[House Report 117-13]
[From the U.S. Government Publishing Office]


117th Congress }                                          { Report
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                          { 117-13

======================================================================
 
                         PAYCHECK FAIRNESS ACT

                                _______
                                

 April 5, 2021.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Scott of Virginia, from the Committee on Education and Labor, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany H.R. 7]

    The Committee on Education and Labor, to whom was referred 
the bill (H.R. 7) 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, reports favorably thereon 
with an amendment and recommends that the bill as amended do 
pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     8
Committee Action.................................................     9
Committee Views..................................................    18
Section-by-Section Analysis......................................    41
Explanation of Amendments........................................    44
Application of Law to the Legislative Branch.....................    45
Unfunded Mandate Statement.......................................    45
Earmark Statement................................................    45
Roll Call Votes..................................................    45
Statement of Performance Goals and Objectives....................    48
Duplication of Federal Programs..................................    48
Hearings.........................................................    48
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    48
New Budget Authority and CBO Cost Estimate.......................    48
Committee Cost Estimate..........................................    48
Changes in Existing Law Made by the Bill, as Reported............    49
Minority Views...................................................    67

    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. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.

  (a) Definitions.--Section 3 of the Fair Labor Standards Act of 1938 
(29 U.S.C. 203) is amended by adding at the end the following:
  ``(z) `Sex' includes--
          ``(1) a sex stereotype;
          ``(2) pregnancy, childbirth, or a related medical condition;
          ``(3) sexual orientation or gender identity; and
          ``(4) sex characteristics, including intersex traits.
  ``(aa) `Sexual orientation' includes homosexuality, heterosexuality, 
and bisexuality.
  ``(bb) `Gender identity' means the gender-related identity, 
appearance, mannerisms, or other gender-related characteristics of an 
individual, regardless of the individual's designated sex at birth.''.
  (b) 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)(iv) 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; (iii) is consistent with business 
        necessity; and (iv) accounts for the entire differential in 
        compensation at issue. 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 Employment 
        Opportunity Commission.''.
  (c) Nonretaliation Provision.--Section 15 of the Fair Labor Standards 
Act of 1938 (29 U.S.C. 215) is amended--
          (1) in subsection (a)--
                  (A) in paragraph (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 has served or is planning to 
                serve on an industry committee;
                  ``(B) has opposed any practice made unlawful by this 
                Act; or
                  ``(C) has inquired about, discussed, or disclosed the 
                wages of the employee or another employee (such as by 
                inquiring or discussing with the employer why the wages 
                of the employee are set at a certain rate or 
                salary);'';
                  (B) in paragraph (5), by striking the period at the 
                end and inserting ``; or''; and
                  (C) by adding at the end the following:
          ``(6) to require an employee to sign a contract or waiver 
        that would prohibit the employee from disclosing information 
        about the employee's wages.''; and
          (2) by adding at the end the following:
  ``(c) Subsection (a)(3)(C) 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), including 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), or who violates the 
        provisions of section 15(a)(3) in relation to a violation of 
        section 6(d), shall additionally be liable for such 
        compensatory damages, or, where the employee demonstrates that 
        the employer acted with malice or reckless indifference, 
        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 
        ``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 the 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, as described in subsection (b),'' 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, as described 
        in subsection (b)'';
          (3) in the third sentence, by striking ``the first sentence'' 
        and inserting ``the first or second sentence''; and
          (4) in the sixth 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.''.
  (f) Joint Enforcement Authority.--
          (1) In general.--Notwithstanding section 1 of Reorganization 
        Plan No. 1 of 1978 (92 Stat. 3781; 5 U.S.C. App.) and any other 
        provision of law, the Secretary of Labor, acting through the 
        Office of Federal Contract Compliance Programs, and the Equal 
        Opportunity Employment Commission shall jointly carry out the 
        functions and authorities described in such section and any 
        other provision of law to enforce and administer the provisions 
        of section 6(d) of the Fair Labor Standards Act of 1938 (29 
        U.S.C. 206(d)) with respect to Federal contractors, Federal 
        subcontractors, and federally-assisted construction 
        contractors, within the jurisdiction of the Office of Federal 
        Contract Compliance Programs under Executive Order 11246 (42 
        U.S.C. 2000e note; relating to equal employment opportunity) or 
        a successor Executive Order.
          (2) Coordination.--The Equal Opportunity Employment 
        Commission and the Secretary of Labor shall establish such 
        coordinating mechanisms as necessary to carry out the joint 
        authority under paragraph (1).

SEC. 3. TRAINING.

  The Equal Employment Opportunity Commission and the Secretary of 
Labor, acting through the Office of Federal Contract Compliance 
Programs, subject to the availability of funds appropriated under 
section 11, shall provide training to employees of the Commission and 
the Office of Federal Contract Compliance Programs and to affected 
individuals and entities on matters involving discrimination in the 
payment of wages.

SEC. 4. NEGOTIATION SKILLS TRAINING.

  (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 
        the purposes of addressing pay disparities, including through 
        outreach to women and girls.
          (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 
        for the purposes described in paragraph (2).
  (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 Career and Technical Education Act of 2006 
        (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 
        Innovation and Opportunity Act (29 U.S.C. 3101 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 18 months after the date of enactment of 
this Act, and annually thereafter, the Secretary of Labor, in 
consultation with 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 section.

SEC. 5. RESEARCH, EDUCATION, AND OUTREACH.

  (a) In General.--Not later than 18 months after the date of enactment 
of this Act, and periodically thereafter, 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 women who 
are Asian American, Black or African-American, Hispanic American or 
Latino, Native American or Alaska Native, Native Hawaiian or Pacific 
Islander, and White American), including--
          (1) conducting and promoting research to develop the means to 
        correct expeditiously the conditions leading to the pay 
        disparities, with specific attention paid to women and girls 
        from historically underrepresented and minority groups;
          (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, local, 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; and
          (5) recognizing and promoting the achievements of employers, 
        labor organizations, and professional associations that have 
        worked to eliminate the pay disparities.
  (b) Report on Gender Pay Gap in Teenage Labor Force.--
          (1) Report required.--Not later than one year after the date 
        of the enactment of this Act, the Secretary of Labor, acting 
        through the Director of the Women's Bureau and in coordination 
        with the Commissioner of Labor Statistics, shall--
                  (A) submit to Congress a report on the gender pay gap 
                in the teenage labor force; and
                  (B) make the report available on a publicly 
                accessible website of the Department of Labor.
          (2) Elements.--The report under subsection (a) shall include 
        the following:
                  (A) An examination of trends and potential solutions 
                relating to the teenage gender pay gap.
                  (B) An examination of how the teenage gender pay gap 
                potentially translates into greater wage gaps in the 
                overall labor force.
                  (C) An examination of overall lifetime earnings and 
                losses for informal and formal jobs for women, 
                including women of color.
                  (D) An examination of the teenage gender pay gap, 
                including a comparison of the average amount earned by 
                males and females, respectively, in informal jobs, such 
                as babysitting and other freelance jobs, as well as 
                formal jobs, such as retail, restaurant, and customer 
                service.
                  (E) A comparison of--
                          (i) the types of tasks typically performed by 
                        women from the teenage years through adulthood 
                        within certain informal jobs, such as 
                        babysitting and other freelance jobs, and 
                        formal jobs, such as retail, restaurant, and 
                        customer service; and
                          (ii) the types of tasks performed by younger 
                        males in such positions.
                  (F) Interviews and surveys with workers and employers 
                relating to early gender-based pay discrepancies.
                  (G) Recommendations for--
                          (i) addressing pay inequality for women from 
                        the teenage years through adulthood, including 
                        such women of color;
                          (ii) addressing any disadvantages experienced 
                        by young women with respect to work experience 
                        and professional development;
                          (iii) the development of standards and best 
                        practices for workers and employees to ensure 
                        better pay for young women and the prevention 
                        of early inequalities in the workplace; and
                          (iv) expanding awareness for teenage girls on 
                        pay rates and employment rights in order to 
                        reduce greater inequalities in the overall 
                        labor force.

SEC. 6. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN THE 
                    WORKPLACE.

  (a) In General.--There is established the National Award for Pay 
Equity in the Workplace, which shall be awarded by the Secretary of 
Labor in consultation with the Equal Employment Opportunity Commission, 
on an annual basis, to an employer to encourage proactive efforts to 
comply with section 6(d) of the Fair Labor Standards Act of 1938 (29 
U.S.C. 206(d)), as amended by this Act.
  (b) Criteria for Qualification.--The Secretary of Labor, in 
consultation with the Equal Employment Opportunity Commission, shall--
          (1) 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; and
          (2) 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. 7. 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 provide for the collection from 
employers of compensation data and other employment-related data 
(including hiring, termination, and promotion data) disaggregated by 
the sex, race, and national origin of employees.
  ``(2) In carrying out 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 the size of employers required to prepare 
reports), appropriate protections for maintaining data confidentiality, 
and the most effective format to report such data.
  ``(3)(A) For each 12-month reporting period for an employer, the 
compensation data collected under paragraph (1) shall include, for each 
range of taxable compensation described in subparagraph (B), 
disaggregated by the categories described in subparagraph (E)--
          ``(i) the number of employees of the employer who earn 
        taxable compensation in an amount that falls within such 
        taxable compensation range; and
          ``(ii) the total number of hours worked by such employees.
  ``(B) Subject to adjustment under subparagraph (C), the taxable 
compensation ranges described in this subparagraph are as follows:
          ``(i) Not more than $19,239.
          ``(ii) Not less than $19,240 and not more than $24,439.
          ``(iii) Not less than $24,440 and not more than $30,679.
          ``(iv) Not less than $30,680 and not more than $38,999.
          ``(v) Not less than $39,000 and not more than $49,919.
          ``(vi) Not less than $49,920 and not more than $62,919.
          ``(vii) Not less than $62,920 and not more than $80,079.
          ``(viii) Not less than $80,080 and not more than $101,919.
          ``(ix) Not less than $101,920 and not more than $128,959.
          ``(x) Not less than $128,960 and not more than $163,799.
          ``(xi) Not less than $163,800 and not more than $207,999.
          ``(xii) Not less than $208,000.
  ``(C) The Commission may adjust the taxable compensation ranges under 
subparagraph (B)--
          ``(i) if the Commission determines that such adjustment is 
        necessary to enhance enforcement of Federal laws prohibiting 
        pay discrimination; or
          ``(ii) for inflation, in consultation with the Bureau of 
        Labor Statistics.
  ``(D) In collecting data described in subparagraph (A)(ii), the 
Commission shall provide that, with respect to an employee who the 
employer is not required to compensate for overtime employment under 
section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207), an 
employer may report--
          ``(i) in the case of a full-time employee, that such employee 
        works 40 hours per week, and in the case of a part-time 
        employee, that such employee works 20 hours per week; or
          ``(ii) the actual number of hours worked by such employee.
  ``(E) The categories described in this subparagraph shall be 
determined by the Commission and shall include--
          ``(i) race;
          ``(ii) national origin;
          ``(iii) sex; and
          ``(iv) job categories, including the job categories described 
        in the instructions for the Equal Employment Opportunity 
        Employer Information Report EEO-1, as in effect on the date of 
        the enactment of this subsection.
  ``(F) The Commission shall use the compensation data collected under 
paragraph (1)--
          ``(i) to enhance--
                  ``(I) the investigation of charges filed under 
                section 706 or section 6(d) of the Fair Labor Standards 
                Act of 1938 (29 U.S.C. 206(d)); and
                  ``(II) the allocation of resources to investigate 
                such charges; and
          ``(ii) for any other purpose that the Commission determines 
        appropriate.
  ``(G) The Commission shall annually make publicly available aggregate 
compensation data collected under paragraph (1) for the categories 
described in subparagraph (E), disaggregated by industry, occupation, 
and core based statistical area (as defined by the Office of Management 
and Budget).
  ``(4) The compensation data under paragraph (1) shall be collected 
from each employer that--
          ``(A) is a private employer that has 100 or more employees, 
        including such an employer that is a contractor with the 
        Federal Government, or a subcontractor at any tier thereof; or
          ``(B) the Commission determines appropriate.''.

SEC. 8. 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 
collect compensation data and other employment-related data (including, 
hiring, termination, and promotion data) by demographics and designate 
not less than half of all nonconstruction contractors each year to 
prepare and file such data, and shall review and utilize the responses 
to such data to identify contractors 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. 9. PROHIBITIONS RELATING TO PROSPECTIVE EMPLOYEES' SALARY AND 
                    BENEFIT HISTORY.

  (a) In General.--The Fair Labor Standards Act of 1938 (29 U.S.C. 201 
et seq.) is amended by inserting after section 7 the following new 
section:

``SEC. 8. REQUIREMENTS AND PROHIBITIONS RELATING TO WAGE, SALARY, AND 
                    BENEFIT HISTORY.

  ``(a) In General.--It shall be an unlawful practice for an employer 
to--
          ``(1) rely on the wage history of a prospective employee in 
        considering the prospective employee for employment, including 
        requiring that a prospective employee's prior wages satisfy 
        minimum or maximum criteria as a condition of being considered 
        for employment;
          ``(2) rely on the wage history of a prospective employee in 
        determining the wages for such prospective employee, except 
        that an employer may rely on wage history if it is voluntarily 
        provided by a prospective employee, after the employer makes an 
        offer of employment with an offer of compensation to the 
        prospective employee, to support a wage higher than the wage 
        offered by the employer;
          ``(3) seek from a prospective employee or any current or 
        former employer the wage history of the prospective employee, 
        except that an employer may seek to confirm prior wage 
        information only after an offer of employment with compensation 
        has been made to the prospective employee and the prospective 
        employee responds to the offer by providing prior wage 
        information to support a wage higher than that offered by the 
        employer; or
          ``(4) discharge or in any other manner retaliate against any 
        employee or prospective employee because the employee or 
        prospective employee--
                  ``(A) opposed any act or practice made unlawful by 
                this section; or
                  ``(B) took an action for which discrimination is 
                forbidden under section 15(a)(3).
  ``(b) Definition.--In this section, the term `wage history' means the 
wages paid to the prospective employee by the prospective employee's 
current employer or previous employer.''.
  (b) Penalties.--Section 16 of such Act (29 U.S.C. 216) is amended by 
adding at the end the following new subsection:
  ``(f)(1) Any person who violates the provisions of section 8 shall--
          ``(A) be subject to a civil penalty of $5,000 for a first 
        offense, increased by an additional $1,000 for each subsequent 
        offense, not to exceed $10,000; and
          ``(B) be liable to each employee or prospective employee who 
        was the subject of the violation for special damages not to 
        exceed $10,000 plus attorneys' fees, and shall be subject to 
        such injunctive relief as may be appropriate.
  ``(2) An action to recover the liability described in paragraph 
(1)(B) 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 or prospective employees for and on behalf of--
          ``(A) the employees or prospective employees; and
          ``(B) other employees or prospective employees similarly 
        situated.''.

SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

  (a) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this Act.
  (b) Prohibition on Earmarks.--None of the funds appropriated pursuant 
to subsection (a) for purposes of the grant program in section 5 of 
this Act may be used for a congressional earmark as defined in clause 
9(e) of rule XXI of the Rules of the House of Representatives.

SEC. 11. SMALL BUSINESS ASSISTANCE.

  (a) Effective Date.--This Act and the amendments made by this Act 
shall take effect on the date that is 6 months after the date of 
enactment of this Act.
  (b) Technical Assistance Materials.--The Secretary of Labor and the 
Commissioner of the Equal Employment Opportunity Commission shall 
jointly develop technical assistance material to assist small 
enterprises in complying with the requirements of this Act and the 
amendments made by this Act.
  (c) Small Businesses.--A small enterprise shall be exempt from the 
provisions of this Act, and the amendments made by this Act, to the 
same extent that such enterprise is exempt from the requirements of the 
Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) pursuant to 
clauses (i) and (ii) of section 3(s)(1)(A) of such Act (29 U.S.C. 
203(s)(1)(A)).

SEC. 12. RULE OF CONSTRUCTION.

  Nothing in this Act, or in any amendments made by this Act, shall 
affect the obligation of employers and employees to fully comply with 
all applicable immigration laws, including being subject to any 
penalties, fines, or other sanctions.

SEC. 13. SEVERABILITY.

  If any provision of this Act, an amendment made by this Act, or the 
application of that provision or amendment to particular persons or 
circumstances is held invalid or found to be unconstitutional, the 
remainder of this Act, the amendments made by this Act, or the 
application of that provision to other persons or circumstances shall 
not be affected.

                                Purpose

    When President John F. Kennedy signed the Equal Pay Act of 
1963 (EPA) into law, 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\ Fifty-eight years 
later, women have made tremendous progress in the workplace. 
Women comprise almost half of this country's workforce and own 
more than 11 million businesses.\2\ Despite these gains, women 
continue to be held back by wage discrimination. Because of 
loopholes in the law and weak sanctions for violations, the EPA 
is ineffective in combating unequal pay. Women working full 
time, year-round typically are paid 82 cents for every dollar 
earned by a man.\3\ H.R. 7, the Paycheck Fairness Act (the 
Act), modernizes the EPA and brings the country one step closer 
to ensuring that women receive equal pay for equal work.
---------------------------------------------------------------------------
    \1\Remarks Upon Signing the Equal Pay Act, The American Presidency 
Project, https://www.presidency.ucsb.edu/documents/remarks-upon-
signing-the-equal-pay-act (last visited Mar. 25, 2021).
    \2\Employment Status of the Civilian Population by Sex and Age, 
Bureau of Labor Statistics, https://www.bls.gov/news.release/
empsit.t01.htm (last visited Mar. 25, 2021); see also Am. Express, The 
2018 State of Women-Owned Businesses Report 3 (2018), https://
about.americanexpress.com/files/doc_library/file/2018-state-of-women-
owned-businesses-report.pdf.
    \3\Am. Ass'n of Univ. Women, The Simple Truth about the Gender Pay 
Gap 2020 Update 2 (2020), https://www.aauw.org/app/uploads/2020/12/
SimpleTruth_2.1.pdf.
---------------------------------------------------------------------------
    The long-term impact of pay disparity on women's lifetime 
earnings is substantial, costing a woman anywhere from 
$400,000\4\ to $2 million\5\ over the course of her career. 
H.R. 7 will strengthen the EPA to make it a more effective 
means to combat wage discrimination on the basis of gender. 
Specifically, the Act builds upon the EPA and closes loopholes 
that have enabled unscrupulous employers to evade liability 
under the law. The Act prohibits retaliation against workers 
who discuss or disclose salary information; prohibits relying 
on pay history in considering an individual for prospective 
employment; expands the definition of ``establishment'' so that 
an employee can find a comparator at any workplace in the same 
county or political subdivision; clarifies that an employer's 
affirmative defense of ``any factor other than sex'' must be 
related to the job in question and consistent with business 
necessity; reforms the EPA's collective action standard so that 
women with claims of unequal pay will automatically be part of 
a class action lawsuit unless they choose to ``opt-out'' of the 
case; equalizes damages for discrimination based on sex with 
damages for discrimination based on race and national origin; 
and authorizes the U.S. Department of Labor (Department of 
Labor) to award competitive grants to be used for salary 
negotiation education and training programs. The Act amends 
Title VII of the Civil Rights Act of 1964 (Title VII) to expand 
the Equal Employment Opportunity Commission's (EEOC) authority 
to collect pay data from certain employers in addition to data 
already collected from employers on employment by race, gender, 
and national origin.\6\ This will help employers and the 
relevant enforcement agencies identify unknown gender-based pay 
discrimination. The Act also strengthens the role government 
will play in combating wage discrimination. The Act authorizes 
additional training for EEOC and OFCCP staff on recognizing and 
remedying wage discrimination; codifies the Bureau of Labor 
Statistics' collection of data on female workers that compares 
them to their male counterparts as part of the Current 
Employment Statistics survey; and requires the Department of 
Labor to collect employment and pay data from federal 
contractors.
---------------------------------------------------------------------------
    \4\Nat'l Women's Law Ctr., The Wage Gap: The Who, How, Why and What 
to Do 2 (2020), https://nwlc.org/resources/the-wage-gap-the-who-how-
why-and-what-to-do/.
    \5\The Wage Gap Over Time: In Real Dollars, Women See a Counting 
Gap, National Committee on Pay Equity, https://www.pay-equity.org/info-
time.html (last visited Mar. 25, 2021).
    \6\Based on the number of employees and federal contract 
activities, certain employers are required to file an EEO-1 report on 
an annual basis under the EEOC and the OFCCP regulations.
---------------------------------------------------------------------------

                            Committee Action


                             105TH CONGRESS

    Senator Thomas Daschle (D-SD) first introduced S. 71, the 
Paycheck Fairness Act, on January 21, 1997. The bill had 23 
cosponsors and was referred to the Senate Committee on Labor 
and Human Resources. Congresswoman Rosa DeLauro (D-CT-3) 
introduced H.R. 2023, the Paycheck Fairness Act, on June 24, 
1997. The bill had 95 cosponsors and was referred to the House 
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 Daschle introduced S. 74, the Paycheck Fairness 
Act, on January 19, 1999. The bill had 31 cosponsors and was 
referred to the Senate Committee on Health, Education, Labor, 
and Pensions. The Senate Committee on Health, Education, Labor, 
and Pensions held a hearing on gender-based wage discrimination 
on June 8, 2000. The hearing, entitled ``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.
    Congresswoman DeLauro introduced H.R. 541, the Paycheck 
Fairness Act, on February 3, 1999. The bill had 122 cosponsors 
and was referred to the House Committee on Education and the 
Workforce. Once in committee, the bill was referred to the 
Subcommittees on Workforce Protections and Employer-Employee 
Relations. Congresswoman DeLauro introduced an updated version 
of the bill as H.R. 2397 on June 30, 1999, with 170 cosponsors 
(166 Democrats, 3 Republicans, and 1 Independent). The bill was 
referred only to the Subcommittee on Workforce Protections. No 
further action was taken on either bill.

