S.C. Sec. 152(3)
\195\ 29 U.S.C. Sec. 157
\196\ Id.
\197\ 29 U.S.C. 158(a)(1) provides that it is an unfair labor
practice for an employer to interfere, retrain or coerce employees in
the exercise of the rights guaranteed in section 157.
\198\ See, Northeastern Land Services, Ltd. 352 NLRB No. 89 (June
27, 2008) ([Respondent's] confidentiality provision is unlawful * * *
the provision, by its clear terms, precludes employees from discussing
compensation). See also, Dickens, Inc. and Wenqing Lin. 352 NLRB No. 84
(May 30, 2008)([the employer] admitted * * * he instructed employees
not to discuss their bonus with other, recently hired employees * * *
such comments reasonably tend to coerce employees in the exercise of
Section 7 rights).
---------------------------------------------------------------------------
Under the FLSA, employers are prohibited from retaliating
against employees who seek to assert their rights under the
Act.\199\ As such, this protection extends to a woman claiming
an EPA violation who has filed, instituted, initiated or
participated in any capacity in a proceeding under or related
to [the Act].\200\ However, in some cases interpreting the
anti-retaliatory provision \201\ the courts have limited the
protection afforded by anti-retaliation provisions,
particularly when they find that an aggrieved worker has not
stepped outside her role representing the employer.
---------------------------------------------------------------------------
\199\ 29 U.S.C. Sec. 215(a)(3) provides that it shall be unlawful
for any person to discharge or in any other manner discriminate against
any employee because such employee has filed any complaint or
instituted or caused to be institute any proceeding under or related to
this Act generally; for full classification, or has testified or is
about to testify in any such proceeding or has served or is about to
serve on an industry committee.
\200\ 29 U.S.C. Sec. 215(a)(3)
\201\ Id.
---------------------------------------------------------------------------
For example, in McKenzie v. Reinberg's Inc,\202\ the
plaintiff alleged that she was fired in violation of the FLSA's
anti-retaliation provision because she questioned whether her
employer was in compliance with the overtime provisions of the
FLSA. The plaintiff was a personnel director who, as part of
her job, monitored compliance with state and federal wage and
hour laws. After attending a training on the FLSA, she
determined that her employer was likely in violation of law's
overtime provisions. She brought this to her employer's
attention and was fired as a result.\203\ The court held that
because McKenzie merely articulated her concerns about the wage
and hour violations with her employer:
---------------------------------------------------------------------------
\202\ 94 F.3d 1478 (1996)
\203\ See also: Hagan v. Echostar, 529 F.3d 617 (2008) where the
Court found that the plaintiff was not protected for participating in
activities that ``are neither adverse to the company nor supportive of
adverse action to the company.'' The Court stated that ``in order to be
protected must step out of role of representing the company by either
filing or threatening to file an action adverse to the employer, by
actively assisting other employees in asserting FLSA rights or by
otherwise engaging in activities that reasonably could be perceived as
directed toward the assertion of rights protected by the FLSA.''
[she] did not engage in activity protected under
Sec. 215(a)(3). To qualify for the protections the
employee must step outside his or her role of
representing the company and either file (or threaten
to file) an action adverse to the employer, actively
assist other employees in asserting FLSA rights, or
otherwise engage in activity that reasonably could be
perceived as directed towards the assertion of rights
protected by the FLSA.\204\
---------------------------------------------------------------------------
\204\ McKenzie, supra note 202.
The Sixth Circuit reached a similar--and misguided--
conclusion in Crawford v. Metropolitan Government of
Nashville,\205\ when it limited the reach of the Title VII
anti-retaliation provision by finding that its protections did
not extend to internal investigations. In that case, the
plaintiff alleged she was fired because, in the midst of an
internal investigation conducted by the employer she made
statements to the in-house investigator about sexual harassment
by another employee. The court in ruling against the plaintiff,
misinterpreted the Title VII provision when it held that
employer initiated investigations are not covered under the
Act.
---------------------------------------------------------------------------
\205\ 2006 U.S.APP. LEXIS 28280.
---------------------------------------------------------------------------
Protecting employees who participate in employer initiated
investigations does not ``expand'' the law (``expanding the
purview of the participation clause to cover such
investigations would simultaneously discourage them.'').\206\
As such, the decision in Crawford is contrary to the principle
that ``employee actions [should] receive the broadest
protections from retaliation, protecting employees from adverse
consequences even if their beliefs about discrimination turn
out to be factually or legally incorrect, as long as the
employees acted in good faith.'' \207\
---------------------------------------------------------------------------
\206\ Id.
\207\ Joanna Grossman & Deborah Brake, The Supreme Court Agrees to
Review a Sixth Circuit Ruling that Narrowly Construes Title VII's
Protections Against Retaliation, (Feb. 7, 2008) available at, http://
writ.news.findlaw.com/_scripts/printer--friendly.pl?_page=/commentary/
_20080207_brake.html.
---------------------------------------------------------------------------
A key component in eliminating the wage gap is protecting
workers who discuss wages or participate in an EPA suit by
ensuring that they can do so without fear of reprimand. Even
when employers do not have explicit policies ``legal or not,
workers are expected to keep their lips sealed about their
salaries. It's the unwritten law.'' \208\ As one employer
advised other employers ``sit down with people, talk to them *
* *. be clear: it's not OK to talk salary at the office.''