                             107TH CONGRESS

    Senator Daschle introduced S. 77, the Paycheck Fairness 
Act, on January 22, 2001. The bill had 32 cosponsors and was 
referred to the Senate Committee on Health, Education, Labor, 
and Pensions. Congresswoman DeLauro introduced H.R. 781, the 
Paycheck Fairness Act, on February 22, 2001. The bill had 196 
cosponsors and was referred to the House 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 Daschle introduced S. 76, the Paycheck Fairness 
Act, on January 7, 2003. The bill had 20 cosponsors and was 
referred to the Senate Committee on Health, Education, Labor, 
and Pensions. Congresswoman DeLauro introduced H.R. 1688, the 
Paycheck Fairness Act, on April 9, 2003. The bill had 116 
cosponsors and was referred to the House 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 either bill.

                             109TH CONGRESS

    On April 19, 2005, Senator Hillary Rodham Clinton (D-NY) 
and Congresswoman DeLauro introduced the Paycheck Fairness Act, 
S. 841 and H.R. 1687, respectively. S. 841 had 18 cosponsors 
and was referred to the Senate Committee on Health, Education, 
Labor, and Pensions. H.R. 1687 had 111 cosponsors and was 
referred to the House Committee on Education and the Workforce, 
where it was referred to the Subcommittees on Workforce 
Protections and Employer-Employee Relations. No further action 
was taken on either bill.

                             110TH CONGRESS

    On March 6, 2007, Senator Clinton and Congresswoman DeLauro 
introduced the Paycheck Fairness Act, S. 766 and H.R. 1338, 
respectively. S. 766 had 24 cosponsors and was referred to the 
Senate Committee on Health, Education, Labor, and Pensions. 
H.R. 1338 had 230 cosponsors and was referred to the House 
Committee on Education and Labor, where it was referred to the 
Subcommittee on Workforce Protections.
    On Thursday, April 12, 2007, the Senate Committee on 
Health, Education, Labor, and Pensions held a hearing entitled 
``Closing the Gap: Equal Pay for Women Workers.'' The hearing 
examined enforcement of the EPA, 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 held a hearing entitled ``Strengthening the 
Middle Class: Ensuring Equal Pay for Women.'' The hearing 
examined the scope and causes of gender-based wage disparity. 
Witnesses included Congresswoman DeLauro; Congresswoman Eleanor 
Holmes Norton (D-D.C.); 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\7\; and Diana Furchtgott-
Roth, Director of the Center for Employment Policy at the 
Hudson Institute.
---------------------------------------------------------------------------
    \7\Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 141-42 (N.D. 
Cal. 2004).
---------------------------------------------------------------------------
    On Wednesday, July 11, 2007, the House Education and Labor 
Subcommittee on Workforce Protections held a hearing titled 
``H.R. 1338, The Paycheck Fairness Act.'' The hearing focused 
on the wage disparity that exists from the moment men and women 
enter the workforce--a gap that only grows over time.\8\ 
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.
---------------------------------------------------------------------------
    \8\The Paycheck Fairness Act: Hearing on H.R. 1338 Before H. 
Subcomm. on Workforce Prots. of the H. Comm. on Educ. and Labor, 110th 
Cong. (2007) (statement of Rep. Lynn Woolsey, Chairwoman, Subcomm. on 
Workforce Protections).
---------------------------------------------------------------------------
    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 Congressman George Miller (D-CA-7), 
Chairman, and ordered the bill, as amended, be favorably 
reported to the House of Representatives by a vote of 26-17.
    On July 31, 2008, the House debated and passed H.R. 1338 
with a recorded vote of 247-178.

                             111TH CONGRESS

    On January 8, 2009, Senator Clinton introduced S. 182, the 
Paycheck Fairness Act. The bill had 42 cosponsors (41 Democrats 
and 1 Independent). On March 11, 2010, the Committee on Health, 
Education, Labor, and Pensions held a hearing entitled ``A Fair 
Share for All: Pay Equity in the New American Workplace.'' 
Witnesses included Congresswoman DeLauro; Commissioner Stuart 
Ishimaru, Acting Chairman, Equal Opportunity Commission; 
Heather Boushey, Senior Economist, Center for American 
Progress; Deborah L. Brake, Professor of Law, University of 
Pittsburgh; Deborah L. Frett, Chief Executive Officer, Business 
and Professional Women's Foundation; and Jane McFetridge, 
Partner, Jackson Lewis, LLP.
    On September 13, 2010, Senator Harry Reid (D-NV) re-
introduced the Paycheck Fairness Act as S. 3772. On September 
14, 2010, the bill was placed on the Senate Legislative 
Calendar. On September 29, 2010, Senator Reid filed a motion to 
proceed to consideration; he withdrew the motion on the same 
day. On November 17, 2010, Senator Reid filed a motion a motion 
to proceed; cloture on the motion to proceed on the bill was 
not invoked by a Yea-Nay vote of 58-41. No further action was 
taken on either Senate version of the Paycheck Fairness Act.
    On January 6, 2009, Congresswoman DeLauro introduced H.R. 
12, the Paycheck Fairness Act with 200 cosponsors. The bill was 
referred to the House Committee on Education and Labor, where 
it was referred to the Subcommittee on Workforce Protections. 
On January 9, 2009, the House of Representatives passed the 
Paycheck Fairness Act as a part of H.R. 11, the Lilly Ledbetter 
Fair Pay Act of 2009, with a recorded vote of 256-163. However, 
the Paycheck Fairness Act was not included in the final version 
of the Lilly Ledbetter Fair Pay Act of 2009, which was signed 
into law (Pub. L. No. 111-2) on January 29, 2009.

                             112TH CONGRESS

    On April 12, 2011, Senator Barbara Mikulski (D-MD) 
introduced S. 797, the Paycheck Fairness Act. The bill had 36 
cosponsors (35 Democrats and 1 Independent) and was referred to 
the Senate Committee on Health, Education, Labor, and Pensions. 
On May 22, 2012, Senator Mikulski re-introduced the Paycheck 
Fairness Act as S. 3220 with 37 cosponsors (36 Democrats and 1 
Independent). On June 5, 2012, Senator Reid filed a motion to 
proceed to consideration on S. 3220. Cloture was not invoked by 
Yea-Nay vote of 52-47. Senator Reid filed a motion to 
reconsider the vote, but the motion was withdrawn later that 
day. No further action was taken on any of the three bills.
    On April 13, 2011, Congresswoman DeLauro introduced H.R. 
1519, the Paycheck Fairness Act. It had 197 Democratic 
cosponsors and was referred to the House Committee on Education 
and the Workforce, where it was referred to the Subcommittee on 
Workforce Protections.

                             113TH CONGRESS

    On January 23, 2013, Senator Mikulski introduced S. 84, the 
Paycheck Fairness Act with 56 cosponsors (55 Democrats and 1 
Independent). The bill was referred to the Senate Committee on 
Health, Education, Labor, and Pensions. On April 1, 2014, the 
Senate Committee on Health, Education, Labor, and Pensions held 
a hearing entitled ``Access to Justice: Ensuring Equal Pay with 
the Paycheck Fairness Act.'' The hearing featured testimony 
from Professor Deborah Thompson Eisenberg, Associate Professor 
of Law, University of Maryland Francis King Carey School of 
Law; ReShonda Young, Operations Manager, Alpha Express, Inc.; 
Kerri Sleeman, Mechanical Engineer, Houton; and Camille A. 
Olson, Partner, Seyfarth Shaw, LLP.
    On April 1, 2014, Senator Mikulski re-introduced the 
Paycheck Fairness Act as S. 2199 with 42 cosponsors (41 
Democrats and 1 Independent). On April 7, Senator Reid filed a 
motion to proceed to consideration of the measure, but cloture 
was not invoked by a Yea-Nay vote of 53-44. On September 9, 
2014, Senator Reid motioned to reconsider the vote, which was 
agreed to by voice vote on September 10, 2014. The same day, 
cloture on the motion to proceed to the measure was invoked in 
the Senate by a Yea-Nay vote of 73-25, and the measure was laid 
before the Senate. On September 15, 2014 the cloture motion 
failed by a Yea-Nay vote of 52-40. No further action was taken 
on any of the bills.
    On January 23, 2013, Congresswoman DeLauro introduced H.R. 
377, the Paycheck Fairness Act. It had 208 cosponsors (207 
Democrats and 1 Republican). The bill was referred to the House 
Committee on Education and the Workforce. On April 11, 2013, 
Congresswoman DeLauro filed a motion to discharge the Committee 
from consideration of H.R. 377. The discharge petition received 
197 signatures, fewer than the 218 signatures needed for 
further action. On April 23, 2013, the bill was referred to the 
Subcommittee on Workforce Protections. No further action was 
taken.

                             114TH CONGRESS

    On March 25, 2015, Senator Mikulski and Congresswoman 
DeLauro introduced the Paycheck Fairness Act, S. 862 and H.R. 
1619, respectively. S. 862 had 44 cosponsors (43 Democrats and 
1 Independent) and was referred to the Senate Committee on 
Health, Education, Labor, and Pensions. H.R. 1619 had 193 
cosponsors (192 Democrats and 1 Republican). The bill was 
referred to the House Committee on Education and the Workforce, 
where it was referred to the Subcommittee on Workforce 
Protections. No further action was taken on either bill.

                             115TH CONGRESS

    On April 4, 2017, Senator Murray and Congresswoman DeLauro 
and introduced the Paycheck Fairness Act, S. 819 and H.R. 1869, 
respectively. S. 819 had 48 cosponsors (47 Democrats and 1 
Independent) and was referred to the Senate Committee on 
Health, Education, Labor, and Pensions. H.R. 1869 had 201 
cosponsors (200 Democrats and 1 Republican) and was referred to 
the House Committee on Education and the Workforce. No further 
action was taken on either bill.

                             116TH CONGRESS

    On January 30, 2019, Senator Murray introduced, S. 270, the 
Paycheck Fairness Act, with 45 cosponsors. The bill was 
referred to the Senate Committee on Health, Education, Labor, 
and Pensions.
    On January 30, 2019, Congresswoman DeLauro introduced H.R. 
7, the Paycheck Fairness Act with 239 original co-sponsors, 
including 1 Republican. The bill was referred to the House 
Committee on Education and Labor. On February 13, 2019, the 
House Committee on Education and Labor held a joint hearing in 
the Subcommittee on Workforce Protections and the Subcommittee 
on Civil Rights and Human Services (2019 Joint Subcommittee 
Hearing) entitled ``Paycheck Fairness Act (H.R. 7): Equal Pay 
for Equal Work.'' The Committee heard testimony on how the 
weaknesses in the EPA have left the law ineffective in 
preventing gender-based wage discrimination. Witnesses included 
Congresswoman DeLauro; Congresswoman Holmes Norton; Congressman 
Beyer; Fatima Goss Graves, CEO and President of the National 
Women's Law Center; Camille A. Olson, Partner at Seyfarth Shaw, 
LLP; Kristin Rowe-Finkbeiner, CEO of Moms Rising; and Jenny 
Yang, Partner at Working Ideal.
    On February 26, 2019, the House Committee on Education and 
Labor met for a full committee markup of H.R. 7, the Paycheck 
Fairness Act. The Committee adopted an amendment in the nature 
of a substitute (ANS) offered by Congressman Robert C. 
``Bobby'' Scott (D-VA-3), Chairman, and reported the bill 
favorably, as amended, to the House of Representatives by a 
vote of 27-19. H.R. 7 then passed the House on March 27, 2019, 
with bipartisan support by a vote of 242 Yeas and 187 Nays.

                             117TH CONGRESS

    On January 28, 2021, Congresswoman DeLauro introduced H.R. 
7, the Paycheck Fairness Act, with 224 original co-sponsors 
(including 2 Republicans). The bill was referred to the House 
Committee on Education and Labor. On March 18, 2021, the House 
Committee on Education and Labor held a joint hearing in the 
Subcommittee on Workforce Protections and the Subcommittee on 
Civil Rights and Human Services (2021 Joint Subcommittee 
Hearing) entitled ``Fighting for Fairness: Examining 
Legislation to Confront Workplace Discrimination.'' The 
Committee heard testimony on how the weaknesses in the EPA have 
left the law ineffective in preventing gender-based wage 
discrimination. Witnesses included Fatima Goss Graves, CEO and 
President of the National Women's Law Center, Washington, DC; 
Camille A. Olson, Partner at Seyfarth Shaw, LLP, Chicago, IL; 
Dina Bakst, Co-Founder & Co-President, A Better Balance: The 
Work & Family Legal Center, New York City, NY; and Laurie 
McCann, Senior Attorney, AARP, Washington, DC.
    On February 3, 2021, Senator Murray introduced S. 205, the 
Paycheck Fairness Act, with 49 cosponsors. The bill was 
referred to the Senate Committee on Health, Education, Labor, 
and Pensions.
    On March 24, 2021, the House Committee on Education and 
Labor met for a full committee markup of H.R. 7, the Paycheck 
Fairness Act. The Committee adopted an amendment in the nature 
of a substitute (ANS) offered by Congresswoman Suzanne Bonamici 
(D-OR-1), and reported the bill favorably, as amended, to the 
House of Representatives by a vote of 25 Yeas and 22 Nays.
    The ANS incorporates the provisions of H.R. 7 with the 
following modifications:
           Removes the bill's findings section;
           Updates the EPA's definition of sex to 
        include sexual orientation and gender identity;
           Strengthens the nonretaliation provisions by 
        ensuring that workers cannot be retaliated against for 
        opposing unlawful pay discrimination and by authorizing 
        compensatory and punitive damages;
           Ensures that both the EEOC and the Office of 
        Federal Contractor Compliance (OFCCP) in the U.S. 
        Department of Labor (DOL) have joint enforcement 
        authority over the Equal Pay Act with respect to 
        federal contractors;
           Clarifies that the EEOC and the OFCCP 
        coordinate in the establishment of the national award 
        for pay equity in the workplace; and
           Modernizes the OFCCP's pay data collection 
        requirement.
    A substitute amendment was offered by Congresswoman Elise 
Stefanik (R-NY-21) to: amend the EPA's employer defense of 
``any factor other than sex'' with a vague and legally 
ambiguous standard; provide employers with a liability shield 
to EPA claims if they conduct self-audits; restrict employer 
reliance on prospective employees' salary history but allow the 
employer to rely on salary history at any time in the hiring 
process if a prospective employee self-discloses; and authorize 
negotiation skills training grants. The amendment failed by a 
vote of 19 Yeas and 28 Nays.