\209\
---------------------------------------------------------------------------
\208\ Sacha Cohen, Shhh, They're Talking Salary, USA Today (Dec.
20, 2002) (quoting Lee Miller, Co-author of A Women's Guide to
Successful Negotiating), Available at: http://www.usatoday.com/_money/
jobcenter/_jobhunt/salary/_2002-12-20-salary-_talk_x.htm.
\209\ Id. (Quoting Bob Lambert, managing partner at Christian &
Timbers, Irvine, California).
---------------------------------------------------------------------------
H.R. 1338 protects the rights of employees to discuss and
disclose wage information in the workplace and affirms the
rights of workers to disclose this information as part of an
employer or government investigation. Its provisions are
intended to give robust protection to those employees who act
to oppose violations of the Act, as well as to provide a shield
of protection for the kinds of discussions that will allow
employees to uncover unequal pay. However, the bill recognizes
that employers may entrust some employees with access to wage
information as part of an essential function \210\ of their
job. These confidential employees will not be protected for
disclosing the wages to those who do not otherwise have access.
However, they could (1) disclose their own wages; (2) disclose
wage issues ``up the chain'' or ``horizontally'' if they become
aware of potential pay discrimination regarding other
employees; or (3) disclose wages in response to or in
furtherance of an employer or government investigation or other
proceeding under the Act.
---------------------------------------------------------------------------
\210\ ``Essential job function'' as used in the Americans with
Disabilities Act, 42 U.S.C. 31211 generally means ``the fundamental job
duties of the employment position. Factors to be weighed in this
determining an essential function include: (1) the reason(s) the
position exists; (2) the number of employees whose functions are
similar; (3) the specialized nature of the job; and (4) the expertise
needed to perform the required functions.
---------------------------------------------------------------------------
Section-by-Section Analysis
Section 1 is the short title.
Section 2 contains the findings.
Section 3(a) clarifies the ``any factor other than sex''
defense by requiring employers to provide non-gender reasons
for the difference in wages based on a business justification.
To successfully raise this affirmative defense an employer must
demonstrate that the disparity is based on a bona fide factor
other than sex, such as education, training, or experience,
that is: (1) not based upon or derived from a sex-based
differential; and (2) related to the position in question; and
(3) consistent with business necessity. Such a defense shall
not apply if the employee can then demonstrate that an
alternative employment practice exists that would serve the
same business purpose without producing the differential, and
the employer refused to adopt the alternative.
Section 3(a) broadens where a female employee can look to
find a male comparator. Employees shall be considered to work
in the same establishment if the employees work at workplaces
located in the same county or similar political subdivision of
a state. In addition, the bill recognizes that establishment,
consistent with rules or guidance offered by the EEOC, can be
applied more broadly when, for example, there is a central
decision making structure that makes the salary and hiring
decisions for employees in multiple locations.
Section 3(b) provides that this subsection applies to
applicants for employment.
Section 3(c) provides that employers are prohibited from
retaliating against employees who share salary information with
their co-workers. Employees are protected when they have
disclosed, discussed, or inquired about the wages of another
employee. In addition, employees are protected if they make a
charge, file a complaint or participate in any way in a
government initiated or employer initiated investigation,
including but not limited to testifying, assisting or
participating in anyway an investigation, proceeding, hearing
or has served or plans to serve on an industry committee.
Section 3(c) contains limiting language on when the anti-
retaliation protections apply extend to employees with access
to wage information of other employees as an essential function
of their job. These employees such as payroll and human
resource personnel would not be protected if they disclose that
wage information to individuals who do not otherwise have
access to this information. However, they would be protected
if: (1) they were disclosing that wage information to someone
who also has access to such information; (2) they were
disclosing their own wages; or (3) the disclosure was in
response to a complaint or charge or in furtherance of an
investigation, proceeding, hearing or action under the EPA,
including an internal employer investigation.
Section 3(d) provides that compensatory and punitive
damages are available in private EPA suits. In addition, class
action lawsuits brought under the EPA shall proceed as opt-out
class actions in conformity with the Federal Rules of Civil
Procedure.
Section 3(e) provides for compensatory and punitive damages
and class actions in cases (for minimum wages and unpaid
overtime compensation) brought by the Secretary of Labor on
behalf of an employee.
Section 4 requires the EEOC and the OFCCP (subject to the
availability of funds) to provide training to EEOC employees on
pay discrimination.
Section 5(a) authorizes the Secretary of Labor (after
consultation with the Secretary of Education) to establish and
carry out a grant program to provide negotiation skills
training programs for girls and women. The training would help
girls and women strengthen their negotiation skills to obtain
higher salaries and equal pay.
Section 5(b) requires the Secretary to issue regulations or
guidelines integrating negotiation skills training into
existing education and work training programs.
Section 5(c) mandates the Secretaries of Labor and
Education to submit an annual report to Congress on the grant
program.
Section 6 requires the Secretary of Labor to conduct
studies and provide information to employers, labor
organizations and the public on ways to eliminate pay
disparities. This includes conducting and promoting research,
publishing and otherwise making available findings from studies
and other materials; sponsoring and assisting State and
community informational and educational programs; providing
information on the means of eliminating pay disparities; and
recognizing and promoting achievements and convening a national
summit.
Section 7 establishes an annual award entitled the
``Secretary of Labor's National Award for Pay Equity in the
Workplace'' for businesses that demonstrate substantial effort
in eliminating pay disparities.
Section 8 requires the EEOC, within 18 months of enactment,
to survey pay data already available, and based on the results
of the survey, issue regulations to provide for the collection
of pay information from employers identified by sex, race and
national origin of employees.
Section 9(a) requires the continued collection by the
Commissioner of Labor Statistics of gender-based data in the
Current Employment Statistics survey.
Section 9(b) sets standards for the OFCCP in conducting
systematic wage discrimination analyses and reinstates the
Equal Opportunity Survey.
Section 9(c) requires the Secretary of Labor to distribute
(or make available) accurate information on wage
discrimination.
Section 10 authorizes the appropriation of $15 million to
carry out the Act.
Explanation of Amendments
The Amendment in the Nature of a Substitute is explained in
the body of this report.
Application of Law to the Legislative Branch
Section 203 of the Congressional Accountability Act (CAA)
applies certain rights and protections of the Fair Labor
Standards Act of 1938 (FLSA) to covered employees. These rights
and protections include the Equal Pay Act protections against
sex discrimination in wages paid to men and women. The House,
Senate, and Instrumentalities of Congress all have slightly
different regulations regarding the implementation of the FLSA.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates.
Earmark Statement
H.R. 1338 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
Roll Call
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
New Budget Authority and CBO Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 and with respect to
requirements of 3(c)(3) of rule XIII of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following estimate for
H.R. 1338 from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 25, 2008.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1338, the Paycheck
Fairness Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jessica
Sherry.
Sincerely,
Robert A. Sunshine
(For Peter R. Orszag, Director).
Enclosure.
H.R. 1338--Paycheck Fairness Act
H.R. 1338 would authorize the appropriation of $15 million
to enhance enforcement of the equal pay requirement established
in the Fair Labor Standards Act of 1938. Additionally, the bill
would authorize grants to eligible public agencies to provide
training to women and girls on negotiation skills. Finally, the
bill would direct the Secretary of Labor to conduct research on
the means available to eliminate gender-related pay
disparities, and would direct the Commissioner of Labor
Statistics to continue to collect data on female workers and
pay equity between men and women.
CBO estimates that implementing H.R. 1338 would cost $15
million over the 2009-2013 period, assuming appropriation of
the authorized amounts. The costs of this legislation fall
within budget function 500 (education, training, employment,
and social services). Enacting the bill would not affect direct
spending or revenues.
Section 4 of the Unfunded Mandates Reform Act (UMRA)
excludes from the application of that act any legislative
provisions that establish or enforce any statutory rights that
prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability. CBO has
determined that section 3 of H.R. 1338 would fall within that
exclusion because it would enforce an existing prohibition of
sex discrimination by pay. Therefore, CBO has not reviewed that
section of the bill for mandates.
The remaining provisions in the bill would impose no
mandates on state, local, or tribal governments. Training
programs authorized by the bill would benefit state, local, and
tribal governments. Likewise, the remaining provisions of this
bill contain no private-sector mandates as defined in UMRA.
The CBO staff contact for this estimate is Jessica Sherry.
This estimate was approved by Peter H. Fontaine, Assistant
Director for Budget Analysis.
Statement of General Performance Goals and Objectives
In accordance with Clause 3(c) of House rule XIII, the goal
of H.R. 1338 is to protect employees from wage discrimination.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress in the
Constitution to enact the law proposed by H.R. 1338. The
Committee believes that the amendments made by this bill are
within Congress' Constitutional authority under Article 1,
Section 8, Clause 3 (the Commerce Clause), Amendment V (Due
Process) and Section 1 of the Amendment XIV (the Equal
Protection and Due Process Clauses).
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 1338.
However, clause 3(d)(3)(B) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
FAIR LABOR STANDARDS ACT OF 1938
* * * * * * *
MINIMUM WAGES
Sec. 6. (a) * * *
* * * * * * *
(d)(1) [No employer having] (A) No employer having employees
subject to any provisions of this section shall discriminate,
within any establishment in which such employees are employed,
between employees on the basis of sex by paying wages to
employees in such establishment at a rate less than the rate at
which he pays wages to employees of the opposite sex in such
establishment for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are
performed under similar working conditions, except where such
payment is made pursuant to (i) a seniority system; (ii) a
merit system; (iii) a system which measures earnings by
quantity or quality or production; or (iv) a differential based
on [any other factor other than sex] a bona fide factor other
than sex, such as education, training, or experience: Provided,
That an employer who is paying a wage rate differential in
violation of this subsection shall not, in order to comply with
the provisions of this subsection, reduce the wage rate of any
employee. The provisions of this subsection shall apply to
applicants for employment if such applicants, upon employment
by the employer, would be subject to any provisions of this
section.