                                Summary

    Neither the EPA nor Title VII is sufficient in their 
current forms to provide protection against illegal wage 
inequality. The EPA prohibits gender-based wage discrimination 
between men and women in the same establishment who perform 
jobs that require substantially equal skill, effort, and 
responsibility under similar working conditions. Under the EPA, 
an aggrieved person has two years (or three years in a case of 
a willful violation) from the date of any instance of unequal 
pay to file a claim in court.\9\ Under the EPA, there is no 
requirement to seek any remedies through the EEOC first. A 
plaintiff does not bear the burden of proving that the employer 
intentionally committed wage-based gender discrimination, but 
employers have a very broad business necessity defense for 
``factors other than sex.'' A plaintiff who successfully proves 
wage discrimination under the EPA can recover back pay, and the 
EPA also provides for liquidated damages in an amount equal to 
back pay, unless the employer can show that it acted in good 
faith and it had reasonable grounds to believe that its actions 
did not violate the EPA.\10\
---------------------------------------------------------------------------
    \9\29 U.S.C. Sec. 255.
    \10\29 U.S.C. Sec. 216; 29 U.S.C. Sec. 260.
---------------------------------------------------------------------------
    Title VII also has limitations when it comes to closing the 
gender wage gap. Title VII prohibits discrimination based on 
race, color, national origin, religion, and sex. To bring a 
case of wage discrimination under Title VII, a plaintiff must 
prove intentional discrimination. Before bringing a case to 
court, a claimant must exhaust administrative remedies through 
the EEOC. Cases under Title VII must be filed with the EEOC 
within 180 days of the violation, or longer in states where 
there is a state fair employment practices law.\11\ Although a 
plaintiff bringing a gender-based wage discrimination claim is 
entitled to back pay, compensatory damages,\12\ and punitive 
damages,\13\ compensatory and punitive damages do have monetary 
caps. These caps vary depending on the size of the employer\14\ 
and under no circumstance can these damages exceed 
$300,000.\15\ However, compensatory and punitive damages for 
Title VII wage discrimination claims based upon race and 
national origin may be uncapped when combined with Section 1981 
claims, creating a two-tiered system where pay discrimination 
based on race and national origin is sanctioned more severely 
than pay discrimination based on sex.\16\
---------------------------------------------------------------------------
    \11\42 U.S.C. Sec. 2000-e-5(e).
    \12\Jody Feder & Benjamin Collins, Cong. Research Serv., RL31867, 
Pay Equity: Legislative and Legal Developments 3 (2016) (stating that 
compensatory damages include such items as pain and suffering, medical 
expenses and emotional distress).
    \13\Id. (punitive damages may be recovered when the employer acted 
with malice or reckless indifference).
    \14\Id.
    \15\42 U.S.C. Sec. 1981a.
    \16\See 29 U.S.C. Sec. 216(b); 29 C.F.R. Sec. 1620.33.
---------------------------------------------------------------------------
    Due to weaknesses in the EPA, the landmark 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 somewhat 
since then, but it persists as a significant problem for 
American women. Today, women are typically paid 82 cents for 
every dollar paid to a man.\17\ The wage gap is even more 
substantial for women of color. For every dollar white, non-
Hispanic men make, Black women typically make only 63 cents, 
Latina women only 55 cents, and American Indian or Alaskan 
Native women only 60 cents.\18\ H.R. 7 is a critical step 
forward in the fight to eliminate pay disparity that 
``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.''\19\ Congress has a responsibility to modernize 
the EPA so that it can better achieve its intended purpose.
---------------------------------------------------------------------------
    \17\Am. Ass'n of Univ. Women, The Simple Truth about the Gender Pay 
Gap: 2020 Update 2 (2020), https://www.aauw.org/app/uploads/2020/12/
SimpleTruth_2.1.pdf.
    \18\Id.
    \19\Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56-57.
---------------------------------------------------------------------------
    Hundreds of organizations have expressed support for H.R. 
7, including: 9to5; A Better Balance; AFCPE (Association for 
Financial Counseling & Planning Education); All-Options; 
American Association of University Women (AAUW); AAUW of 
Alabama; AAUW of Alaska (AAUW Fairbanks (AK) Branch); AAUW of 
Arizona; AAUW of Arkansas; AAUW of California; AAUW of 
Colorado; AAUW of Connecticut; AAUW of Delaware; AAUW of 
District of Columbia (AAUW Washington (DC) Branch; AAUW Capitol 
Hill (DC) Branch); AAUW of Florida; AAUW of Georgia; AAUW of 
Hawaii; AAUW of Idaho; AAUW of Illinois; AAUW of Indiana; AAUW 
of Iowa; AAUW of Kansas; AAUW of Kentucky; AAUW of Louisiana; 
AAUW of Maine; AAUW of Maryland; AAUW of Massachusetts; AAUW of 
Michigan; AAUW of Minnesota; AAUW of Mississippi; AAUW of 
Missouri; AAUW of Montana; AAUW of Nebraska; AAUW of Nevada; 
AAUW of New Hampshire; AAUW of New Jersey; AAUW of New Mexico; 
AAUW of New York; AAUW of North Carolina; AAUW of North Dakota; 
AAUW of Ohio; AAUW of Oklahoma; AAUW of Oregon; AAUW of 
Pennsylvania; AAUW of Puerto Rico; AAUW of Rhode Island; AAUW 
of South Carolina; AAUW of South Dakota; AAUW of Tennessee; 
AAUW of Texas; AAUW of Utah; AAUW of Vermont; AAUW of Virginia; 
AAUW of Washington; AAUW of West Virginia; AAUW of Wisconsin; 
AAUW of Wyoming; American Federation of Labor-Congress of 
Industrial Unions (AFL-CIO); American Federation of State; 
County and Municipal Employees; American Federation of 
Teachers; AnitaB.org; Association of Flight Attendants-CWA; 
Bend the Arc Jewish Action; California Women's Law Center; 
Catalyst; Center for American Progress; Center for Law and 
Social Policy (CLASP); Center for LGBTQ Economic Advancement & 
Research; Clearinghouse on Women's Issues; Coalition of Labor 
Union Women; Philadelphia Coalition of Labor Union Women; 
Community Health Councils; Congregation of Our Lady of Charity 
of the Good Shepherd; U.S. Provinces; Connecticut Women's 
Education and Legal Fund (CWEALF); Disciples Center for Public 
Witness; Equal Pay Today; Equal Rights Advocates; Every Texan; 
Family Forward Oregon; Family Values @ Work; Feminist Majority 
Foundation; Futures Without Violence; Gender Justice; Holy 
Spirit Missionary Sisters; USA JPIC; In Our Own Voice: National 
Black Women's Reproductive Justice Agenda; Indiana Institute 
for Working Families; Institute for Women's Policy Research; 
Justice for Migrant Women; KWH Law Center for Social Justice 
and Change; Labor Council for Latin American Advancement; 
Leadership Conference on Civil and Human Rights; League of 
Women Voters of the United States; Legal Aid at Work; Legal 
Momentum; The Women's Legal Defense and Education Fund; Legal 
Voice; MANA; A National Latina Organization; Methodist 
Federation for Social Action; Mi Familia Vota; Michigan League 
for Public Policy; MomsRising; NAACP; National Advocacy Center 
of the Sisters of the Good Shepherd; National Asian Pacific 
American Women's Forum (NAPAWF); National Association of Social 
Workers; National Center for Law and Economic Justice; National 
Committee on Pay Equity; National Council of Jewish Women; 
National Domestic Violence Hotline; National Education 
Association; National Employment Law Project; National 
Employment Lawyers Association; National Employment Lawyers 
Association--Eastern Pennsylvania; National Employment Lawyers 
Association--Georgia; National Network to End Domestic 
Violence; National Organization for Women; Florida NOW; 
Illinois NOW; Indiana NOW; Jacksonville NOW; Kanawha Valley 
NOW; Maryland NOW; Monroe County NOW; Montana NOW; Northwest 
Indiana NOW; South Jersey NOW Alice Paul chapter; National 
Partnership for Women & Families; National WIC Association; 
National Women's Law Center; National Women's Political Caucus; 
Native Women Lead; NETWORK Lobby for Catholic Social Justice; 
New Jersey Citizen Action; NewsGuild-CWA; New York Women's 
Foundation; North Carolina Justice Center; People For the 
American Way; PowHer New York; Prosperity Now; Reinventure 
Capital; Restaurant Opportunities Centers (ROC) United; Service 
Employees International Union; Shriver Center on Poverty Law; 
TIME'S UP Now; U.S. Women's Chamber of Commerce; Union for 
Reform Judaism; United State of Women; WNY Women's Foundation; 
Women and Girls Foundation of Southwest Pennsylvania; Women 
Employed; Women of Reform Judaism; Women's Fund of Rhode 
Island; Women's Fund of the Greater Cincinnati Foundation; 
Women's Law Project; Women's Media Center; Women's Rights and 
Empowerment Network; YWCA USA; YWCA Allentown; YWCA Arizona 
Metropolitan Phoenix; YWCA Billings; YWCA Butler; YWCA Central 
Alabama; YWCA Central Indiana; YWCA Central Maine; YWCA Central 
Virginia; YWCA Dayton; YWCA Duluth; YWCA Elgin; YWCA Genesee 
County; YWCA Greater Austin; YWCA Greater Baton Rouge; YWCA 
Greater Cincinnati; YWCA Greater Cleveland; YWCA Greater 
Portland; YWCA Greenwich; YWCA Hartford Region; YWCA Kalamazoo; 
YWCA Kauai; YWCA Kitsap County; YWCA Knoxville and the 
Tennessee Valley; YWCA Lower Cape Fear; YWCA McLean County; 
YWCA Metro Detroit--Interim House; YWCA National Capital Area; 
YWCA New Hampshire; YWCA North Central Indiana; YWCA Northern 
New Jersey; YWCA Oahu; YWCA Pierce County; YWCA Princeton; YWCA 
QUINCY; YWCA Sauk Valley; YWCA Seattle King Snohomish; YWCA 
South Hampton Roads; YWCA Southeastern Massachusetts; YWCA 
Southern Arizona; YWCA University of Illinois; YWCA Utah; YWCA 
Western New York; YWCA Wheeling; YWCA Yakima; and Zonta USA 
Caucus.

                            Committee Views

    The Committee on Education and Labor (Committee) is 
committed to protecting the rights of individuals in the 
workplace. Fifty-eight 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. Many women have been unable to utilize the 
protections afforded under the EPA because loopholes, court 
interpretations, and ineffective sanctions have made 
enforcement extremely difficult. H.R. 7 strengthens the EPA to 
more effectively combat wage discrimination. The Act builds 
upon Congress' efforts 58 years ago when the EPA was enacted 
and is a necessary step forward to close the persistent wage 
gap between men and women.

                      HISTORY OF THE EQUAL PAY ACT

    In 1963, Congress first addressed the issue of unequal 
pay\20\ when it passed the EPA as an amendment to the Fair 
Labor Standards Act of 1938 (FLSA).\21\ The purpose of the 
legislation was broadly remedial to eliminate once and for all 
gender-based discriminatory pay practices:
---------------------------------------------------------------------------
    \20\Support for ``equal pay'' dates 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).
    \21\29 U.S.C. Sec. 206(d).

         The objective of the legislation is to ensure 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 outmoded 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.\22\
---------------------------------------------------------------------------
    \22\H.R. Rep. No. 110-783 at 12 (2008) (internal citations and 
quotations omitted).

    The EPA enshrined ``equal work for equal pay regardless of 
sex'' alongside minimum wages, overtime pay, and the protection 
of child laborers as a fair labor standard in the FLSA.\23\ 
Other versions of equal pay legislation had been introduced 
prior to and during 1963, but because the Department of Labor 
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.''\24\ Upon introduction of the 
bill, Senator Patrick McNamara (D-MI) stated:
---------------------------------------------------------------------------
    \23\Id. (internal citations and quotations omitted).
    \24\Id. (internal citations and quotations omitted).

          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.\25\
---------------------------------------------------------------------------
    \25\Id. (internal citations and quotations omitted).

    Some legislators felt that the legislation did not go far 
enough but voted for it nonetheless because it was ``a good 
start . . . in eliminating the unfairness of unequal pay.''\26\
---------------------------------------------------------------------------
    \26\Id. (internal citations and quotations omitted).
---------------------------------------------------------------------------
    In passing the EPA, Congress intended that ``men and women 
doing the same job under the same working conditions . . . 
receive equal pay.''\27\ Congressman Rodney Frelinghuysen (R-
NJ-11) elaborated on the standard:
---------------------------------------------------------------------------
    \27\Id. at 12-13 (internal citations and quotations omitted).

          [T]he 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.\28\
---------------------------------------------------------------------------
    \28\H.R. Rep. No. 110-783 at 12 (2008) (internal citations and 
quotations omitted).

    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.''\29\
---------------------------------------------------------------------------
    \29\Id. at 13 (internal citations and quotations omitted).

    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.\30\
---------------------------------------------------------------------------
    \30\Id. (internal citations and quotations omitted).

    While the EPA was aimed at eradicating wage differentials 
based on sex, it was not intended to limit other kinds of pay 
inequity. As such, even though the female employee might show 
that the employer's wages were unequal 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) methods that measure 
earnings by quality or quantity of production; or (4) any 
factor other than sex.\31\
---------------------------------------------------------------------------
    \31\29 U.S.C. Sec. 206(d)(1).
---------------------------------------------------------------------------
    While the ``any factor other than sex'' affirmative defense 
was broadly written, Congress intended that any proffered 
reason for a pay differential be a bona fide one. Also, the 
drafters made sure that the employer shouldered the burden of 
proving the legitimacy of its practice,\32\ 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.''\33\
---------------------------------------------------------------------------
    \32\H.R. Rep. No. 110-783 at 13 (2008) (internal citations and 
quotations omitted).
    \33\Id. (internal citations and quotations omitted).
---------------------------------------------------------------------------

                    EPA, TITLE VII, AND SECTION 1981

    On July 2, 1964, President Lyndon Johnson signed the Civil 
Rights Act of 1964\34\ into law. It was historic legislation 
prohibiting discrimination in employment, among other things, 
on the basis of race, color, religion, national origin, and 
sex.\35\ The EPA and Title VII, passed only one year apart, 
both prohibited sex discrimination in pay and provided 
overlapping coverage.
---------------------------------------------------------------------------
    \34\Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241.
    \35\42 U.S.C. Sec. 2000e et seq.
---------------------------------------------------------------------------
    Although the Civil Rights Act of 1991 amended Title VII to 
allow women to recover compensatory and punitive damages for 
intentional sex discrimination, the damages were capped at a 
maximum award of $300,000 and were based upon the size of the 
employer rather than the amount of harm to the victim.\36\ 
During the two years of debate, Congress acknowledged that caps 
on damages for victims of sex discrimination created a two-
tiered system where damages for sex discrimination were less 
than damages available for race and national origin 
discrimination. Congress considered and ultimately rejected 
uncapped damages in cases of sex discrimination as part of a 
compromise to avoid a presidential veto by President George 
H.W. Bush.\37\ The judgment made by Congress established a 
``disparate treatment of the law which seems to imply that some 
forms of discrimination are more tolerable than others.''\38\
---------------------------------------------------------------------------
    \36\Lynn Ridgeway Zehrt, Twenty Years of Compromise: How the Cap on 
Damages in the Civil Rights Act of 1991 Codified Sex Discrimination, 25 
Yale J.L. & Feminism 250, 249-50 (2013).
    \37\Id. at 301.
    \38\Id. at 271 n.162.
---------------------------------------------------------------------------
    Eighteen years after Congress acknowledged that it was 
creating a two-tiered system of damages where discrimination 
based upon race and national origin is elevated over 
discrimination based on gender, distinct differences remain 
between the application of Title VII and the EPA in sex-based 
wage discrimination cases.\39\ Key differences are outlined 
below.
---------------------------------------------------------------------------
    \39\H.R. Rep. No. 110-783 at 14 n.28 (2008) (internal citations and 
quotations omitted).
---------------------------------------------------------------------------
    Statute of Limitations/Exhaustion of Administrative 
Remedies. Under the EPA, an aggrieved person has two years (or 
three years in a case of a willful violation) from the date of 
any instance of unequal pay to file a claim in court.\40\ 
Generally, under Title VII, the aggrieved person must file a 
charge with the EEOC within 180 days. In Ledbetter v. Goodyear 
Tire & Rubber Company, Inc., the U.S. Supreme Court found that 
Lilly Ledbetter's equal pay claim was time-barred because it 
was filed more than 180 days after the initial act of 
discrimination.\41\ The Lilly Ledbetter Fair Pay Act of 2009 
directly addressed the 180-day statute of limitation and now 
enables workers to file Title VII pay discrimination claims 180 
days from the last discriminatory paycheck as opposed to 180 
days from when the discrimination first began.\42\
---------------------------------------------------------------------------
    \40\29 U.S.C. Sec. 255.
    \41\Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 
(2007).
    \42\42 U.S.C. Sec. 2000-e-5(e).
---------------------------------------------------------------------------
    Burden of Proof. When alleging discrimination under the 
EPA, an employee is required to show that two employees working 
in the same establishment and doing substantially similar jobs 
are receiving unequal pay. However, the plaintiff does not bear 
the burden of proving that the employer intentionally committed 
wage-based gender discrimination. Once the plaintiff 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.\43\
---------------------------------------------------------------------------
    \43\EEOC Compliance Manual, No. 915.003 Sec. 10-5 (Dec. 5, 2000), 
https://www.eeoc.gov/policy/docs/compensation.html.
---------------------------------------------------------------------------
    In contrast, a plaintiff under Title VII must typically 
prove that the employer engaged in intentional discrimination 
and retains the burden of proving discrimination throughout the 
case. However, unlike an EPA complainant, Title VII plaintiffs 
are not required to demonstrate that the performance of 
substantially similar (or equal) work so long as plaintiffs 
have other evidence of discrimination. (E.g. Proof that a male 
employee worked fewer hours or evidence that a female employee 
would have been paid more had she been a man).\44\
---------------------------------------------------------------------------
    \44\Id.
---------------------------------------------------------------------------
    Damages. A plaintiff who successfully proves gender-based 
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.\45\ Conversely, under 
Title VII, a prevailing plaintiff for a gender-based wage claim 
is entitled to back pay, compensatory damages,\46\ and punitive 
damages\47\ for intentional wage discrimination.\48\ However, 
as noted above, there are monetary caps on compensatory and 
punitive damages, which vary depending on the size of the 
employer rather than the extent of a victim's injuries.\49\ 
However, in no event may these damages exceed $300,000.\50\
---------------------------------------------------------------------------
    \45\29 U.S.C. Sec. 216; 29 U.S.C. Sec. 260.
    \46\H.R. Rep. No. 110-783 at 14 (2008) (internal citations and 
quotations omitted).
    \47\Id. (internal citations and quotations omitted) (punitive 
damages may be recovered when the employer acted with malice or 
reckless indifference).
    \48\Id.
    \49\Id.
    \50\Id.
---------------------------------------------------------------------------
    Section 1981. While Section 1981 of the Civil Rights Act of 
1866 (Section 1981) does not cover sex-based discrimination, it 
is worth comparing as well. Section 1981 forbids discrimination 
on the basis of race or national origin in the making and 
enforcement of contracts.\51\ Such contracts may be between 
employee and employer or between businesses. Plaintiffs in 
Section 1981 cases may recover compensatory and punitive 
damages, and the damages are not limited. Thus, under current 
law, an employee receiving unequal pay for equal work on the 
basis of race or national origin may recover punitive damages 
without an arbitrary statutory limit, but an employee receiving 
unequal pay on the basis of sex cannot. In this way, 
limitations on damage awards based on gender are considered by 
some to be another form of discrimination based upon sex.
---------------------------------------------------------------------------
    \51\42 U.S.C. Sec. 1981(a).
---------------------------------------------------------------------------

                WOMEN CONTINUE TO BE PAID LESS THAN MEN

    While progress has been made, equal pay for women is not 
yet a reality. As previously noted, a woman working full-time, 
year-round is typically paid 82 cents for every dollar a man 
makes.\52\ This gap can cause significant economic loss for a 
working woman over the course of her career. For example, a 
woman working full-time and year-round earning the median 
income for women would lose $406,280 in earnings over a 40-year 
career.\53\ To make up for the gender pay gap in lifetime 
earnings, a working woman would have to work almost nine years 
longer than her male counterpart.\54\ The gender wage gap's 
ultimate result is lower lifetime earnings for women, and as a 
result of these lower lifetime earnings, women's retirement 
savings and social security benefits are greatly affected.\55\ 
In 2011, women aged 65 and older received a total income of 
$22,069 on average compared to $41,134 for men.\56\ The average 
Social Security benefit is $15,846 for women compared to 
$20,153 for men of the same age.\57\
---------------------------------------------------------------------------
    \52\Am. Ass'n of Univ. Women, The Simple Truth about the Gender Pay 
Gap: 2020 Update 1 (2020), https://www.aauw.org/app/uploads/2020/12/
SimpleTruth_2.1.pdf.
    \53\Nat'l Women's Law Ctr., The Wage Gap: The Who, How, Why and 
What to Do 2 (2020), https://nwlc.org/wp-content/uploads/2019/09/Wage-
Gap-Who-how.pdf.
    \54\Id.
    \55\Jocelyn Fischer & Jeff Hayes, The Importance of Social Security 
in the Incomes of Older Americans: Differences by Gender, Age, Race/
Ethnicity, and Marital Status 1-4 (2013), https://iwpr.org/iwpr-
general/the-importance-of-social-security-in-the-incomes-of-older-
americans-differences-by-gender-age-race-ethnicity-and-marital-status/.
    \56\Id.
    \57\Nat'l Women's Law Ctr., The Wage Gap: The Who, How, Why and 
What to Do 2 (2020), https://nwlc.org/wp-content/uploads/2019/09/Wage-
Gap-Who-how.pdf; see also Jocelyn Fischer & Jeff Hayes, The Importance 
of Social Security in the Incomes of Older Americans: Differences by 
Gender, Age, Race/Ethnicity, and Marital Status 1-4 (2013), https://
iwpr.org/iwpr-general/the-importance-of-social-security-in-the-incomes-
of-older-americans-differences-by-gender-age-race-ethnicity-and-
marital-status/ (see figure 4).
---------------------------------------------------------------------------
    Because of the gender wage gap, the economy as a whole 
suffers. For example, researchers estimate that in 2016, the 
U.S. economy would have produced additional income of $512.6 
billion if women received equal pay--an amount equivalent to 
2.8 percent of the 2016 gross domestic product (GDP).\58\ In 
addition to boosting the economy, pay equity would cut the 
poverty rate for all working women by more than half, from 8 
percent to 3.8 percent.\59\
---------------------------------------------------------------------------
    \58\Jessica Milli et al., The Impact of Equal Pay on Poverty and 
the Economy 2 (2017), https://iwpr.org/iwpr-publications/briefing-
paper/the-impact-of-equal-pay-on-poverty-and-the-economy/.
    \59\Id.
---------------------------------------------------------------------------
    Research indicates that women experience a pay gap in 
nearly every line of work, regardless of education, experience, 
occupation, industry, and job title.\60\ In fact, 38 percent of 
the pay gap remains unexplained even when accounting for these 
variables.\61\ ``Most researchers attribute this portion [of 
the wage gap] to factors such as discrimination and socially 
constructed gender norms. . .''\62\ The wage gap remains even 
when controlling for educational attainment.\63\ Women with a 
bachelor's degree earn less than do men with an associate's 
degree and men with only a high school degree but no college 
education typically make more than women with an Associate's 
degree.\64\ Even in fields where women make up a substantial 
share of the workforce and controlling for experience, skills, 
education, race, and region, a gender wage gap remains in 98 
percent of occupations.\65\ Additionally, research demonstrates 
that when women move into a field of work in large numbers, 
wages decline.\66\
---------------------------------------------------------------------------
    \60\Council of Economic Advisers, The Gender Pay Gap on the 
Anniversary of the Lilly Ledbetter Fair Pay Act 3 (2016), https://
obamawhitehouse.archives.gov/sites/default/files/page/files/
20160128_cea_gender_pay_gap_issue_brief.pdf.
    \61\Washington Ctr for Equitable Growth, Gender Wage Inequality: 
What We Know and How We Can Fix It 18 (2018), https://
equitablegrowth.org/research-paper/gender-wage-inequality/.
    \62\Id.
    \63\Anthony P. Carnevale et al., Women Can't Win 4 (2018), https://
1gyhoq479ufd3yna29x7ubjn-wpengine.netdna-ssl.com/wp-content/uploads/
Women_FR_Web.pdf; see also Nat'l Women's Law Ctr., The Wage Gap: The 
Who, How, Why and What to Do 2 (2020), https://nwlc.org/wp-content/
uploads/2019/09/Wage-Gap-Who-how.pdf.
    \64\Id.; see also Am. Ass'n of Univ. Women, The Simple Truth about 
the Gender Pay Gap 1 (2018), https://www.aauw.org/aauw_check/
pdf_download/show_pdf.php?file=The_Simple_Truth.
    \65\Asaf Levanon et al., Occupational Feminization and Pay: 
Assessing Causal Dynamic Using 1950-2000 U.S. Census Data, 88 Social 
Forces 865 (2009); see also Jasmine Tucker, Women Experience a Wage Gap 
in Nearly Every Occupation 2 (2018), https://nwlc-
ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2018/04/Wage-Gap-
Fact-Sheet-Occupation.pdf; see also Nat'l Women's Law Ctr., The Wage 
Gap: The Who, How, Why and What to Do (2020), https://nwlc.org/wp-
content/uploads/2019/09/Wage-Gap-Who-how.pdf.
    \66\Asaf Levanon, et al., Occupational Feminization and Pay: 
Assessing Causal Dynamic Using 1950-2000 U.S. Census Data, 88 Social 
Forces 865 (2009).
---------------------------------------------------------------------------
    Wage inequality experienced by mothers threatens the 
stability of families across the United States. Mothers now 
represent a larger share of the breadwinners for their families 
than in previous years, and this ``is the continuation of a 
long-running trend, as women's earnings and economic 
contributions to their families continue to grow in 
importance.''\67\ In 2015, 64.4 percent of mothers in the 
United States were either the sole family breadwinner (42 
percent) or the co-breadwinner (22.4 percent).\68\ Meanwhile, 
mothers do not see the wage bump seen by fathers and in fact, 
statistics show that mothers receive a 7 percent penalty per 
child.\69\ Mothers on average are paid less than fathers, with 
mothers receiving 75 cents for every dollar a father earns, and 
low-wage working mothers see the biggest penalty of all groups 
in the workforce.\70\ The motherhood penalty is particularly 
staggering for Latina, Black, and Native American mothers who 
are paid 46, 52, and 50 cents to the dollar, respectively, 
compared to white non-Hispanic fathers.\71\ Households headed 
by working mothers are also more likely to be in poverty than 
their single father counterparts. Only about one in four 
households headed by single mothers in the United States are 
economically secure.\72\ Conversely, households headed by 
single fathers are nearly twice as likely to have incomes that 
provide economic security.\73\ Eliminating pay inequality would 
cut the poverty rate for working single mothers in nearly half, 
from 28.9 percent to 14.5 percent.\74\
---------------------------------------------------------------------------
    \67\Sarah Jane Glynn, Breadwinning Mothers are Increasingly the 
U.S. Norm, Center for American Progress (Dec. 19, 2016, 11:59 AM), 
https://www.americanprogress.org/issues/women/reports/2016/12/19/
295203/breadwinning-mothers-are-increasingly-the-u-s-norm/.
    \68\Id.
    \69\Michelle J. Budig & Paula England, The Wage Penalty for 
Motherhood, 66 American Sociological Review 204, 204-25 (2001).
    \70\Nat'l Women's Law Ctr., The Wage Gap Has Robbed Women of Their 
Ability to Weather COVID-19 2 (2021), https://nwlc.org/wp-content/
uploads/2021/03/EPD-2021-v1.pdf; see also Michelle J. Budig & Melissa 
J. Hodges, Differences in Disadvantage: Variation in the Motherhood 
Penalty across White Women's Earnings Distribution, 75 American 
Sociological Review 1, 1-24 (2010).
    \71\Nat'l Women's Law Ctr., The Wage Gap Has Robbed Women of Their 
Ability to Weather COVID-19 2 (2021), https://nwlc.org/wp-content/
uploads/2021/03/EPD-2021-v1.pdf.
    \72\Institute for Women's Policy Research, Basic Economic Security 
in the United States: How much Income Do Working Adults Need in Each 
State? 4 (2018), https://iwpr.org/job-quality-income-security/basic-
economic-security-in-the-united-states/.
    \73\Id.
    \74\Jessica Milli et al., The Impact of Equal Pay on Poverty and 
the Economy 2 (2017), https://iwpr.org/iwpr-publications/briefing-
paper/the-impact-of-equal-pay-on-poverty-and-the-economy/; see also Am. 
Ass'n of Univ. Women, The Simple Truth about the Gender Pay Gap: 2020 
Update 6 (2020), https://www.aauw.org/app/uploads/2020/12/
SimpleTruth_2.1.pdf.
---------------------------------------------------------------------------
    The total increase in earnings by women through pay equity 
would be 16 times what the Federal Government and all state 
governments combined spent on Temporary Assistance to Needy 
Families (TANF) in Fiscal Year 2015.\75\ Additionally, 
approximately 25.8 million children would benefit from the 
increased earnings of their mothers, and the number of children 
with working mothers living in poverty would drop from 5.6 
million to 3.1 million.\76\
---------------------------------------------------------------------------
    \75\Jessica Milli et al., The Impact of Equal Pay on Poverty and 
the Economy 2 (2017), https://iwpr.org/iwpr-publications/briefing-
paper/the-impact-of-equal-pay-on-poverty-and-the-economy/.
    \76\Id.
---------------------------------------------------------------------------