(B) The bona fide factor defense described in subparagraph
(A)(v) shall apply only if the employer demonstrates that such
factor (i) is not based upon or derived from a sex-based
differential in compensation; (ii) is job-related with respect
to the position in question; and (iii) is consistent with
business necessity. Such defense shall not apply where the
employee demonstrates that an alternative employment practice
exists that would serve the same business purpose without
producing such differential and that the employer has refused
to adopt such alternative practice.
(C) For purposes of subparagraph (A), employees shall be
deemed to work in the same establishment if the employees work
for the same employer at workplaces located in the same county
or similar political subdivision of a State. The preceding
sentence shall not be construed as limiting broader
applications of the term ``establishment'' consistent with
rules prescribed or guidance issued by the Equal Opportunity
Employment Commission.
* * * * * * *
PROHIBITED ACTS
Sec. 15. (a) After the expiration of one hundred and twenty
days from the date of enactment of this Act, it shall be
unlawful for any person--
(1) * * *
* * * * * * *
(3) to discharge or in any other manner discriminate
against any employee because such [employee has filed
any complaint or instituted or caused to be instituted
any proceeding under or related to this Act, or has
testified or is about to testify in any such
proceeding, or has served or is about to serve on an
industry committee;] employee--
(A) has made a charge or filed any complaint
or instituted or caused to be instituted any
investigation, proceeding, hearing, or action
under or related to this Act, including an
investigation conducted by the employer, or has
testified or is planning to testify or has
assisted or participated in any manner in any
such investigation, proceeding, hearing or
action or in an investigation conducted by the
employer, or has served or is planning to serve
on an industry Committee; or
(B) has inquired about, discussed or
disclosed the wages of the employee or another
employee.
* * * * * * *
(c) Subsection (a)(3)(B) shall not apply to instances in
which an employee who has access to the wage information of
other employees as a part of such employee's essential job
functions discloses the wages of such other employees to
individuals who do not otherwise have access to such
information, unless such disclosure is in response to a
complaint or charge or in furtherance of an investigation,
proceeding, hearing, or action under section 6(d) or an
investigation conducted by the employer. Nothing in this
subsection shall be construed to limit the rights of an
employee provided under any other provision of law.
PENALTIES
Sec. 16. (a) * * *
(b) Any employer who violates the provisions of section 6 or
section 7 of this Act shall be liable to the employee or
employees affected in the amount of their unpaid minimum wages,
or the unpaid overtime compensation, as the case may be, and in
an additional equal amount as liquidated damages. Any employer
who violates section 6(d) shall additionally be liable for such
compensatory damages or punitive damages as may be appropriate,
except that the United States shall not be liable for punitive
damages. Any employer who violates the provisions of section
15(a)(3) of this Act shall be liable for such legal or
equitable relief as may be appropriate to effectuate the
purposes of section 15(a)(3), including without limitation
employment, reinstatement, promotion, and the payment of wages
lost and an additional equal amount as liquidated damages. An
action to recover the liability prescribed in [either of the
preceding sentences] any of the preceding sentences of this
subsection may be maintained against any employer (including a
public agency) in any Federal or State court of competent
jurisdiction by any one or more employees for and in behalf of
himself or themselves and other employees similarly situated.
[No employees] Except with respect to class actions brought to
enforce section 6(d), no employee shall be a party plaintiff to
any such action unless he gives his consent in writing to
become such a party and such consent is filed in the court in
which such action is brought. Notwithstanding any other
provision of Federal law, any action brought to enforce section
6(d) may be maintained as a class action as provided by the
Federal Rules of Civil Procedure. The court [in such action] in
any action brought to recover the liability prescribed in any
of the preceding sentences of this subsection shall, in
addition to any judgment awarded to the plaintiff or
plaintiffs, allow a reasonable attorney's fee to be paid by the
defendant, and costs of the action, including expert fees. The
right provided by this subsection to bring an action by or on
behalf of any employee, and the right of any employee to become
a party plaintiff to any such action, shall terminate upon the
filing of a complaint by the Secretary of Labor in an action
under section 17 in which (1) restraint is sought of any
further delay in the payment of unpaid minimum wages, or the
amount of unpaid overtime compensation, as the case may be,
owing to such employee under section 6 or section 7 of this act
by an employer liable therefor under the provisions of this
subsection or (2) legal or equitable relief is sought as a
result of alleged violations of section 15(a)(3).