Pay discrimination is difficult to detect

    In today's workplace, pay discrimination is often extremely 
difficult to detect. Discriminatory salary decisions are seldom 
obvious to employees because pay is often cloaked in 
secrecy.\77\ As Justice Ginsburg observed in Ledbetter v. 
Goodyear Tire & Rubber Company, Inc., ``comparative pay 
information . . . is often hidden from the employee's 
view.''\78\ This lack of transparency creates significant 
obstacles for employees to gather information that would 
indicate that they have experienced pay discrimination.\79\ 
Ultimately, this undermines an employee's ability to challenge 
pay discrimination.\80\ Also, many employers have policies 
prohibiting salary discussions.\81\ About 60 percent of workers 
in the for-profit, private sector are subject to rules 
prohibiting or strongly discouraging employees from discussing 
their wages with co-workers.\82\ Finally, for those employees 
who do know what their colleagues earn, they often lack 
information about the contributing factors that might influence 
pay levels, such as performance, education, or training.
---------------------------------------------------------------------------
    \77\Fighting for Fairness: Examining Legislation to Confront 
Workplace Discrimination Before H. Subcomm. on Civil Rights and Human 
Servs. & H. Subcomm. on Workforce Prots. of the H. Comm. on Educ. and 
Labor, 117th Cong. (2021) (written testimony of Fatima Goss Graves, 
President and CEO of National Women's Law Center, at 4) [Hereinafter 
Goss Graves Testimony].
    \78\Ledbetter v. Goodyear Tire & Rubber Co. Inc., 127 S. Ct. 2162, 
2179 (2007) (Ginsburg, J., dissenting).
    \79\Goss Graves Testimony at 6.
    \80\Id.
    \81\Id.
    \82\Shengwei Sun et al., On the Books, Off the Record: Examining 
the Effectiveness of Pay Secrecy Laws in the U.S. 7 (2021), https://
iwpr.org/wp-content/uploads/2021/01/Pay-Secrecy-Policy-Brief-v4.pdf.
---------------------------------------------------------------------------
    Disparate pay might not begin with a woman's initial salary 
determination, but it can readily develop with a decision to 
increase the pay of male colleagues. Women risk being 
overlooked for promotions and raises, the impact of which 
compounds throughout their careers.
    Discussions about wages are necessary to identify pay 
disparity because ``without this knowledge, [women] are unable 
to report these problems to the EEOC.''\83\ Once a lawsuit is 
filed, the discovery of wage data is available to help 
aggrieved employees develop their cases; however, in order 
learn more about employee salaries, women need to have some 
basis to file suit in the first place.
---------------------------------------------------------------------------
    \83\The Paycheck Fairness Act (H.R. 7): Equal Pay for Equal Work 
Before H. Subcomm. on Civil Rights and Human Servs. & H. Subcomm. on 
Workforce Prots. of the H. Comm. on Educ. and Labor, 116th Cong. (2019) 
(written testimony of Jenny Yang, Partner at Working Ideal, at 2) 
[Hereinafter Yang Testimony].
---------------------------------------------------------------------------

Lack of data on pay disparity

    Data about pay discrimination is an invaluable tool for 
enforcement agencies such as the EEOC and the Office of Federal 
Contract Compliance Programs (OFCCP). Experts agree that these 
agencies currently receive minimal information about gender-
based disparities in pay at the establishment level.\84\
---------------------------------------------------------------------------
    \84\Id.
---------------------------------------------------------------------------
    Bureau of Labor Statistics--Occupational Employment 
Statistics. For over forty years, the Bureau of Labor 
Statistics (BLS) had been collecting data on female workers and 
comparing them to their male counterparts. This data had formed 
the basis for its monthly report on the employment 
situation.\85\ In 2005, BLS stopped collecting this data, 
citing employer inconvenience.\86\ In response to this, 
Congress included in the Fiscal Year 2006, 2007, 2008, 2009, 
and 2010 Labor, Health and Human Services, Education, and 
Related Agencies appropriations bills that were enacted into 
law a provision requiring BLS to continue to collect data on 
women workers. However, beginning in Fiscal Year 2011 and 
continuing through Fiscal Year 2019, Congress did not include 
the requirement for BLS to collect data on women workers as 
part of the Current Employment Statistics (CES) survey. 
Recognizing the value of collecting these statistics, the 
Paycheck Fairness Act makes permanent a requirement for BLS to 
gather these statistics as part of the CES.
---------------------------------------------------------------------------
    \85\H.R. Rep. No. 110-783 at 18 (2008) (internal citations and 
quotations omitted).
    \86\Id. at 18 n.76.
---------------------------------------------------------------------------
    Equal Employment Opportunity Commission. The EEOC was 
created by the Civil Rights Act of 1964 and was given 
litigation enforcement authority in 1972.\87\ The EEOC has 
collected employment data categorized by race/ethnicity, 
gender, and job category through the Employer Information 
Report EEO-1 (EEO-1) from employers since 1966. The EEOC has 
also collected and maintained sensitive employer information 
gathered through its investigations since it opened its doors 
in 1965. Title VII requires that the EEOC keep this information 
confidential and imposes criminal sanctions on EEOC employees 
who unlawfully disclose confidential information.
---------------------------------------------------------------------------
    \87\35 Years of Ensuring the Promise of Opportunity, EEOC, https://
www.eeoc.gov/eeoc/history/35th/pre1965/index.html (last visited Mar. 
11, 2019).
---------------------------------------------------------------------------
    In 2016, the Obama Administration expanded the data 
collection requirements for the EEO-1 to include, in addition 
to employment demographic data (Component 1), pay data 
disaggregated by race/ethnicity, gender, and job category 
(Component 2). Collecting pay data can expose trends in the 
hiring, payment, and promotion of employees; the sex-
segregation of jobs; and the inequity of salaries, benefits, or 
bonuses. Data may show that employees of the opposite sex are 
not paid comparably for the same job, or for different jobs 
that require similar skills, education, and experience. Some 
businesses may not be aware of the discriminatory practices 
until the data is collected and analyzed. Once these issues are 
brought to light, businesses can create interventions aimed at 
correcting or eliminating the problem before it even starts.
    The Trump Administration indefinitely stayed the expanded 
pay data collection reporting requirements,\88\ but following 
litigation, a court ordered the EEOC to collect pay data from 
employers for 2017 and 2018, and it did so. Nevertheless, in 
2019, the EEOC revised the EEO-1 form to eliminate future pay 
data reporting, and the OFCCP announced that it would neither 
seek nor rely on the Component 2 pay data collected by the EEOC 
for its enforcement efforts. While the EEOC recently announced 
that it will resume the EEO-1 Component 1 demographic data 
collection, which was paused in 2020, this does not include the 
expanded pay data reporting requirements. The Paycheck Fairness 
Act requires the Department of Labor and the EEOC to collect 
data on compensation and other employment-related data by race, 
nationality, and sex in order to enhance the ability of both 
agencies to detect violations and improve enforcement of the 
EPA.
---------------------------------------------------------------------------
    \88\What You Should Know: Statement of Acting Chair Victoria A. 
Lipnic about OMB Decision on EEO-1 Pay Data Collection, https://
www.eeoc.gov/eeoc/newsroom/wysk/eeo1-pay-data.cfm (last visited Mar. 
11, 2019).
---------------------------------------------------------------------------
    Office of Federal Contract Compliance Programs. The 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. An estimated 4.1 million individuals work 
for an employer who contracts with the federal government.\89\
---------------------------------------------------------------------------
    \89\Janet Nguyen, The U.S. Government is Becoming More Dependent on 
Contract Workers, Marketplace (Jan. 17, 2019, 2:17 PM), https://
www.marketplace.org/2019/01/17/business/rise-federal-contractors.
---------------------------------------------------------------------------
    The OFCCP's Equal Opportunity (EO) Survey was developed 
over three administrations to ensure nondiscrimination in 
federal contractor employment. It was intended to track 
employment data and to improve the enforcement of anti-
discrimination requirements, including gender-based wage 
discrimination, on federal contractors.\90\ Prior to the EO 
Survey, the OFCCP conducted targeted compliance reviews. 
Because of limited resources, the OFCCP only audited 
approximately four percent of contractors each year for 
compliance.\91\
---------------------------------------------------------------------------
    \90\H.R. Rep. No. 110-783 at 18 (2008) (internal citations and 
quotations omitted).
    \91\Id. at 19 (internal citations and quotations omitted).
---------------------------------------------------------------------------
    The EO Survey was designed to enable the OFCCP to be far 
more effective in detecting and remedying wage discrimination 
and encouraging self-awareness and self-evaluation among 
contractors as a means of increasing compliance.\92\ 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, 
personnel actions (e.g., hires and promotions), and 
compensation of full-time employees, all aggregated by job 
group, race, and gender.\93\ The first survey was sent out in 
2000 during the last year of the Clinton Administration, but 
the Bush Administration that followed did not take any action 
on the surveys that were returned and did not follow up on 
those surveys that were not returned.\94\
---------------------------------------------------------------------------
    \92\Id. (internal citations and quotations omitted).
    \93\Id. (internal citations and quotations omitted).
    \94\Id. (internal citations and quotations omitted).
---------------------------------------------------------------------------
    In 2003 and 2004, the Bush Administration sent out fewer 
and fewer surveys, and in 2005 it failed to send out any at 
all. In January 2006, the OFCCP proposed eliminating the EO 
Survey altogether.\95\ The Obama Administration recognized that 
the gender pay gap continued to exist despite the prohibitions 
against gender-based pay discrimination. In May 2014, President 
Barack Obama issued a Memorandum instructing the Secretary of 
Labor to establish regulations requiring federal contractors 
and subcontractors to submit summary data on employee 
compensation, including data by sex and race.\96\ As discussed 
above, this important data was not collected due to actions 
taken by the Trump Administration.\97\
---------------------------------------------------------------------------
    \95\Id. (internal citations and quotations omitted).
    \96\Memorandum on Advancing Pay Equality through Compensation Data 
Collection, 2014 Daily Comp. Pres. Doc. 20751 (Apr. 11, 2014).
    \97\Neomi Rao, EEO-1 Form; Review Stay, 1-2 (2017), https://
www.reginfo.gov/public/jsp/Utilities/Review_and_Stay_Memo_for_EEOC.pdf.
---------------------------------------------------------------------------
    H.R. 7 expands the EEOC's and the OFCCP's authority to 
collect pay data from certain employers, in addition to data 
already collected from employers in Component 1, on employment 
by race, gender, and national origin. This data will help 
employers and these enforcement agencies identify gender-based 
pay discrimination.

Women are less likely to negotiate

    High numbers of women fail to negotiate for higher salaries 
and promotions.\98\ Although lack of negotiation is a 
contributing factor to the wage gap, it does not justify 
gender-based pay discrimination. Researchers have discovered 
several reasons women fail to negotiate for themselves in the 
workplace. Women often do not promote their own interests, 
choosing instead to focus on others believing that employers 
will recognize and reward them for good work. Women tend to be 
more successful when negotiating for others--negotiating 18 
percent greater salaries for others than they negotiate for 
themselves.\99\
---------------------------------------------------------------------------
    \98\Shankar Vedantam, Salary, Gender and the Social Cost of 
Haggling, Washington Post 
(July 30, 2007), http://www.washingtonpost.com/wp-dyn/content/article/
2007/07/29/AR2007072900827.html.
    \99\Dina W. Pradel et al., When Gender Changes the Negotiation, 
Harvard Business School (Feb. 13, 2006), https://hbswk.hbs.edu/item/
when-gender-changes-the-negotiation.
---------------------------------------------------------------------------
    The hesitation of women to negotiate for themselves is not 
unreasonable. ``Employers tend to penalize women who initiate 
negotiations for higher compensation more than they do men, as 
women are often judged more harshly for seeking higher pay than 
men.''\100\ H.R. 7 authorizes the Secretary of Labor, in 
conjunction with the EEOC, to award competitive grants to 
eligible entities to provide negotiation skills training 
programs for the purposes of addressing pay disparities, 
including through outreach to women and girls.
---------------------------------------------------------------------------
    \100\Yang Testimony at 6.
---------------------------------------------------------------------------

Reliance on salary history perpetuates historic discrimination

    Asking job applicants their prior salary history has long 
been a routine part of the hiring process. However, the 
practice of utilizing prior salary, or pay history, in the 
hiring process perpetuates gender and racial wage gaps in the 
workplace. Salary history is not an objective factor because it 
assumes that prior salaries were fairly established in the 
first place.\101\ Using salary histories, which may have been 
tainted by bias or impacted by gender-based wage 
discrimination, whether intentional or not, means that 
discriminatory pay follows workers wherever they go. As the 
EEOC's Compliance Manual states, ``[p]rior salary cannot, by 
itself, justify a compensation disparity. This is because prior 
salaries of job candidates can reflect sex-based compensation 
discrimination.''\102\
---------------------------------------------------------------------------
    \101\Nat'l Women's Law Ctr., Asking for Salary History Perpetuates 
Pay Discrimination from Job to Job 2 (2020), https://nwlc.org/wp-
content/uploads/2018/12/Asking-for-Salary-History-Perpetuates-
Discrimination-1.14.2020-v2.pdf.
    \102\EEOC Compliance Manual, No. 915.003 Sec. 10-IV.F.2.g (Dec. 5, 
2000), https://www.eeoc.gov/policy/docs/compensation.html.
---------------------------------------------------------------------------
    Businesses often decide what to pay new hires based in-
part, or in whole, on how much they earned from a previous job, 
which can exacerbate prior pay discrimination. As Fatima Goss 
Graves explained in her testimony at the 2021 Joint 
Subcommittee Hearing:

          According to a recent study by Harvard Business 
        Review, a significant percentage of employers who 
        conduct pay equity audits found that relying on 
        applicants' salary history is a key driver of gender 
        pay gaps within their companies. . . . By using a 
        woman's salary history to evaluate her suitability for 
        a position or to set her new salary, new employers 
        allow past discrimination to drive hiring and pay 
        decisions, which in turn, keeps women's pay stagnant. 
        Gender based discrimination in pay is further 
        compounded by race for women of color. . . . Recent 
        research shows that state salary history bans are 
        helping to narrow gender and racial wage gaps, 
        including increasing employer transparency when it 
        comes to pay. These bans have resulted in higher wages 
        for job-changers by an average of 8% for women and 13% 
        for African Americans compared to control groups.\103\
---------------------------------------------------------------------------
    \103\Goss Graves Testimony at 8.

    Relying on a prospective employee's skills and abilities 
rather than prior pay ensures that employers reduce past 
discrimination in the hiring and pay decision process.
    Salary history bans are becoming increasingly popular; 15 
states, Puerto Rico, and at least 17 cities or counties have 
enacted salary history bans.\104\ Recent research also suggests 
that these efforts are working; Black and female candidates who 
took new jobs in states with a ban appear to have achieved 
notable pay increases.\105\
---------------------------------------------------------------------------
    \104\Am. Ass'n of Univ. Women, Pay Equity Laws Chart (2020), 
https://www.aauw.org/app/uploads/2021/01/Pay-Equity-Laws-Chart_2020-
for-website.pdf; Am. Ass'n of Univ. Women, State and Local Salary 
History bans, https://www.aauw.org/resources/policy/state-and-local-
salary-history-bans/.
    \105\James Beesen et al., Stop Asking Job Candidates for Their 
Salary History, Harvard Business Review (July 2020), https://hbr.org/
2020/07/stop-asking-job-candidates-for-their-salary-history.
---------------------------------------------------------------------------

  THE EQUAL PAY ACT MUST BE STRENGTHENED TO EFFECTIVELY ERADICATE PAY 
                               DISPARITY

    The Paycheck Fairness Act strengthens the EPA as a tool to 
achieve pay parity by addressing the shortcomings described 
below.