(c) The Secretary is authorized to supervise the payment of
the unpaid minimum wages or the unpaid overtime compensation
owing to any employee or employees under section 6 or 7 of this
Act, or, in the case of a violation of section 6(d), additional
compensatory or punitive damages, and the agreement of any
employee to accept such payment shall upon payment in full
constitute a waiver by such employee of any right he may have
under subsection (b) of this section to such unpaid minimum
wages or unpaid overtime compensation and an additional equal
amount as liquidated damages, or such compensatory or punitive
damages, as appropriate. The Secretary may bring an action in
any court of competent jurisdiction to recover the amount of
the unpaid minimum wages or overtime compensation and an equal
amount as liquidated damages and, in the case of a violation of
section 6(d), additional compensatory or punitive damages. The
right provided by subsection (b) to bring an action by or on
behalf of any employee to recover the liability specified in
[the first sentence] the first or second sentence of such
subsection and of any employee to become a party plaintiff to
any such action shall terminate upon the filing of a complaint
by the Secretary in an action under this subsection in which a
recovery is sought of unpaid minimum wages or unpaid overtime
compensation under sections 6 and 7 or liquidated or other
damages provided by this subsection owing to such employee by
an employer liable under the provisions of subsection (b),
unless such action is dismissed without prejudice on motion of
the Secretary. Any sums thus recovered by the Secretary on
behalf of an employee pursuant to this subsection shall be held
in a special deposit account and shall be paid, on order of the
Secretary, directly to the employee or employees affected. Any
such sums not paid to an employee because of inability to do so
within a period of three years shall be covered into the
Treasury of the United States as miscellaneous receipts. In
determining when an action is commenced by the Secretary under
this subsection for the purposes of the statutes of limitations
provided in section 6(a) of the Portal-to-Portal Act of 1947,
it shall be considered to be [commenced in the case]
commenced--
(1) in the case of any individual claimant on the
date when the complaint is filed if he is specifically
named as a party plaintiff in the complaint, or if his
name did not so appear, on the subsequent date on which
his name is added as a party plantiff in such
action[.]; or
(2) in the case of a class action brought to enforce
section 6(d), on the date on which the individual
becomes a party plaintiff to the class action.
* * * * * * *
----------
CIVIL RIGHTS ACT OF 1964
* * * * * * *
TITLE VII--EQUAL EMPLOYMENT OPPORTUNITY
* * * * * * *
INVESTIGATIONS, INSPECTIONS, RECORDS, STATE AGENCIES
Sec. 709. (a) * * *
* * * * * * *
(f)(1) Not later than 18 months after the date of enactment
of this subsection, the Commission shall--
(A) complete a survey of the data that is currently
available to the Federal Government relating to
employee pay information for use in the enforcement of
Federal laws prohibiting pay discrimination and, in
consultation with other relevant Federal agencies,
identify additional data collections that will enhance
the enforcement of such laws; and
(B) based on the results of the survey and
consultations under subparagraph (A), issue regulations
to provide for the collection of pay information data
from employers as described by the sex, race, and
national origin of employees.
(2) In implementing paragraph (1), the Commission shall have
as its primary consideration the most effective and efficient
means for enhancing the enforcement of Federal laws prohibiting
pay discrimination. For this purpose, the Commission shall
consider factors including the imposition of burdens on
employers, the frequency of required reports (including which
employers should be required to prepare reports), appropriate
protections for maintaining data confidentiality, and the most
effective format for the data collection reports.
* * * * * * *
MINORITY VIEWS
INTRODUCTION
Committee Republicans are united in their support for the
simple proposition that equal work should be rewarded with
equal pay, irrespective of an employee's sex. Indeed, that very
principle has been the law of the land for decades. It is
already--as it should be--against federal law to discriminate,
in pay or other employment practices, on the basis of sex. To
the extent that wage disparities exist and are a product of
workplace discrimination, Committee Republicans are committed
to eliminating them in order to ensure a fair, productive, and
competitive workforce.
In 1963, Congress enacted the Equal Pay Act (EPA) within
the Fair Labor Standards Act.\1\ The EPA makes it illegal to
pay different wages to employees of the opposite sex for equal
work. One year later, Congress enacted comprehensive anti-
discrimination civil rights protection based on race, color,
national origin, religion, and sex under Title VII of the Civil
Rights Act.\2\ Together, these laws protect against sex
discrimination, and provide a range of remedies for victims. In
short, the question is not whether sex discrimination in the
workplace should be permitted. That question has been
answered--Committee Republicans agree that such discrimination
should not be tolerated: that is why it is a direct violation
of not one but two federal laws.
---------------------------------------------------------------------------
\1\ See 29 U.S.C. Sec. 206(d).
\2\ See 42 U.S.C. Sec. 2000e et seq.
---------------------------------------------------------------------------
It is against this backdrop that Committee Republicans
reject H.R. 1388, the so-called ``Paycheck Fairness Act.''
Simply put, H.R. 1338 does little to protect the wages and
paychecks of American workers, and far more to line the pockets
of the plaintiffs' trial-lawyer bar. The bill radically expands
liability and damages under the Equal Pay Act, while
dramatically limiting the ability of employers to defend claims
of discrimination based on pay disparities that arise from
wholly lawful and legitimate business purposes. For these
reasons, and as set forth more fully below, Committee
Republicans are united in their opposition to H.R. 1338.\3\
---------------------------------------------------------------------------
\3\ At markup on July 24, 2008, the bill was ordered reported
favorably to the House on a party-line vote of 26-17, with all
Republicans present voting against favorably reporting the measure.''
---------------------------------------------------------------------------
THE FLAWED ``WAGE GAP'' THEORY
Equal pay advocates claim that despite federal law
prohibiting discrimination in pay on the basis of gender,
female workers are still paid considerably less than male
workers, and thus a ``wage gap'' exists. Advocates commonly
support this claim with reference to the most recent census
data available, which indicated that in 2005, the average
median income for women was $31,858, roughly 77 percent of the
median income for men, which was $41,386.\4\ The Majority
argues that this flawed theory makes enactment of H.R. 1338
necessary. Committee Republicans reject that argument.