Establishment

    Plaintiffs raising a claim under the EPA carries a heavy 
burden of proof in establishing a case for gender-based wage 
discrimination. To make out a prima facie case, plaintiffs must 
not only show that a pay disparity exists between employees of 
the same ``establishment,'' but plaintiffs must also identify 
specific employees of the opposite sex holding equal positions 
who are paid higher wages.\106\ The courts have strictly 
defined the term ``same establishment'' to mean ``a distinct 
physical place of business.''\107\ ``This can be an obstacle 
for an employee who seeks to compare her job to a male employee 
who does the same work in a different physical location for the 
same employer in the same town.''\108\
---------------------------------------------------------------------------
    \106\Id. at 13.
    \107\A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 496 (1945); 29 
C.F.R. Sec. 1620.9(a).
    \108\Goss Graves Testimony at 10.
---------------------------------------------------------------------------
    The establishment requirement limits the ability of 
plaintiffs to prevail in EPA claims since many plaintiffs may 
not have a true comparator in their physical workplace. Today's 
employers are much different than they were fifty-eight years 
ago when the EPA was first enacted. Some employers may have 
multiple facilities at which the same jobs are performed. 
However, other locations may have only one person in a certain 
position (e.g., manager or supervisor), and employers have 
successfully asserted that plaintiffs in higher-level positions 
have unique job duties and therefore have no comparator in the 
same establishment.\109\
---------------------------------------------------------------------------
    \109\Juliene James, The Equal Pay Act in the Courts: A De-Facto 
White-Collar Exemption, 79 N.Y.U. L. Rev. 1873 (2004).
---------------------------------------------------------------------------
    Georgen-Saad v. Texas Mutual Insurance Company illustrates 
the obstacle the establishment requirement creates for 
executive and professional women.\110\ 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 Georgen-Saad's claim that any of 
the positions required ``equal skill, effort, and 
responsibility,'' and elaborated:
---------------------------------------------------------------------------
    \110\Georgen-Saad v. Texas Mut. Ins. Co., 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, 
        Underwritingand 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.\111\
---------------------------------------------------------------------------
    \111\Georgen-Saad v. Texas Mut. Ins. Co., 195 F. Supp. 2d 853 (W.D. 
Tex. 2002).

    In 1986, the EEOC issued regulations interpreting the 
definition of ``establishment'' under the EPA.\112\ The 
regulation provides in part 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.
---------------------------------------------------------------------------
    \112\29 C.F.R. Sec. 1620.9(a)-(b).
---------------------------------------------------------------------------
    Courts have interpreted ``establishment'' to apply to 
different locations. In Grumbine v. United States,\113\ 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.''\114\ 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, ``[i]t would hardly make sense to permit an employer to 
rely on [the] geographic `establishment' concept in defense of 
an equal pay practice when that employer has itself adopted a 
uniform, non-geographic pay policy, and system.''\115\
---------------------------------------------------------------------------
    \113\Grumbine v. United States, 586 F. Supp. 1144 (D.D.C. 1984).
    \114\Id.
    \115\Id. at 1148.
---------------------------------------------------------------------------
    In 2000, a Texas court\116\ held that a female district 
sales manager in the Dallas/Fort Worth facility could compare 
herself to 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.''\117\ The Fifth Circuit 
held that a school district in Dallas with 182 schools was a 
single establishment for purposes of an EPA claim\118\ as were 
13 elementary schools operated by a single school district near 
Houston.\119\
---------------------------------------------------------------------------
    \116\Vickers v. Int'l Baking Co., No. 398CV1864D, 2000 U.S. Dist. 
LEXIS 17995 (N.D. Tex. Dec. 7, 2000).
    \117\Id. at *15.
    \118\Marshall v. Dallas Indep. Sch. Dist., 605 F.2d 191, 194 (5th 
Cir. 1979).
    \119\Brennan v. Goose Creek Consol. Indep. Sch. Dist., 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-site employer.\120\ 
Under these circumstances, the courts have recognized that 
accountability flows from the decision-making structure. The 
single-location establishment interpretation is an unworkable 
standard in today's workplace and threatens to eliminate a 
large number of women from the EPA's protections.
---------------------------------------------------------------------------
    \120\Meeks v. Computer Ass'n Int'l, 15 F.3d 1013, 1017 (courts 
presume that multiple offices are not a single establishment unless 
unusual circumstances are demonstrated); see also Kassman v. KPMG LLP, 
No. 11 Civ. 3743, 2018 U.S. Dist. LEXIS 203561, at *81 (S.D.N.Y. Nov. 
30, 2018) (denying class status of plaintiff and holding that ``[p]ay 
and promotion decisions were not sufficiently `centralized' to amount 
to `unusual circumstances' warranting a finding that the many offices 
and practice areas represented in the 1,100-member proposed collective 
qualify as a single `establishment' under the EPA'').
---------------------------------------------------------------------------
    Recognizing that the single-site ``establishment'' 
definition is linked to an outdated employer-employee system 
and that it has limited women's ability to assert an EPA claim, 
H.R. 7 expands a worker's opportunity to find a valid 
comparator. Under H.R. 7, 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.\121\ However, 
consistent with EEOC rules, guidance, and regulations, 
including 29 C.F.R. 1620.9, the Act does not restrict courts 
from applying establishment more broadly than the county.
---------------------------------------------------------------------------
    \121\820 Ill. Comp. Stat. 112/10 (2003) (``Nothing in this Act may 
be construed to require an employer to pay, to any employee at a 
workplace in a particular county, wages that are equal to the wages 
paid by that employer at a workplace in another county to employees in 
jobs the performance of which requires equal skill, effort, and 
responsibility, and which are performed under similar working 
conditions.'').
---------------------------------------------------------------------------

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.''\122\ Historically, courts interpret 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.\123\ Employers have been able to prevail in EPA cases by 
asserting a range of ``other than sex'' factors.
---------------------------------------------------------------------------
    \122\29 U.S.C. Sec. 206(d)(1); see also Yang Testimony at 4.
    \123\See Fallon v. Illinois, 882 F.2d 1206 (7th Cir. 1989).
---------------------------------------------------------------------------
    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.\124\ Additionally, employers have been able to 
successfully argue that factors such as market forces and prior 
salaries (even if they are based on a discriminatory wage) fall 
within the ``any factor other than sex'' defense, undermining 
the goals of the EPA. ``Consideration of market forces shifts 
focus from the central question of whether an employer is 
providing equal pay for equal work. Bias can taint pay 
decisions when the employer assesses an artificially higher or 
nebulous `market value' to male candidates.''\125\
---------------------------------------------------------------------------
    \124\Randolph Cent. Sch. Dist. v. Aldrich, 506 U.S. 965 (1992) 
(denying cert and acknowledging the conflict among the circuits).
    \125\Yang Testimony at 6.
---------------------------------------------------------------------------
    In Boriss v. Addison Farmers Insurance Company,\126\ 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 more underwriting experience and college education, even 
though a college degree was not a prerequisite for the 
position.
---------------------------------------------------------------------------
    \126\Boriss v. Addison Farmers Ins. Co., No. 91 C 3144, 1993 U.S. 
Dist. LEXIS 10331 (N.D. Ill. July 27, 1993).
---------------------------------------------------------------------------
    The court found that the employer successfully met its 
burden; the difference in pay was due to a ``factor other than 
sex.'' The court noted that the higher salaries of the male 
employees were based on the pay they received at their prior 
employment.\127\ The court 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.''\128\ All that needs to be evaluated is 
``whether the factor is discriminatorily applied or if it 
causes a discriminatory effect.''\129\
---------------------------------------------------------------------------
    \127\Id. at 23.
    \128\Id. (citing Covington v. S. Ill. Univ., 816 F.2d 317, 321-22 
(1987)); see also Fallon v. Illinois, 882 F.2d 1206 (7th Cir. 1989).
    \129\Boriss v. Addison Farmers Ins. Co., No. 91 C 3144, 1993 U.S. 
Dist. LEXIS 10331 at *27 (N.D. Ill. July 27, 1993).
---------------------------------------------------------------------------
    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.\130\ Even though these situations may result in 
female employees being paid less, the court stated that none of 
these situations violate the EPA.\131\
---------------------------------------------------------------------------
    \130\Id.
    \131\Id.
---------------------------------------------------------------------------
    In Warren v. Solo Company,\132\ the court 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 is 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.
---------------------------------------------------------------------------
    \132\Warren v. Solo Cup Co., 516 F.3d 627 (7th Cir. 2008); see 
Lauderdale v. Ill. Dep't of Human Servs., 210 F. Supp. 3d 1012, 1019 
(C.D. Ill. 2016) (``[T]he EPA's fourth affirmative defense is a broad 
catch-all exception that embraces an almost limitless number of 
factors, as long as they do not involve sex.''); see also Dey v. Colt 
Constr. & Dev. Co., 28 F.3d 1446, 1462 (7th Cir. 1994).
---------------------------------------------------------------------------
    Despite clear direction from the Supreme Court,\133\ lower 
courts have accepted market forces as a defense to a pay 
disparity.\134\ In Merillat v. Metal Spinners, 
Incorporated,\135\ the plaintiff, who was 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.''\136\ 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.\137\ At 
that time, the plaintiff earned $49,800, and she helped to 
train the new employee for his position.\138\
---------------------------------------------------------------------------
    \133\See Corning Glass Works v. Brennan, 417 U.S. 188 (1974) 
(holding 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. The court in Corning Glass Works noted that the 
company's decision to pay women less for the same work that men 
performed ``took advantage of the market and was illegal under the 
EPA).
    \134\See Brokaw v. Weiser Sec. Servs., Inc., 780 F. Supp. 2d 1233, 
1252 (S.D. Ala. 2011).
    \135\Merillat v. Metal Spinners, Inc., 470 F.3d 685 (7th Cir. 
2006).
    \136\Id.
    \137\Id.
    \138\Id.
---------------------------------------------------------------------------
    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 
male hired to fill the new position 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.''\139\ The 
court noted that it previously ``held that an employer may take 
into account market forces when determining the salary of an 
employee,''\140\ although cautioning in a footnote against 
employers taking advantage of market forces to justify 
discrimination.
---------------------------------------------------------------------------
    \139\Merillat v. Metal Spinners, Inc., 470 F.3d 685, 698 (7th Cir. 
2006).
    \140\Id. at 697.
---------------------------------------------------------------------------
    Similarly, the Third Circuit, in the case of Hodgson v. 
Robert Hall Clothes,\141\ 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.''\142\ In Hodgson, the court compared the higher 
wages of male salespeople working in the men's department of a 
store with the lower wages being paid to female salespeople 
working in the ladies' department.
---------------------------------------------------------------------------
    \141\Hodgson v. Robert Hall Clothes, Inc., 473 F.2d 589 (3d Cir. 
1973).
    \142\Id. (in addition, women were not allowed to apply to work in 
the men's department in this case).
---------------------------------------------------------------------------
    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, ``[w]ithout 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.''\143\
---------------------------------------------------------------------------
    \143\Id. at 596.
---------------------------------------------------------------------------
    Some courts hold 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, Incorporated,\144\ 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).\145\ 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\
---------------------------------------------------------------------------
    \144\Drury v. Waterfront Media, Inc., 05 Civ. 10646 (JSR), 2007 
U.S. Dist. LEXIS 18435(S.D.N.Y. Mar. 8, 2007).
    \145\Id.
    \146\Id.
---------------------------------------------------------------------------
    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, 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\Drury v. Waterfront Media, Inc., 05 Civ. 10646 (JSR), 2007 
U.S. Dist. LEXIS 18435 (S.D.N.Y. Mar. 8, 2007).
---------------------------------------------------------------------------
    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\Glunt v. GES Exposition Servs., 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 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 
Engelmann v. NBC,\153\ the court found that ``salary matching'' 
was a valid defense to pay disparity. In Sobol v. Kidder, 
Peabody & Company,\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\Horner v. Mary Inst., 613 F.2d 706 (8th Cir. 1980).
    \153\Engelmann v. Nat'l Broad. Co., 94 Civ. 5616 (MBM), 1996 U.S. 
Dist. LEXIS 1865 (S.D.N.Y. Feb. 22, 1996).
    \154\Sobol v. Kidder, Peabody & Co., 49 F. Supp. 2d 208, 220 
(S.D.N.Y. 1999).
    \155\Id.
---------------------------------------------------------------------------
    While the EPA affords employers opportunities to defend 
their practices, 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. 
This is one of the main loopholes found in the EPA that has 
perpetuated the gender-wage gap. The Paycheck Fairness Act 
resolves this loophole by requiring that the EPA's affirmative 
defense of ``any 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.
    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 
(i.e., a disparate impact case), an employer must assert that 
the practice is consistent with business necessity. Like a 
disparate impact case under Title VII, cases brought under the 
EPA do not require a showing of intent. So, just as a practice 
(which includes the payment of wages) that may be ``fair in 
form but discriminatory in operation''\156\ is prohibited under 
Title VII, the same is true with regard to the EPA.
---------------------------------------------------------------------------
    \156\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. This is one 
of the main reasons that the EPA is ineffective.\157\
---------------------------------------------------------------------------
    \157\H.R. Rep. No. 110-783 at 12 (2008) (internal citations and 
quotations omitted).
---------------------------------------------------------------------------
    The business necessity defense originated in the case of 
Griggs v. Duke Power Company,\158\ decided in 1975. In that 
case, the Supreme Court determined that an employment practice 
that resulted in the exclusion of Black employees from certain 
jobs could only be justified in the case of ``business 
necessity.''\159\ However, because the Court also introduced 
the concept of ``job relatedness,'' and it appeared to use the 
two concepts interchangeably, there was some confusion over the 
years as what the correct standard should be.\160\ This 
culminated in the case of Wards Cove Packing Company, 
Incorporated, et al. v. Atonio et al.,\161\ where the Court 
abandoned the concept of business necessity altogether:
---------------------------------------------------------------------------
    \158\Griggs v. Duke Power, 401 U.S. 424 (1971).
    \159\Id. at 431.
    \160\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, 1371-72 (1994).
    \161\Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).

          [T]he 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
          . . . [a]t the same time, though, there is no 
        requirement that the challenged practice be 
        ``essential'' or ``indispensable'' to the employer's 
        business.\162\
---------------------------------------------------------------------------
    \162\Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989).

    Congress responded with the passage of the Civil Rights Act 
of 1991, which overturned Wards Cove Packing and enshrined the 
business necessity defense into law in Title VII cases of 
disparate impact.\163\ 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.\164\
---------------------------------------------------------------------------
    \163\Civil Rights Act of 1991, Pub. L. No. 102-166, Sec. 2, 105 
Stat. 1071.
    \164\Lanning v. SEPTA, 308 F.3d 286 (3d. Cir. 2002); see also 
United States v. Delaware, Civ. A. No. 01-020-KAJ, 2004 U.S. Dist. 
LEXIS 4560 (D. Del. March 22, 2004).
---------------------------------------------------------------------------
    The Paycheck Fairness Act strengthens the EPA by insisting 
that the ``factor other than sex'' defense be limited to a 
legitimate business purpose.\165\ 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 and 
thereby provides workers and employers with a known legal 
standard for assessing pay disparities.\166\
---------------------------------------------------------------------------
    \165\Yang Testimony at 8.
    \166\H.R. Rep. No. 110-783 at 12 (2008) (internal citations and 
quotations omitted).
---------------------------------------------------------------------------

Class actions

    The EPA requires plaintiffs to affirmatively ``opt-in'' to 
a collective action.\167\ 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.\168\ Title VII, for example, provides for 
claimants to ``opt-out'' of multi-party claims.\169\
---------------------------------------------------------------------------
    \167\Class-action lawsuits filed under the EPA are called 
collective actions because plaintiffs must ``opt-in'' in order to 
participate.
    \168\Yang Testimony at 13.
    \169\42 U.S.C. Sec. 2000e-2(n).
---------------------------------------------------------------------------
    The current EPA rule excludes workers who may not be aware 
they have a claim and also excludes workers 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. 7 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.\170\
---------------------------------------------------------------------------
    \170\Goss Graves Testimony at 10.
---------------------------------------------------------------------------

Damages

    Damages under the EPA are limited to backpay and liquidated 
damages in the form of double back pay. No compensatory or 
punitive damages are available under the EPA, and liquidated 
damages may only be recovered if the employer fails to 
demonstrate good faith and reasonable grounds for believing it 
complied with the law.\171\ By contrast, claims for 
discrimination based on race and national origin under Title 
VII permit successful complainants to recover compensatory and 
punitive damages, except that damages under Title VII are 
capped depending on the size of the employer.\172\ ``For a 
plaintiff succeeding in a Title VII case against an employer 
with 15-100 employees, damages are capped at $50,000, no matter 
how severe the harassment or how culpable the employer. Even 
for employers with more than 500 employees, damages are capped 
at $300,000.''\173\ The lack of punitive or compensatory 
damages in the EPA, as well as caps on damages in Title VII, 
does 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.\174\
---------------------------------------------------------------------------
    \171\29 U.S.C. Sec. 260.
    \172\42 U.S.C. Sec. 1981a (Section 1981 of the Civil Rights Act of 
1866, forbids discrimination on the basis of race or national origin in 
the making and enforcement of contracts. Plaintiffs in Section 1981 
cases may recover compensatory and punitive damages. However, unlike 
gender discrimination claims under Title VII, damages sought pursuant 
to Section 1981 are not limited.).
    \173\Nat'l Women's Law Ctr., #Metoowhatnext: Strengthening 
Workplace Sexual Harassment Protections and Accountability 4 (2017), 
https://nwlc.org/wp-content/uploads/2017/12/MeToo-Strengthening-
Workplace-Sexual-Harassment-Protections.pdf.
    \174\Vanessa Ruggles, The Ineffectiveness of Capped Damages in 
Cases of Employment Discrimination: Solutions Toward Deterrence, 6 
Conn. Pub. Interest L.J. 143, 147 (2006); see also 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.'').
---------------------------------------------------------------------------
    ``These limitations on remedies not only deprive women 
subjected to wage discrimination of full relief--they also 
substantially limit the deterrent effect of the Equal Pay 
Act.''\175\ Fatima Goss Graves, testifying at the 2021 Joint 
Subcommittee Hearing, explained:
---------------------------------------------------------------------------
    \175\Goss Graves Testimony at 11.

          Limited remedies and damages caps mean that employers 
        can refrain from addressing, or even examining, pay 
        disparities in their workforces without fear of 
        substantial penalties for this failure. Arbitrary 
        limits on damages also encourage employers to frame the 
        discrimination faced by women of color as only sex-
        based, and therefore subject to limitations--ignoring 
        the complex nature of the discrimination employees have 
        suffered.\176\
---------------------------------------------------------------------------
    \176\Id.

    The Paycheck Fairness Act provides for uncapped damages 
under the EPA so that damages for discrimination based upon sex 
are consistent with damages for discrimination based upon race 
and national origin.
    The injustice of capped damages is illustrated in Brady v. 
Wal-Mart Stores, Incorporated.\177\ In this case, the plaintiff 
Patrick Brady brought a suit against Wal-Mart and the store 
manager, alleging violations of the Americans with Disabilities 
Act of 1990 (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, 
as well as a $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.\178\ In his opinion, 
Judge Orenstein stated that his ruling ``respects the law, but 
it does not achieve a just result,''\179\ especially for one of 
the biggest companies in America.\180\
---------------------------------------------------------------------------
    \177\Brady v. Wal-Mart Stores, Inc., CV 03-3843 (JO), 2005 U.S. 
Dist. LEXIS 12151 ( E.D.N.Y. June 21, 2005).
    \178\Id.
    \179\Id. at *10.
    \180\Id.
---------------------------------------------------------------------------
    Punitive damages, especially uncapped punitive damages, are 
necessary to deter unscrupulous businesses from harming workers 
and consumers to gain a competitive advantage.\181\ Often, 
without punitive damages, a business may treat its labor 
violations as merely a cost of doing business.
---------------------------------------------------------------------------
    \181\Michael L. Rustad, In Defense of Punitive Damages in Products 
Liability: Testing Tort Anecdotes with Empirical Data, 78 Iowa L. Rev. 
1, 12 (1992).
---------------------------------------------------------------------------
    There is precedent for uncapped damages against employers 
who intentionally discriminate;\182\ damages awarded under 
Section 1981 for race or national origin discrimination are not 
subject to statutory limitations. Additionally, some states 
allow for uncapped compensatory and punitive damages within 
their antidiscrimination laws.\183\
---------------------------------------------------------------------------
    \182\42 U.S.C. Sec. 1981.
    \183\California, Hawaii, Massachusetts, New Jersey, Ohio, Oregon, 
Vermont, and West Virginia do not limit plaintiffs' compensatory and 
punitive damages, ensuring that victims of harassment can be fully 
compensated for the harm they suffered. Nat'l Women's Law Ctr., 
#Metoowhatnext: Strengthening Workplace Sexual Harassment Protections 
and Accountability 4 (2017), https://nwlc.org/wp-content/uploads/2017/
12/MeToo-Strengthening-Workplace-Sexual-Harassment-Protections.pdf.
---------------------------------------------------------------------------
    It is important to note that courts generally do not award 
unjustifiable or excessive damages and instead base relief upon 
sound factors, such as the willfulness or egregiousness of the 
violation\184\ and the effectiveness of damages as a 
deterrent.\185\ Because decisions are made by each court on a 
case by case basis, courts can strike the needed balance 
between assessing damages based upon particular facts and 
circumstances and assessing the severity of the 
discrimination.\186\ The Paycheck Fairness Act provides for 
uncapped damages in order to strengthen the EPA as a vehicle 
for addressing unlawful pay disparities. Longstanding judicial 
discretion under Section 1981 directly addresses and alleviates 
concerns about frivolous and excessive claims for relief.\187\
---------------------------------------------------------------------------
    \184\See Beauford v. Sisters of Mercy-Province of Detroit, Inc., 
816 F.2d 1104 (6th Cir. 1987) (finding that it is improper to award 
punitive damages in the absence of evidence of egregious conduct, 
willfulness, or malice on the part of the employer).
    \185\See Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004) (finding 
that the employer's discriminatory act was minor and quickly remedied; 
reducing the punitive award amount; reasoning that a higher penalty 
would remove the monetary incentive to remedy minor violations).
    \186\Id.
    \187\See Jones v. W. Geophysical Co., 761 F.2d 1158 (5th Cir. 1985) 
(finding that an employer 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).
---------------------------------------------------------------------------

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 sharing salary information among coworkers. This makes 
it extremely difficult to detect pay discrimination. For 
example, in Ledbetter v. Goodyear Tire,\188\ the plaintiff did 
not discover that she was paid less than her male co-workers 
for years; company policy had prohibited her from discussing 
her pay with her co-workers. The only reason she discovered the 
pay discrimination was because someone sent her an anonymous 
note.\189\
---------------------------------------------------------------------------
    \188\ Ledbetter v. Goodyear Tire & Rubber Co. Inc., 127 S. Ct. 2162 
(2007).
    \189\ Id.
---------------------------------------------------------------------------
    As Fatima Goss Graves testified at the 2021 Joint 
Subcommittee Hearing:

          About 60% of workers in the private sector nationally 
        are either forbidden or strongly discouraged from 
        discussing their pay with their colleagues. The 
        significantly narrower gender wage gap for employees 
        working in the public sector--where pay secrecy rules 
        are uncommon and pay is often publicly disclosed--
        suggests the difference that transparency makes. Only 
        15.1% of public sector employees report that discussing 
        their wages is either prohibited or discouraged. In the 
        federal government, where pay rates and scales are more 
        transparent and publicly available, and unionization 
        rates are higher, the overall gender wage gap is 7%--
        significantly smaller than the overall gender wage gap 
        of 18%.\190\
---------------------------------------------------------------------------
    \190\ Goss Graves Testimony at 5-6 (internal citations omitted).

    Employers are prohibited from retaliating against employees 
who seek to assert their rights under the FLSA. This protection 
extends to women claiming an EPA violation who have filed, 
instituted, initiated, or participated in any capacity in a 
proceeding under or related to the FLSA.\191\ However, in some 
cases interpreting the anti-retaliatory provision,\192\ courts 
have limited the protection afforded by the anti-retaliation 
provision, particularly denying protection when they find that 
an aggrieved worker has not stepped outside her role 
representing the employer.
---------------------------------------------------------------------------
    \191\ 29 U.S.C. Sec.  215(a)(3).
    \192\ Id.
---------------------------------------------------------------------------
    For example, in McKenzie v. Reinberg's Inc.,\193\ the 
plaintiff alleged that she was fired in violation of the FLSA's 
anti-retaliation provision because she questioned whether her 
employer complied 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 the law's overtime 
provisions. She brought this to her employer's attention and 
was fired as a result.\194\ The court held that because 
McKenzie merely articulated her concerns about the wage and 
hour violations with her employer:
---------------------------------------------------------------------------
    \193\ McKenzie v. Renberg's Inc., 94 F.3d 1478 (10th Cir. 1996).
    \194\ Id.; see also Hagan v. Echostar, 529 F.3d 617 (2008) (finding 
that the plaintiff was not protected from termination after 
participating in activities that were ``neither adverse to the company 
nor supportive of adverse action to the company'').

          [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.\195\
---------------------------------------------------------------------------
    \195\ McKenzie v. Renberg's Inc., 94 F.3d 1478, 1487 (10th Cir. 
1996).

    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.''\196\ 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.''\197\
---------------------------------------------------------------------------
    \196\ H.R. Rep. No. 110-783, at 34-35 (2008).
    \197\ Id.
---------------------------------------------------------------------------
    H.R. 7 protects the rights of employees to discuss and 
disclose wage information with each other in the workplace and 
affirms the rights of workers to disclose this information as 
part of an employer or government investigation. It also 
protects workers who oppose unlawful discrimination. Its 
provisions are intended to give robust protection to those 
employees who act to oppose violations of the EPA, as well as 
to provide a shield of protection for the kinds of discussions 
that will allow employees to uncover unequal pay. However, H.R. 
7 recognizes that employers may entrust some employees with 
access to wage information as part of an essential function of 
their job. These confidential employees will not be protected 
for disclosing information about wages to those who do not 
otherwise have access to the information. 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 H.R. 7.

Prior salary history

    H.R. 7 provides:

          It shall be an unlawful practice for an employer to 
        (1) rely on the wage history of a prospective employee 
        in considering the prospective employee for employment, 
        including requiring that a prospective employee's prior 
        wages satisfy minimum or maximum criteria as a 
        condition of being considered for employment; (2) rely 
        on the wage history of a prospective employee in 
        determining the wages for such prospective employee, 
        except that an employer may rely on wage history if it 
        is voluntarily provided by a prospective employee, 
        after the employer makes an offer of employment with an 
        offer of compensation to the prospective employee, to 
        support a wage higher than the wage offered by the 
        employer; (3) seek from a prospective employee or any 
        current or former employer the wage history of the 
        prospective employee, except that an employer may seek 
        to confirm prior wage information only after an offer 
        of employment with compensation has been made to the 
        prospective employee and the prospective employee 
        responds to the offer by providing prior wage 
        information to support a wage higher than that offered 
        by the employer.\198\
---------------------------------------------------------------------------
    \198\H.R. 7, 116th Cong. Sec.  10(a) (2019).

    With this provision, the Paycheck Fairness Act prevents 
employers from seeking or relying on a prospective employee's 
wage or salary history that has been sought from the 
prospective employee or their former employer. The employer can 
only rely on the prospective employee's prior wage if it is 
voluntarily provided by the prospective employee after the 
employer has made an offer of employment. The employer may seek 
a prospective (or current) employee's wage history to confirm 
prior wage information after the employer has made an 
employment offer. The Act does not provide for a complete ban 
on the usage of an individual's salary history.
    H.R. 7's requirements are similar to other anti-
discrimination statutes like the ADA and the Genetic 
Information Nondiscrimination Act (GINA), which have been 
valuable tools in fighting against other forms of 
discrimination. The ADA prohibits employers from asking job 
applicants disability-related questions and forbids employers 
from relying on disability status in making employment 
decisions. Similarly, GINA prohibits employers from relying on 
genetic history when making an employment decision, and it also 
restricts employers' and employment agencies' ability to 
``request, require, or purchase genetic information'' regarding 
applicants and employees or their family members.\199\ In all 
three cases, the restrictions on pre-employment inquiries are 
necessary to advance the government's compelling interest in 
eliminating unlawful discrimination.
---------------------------------------------------------------------------
    \199\See Facts about the Genetic Information Nondiscrimination Act, 
EEOC, https://www.eeoc.gov/eeoc/publications/fs-gina.cfm (last visited 
Mar. 11, 2019).
---------------------------------------------------------------------------

Joint EEOC-OFCCP enforcement

    In the Reorganization Act of 1977,\200\ Congress authorized 
the President to restructure Executive branch agencies to 
``promote the better execution of the laws.''\201\ 
Reorganization Plan No. 1 of 1978\202\ transferred all 
functions related to enforcing or administering the EPA from 
the DOL to the EEOC. In response to the U.S. Supreme Court's 
ruling in I.N.S. v. Chadha,\203\ in 1984, Congress passed 
legislation codifying each part of the initial reorganization 
plan, thus solidifying EEOC's enforcement authority over the 
EPA. H.R. 7 would ensure that the EEOC and the OFCCP have joint 
enforcement authority of the EPA over federal contracts. This 
will not impact the EEOC's ability to adopt separate, 
additional, or different policies for other private sector 
employers under the EPA.
---------------------------------------------------------------------------
    \200\5 U.S.C. Sec. 901.
    \201\Id.
    \202\43 Fed. Reg. 19,807 (July 1, 1978).
    \203\462 U.S. 919 (1983).
---------------------------------------------------------------------------

                      Section-by-Section Analysis


Section 1. Short title

    This section states that the title of the bill is the 
Paycheck Fairness Act (the Act).

Section 2. Enhanced enforcement of equal pay requirements

    Definitions. This section clarifies that the definition of 
``sex'' includes sex stereotypes, pregnancy, childbirth or a 
related medical condition, sexual orientation or gender 
identity, and sex characteristics including intersex traits.
    Bona Fide Factor Defense and Modification of Same 
Establishment Requirement. This section amends the EPA by 
defining the statute's ``any factor other than sex'' employer 
affirmative defense as requiring employers to provide non-
gender, business reasons for the difference in wages. The 
amended language lays out the requirement that to successfully 
raise this affirmative defense, an employer must demonstrate 
that the wage disparity is based on a bona fide factor other 
than sex, such as education, training, or experience. The 
differential must be: (1) not based upon or derived from a sex-
based differential in compensation; (2) related to the position 
in question; (3) consistent with business necessity; and (4) 
fully accounted for in the compensation at issue. Such defense 
shall not apply if the employee can then demonstrate that her 
employer has an alternative employment practice that would 
serve the same business purpose without producing the pay 
differential, and the employer refused to adopt the alternative 
practice.
    This section broadens the definition of ``establishment'' 
used to compare compensation with the compensation of an 
employee of the opposite gender who performs substantially 
equal work. Under the Act, an establishment now includes 
workplaces located in the same county or similar political 
subdivision of a state. In addition, the Act allows broader 
applications of the term ``establishment'' as long as they are 
consistent with EEOC.
    Nonretaliation Provision. This section protects employees 
from retaliation for seeking redress, inquiring about an 
employer's wage practices, or disclosing their own wages to 
coworkers. This section provides that employers are prohibited 
from retaliating against employees who have made a charge; 
filed any complaint; instituted any investigation, proceeding, 
hearing, or action under the EPA; or opposed unlawful actions 
under the Act. Employers are also prohibited from requiring an 
employee to sign a contract or waiver that would prohibit the 
employee from disclosing their wages. Employees are protected 
from retaliation for initiating an employer investigation, or 
for testifying or participating in any sort of investigation, 
proceeding, hearing, or action. Employees are also protected 
from inquiries and discussions about each other's wages.
    This section does not provide anti-retaliation protections 
to employees with access to wage information of other employees 
as an essential function of their job if they disclose that 
wage information to individuals who do not otherwise have 
access to this information. However, they would be protected if 
they were disclosing that wage information to someone who also 
has access to such information, or 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.
    Enhanced Penalties. This section provides that uncapped 
compensatory and punitive damages are available in private EPA 
suits and suits brought by the Secretary of Labor. This section 
provides that class action lawsuits brought under the EPA shall 
proceed as opt-out class actions in conformity with the Federal 
Rules of Civil Procedure, rather than the current law requiring 
plaintiffs to opt-in. This section requires the EEOC and the 
OFCCP to jointly enforce the Act with respect to federal 
contractors.

Section 3. Training

    This section requires the EEOC and the OFCCP to provide 
training to both the EEOC and the OFCCP employees and affected 
individuals on pay discrimination.

Section 4. Negotiation skills training

    Program Authorization. This section authorizes the 
Secretary of Labor (after consultation with the U.S. Secretary 
of Education) to establish and carry out a grant program to 
provide negotiation skills training programs that aim to 
address all pay disparities, including through outreach to 
women and girls. Eligible entities apply to the Secretary of 
Labor to obtain grants. Eligible entities include states, local 
governments, state or local educational agencies, private 
nonprofit organizations, or community-based organizations.
    Incorporating Training into Existing Programs. This section 
requires the Secretary of Labor to issue regulation or policy 
guidance on how it will, to the extent practicable, integrate 
negotiation skills training into existing education and work 
training programs, including those authorized under the 
Elementary and Secondary Education Act, the Carl D. Perkins 
Career and Technical Education Act, the Higher Education Act, 
and the Workforce Innovation and Opportunity Act.
    Report. This section mandates the Secretary of Labor, in 
consultation with the U.S. Secretary of Education, to submit an 
annual report to Congress on the grant program.

Section 5. Research, education, and outreach

    This section 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 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.

Section 6. Establishment of the National Award for Pay Equity in the 
        Workplace

    This section establishes an annual award entitled the 
``Secretary of Labor's National Award for Pay Equity in the 
Workplace'' for an employer that demonstrates substantial 
effort in eliminating pay disparities by complying with the 
EPA. The Secretary of Labor, in consultation with the EEOC, 
will set the criteria for the award. Eligible employers include 
corporations (including nonprofit corporations); partnerships; 
professional associations; labor organizations; and entities 
carrying out educational referral programs or training 
programs.

Section 7. Collection of pay information by the Equal Employment 
        Opportunity Commission

    This section requires the EEOC, within 18 months of 
enactment, to issue regulations to provide for the collection 
of compensation data, including hiring, termination, and 
promotion data, and other employment-related data from 
employers. This information will be disaggregated by the sex, 
race and national origin of employees. In collecting this data, 
the EEOC will consider the most effective and least burdensome 
means for enforcing the federal laws prohibiting pay 
discrimination, including the consideration of employer burden. 
This section requires that the compensation data the EEOC 
collects be taxable compensation data. This data must be 
collected from employers in accordance with twelve ``pay 
bands'' listed in the section, and it may be adjusted for 
inflation.

Section 8. Reinstatement of pay equity programs and pay equity data 
        collection

    Bureau of Labor Statistics. This section requires the 
continued collection by the Commissioner of Labor Statistics of 
gender-based data in the Current Employment Statistics survey.
    Office of Federal Contract Compliance Programs. This 
section directs the OFCCP to collect compensation and other 
employment data by demographics. It requires the Secretary of 
Labor to make available information on pay information 
including analyses of discrimination.

Section 9. Prohibitions relating to prospective employees' salary and 
        benefit history

    This section makes it unlawful for employers to use wage 
history to decide whether to hire a prospective employee. 
Employers are prohibited from relying on or seeking a 
prospective employee's wage history to determine their wages. 
The employer can only rely on the prospective employee's prior 
wage if the employee voluntarily provides it after the employer 
makes an employment offer. Similarly, the employer may only 
seek a prospective employee's wage history to confirm prior 
wage information. The employer can obtain this information only 
after an employment offer (with compensation) has been made, 
and the employee responded by volunteering the prior wage 
information. An employer may not retaliate against an employee 
or prospective employee who has filed a complaint regarding the 
use of the salary history. Employers who violate this provision 
are subject to civil penalties.

Section 10. Authorization of appropriations

    This section authorizes such sums as may be necessary to 
carry out the Act.

Section 11. Small business assistance

    Effective Date. This section states that the Act and 
amendments made by the Act will take effect six months after 
the date of enactment.
    Small Business. This section also requires the Secretary of 
Labor and the EEOC to jointly develop technical assistance 
materials to assist small businesses in complying with the Act. 
It further clarifies that to the extent small businesses are 
exempt from the FLSA, they will also be exempt from the Act.

Section 12. Rule of construction

    This section states that nothing in the Act will affect the 
obligation of employers and employees to fully comply with all 
applicable immigration laws.

Section 13. Severability

    This section adds a standard severability clause.

                       Explanation of Amendments

    The Amendment in the Nature of a Substitute is explained in 
the descriptive portions of this report.

              Application of Law to the Legislative Branch

    Pursuant to section 102(b)(3) of the Congressional 
Accountability Act, Pub. L. No. 104-1, H.R. 7, as amended, 
applies to terms and conditions of employment within the 
legislative branch by amending the EPA and the FLSA.

                       Unfunded Mandate Statement

    Pursuant to Section 423 of the Congressional Budget and 
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended 
by Section 101(a)(2) of the Unfunded Mandates Reform Act of 
1995, Pub. L. No. 104-4), the Committee traditionally adopts as 
its own the cost estimate prepared by the Director of the 
Congressional Budget Office (CBO) pursuant to section 402 of 
the Congressional Budget and Impoundment Control Act of 1974. 
The Committee reports that because this cost estimate was not 
timely submitted to the Committee before the filing of this 
report, the Committee is not in a position to make a cost 
estimate for H.R. 7, as amended.

                           Earmark Statement

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 7 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as described in clauses 9(e), 9(f), and 9(g) of rule 
XXI.

                            Roll Call Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following roll call votes occurred during the Committee's 
consideration of H.R. 7:


             Statement of Performance Goals and Objectives

    Pursuant to clause (3)(c) of rule XIII of the Rules of the 
House of Representatives, H.R. 7 would strengthen current law 
in an effort to close the gender pay gap and provide more 
effective remedies to victims of discrimination in the payment 
of wages on the basis of gender.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of rule XIII of the Rules of the 
House of Representatives, the Committee states that no 
provision of H.R. 7 establishes or reauthorizes a program of 
the Federal Government known to be duplicative of another 
federal program, a program that was included in any report from 
the Government Accountability Office to Congress pursuant to 
section 21 of Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

                                Hearings

    Pursuant to clause 3(c)(6) of rule XIII of the Rules of the 
House of Representatives, the Committee held a hearing entitled 
``Fighting for Fairness: Examining Legislation to Confront 
Workplace Discrimination,'' which was used to consider H.R. 7. 
The Committee heard testimony on how the weaknesses in the EPA 
have left the law ineffective in preventing gender-based wage 
discrimination. Witnesses included Fatima Goss Graves, CEO and 
President of the National Women's Law Center, Washington, DC; 
Camille A. Olson, Partner at Seyfarth Shaw, LLP, Chicago, IL; 
Dina Bakst, Co-Founder & Co-President, A Better Balance: The 
Work & Family Legal Center, New York City, NY; and Laurie 
McCann, Senior Attorney, AARP, Washington, DC.

  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 descriptive portions of this report.

               New Budget Authority and CBO Cost Estimate

    Pursuant to clause 3(c)(2) of rule XIII of the Rules of the 
House of Representatives and section 308(a) of the 
Congressional Budget and Impoundment Control Act of 1974, and 
pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives and section 402 of the Congressional 
Budget and Impoundment Control Act of 1974, the Committee has 
requested but not received a cost estimate for the bill from 
the Director of the Congressional Budget Office.

                        Committee Cost Estimate

    Clause 3(d)(1) 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. 7. However, 
clause 3(d)(2)(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 and Impoundment Control Act of 
1974. The Committee reports that because this cost estimate was 
not timely submitted to the Committee before the filing of this 
report, the Committee is not in a position to make a cost 
estimate for H.R. 7, as amended.