---------------------------------------------------------------------------
\4\ See U.S. Census Bureau, Current Population Survey, 2006 Annual
Social & Economic Supplement, PINC-05.
---------------------------------------------------------------------------
Pay equity advocates argue that the root cause of pay
inequity is the fact that ``many women and people of color are
still segregated into a few low-paying occupations. More than
half of all women workers hold sales, clerical and service
jobs. Studies show that the more an occupation is dominated by
women or people of color, the less it pays. * * * In other
words, certain jobs pay less because they are held by women and
people of color.'' \5\ Supporters thus appear to argue that
differences in wages between men and women (or minorities) are
not caused by intentional discrimination, or the fact that
these workers are paid less because of the nature of the jobs
they hold, but rather because certain jobs are held
predominantly by women or minorities, employers systematically
undervalue the job and thus ``underpay'' these workers.
---------------------------------------------------------------------------
\5\ See http://www.pay-equity.org/info--Q&A.html.
---------------------------------------------------------------------------
The logic of this assertion is readily discredited. Critics
of the wage gap theory note that the ``77 percent'' figure most
frequently cited as evidence of wage discrimination derived by
comparing the 2005 full-time (defined as working 35 hours per
week or more) median annual earnings of women with men, as
compiled by the Census Bureau. If the comparison is men and
women who work 40 hours weekly, this data shows women's
earnings at 88 percent of men's. Moreover, these statistics do
not necessarily take into account education, job title,
responsibility, regional labor markets, work experience,
occupation, and time in the work force. Critics of the ``wage
gap'' theory note that when economic studies include these
major determinants of income, rather than simple averages of
all men and women's salaries, the pay gap shrinks considerably.
GAO has reached similar conclusions.. In October 2003, GAO
released a report entitled ``Women's Earnings: Work Patterns
Partially Explain Difference between Men's and Women's
Earnings.''\6\ GAO's report found that a number of factors are
critical to resolving the issue of whether a ``pay gap''
exists, and notably explained that the agency could not
conclude that the ``wage gap'' was simply a function of wage or
sex discrimination. As GAO summarized (emphasis added):
\6\ A copy of the complete report is available at http://
www.gao.gov/new.items/d0435.pdf.
Of the many factors that account for differences in
earnings between men and women, our model indicated
that work patterns are key. Specifically, women have
fewer years of work experience, work fewer hours per
year, are less likely to work a full-time schedule, and
leave the labor force for longer periods of time than
men. Other factors that account for earnings
differences include industry, occupation, race, marital
status, and job tenure. When we account for differences
between male and female work patterns as well as other
key factors, women earned, on average, 80 percent of
what men earned in 2000. While the difference
fluctuated in each year we studied, there was a small
but statistically significant decline in the earnings
difference over the time period.
Even after accounting for key factors that affect
earnings, our model could not explain all of the
difference in earnings between men and women. Due to
inherent limitations in the survey data and in
statistical analysis, we cannot determine whether this
remaining difference is due to discrimination or other
factors that may affect earnings. For example, some
experts said that some women trade off career
advancement or higher earnings for a job that offers
flexibility to manage work and family responsibilities.
In conclusion, while we were able to account for much
of the difference in earnings between men and women, we
were not able to explain the remaining earnings
difference. It is difficult to evaluate this remaining
portion without a full understanding of what
contributes to this difference. Specifically, an
earnings difference that results from individuals'
decisions about how to manage work and family
responsibilities may not necessarily indicate a problem
unless these decisions are not freely made. On the
other hand, an earnings difference may result from
discrimination in the workplace or subtler
discrimination about what types of career or job
choices women can make. Nonetheless, it is difficult,
and in some cases, may be impossible, to precisely
measure and quantify individual decisions and possible
discrimination. Because these factors are not readily
measurable, interpreting any remaining earnings
difference is problematic.
Given the flaws in its advocates' logic, and the absolute
lack of definitive evidence that a ``wage gap'' counsels
enactment of sweeping reforms to the Equal Pay Act and other
federal laws, Committee Republicans question the premise upon
which H.R. 1338 is founded.
SUBSTANTIVE CONCERNS WITH H.R. 1388
Aside from questions as to its necessity, Committee
Republicans oppose H.R. 1338 for numerous policy reasons. Among
the bill's most objectionable provisions are those described
below.\7\
---------------------------------------------------------------------------
\7\ During Committee consideration of the bill, an Amendment in the
Nature of a Substitute was offered by Chairman Miller and adopted by
voice vote. Except where otherwise noted, the discussion contained in
these Views reflects the provisions of H.R. 1388 as amended.
---------------------------------------------------------------------------
H.R. 1338 radically expands remedies
Perhaps most troubling, H.R. 1338 would expand remedies
under the Equal Pay Act to provide for unlimited punitive and
compensatory damages to a successful plaintiff, even where
there was absolutely no showing that any pay disparity were the
effect of intentional ``discrimination.'' In doing so, H.R.
1338 would place claims of discrimination in wages on the basis
of sex in a more favorable position than similar claims of pay
discrimination under Title VII or the Americans with
Disabilities Act, which properly provide for limited
compensatory and punitive damages. Indeed, taken in concert
with the remedies available under Title VII, remedies for
claims of pay discrimination under H.R. 1388 would be greater
than those available under any of our Nation's current civil
rights law schemes. This radical expansion of remedies,
particularly where they may be assessed without showing any
discriminatory intent, is reason enough to oppose this
legislation.
H.R. 1338 dramatically limits legitimate and lawful employer defenses
At the same time that it exponentially expands available
remedies, H.R. 1338 dramatically scales back an employer's
ability to defend itself from claims of ``pay discrimination''
where disparities arise from wholly lawful business decisions.
For example, as reported to the House, H.R. 1338 significantly
limits the ability of employers to justify differences in pay
on the basis of different work locations (as has been the case
throughout the 45-year history of the EPA). Rather, under the
bill as reported, an employee can compare his or her pay to any
other coworker in the same county or political subdivision (or
perhaps more broadly, given the bill's provision allowing for
the Equal Employment Opportunity Commission to define ``work
establishment'' even more broadly) in an attempt to prove ``pay
discrimination.'' The practical elimination of a legitimate
defense available to employers under current law simply fails
to recognize economic reality and our market-based economy.
Equally pernicious, H.R. 1388 strictly limits an employer's
ability to defend pay differentials which are accounted for by
reasons wholly unrelated to an employee's sex. Under current
law, an employer can defend itself from a claim of pay
discrimination by propounding evidence and convincing a trier
of fact that the differential is based not on sex, but on
another factor. H.R. 1388 would dramatically curtail the scope
of that defense, and require that an employer convince a judge
or jury that its reasons were ``bona fide'' and ``job related''
or required by ``business necessity''--essentially, putting
courts in charge of determining what is ``fair'' pay. Even more
egregious, even if an employer persuades the factfinder, an
employee is still entitled to argue that there are other ways
to address this business need. In short, H.R. 1388 would take
core management decisions out of the hands of employers, and
place them squarely in the realm of judges, juries, and trial
lawyers. This brazen attack on market economies must be
rejected.
H.R. 1338 eliminates employers' ability to protect the confidentiality
of wage and salary data
H.R. 1338 attempts to further undermine the ability of
employers to manage their businesses by adopting broad new
``anti-retaliation'' provisions relating to discussions of pay
or compensation, extending protection far beyond the scope of
protection already provided to employees under federal law.
Indeed, H.R. 1338 would effectively eliminate the ability of an
employer to maintain any policy protecting the privacy and
confidentiality of its payroll and wage information, even for
supervisory and managerial employees, long considered to be
part of the legitimate management of a business. These
provisions of the bill will only increase the burden on the
ability of businesses--particularly small businesses--to grow
and run their companies, and should be defeated.
H.R. 1338 will lead to more frivolous class action lawsuits
Finally, perhaps nowhere is this bill's true intent--to
generate more lawsuits and to line the pockets of trial
lawyers--made more evident as in its provisions expanding class
action lawsuits. Currently, under the Fair Labor Standards Act,
plaintiffs may sue on behalf of themselves and those similarly
situated, and pursue a collective action. To ensure that these
suits are brought on the basis of merit--and by those who wish
to pursue them--employees must ``opt in'' to these collective
suits. H.R. 1388 would reverse that presumption and eliminate
those safeguards, instead deeming all potential class members
to be joined to a suit, and placing the affirmative burden on
these plaintiffs--who may not even know of the suit's
existence--to opt out of a claim. These provisions are plainly
designed to ensure that plaintiffs' lawyers get the ``most bang
for their buck'' in bringing and pursuing class-action
lawsuits, far more than protecting the paychecks of American
workers, and should be rejected.
The above represent but a few of the most egregious policy
flaws in H.R. 1388.\8\ There are numerous others, ranging from
the ill-conceived resurrection of flawed statistical models
(one of which results in a 93 percent false positive) to the
creation of new ``negotiation skills'' training programs for
girls and women which, at best, have yet to be shown necessary,
and at worst smack of paternalism. Whether singly or taken as a
whole, the provisions of H.R. 1388 should be rejected.
---------------------------------------------------------------------------
\8\ Committee Republicans do applaud the removal of one provision
from the text of H.R. 1338 as introduced, namely, those provisions
within the bill which would have sought to furtively insert the long-
discredited theory of ``comparable worth'' in federal wage law. Section
7 of the introduced bill would have required the Secretary of Labor to
establish formal guidelines to enable employers to evaluate jobs using
supposedly ``objective'' criteria such as educational requirements,
skill requirements, independence, working conditions, and
responsibility, including decision-making responsibility and de facto
supervisory responsibility, but irrespective of market factors or
prevailing wage rates. Employers would have been encouraged to follow
the guidelines in order to eliminate ``unfair pay disparities between
occupations traditionally dominated by men or women'' and ``ensure that
women are paid fairly in comparison to men.'' Although nominally
``voluntary,'' these guidelines were plainly the first step down a
slippery slope of ``comparable worth'' theory. It is not difficult to
imagine these guidelines used as evidence to foist liability on
employers who did not ``voluntarily'' meet the Department's idea of
``worth,'' or to show favor or disfavor in government grants,
contracting, and the like. They were properly removed from H.R. 1338;
Committee Republicans urge that these provisions not be raised again
during consideration of this bill.