         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, H.R. 7, as reported, are shown as follows:

         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 italics, and existing law in which no 
change is proposed is shown in roman):

                    FAIR LABOR STANDARDS ACT OF 1938




           *       *       *       *       *       *       *
                              definitions

  Sec. 3. As used in this Act--
  (a) ``Person'' means an individual, partnership, association, 
corporation, business trust, legal representative, or any 
organized group of persons.
  (b) ``Commerce'' means trade, commerce, transportation, 
transmission, or communication among the several States or 
between any State and any place outside thereof.
  (c) ``State'' means any State of the United States or the 
District of Columbia or any Territory or possession of the 
United States.
  (d) ``Employer'' includes any person acting directly or 
indirectly in the interest of an employer in relation to an 
employee and includes a public agency, but does not include any 
labor organization (other than when acting as an employer) or 
anyone acting in the capacity of officer or agent of such labor 
organization.
  (e)(1) Except as provided in paragraphs (2), (3), and (4), 
the term ``employee'' means any individual employed by an 
employer.
  (2) In the case of an individual employed by a public agency, 
such term means--
          (A) any individual employed by the Government of the 
        United States--
                  (i) as a civilian in the military departments 
                (as defined in section 102 of title 5, United 
                States Code),
                  (ii) in any executive agency (as defined in 
                section 105 of such title),
                  (iii) in any unit of the judicial branch of 
                the Government which has positions in the 
                competitive service,
                  (iv) in a nonappropriated fund 
                instrumentality under the jurisdiction of the 
                Armed Forces,
                  (v) in the Library of Congress, or
                  (vi) the Government Printing Office;
          (B) any individual employed by the United States 
        Postal Service or the Postal Rate Commission; and
          (C) any individual employed by a State, political 
        subdivision of a State, or an interstate governmental 
        agency, other than such an individual--
                  (i) who is not subject to the civil service 
                laws of the State, political subdivision, or 
                agency which employs him; and
                  (ii) who--
                          (I) holds a public elective office of 
                        that State, political subdivision, or 
                        agency,
                          (II) is selected by the holder of 
                        such an office to be a member of his 
                        personal staff,
                          (III) is appointed by such an 
                        officeholder to serve on a policymaking 
                        level,
                          (IV) is an immediate adviser to such 
                        an officeholder with respect to the 
                        constitutional or legal powers of his 
                        office, or
                          (V) is an employee in the legislative 
                        branch or legislative body of that 
                        State, political subdivision, or agency 
                        and is not employed by the legislative 
                        library of such State, political 
                        subdivision, or agency.
  (3) For purposes of subsection (u), such term does not 
include any individual employed by an employer engaged in 
agriculture if such individual is the parent, spouse, child, or 
other member of the employer's immediate family.
  (4)(A) The term ``employee'' does not include any individual 
who volunteers to perform services for a public agency which is 
a State, a political subdivision of a State, or an interstate 
governmental agency, if--
          (i) the individual receives no compensation or is 
        paid expenses, reasonable benefits, or a nominal fee to 
        perform the services for which the individual 
        volunteered; and
          (ii) such services are not the same type of services 
        which the individual is employed to perform for such 
        public agency.
  (B) An employee of a public agency which is a State, 
political subdivision of a State, or an interstate governmental 
agency may volunteer to perform services for any other State, 
political subdivision, or interstate governmental agency, 
including a State, political subdivision or agency with which 
the employing State, political subdivision, or agency has a 
mutual aid agreement.
  (5) The term ``employee'' does not include individuals who 
volunteer their services solely for humanitarian purposes to 
private non-profit food banks and who receive from the food 
banks groceries.
  (f) ``Agriculture'' includes farming in all its branches and 
among other things includes the cultivation and tillage of the 
soil, dairying, the production, cultivation, growing, and 
harvesting of any agricultural or horticultural commodities 
(including commodities defined as agricultural commodities in 
section 15(g) of the Agricultural Marketing Act, as amended), 
the raising of livestock, bees, fur-bearing animals, or 
poultry, and any practices (including any forestry or lumbering 
operations) performed by a farmer or on a farm as an incident 
to or in conjunction with such farming operations, including 
preparation for market, delivery to storage or to market or to 
carriers for transportation to market.
  (g) ``Employ'' includes to suffer or permit to work.
  (h) ``Industry'' means a trade, business, industry, or other 
activity, or branch or group thereof, in which individuals are 
gainfully employed.
  (i) ``Goods'' means goods (including ships and marine 
equipment), wares, products, commodities, merchandise, or 
articles or subjects of commerce of any character, or any part 
or ingredient thereof, but does not include goods after their 
delivery into the actual physical possession of the ultimate 
consumer thereof other than a producer, manufacturer, or 
processor thereof.
  (j) ``Producer'' means produced, manufactured, mined, 
handled, or in any manner worked on in any State; and for the 
purposes of this Act an employee shall be deemed to have been 
engaged in the production of goods if such employee was 
employed in producing, manufacturing, mining, handling, 
transporting, or in any other manner working on such goods, or 
in any closely related process or occupation directly essential 
to the production thereof, in any State.
  (k) ``Sale'' or ``sell'' includes any sale, exchange, 
contract to sell, consignment for sale, shipment for sale, or 
other disposition.
  (l) ``Oppressive child labor'' means a condition of 
employment under which (1) any employee under the age of 
sixteen years is employed by an employer (other than a parent 
or a person standing in place of a parent employing his own 
child or a child in his custody under the age of sixteen years 
in an occupation other than manufacturing or mining or an 
occupation found by the Secretary of Labor to be particularly 
hazardous for the employment of children between the ages of 
sixteen and eighteen years or detrimental to their health or 
well-being) in any occupation, or (2) any employee between the 
ages of sixteen and eighteen years is employed by an employer 
in any occupation which the Secretary of Labor shall find and 
by order declare to be particularly hazardous for the 
employment of children between such ages or detrimental to 
their health or well-being; but oppressive child labor shall 
not be deemed to exist by virture of the employment in any 
occupation of any person with respect to whom the employer 
shall have on file an unexpired certificate issued and held 
pursuant to regulations of the Secretary of Labor certifying 
that such person is above the oppressive child labor age. The 
Secretary of Labor shall provide by regulation or by order that 
the employment of employees between the ages of fourteen and 
sixteen years in occupations other than manufacturing and 
mining shall not be deemed to constitute oppressive child labor 
if and to the extent that the Secretary of Labor determines 
that such employment is confined to periods which will not 
interfere with their schooling and to conditions which will not 
interfere with their health and well-being.
  (m)(1) ``Wage'' paid to any employee includes the reasonable 
cost, as determined by the Secretary of Labor, to the employer 
of furnishing such employee with board, lodging, or other 
facilities, if such board, lodging, or other facilities are 
customarily furnished by such employer to his employees: 
Provided, That the cost of board, lodging, or other facilities 
shall not be included as a part of the wage paid to any 
employee to the extent it is excluded therefrom under the terms 
of a bona fide collective-bargaining agreement applicable to 
the particular employee: Provided further,  That the Secretary 
is authorized to determine the fair value of such board, 
lodging, or other facilities for defined classes of employees 
and in defined areas, based on average cost to the employer or 
to groups of employers similarly situated, or average value to 
groups of employees, or other appropriate measures of fair 
value. Such evaluations, where applicable and pertinent, shall 
be used in lieu of actual measure of cost in determining the 
wage paid to any employee.
  (2)(A) In determining the wage an employer is required to pay 
a tipped employee, the amount paid such employee by the 
employee's employer shall be an amount equal to--
          (i) the cash wage paid such employee which for 
        purposes of such determination shall be not less than 
        the cash wage required to be paid such an employee on 
        the date of the enactment of this paragraph; and
          (ii) an additional amount on account of the tips 
        received by such employee which amount is equal to the 
        difference between the wage specified in clause (i) and 
        the wage in effect under section 6(a)(1).
The additional amount on account of tips may not exceed the 
value of the tips actually received by an employee. The 
preceding 2 sentences shall not apply with respect to any 
tipped employee unless such employee has been informed by the 
employer of the provisions of this subsection, and all tips 
received by such employee have been retained by the employee, 
except that this subsection shall not be construed to prohibit 
the pooling of tips among employees who customarily and 
regularly receive tips.
  (B) An employer may not keep tips received by its employees 
for any purposes, including allowing managers or supervisors to 
keep any portion of employees' tips, regardless of whether or 
not the employer takes a tip credit.
  (n) ``Resale'' shall not include the sale of goods to be used 
in residential or farm building construction, repair, or 
maintenance: Provided, That the sale is recognized as a bona 
fide retail sale in the industry.
  (o) Hours Worked.--In determining for the purposes of 
sections 6 and 7 the hours for which an employee is employed, 
there shall be excluded any time spent in changing clothes or 
washing at the beginning or end of each workday which was 
excluded from measured working time during the week involved by 
the express terms of or by custom or practice under a bona fide 
collective-bargaining agreement applicable to the particular 
employee.
  (p) ``American vessel'' includes any vessel which is 
documented or numbered under the laws of the United States.
  (q) ``Secretary'' means the Secretary of Labor.
  (r)(1) ``Enterprise'' means the related activities performed 
(either through unified operation or common control) by any 
person or persons for a common business purpose, and includes 
all such activities whether performed in one or more 
establishments or by one or more corporate or other 
organizational units including departments of an establishment 
operated through leasing arrangements, but shall not include 
the related activities performed for such enterprise by an 
independent contractor. Within the meaning of this subsection, 
a retail or service establishment which is under independent 
ownership shall not be deemed to be so operated or controlled 
as to be other than a separate and distinct enterprise by 
reason of any arrangement, which includes, but is not 
necessarily limited to, an agreement, (A) that it will sell, or 
sell only, certain goods specified by a particular 
manufacturer, distributor, or advertiser, or (B) that it will 
join with other such establishments in the same industry for 
the purpose of collective purchasing, or (C) that it will have 
the exclusive rights to sell the goods or use the brand name of 
a manufacturer, distributor, or advertiser within a specified 
area, or by reason of the fact that it occupies premises leased 
to it by a person who also leases premises to other retail or 
service establishments.
  (2) For purposes of paragraph (1), the activities performed 
by any person or persons--
          (A) in connection with the operation of a hospital, 
        an institution primarily engaged in the care of the 
        sick, the aged, the mentally ill or defective who 
        reside on the premises of such institution, a school 
        for mentally or physicially handicapped or gifted 
        children, a preschool, elementary or secondary school, 
        or an institution of higher education (regardless of 
        whether or not such hospital, institution, or school is 
        operated for profit or not for profit), or
          (B) in connection with the operation of a street, 
        suburban or interurban electric railway, or local 
        trolley or motorbus carrier, if the rates and services 
        of such railway or carrier are subject to regulation by 
        a State or local agency (regardless of whether or not 
        such railway or carrier is public or private or 
        operated for profit or not for profit), or
          (C) in connection with the activities of a public 
        agency.
shall be deemed to be activities performed for a business 
purpose.
  (s)(1) ``Enterprise engaged in commerce or in the production 
of goods for commerce'' means an enterprise that--
          (A)(i) has employees engaged in commerce or in the 
        production of goods for commerce, or that has employees 
        handling, selling, or otherwise working on goods or 
        materials that have been moved in or produced for 
        commerce by any person; and
          (ii) is an enterprise whose annual gross volume of 
        sales made or business done is not less than $500,000 
        (exclusive of excise taxes at the retail level that are 
        separately stated);
          (B) is engaged in the operation of a hospital, an 
        institution primarily engaged in the care of the sick, 
        the aged, or the mentally ill or defective who reside 
        on the premises of such institution, a school for 
        mentally or physically handicapped or gifted children, 
        a preschool, elementary or secondary school, or an 
        institution of higher education (regardless of whether 
        or not such hospital, institution, or school is public 
        or private or operated for profit or not for profit); 
        or
          (C) is an activity of a public agency.
  (2) Any establishment that has as its only regular employees 
the owner thereof or the parent, spouse, child, or other member 
of the immediate family of such owner shall not be considered 
to be an enterprise engaged in commerce or in the production of 
goods for commerce or a part of such an enterprise. The sales 
of such an establishment shall not be included for the purpose 
of determining the annual gross volume of sales of any 
enterprise for the purpose of this subsection.
  (t) ``Tipped employee'' means any employee engaged in an 
occupation in which he customarily and regularly receives more 
than $30 a month in tips.
  (u) ``Man-day'' means any day during which an employee 
performs any agricultural labor for not less than one hour.
  (v) ``Elementary school'' means a day or residential school 
which provides elementary education, as determined under State 
law.
  (w) ``Secondary school'' means a day or residential school 
which provides secondary education, as determined under State 
law.
  (x) ``Public agency'' means the Government of the United 
States; the government of a State or political subdivision 
thereof; any agency of the United States (including the United 
States Postal Service and Postal Rate Commission), a State, or 
a political subdivision of a State; or any interstate 
governmental agency.
  (y) ``Employee in fire protection activities'' means an 
employee, including a firefighter, paramedic, emergency medical 
technician, rescue worker, ambulance personnel, or hazardous 
materials worker, who--
          (1) is trained in fire suppression, has the legal 
        authority and responsibility to engage in fire 
        suppression, and is employed by a fire department of a 
        municipality, county, fire district, or State; and
          (2) is engaged in the prevention, control, and 
        extinguishment of fires or response to emergency 
        situations where life, property, or the environment is 
        at risk.
  (z) ``Sex'' includes--
          (1) a sex stereotype;
          (2) pregnancy, childbirth, or a related medical 
        condition;
          (3) sexual orientation or gender identity; and
          (4) sex characteristics, including intersex traits.
  (aa) ``Sexual orientation'' includes homosexuality, 
heterosexuality, and bisexuality.
  (bb) ``Gender identity'' means the gender-related identity, 
appearance, mannerisms, or other gender-related characteristics 
of an individual, regardless of the individual's designated sex 
at birth.

           *       *       *       *       *       *       *


                             minimum wages

  Sec. 6. (a) Every employer shall pay to each of his employees 
who in any workweek is engaged in commerce or in the production 
of goods for commerce, or is employed in an enterprise engaged 
in commerce or in the production of goods for commerce, wages 
at the following rates:
          (1) except as otherwise provided in this section, not 
        less than--
                  (A) $5.85 an hour, beginning on the 60th day 
                after the date of enactment of the Fair Minimum 
                Wage Act of 2007;
                  (B) $6.55 an hour, beginning 12 months after 
                that 60th day; and
                  (C) $7.25 an hour, beginning 24 months after 
                that 60th day;
          (2) if such employee is a home worker in Puerto Rico 
        or the Virgin Islands, not less than the minimum piece 
        rate prescribed by regulation or order; or, if no such 
        minimum piece rate is in effect, any piece rate adopted 
        by such employer which shall yield, to the proportion 
        or class of employees prescribed by regulation or 
        order, not less than the applicable minimum hourly wage 
        rate. Such minimum piece rates or employer piece rates 
        shall be commensurate with, and shall be paid in lieu 
        of, the minimum hourly wage rate applicable under the 
        provisions of this section. The Secretary of Labor, or 
        his authorized representative, shall have power to make 
        such regulations or orders as are necessary or 
        appropriate to carry out any of the provisions of this 
        paragraph, including the power without limiting the 
        generality of the foregoing, to define any operation or 
        occupation which is performed by such home work 
        employees in Puerto Rico or the Virgin Islands; to 
        establish minimum piece rates for any operation or 
        occupation so defined; to prescribe the method and 
        procedure for ascertaining and promulgating minimum 
        piece rates; to prescribe standards for employer piece 
        rates, including the proportion or class of employees 
        who shall receive not less than the minimum hourly wage 
        rate; to define the term ``home worker''; and to 
        prescribe the conditions under which employers, agents, 
        contractors, and subcontractors shall cause goods to be 
        produced by home workers;
          (3) if such employee is employed as a seaman on an 
        American vessel, not less than the rate which will 
        provide to the employee, for the period covered by the 
        wage payment, wages equal to compensation at the hourly 
        rate prescribed by paragraph (1) of this subsection for 
        all hours during such period when he was actually on 
        duty (including periods aboard ship when the employee 
        was on watch or was, at the direction of a superior 
        officer, performing work or standing by, but not 
        including off-duty periods which are provided pursuant 
        to the employment agreement); or
          (4) if such employee is employed in agriculture, not 
        less than the minimum wage rate in effect under 
        paragraph (1) after December 31, 1977.
  (b) Every employer shall pay to each of his employees (other 
than an employee to whom subsection (a)(5) applies) who in any 
workweek is engaged in commerce or in the production of goods 
for commerce, or is employed in an enterprise engaged in 
commerce or in the production of goods for commerce, and who in 
such workweek is brought within the purview of this section by 
the amendments made to this Act by the Fair Labor Standards 
Amendments of 1966, title IX of the Education Amendments of 
1972, or the Fair Labor Standards Amendments of 1974, wages at 
the following rate: Effective after December 31, 1977, not less 
than the minimum wage rate in effect under subsection (a)(1).
  (c)
  (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.
  (B) The bona fide factor defense described in subparagraph 
(A)(iv) 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; (iii) is consistent with business 
necessity; and (iv) accounts for the entire differential in 
compensation at issue. 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 Employment 
Opportunity Commission.
  (2) No labor organization, or its agents, representing 
employees of an employer having employees subject to any 
provisions of this section shall cause or attempt to cause such 
an employer to discriminate against an employee in violation of 
paragraph (1) of this subsection.
  (3) For purposes of administration and enforcement, any 
amounts owing to any employees which have been withheld in 
violation of this subsection shall be deemed to be unpaid 
minimum wages or unpaid overtime-compensation under this Act.
  (4) As used in this subsection, the term ``labor 
organization'' means any organization of any kind, or any 
agency or employee representation committee or plan, in which 
employees participate and which exists for the purpose, in 
whole or in part, of dealing with employers concerning 
grievances, labor disputes, wages, rates of pay, hours of 
employment, or conditions of work.
  (e)(1) Notwithstanding the provisions of section 13 of this 
Act (except subsections (a)(1) and (f) thereof), every employer 
providing any contract services (other than linen supply 
services) under a contract with the United States or any 
subcontract thereunder shall pay to each of his employees whose 
rate of pay is not governed by the Service Contract Act of 1965 
(41 U.S.C. 351-357) or to whom subsection (a)(1) of this 
section is not applicable, wages at rates not less than the 
rates provided for in subsection (b) of this section.
  (2) Notwithstanding the provisions of section 13 of this Act 
(except subsections (a)(1) and (f) thereof) and the provisions 
of the Service Contract Act of 1965, every employer in an 
establishment providing linen supply services to the United 
States under a contract with the United States or any 
subcontract thereunder shall pay to each of his employees in 
such establishment wages at rates not less than those 
prescribed in subsection (b), except that if more than 50 per 
centum of the gross annual dollar volume of sales made or 
business done by such establishment is derived from providing 
such linen supply services under any such contracts or 
subcontracts, such employer shall pay to each of his employees 
in such establishment wages at rates not less than those 
prescribed in subsection (a)(1) of this section.
  (f) Any employee--
          (1) who in any workweek is employed in domestic 
        service in a household shall be paid wages at a rate 
        not less than the wage rate in effect under section 
        6(b) unless such employee's compensation for such 
        service would not because of section 209(a)(6) of the 
        Social Security Act constitute wages for the purpose of 
        title II of such Act, or
          (2) who in any workweek--
                  (A) is employed in domestic service in one or 
                more households, and
                  (B) is so employed for more than 8 hours in 
                the aggregate,
        shall be paid wages for such employment in such 
        workweek at a rate not less than the wage rate in 
        effect under section 6(b).
  (g)(1) In lieu of the rate prescribed by subsection (a)(1), 
any employer may pay any employee of such employer, during the 
first 90 consecutive calendar days after such employee is 
initially employed by such employer, a wage which is not less 
than $4.25 an hour.
  (2) In lieu of the rate prescribed by subsection (a)(1), the 
Governor of Puerto Rico, subject to the approval of the 
Financial Oversight and Management Board established pursuant 
to section 101 of the Puerto Rico Oversight, Management, and 
Economic Stability Act, may designate a time period not to 
exceed four years during which employers in Puerto Rico may pay 
employees who are initially employed after the date of 
enactment of such Act a wage which is not less than the wage 
described in paragraph (1). Notwithstanding the time period 
designated, such wage shall not continue in effect after such 
Board terminates in accordance with section 209 of such Act.
  (3) No employer may take any action to displace employees 
(including partial displacements such as reduction in hours, 
wages, or employment benefits) for purposes of hiring 
individuals at the wage authorized in paragraph (1) or (2).
  (4) Any employer who violates this subsection shall be 
considered to have violated section 15(a)(3) (29 U.S.C. 
215(a)(3)).
  (5) This subsection shall only apply to an employee who has 
not attained the age of 20 years, except in the case of the 
wage applicable in Puerto Rico, 25 years, until such time as 
the Board described in paragraph (2) terminates in accordance 
with section 209 of the Act described in such paragraph.

           *       *       *       *       *       *       *


SEC. 8. REQUIREMENTS AND PROHIBITIONS RELATING TO WAGE, SALARY, AND 
                    BENEFIT HISTORY.

  (a) In General.--It shall be an unlawful practice for an 
employer to--
          (1) rely on the wage history of a prospective 
        employee in considering the prospective employee for 
        employment, including requiring that a prospective 
        employee's prior wages satisfy minimum or maximum 
        criteria as a condition of being considered for 
        employment;
          (2) rely on the wage history of a prospective 
        employee in determining the wages for such prospective 
        employee, except that an employer may rely on wage 
        history if it is voluntarily provided by a prospective 
        employee, after the employer makes an offer of 
        employment with an offer of compensation to the 
        prospective employee, to support a wage higher than the 
        wage offered by the employer;
          (3) seek from a prospective employee or any current 
        or former employer the wage history of the prospective 
        employee, except that an employer may seek to confirm 
        prior wage information only after an offer of 
        employment with compensation has been made to the 
        prospective employee and the prospective employee 
        responds to the offer by providing prior wage 
        information to support a wage higher than that offered 
        by the employer; or
          (4) discharge or in any other manner retaliate 
        against any employee or prospective employee because 
        the employee or prospective employee--
                  (A) opposed any act or practice made unlawful 
                by this section; or
                  (B) took an action for which discrimination 
                is forbidden under section 15(a)(3).
  (b) Definition.--In this section, the term ``wage history'' 
means the wages paid to the prospective employee by the 
prospective employee's current employer or previous employer.