---------------------------------------------------------------------------
REPUBLICAN AMENDMENTS
Recognizing the fundamental failures of policy contained in
H.R. 1338, Committee Republicans did offer a number of
amendments during markup to highlight Republican priorities and
solutions for working women and men.
During Committee markup of H.R. 1388, Representative Cathy
McMorris Rodgers offered an amendment truly aimed at improving
the lives and working conditions of American workers,
especially women. The McMorris Rodgers amendment would have
allowed private sector workers to have the same choice as their
public sector counterparts--the option of choosing paid time
off in lieu of cash overtime wages. The amendment was identical
to the text of H.R. 6025, the Family-Friendly Workplace Act,
introduced earlier this year by Representative McMorris
Rodgers.
The McMorris Rodgers Amendment recognized that many working
women, particularly those in lower-wage occupations, find it
difficult to balance work and family responsibilities, a
situation made worse by the fact that employers are often
unable to accommodate employee requests for flexible work
schedules because of the 1938 Fair Labor Standards Act.
Current law prohibits private sector employers from
offering employees the choice of opting for paid time off as
compensation for working overtime hours (often called ``comp
time''). Comp time is not a new idea; public sector employers
and employees have long enjoyed this flexibility. The McMorris
Rodgers Amendment would have allowed private sector employers
the option of offering their employees the choice of paid time
off in lieu of cash for overtime, if--and only if--the employee
prefers comp time instead of overtime pay (importantly, an
employee would always have been entitled to opt for overtime
cash wages). Notwithstanding that it would improve the working
conditions of millions of Americans, the McMorris Rodgers
Amendment was ruled non-germane, and denied a vote.
To demonstrate just how far afield the Majority has gone
with this legislation, Representative Tom Price (R-GA) offered
two common-sense amendments during the Committee's
consideration of H.R. 1388. The first would simply have delayed
the implementation of the Equal Pay Act amendments contained in
the bill until the Secretary of Labor examined and reported to
Congress (within 90 days) on the bill's effect on employers'
ability to hire and retain workers, irrespective of gender.
Were the Secretary to determine that the expansion of the Equal
Pay Act contained in H.R. 1338 significantly hindered
recruitment and hiring, those provisions would not have become
effective. The Price Amendment would simply have allowed
Congress to know the facts before imposing draconian
legislative penalties and threatening jobs and economic
livelihood; Democrats unanimously rejected this common-sense
approach on a party-line vote.
The second amendment offered by Representative Price
underscored the true beneficiaries of this bill--the trial
lawyers' lobby. Under the Fair Labor Standards Act (and
unchanged by H.R. 1338), a successful plaintiff may recover a
``reasonable'' attorney's fee. Representative Price's amendment
would simply have provided that in no instance would an
attorney's fee in excess of two thousand dollars per hour be
considered ``reasonable.'' Democrats unanimously rejected the
simple proposition that no trial lawyer can ``reasonably'' be
paid a fee of more than two thousand dollars per hour.
Republicans offered a final amendment, reflecting their
belief that the time and energy of Congress should be devoted
to efforts to truly improve the lives of working Americans.
Notably absent from H.R. 1338, is a critical element when it
comes to wage disparities and the impact of such disparities on
working families: the high price of energy. For that reason,
Representative Howard P. ``Buck'' McKeon, the Committee's
Senior Republican, offered an amendment that would have
acknowledged that rising energy costs--which have been shown to
disproportionately impact lower-income workers--can exacerbate
existing wage disparities.
The McKeon Amendment would have required a study by the
Bureau of Labor Statistics on the impact of gas prices on wage
disparities, to examine how high gas prices might further erode
women's earning and purchasing power. Finally, the McKeon
Amendment expressed the sense of Congress that our nation
should be taking steps to become energy independent, which
would be in our best interest for both national and economic
security. Committee Republicans firmly believe that
comprehensive energy reforms, including the expansion of
environmentally-safe energy production at home, will help bring
down gas prices and ease the burden on working families.
Although a Sense of Congress is nonbinding, it expresses
congressional priorities. At markup, Democrats made clear that
their priority is doing everything in their power to avoid
providing real energy solutions for American families. In this
Congress, the Majority has categorically refused to take up
legislation that would allow for increases in the production of
American-made energy. That refusal was once more underscored at
markup, where a vote on the McKeon Amendment was blocked by
parliamentary procedure, and rejected on a party-line vote.
Indeed, it appears clear that Congressional Democrats appear
unwilling to even admit that high gas prices are a problem for
working families.
CONCLUSION
H.R. 1338 represents fundamentally-flawed policy, and at
bottom does nothing to ensure ``paycheck fairness.'' Rather, it
is one more effort by the Majority to bestow a token on a
favored constituency--trial lawyers--without reason, substance,
or a demonstrated need. For these reasons, and all of those set
forth about, we oppose enactment of H.R. 1338 as reported from
the Committee on Education and Labor.
Buck McKeon.
Pete Hoekstra.
Joe Wilson.
John Kline.
Cathy McMorris Rodgers.
Kenny Marchant.
Thomas Price.
C. W. Boustany, Jr.
Virginia Foxx.
David Davis.
Tim Walberg.