           *       *       *       *       *       *       *


                            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) to transport, offer for transportation, ship, 
        deliver, or sell in commerce, or to ship, deliver, or 
        sell with knowledge that shipment or delivery or sale 
        thereof in commerce is intended, any goods in the 
        production of which any employee was employed in 
        violation of section 6 or section 7, or in violation of 
        any regulation or order of the Secretary of Labor 
        issued under section 14; except that no provision of 
        this Act shall impose any liability upon any common 
        carrier for the transportation in commerce in the 
        regular course of its business of any goods not 
        produced by such common carrier, and no provision of 
        this Act shall excuse any common carrier from its 
        obligation to accept any goods for transportation; and 
        except that any such transportation, offer, shipment, 
        delivery, or sale of such goods by a purchaser who 
        acquired them in good faith in reliance on written 
        assurance from the producer that the goods were 
        produced in compliance with the requirements of the 
        Act, and who acquired such goods for value without 
        notice of any such violation, shall not be deemed 
        unlawful;
          (2) to violate any of the provisions of section 6 or 
        section 7, or any of the provisions of any regulation 
        or order of the Secretary issued under section 14;
          (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 has served or is planning to serve 
                on an industry committee; 
                  (B) has opposed any practice made unlawful by 
                this Act; or 
                  (C) has inquired about, discussed, or 
                disclosed the wages of the employee or another 
                employee (such as by inquiring or discussing 
                with the employer why the wages of the employee 
                are set at a certain rate or salary); 
          (4) to violate any of the provisions of section 12;
          (5) to violate any of the provisions of section 11(c) 
        or any regulation or order made or continued in effect 
        under the provisions of section 11(d), or to make any 
        statement, report, or record filed or kept pursuant to 
        the provisions of such section or of any regulation or 
        order thereunder, knowing such statement, report, or 
        record to be false in a material respect[.]; or
          (6) to require an employee to sign a contract or 
        waiver that would prohibit the employee from disclosing 
        information about the employee's wages.
  (b) For the purposes of subsection (a)(1) proof that any 
employee was employed in any place of employment where goods 
shipped or sold in commerce were produced, within ninety days 
prior to the removal of the goods from such place of 
employment, shall be prima facie evidence that such employee 
was engaged in the production of such goods.
  (c) Subsection (a)(3)(C) 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), including 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) Any person who willfully violates any of the 
provisions of section 15 shall upon conviction thereof be 
subject to a fine of not more than $10,000, or to imprisonment 
for not more than six months, or both. No person shall be 
imprisoned under this subsection except for an offense 
committed after the conviction of such person for a prior 
offense under this subsection.
  (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), or who violates the provisions of 
section 15(a)(3) in relation to a violation of section 6(d), 
shall additionally be liable for such compensatory damages, or, 
where the employee demonstrates that the employer acted with 
malice or reckless indifference, 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. Any 
employer who violates section 3(m)(2)(B) shall be liable to the 
employee or employees affected in the amount of the sum of any 
tip credit taken by the employer and all such tips unlawfully 
kept by the employer, and in an additional equal amount as 
liquidated damages. An action to recover the liability 
prescribed in [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, as described in subsection 
(b), 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, as described in subsection 
(b). 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.  The 
        authority and requirements described in this subsection 
        shall apply with respect to a violation of section 
        3(m)(2)(B), as appropriate, and the employer shall be 
        liable for the amount of the sum of any tip credit 
        taken by the employer and all such tips unlawfully kept 
        by the employer, and an additional equal amount as 
        liquidated damages.
  (d) In any action or proceeding commenced prior to, on, or 
after the date of enactment of this subsection, no employer 
shall be subject to any liability or punishment under this Act 
or the Portal-to-Portal Act of 1947 on account of his failure 
to comply with any provision or provisions of such Acts (1) 
with respect to work heretofore or hereafter performed in a 
workplace to which the exemption in section 13(f) is 
applicable, (2) with respect to work performed in Guam, the 
Canal Zone, or Wake Island before the effective date of this 
amendment of subsection (d), or (3) with respect to work 
performed in a possession named in section 6(a)(3) at any time 
prior to the establishment by the Secretary, as provided 
therein, of a minimum wage rate applicable to such work.
  (e)(1)(A) Any person who violates the provisions of sections 
12 or 13(c), relating to child labor, or any regulation issued 
pursuant to such sections, shall be subject to a civil penalty 
not to exceed--
                          (i) $11,000 for each employee who was 
                        the subject of such a violation; or
                          (ii) $50,000 with regard to each such 
                        violation that causes the death or 
                        serious injury of any employee under 
                        the age of 18 years, which penalty may 
                        be doubled where the violation is a 
                        repeated or willful violation.
  (B) For purposes of subparagraph (A), the term ``serious 
injury'' means--
          (i) permanent loss or substantial impairment of one 
        of the senses (sight, hearing, taste, smell, tactile 
        sensation);
          (ii) permanent loss or substantial impairment of the 
        function of a bodily member, organ, or mental faculty, 
        including the loss of all or part of an arm, leg, foot, 
        hand or other body part; or
          (iii) permanent paralysis or substantial impairment 
        that causes loss of movement or mobility of an arm, 
        leg, foot, hand or other body part.
  (2) Any person who repeatedly or willfully violates section 6 
or 7, relating to wages, shall be subject to a civil penalty 
not to exceed $1,100 for each such violation. Any person who 
violates section 3(m)(2)(B) shall be subject to a civil penalty 
not to exceed $1,100 for each such violation, as the Secretary 
determines appropriate, in addition to being liable to the 
employee or employees affected for all tips unlawfully kept, 
and an additional equal amount as liquidated damages, as 
described in subsection (b).
  (3) In determining the amount of any penalty under this 
subsection, the appropriateness of such penalty to the size of 
the business of the person charged and the gravity of the 
violation shall be considered. The amount of any penalty under 
this subsection, when finally determined, may be--
          (A) deducted from any sums owing by the United States 
        to the person charged;
          (B) recovered in a civil action brought by the 
        Secretary in any court of competent jurisdiction, in 
        which litigation the Secretary shall be represented by 
        the Solicitor of Labor; or
          (C) ordered by the court, in an action brought for a 
        violation of section 15(a)(4) or a repeated or willful 
        violation of section 15(a)(2), to be paid to the 
        Secretary.
  (4) Any administrative determination by the Secretary of the 
amount of any penalty under this subsection shall be final, 
unless within 15 days after receipt of notice thereof by 
certified mail the person charged with the violation takes 
exception to the determination that the violations for which 
the penalty is imposed occurred, in which event final 
determination of the penalty shall be made in an administrative 
proceeding after opportunity for hearing in accordance with 
section 554 of title 5, United States Code, and regulations to 
be promulgated by the Secretary.
  (5) Except for civil penalties collected for violations of 
section 12, sums collected as penalties pursuant to this 
section shall be applied toward reimbursement of the costs of 
determining the violations and assessing and collecting such 
penalties, in accordance with the provision of section 2 of the 
Act entitled ``An Act to authorize the Department of Labor to 
make special statistical studies upon payment of the cost 
thereof and for other purposes'' (29 U.S.C. 9a). Civil 
penalties collected for violations of section 12 shall be 
deposited in the general fund of the Treasury.
  (f)(1) Any person who violates the provisions of section 8 
shall--
          (A) be subject to a civil penalty of $5,000 for a 
        first offense, increased by an additional $1,000 for 
        each subsequent offense, not to exceed $10,000; and
          (B) be liable to each employee or prospective 
        employee who was the subject of the violation for 
        special damages not to exceed $10,000 plus attorneys' 
        fees, and shall be subject to such injunctive relief as 
        may be appropriate.
  (2) An action to recover the liability described in paragraph 
(1)(B) 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 or prospective 
employees for and on behalf of--
          (A) the employees or prospective employees; and
          (B) other employees or prospective employees 
        similarly situated.

           *       *       *       *       *       *       *


           *       *       *       *       *       *       *

                              ----------                              


                        CIVIL RIGHTS ACT OF 1964



           *       *       *       *       *       *       *
TITLE VII--EQUAL EMPLOYMENT OPPORTUNITY

           *       *       *       *       *       *       *


          investigations, inspections, records, state agencies

  Sec. 709. (a) In connection with any investigation of a 
charge filed under section 706, the Commission or its 
designated representative shall at all reasonable times have 
access to, for the purposes of examination, and the right to 
copy any evidence of any person being investigated or proceeded 
against that relates to unlawful employment practices covered 
by this title and is relevant to the charge under 
investigation.
  (b) The Commission may cooperate with State and local 
agencies charged with the administration of State fair 
employment practices laws and, with the consent of such 
agencies, may, for the purpose of carrying out its functions 
and duties under this title and within the limitation of funds 
appropriated specifically for such purpose, engage in and 
contribute to the cost of research and other projects of mutual 
interest undertaken by such agencies, and utilize the services 
of such agencies and their employees, and, notwithstanding any 
other provision of law, pay by advance or reimbursement such 
agencies and their employees for services rendered to assist 
the Commission in carrying out this title. In furtherance of 
such cooperative efforts, the Commission may enter into written 
agreements with such State or local agencies and such 
agreements may include provisions under which the Commission 
shall refrain from processing a charge in any cases or class of 
cases specified in such agreements or under which the 
Commission shall relieve any person or class of persons in such 
State or locality from requirements imposed under this section. 
The Commission shall rescind any such agreement whenever it 
determines that the agreement no longer serves the interest of 
effective enforcement of this title.
  (c) Every employer, employment agency, and labor organization 
subject to this title shall (1) make and keep such records 
relevant to the determinations of whether unlawful employment 
practices have been or are being committed, (2) preserve such 
records for such periods, and (3) make such reports therefrom 
as the Commission shall prescribe by regulation or order, after 
public hearing, as reasonable, necessary, or appropriate for 
the enforcement of this title or the regulations or orders 
thereunder. The Commission shall, by regulation, require each 
employer, labor organization, and joint labor-management 
committee subject to this title which controls an 
apprenticeship or other training program to maintain such 
records as are reasonably necessary to carry out the purposes 
of this title, including, but not limited to, a list of 
applicants who wish to participate in such program, including 
the chronological order in which applications were received, 
and to furnish to the Commission upon request, a detailed 
description of the manner in which persons are selected to 
participate in the apprenticeship or other training program. 
Any employer, employment agency, labor organization, or joint 
labor-management committee which believes that the application 
to it of any regulation or order issued under this section 
would result in undue hardship may apply to the Commission for 
an exemption from the application of such regulation or order, 
and, if such application for an exemption is denied, bring a 
civil action in the United States district court for the 
district where such records are kept. If the Commission or the 
court, as the case may be, finds that the application of the 
regulation or order to the employer, employment agency, or 
labor organization in question would impose an undue hardship, 
the Commission or the court, as the case may be, may grant 
appropriate relief. If any person required to comply with the 
provisions of this subsection fails or refuses to do so, the 
United States district court for the district in which such 
person is found, resides, or transacts business, shall, upon 
application of the Commission, or the Attorney General in a 
case involving a government, governmental agency or political 
subdivision, have jurisdiction to issue to such person an order 
requiring him to comply.
  (d) In prescribing requirements pursuant to subsection (c) of 
this section, the Commission shall consult with other 
interested State and Federal agencies and shall endeavor to 
coordinate its requirements with those adopted by such 
agencies. The Commission shall furnish upon request and without 
cost to any State or local agency charged with the 
administration of a fair employment practice law information 
obtained pursuant to subsection (c) of this section from any 
employer, employment agency, labor organization, or joint 
labor-management committee subject to the jurisdiction of such 
agency. Such information shall be furnished on condition that 
it not be made public by the recipient agency prior to the 
institution of a proceeding under State or local law involving 
such information. If this condition is violated by a recipient 
agency, the Commission may decline to honor subsequent requests 
pursuant to this subsection.
  (e) It shall be unlawful for any officer or employee of the 
Commission to make public in any manner whatever any 
information obtained by the Commission pursuant to its 
authority under this section prior to the institution of any 
proceeding under this title involving such information. Any 
officer or employee of the Commission who shall make public in 
any manner whatever any information in violation of this 
subsection shall be guilty of a misdemeanor and upon conviction 
thereof, shall be fined not more than $1,000, or imprisoned not 
more than one year.
  (f)(1) Not later than 18 months after the date of enactment 
of this subsection, the Commission shall provide for the 
collection from employers of compensation data and other 
employment-related data (including hiring, termination, and 
promotion data) disaggregated by the sex, race, and national 
origin of employees.
  (2) In carrying out 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 the 
size of employers required to prepare reports), appropriate 
protections for maintaining data confidentiality, and the most 
effective format to report such data.
  (3)(A) For each 12-month reporting period for an employer, 
the compensation data collected under paragraph (1) shall 
include, for each range of taxable compensation described in 
subparagraph (B), disaggregated by the categories described in 
subparagraph (E)--
          (i) the number of employees of the employer who earn 
        taxable compensation in an amount that falls within 
        such taxable compensation range; and
          (ii) the total number of hours worked by such 
        employees.
  (B) Subject to adjustment under subparagraph (C), the taxable 
compensation ranges described in this subparagraph are as 
follows:
          (i) Not more than $19,239.
          (ii) Not less than $19,240 and not more than $24,439.
          (iii) Not less than $24,440 and not more than 
        $30,679.
          (iv) Not less than $30,680 and not more than $38,999.
          (v) Not less than $39,000 and not more than $49,919.
          (vi) Not less than $49,920 and not more than $62,919.
          (vii) Not less than $62,920 and not more than 
        $80,079.
          (viii) Not less than $80,080 and not more than 
        $101,919.
          (ix) Not less than $101,920 and not more than 
        $128,959.
          (x) Not less than $128,960 and not more than 
        $163,799.
          (xi) Not less than $163,800 and not more than 
        $207,999.
          (xii) Not less than $208,000.
  (C) The Commission may adjust the taxable compensation ranges 
under subparagraph (B)--
          (i) if the Commission determines that such adjustment 
        is necessary to enhance enforcement of Federal laws 
        prohibiting pay discrimination; or
          (ii) for inflation, in consultation with the Bureau 
        of Labor Statistics.
  (D) In collecting data described in subparagraph (A)(ii), the 
Commission shall provide that, with respect to an employee who 
the employer is not required to compensate for overtime 
employment under section 7 of the Fair Labor Standards Act of 
1938 (29 U.S.C. 207), an employer may report--
          (i) in the case of a full-time employee, that such 
        employee works 40 hours per week, and in the case of a 
        part-time employee, that such employee works 20 hours 
        per week; or
          (ii) the actual number of hours worked by such 
        employee.
  (E) The categories described in this subparagraph shall be 
determined by the Commission and shall include--
          (i) race;
          (ii) national origin;
          (iii) sex; and
          (iv) job categories, including the job categories 
        described in the instructions for the Equal Employment 
        Opportunity Employer Information Report EEO-1, as in 
        effect on the date of the enactment of this subsection.
  (F) The Commission shall use the compensation data collected 
under paragraph (1)--
          (i) to enhance--
                  (I) the investigation of charges filed under 
                section 706 or section 6(d) of the Fair Labor 
                Standards Act of 1938 (29 U.S.C. 206(d)); and
                  (II) the allocation of resources to 
                investigate such charges; and
          (ii) for any other purpose that the Commission 
        determines appropriate.
  (G) The Commission shall annually make publicly available 
aggregate compensation data collected under paragraph (1) for 
the categories described in subparagraph (E), disaggregated by 
industry, occupation, and core based statistical area (as 
defined by the Office of Management and Budget).
  (4) The compensation data under paragraph (1) shall be 
collected from each employer that--
          (A) is a private employer that has 100 or more 
        employees, including such an employer that is a 
        contractor with the Federal Government, or a 
        subcontractor at any tier thereof; or
          (B) the Commission determines appropriate.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

                              INTRODUCTION

    Committee Republicans are united in their belief that equal 
work should be rewarded with equal pay, irrespective of a 
worker'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. Committee Republicans are 
committed to eliminating unfair and illegal wage disparities 
that are a product of workplace discrimination and ensuring a 
fair, productive, and competitive workforce.
    In 1963, Congress enacted the Equal Pay Act (EPA) within 
the Fair Labor Standards Act (FLSA). The EPA makes it illegal 
to pay different wages to workers of the opposite sex for equal 
work. One year later, Congress enacted comprehensive anti-
discrimination protections based on race, color, national 
origin, religion, and sex in Title VII of the Civil Rights Act 
(Title VII). Together, these laws protect against sex 
discrimination and provide a range of remedies for victims. 
Committee Republicans agree that such discrimination should not 
be tolerated, which is why not one, but two federal laws 
already prohibit such actions.
    It is against this backdrop that Committee Republicans 
reject H.R. 7, the so-called Paycheck Fairness Act (PFA). H.R. 
7 does little to protect the wages and paychecks of American 
workers and does far more to line the pockets of the 
plaintiffs' trial-lawyer bar. The bill radically limits, and 
likely eliminates, the ability of business owners to defend 
claims of discrimination based on pay differences that arise 
from lawful and legitimate business purposes, while drastically 
expanding liability and damages under the EPA. Further, the 
bill requires a burdensome, intrusive, and unnecessary 
government collection of questionable utility of worker pay 
data. The data is disaggregated by race, sex, and national 
origin (including hiring, termination, and promotion data) and 
raises significant confidentiality and privacy concerns. For 
these reasons, and as set forth more fully below, Committee 
Republicans are united in their opposition to H.R. 7.

                          CONCERNS WITH H.R. 7

    Committee Republicans identify the following as some of the 
bill's most objectionable provisions:
H.R. 7 Radically Limits Legitimate and Lawful Defenses
    H.R. 7 radically scales back and likely eliminates a 
business owner's ability to defend itself from claims of pay 
discrimination where disparities arise from wholly lawful 
business decisions.\1\ For example, H.R. 7 strictly limits a 
business owner's ability to defend pay differentials that are 
accounted for by reasons wholly unrelated to a worker's sex. 
Under current law, a business owner can defend him or herself 
from a claim of pay discrimination by propounding evidence and 
proving the pay differential is based on factors other than 
sex. H.R. 7 dramatically and unfairly curtails the scope of 
that defense and requires that a business owner convince a 
judge or jury, potentially years later, that the pay 
differential was required by ``business necessity,'' 
essentially putting courts in charge of determining what a 
business owner must do to avoid bankruptcy. Ms. Camille A. 
Olson, a partner at Seyfarth Shaw LLP, explained at the lone 
hearing on H.R. 7 (a catch-all hearing that also covered three 
other, disparate bills) why requiring proof of ``business 
necessity'' is unworkable:
---------------------------------------------------------------------------
    \1\A provision in H.R. 7 as reported by the Committee was not 
included in the bill as introduced in the House. H.R. 7 as reported 
adds a definition of ``sex'' to the FLSA, a statute that currently does 
not define ``sex.'' The bill as reported defines ``sex'' as including a 
``sex stereotype,'' ``sexual orientation or gender identity,'' and 
``sex characteristics, including intersex traits,'' while defining 
``sexual orientation'' as including ``homosexuality, heterosexuality, 
and bisexuality,'' and defining ``gender identity'' as ``gender-related 
identity, appearance, mannerisms, or other gender-related 
characteristics of an individual, regardless of the individual's 
designated sex at birth.'' Such a substantial change to the FLSA, the 
nation's foremost wage-and-hour law, should have been subject to 
examination at a Committee hearing. However, because the Democrats' 
Amendment in the Nature of a Substitute to H.R. 7 made this change at 
the markup, no such examination occurred or was possible.

          Business necessity suggests that the very viability 
        of the business is dependent upon the compensation 
        decision. Requiring an employer to prove that a wage 
        differential between two individuals is a business 
        necessity is unworkable. It would require an employer 
        to meet an impossible threshold--to prove that it is a 
        business necessity for the employer to pay one person 
        more than another based on innumerable intangible 
        criteria such as relative levels of education, 
        experience, or job performance.\2\
---------------------------------------------------------------------------
    \2\Fighting for Fairness: Examining Legislation to Confront 
Workplace Discrimination: Hearing Before the Subcomm. on Civ. Rights & 
Human Serv. & Subcomm. on Workforce Protections of the H. Comm. on 
Educ. & Lab., 117th Cong. (2021) (statement of Camille Olson, Partner, 
Seyfarth Shaw LLP, at 9).

    Further, H.R. 7 requires the business owner to justify the 
entire pay difference between a male worker and female worker. 
This is yet another unworkable standard. Business owners make 
compensation decisions based on many factors that are not 
easily quantifiable. Requiring business owners to justify every 
cent of a pay differential is a mandate that could only be 
satisfied by establishing rigid pay grades, as governments use 
for civil servants. Ms. Olson commented on how this provision 
---------------------------------------------------------------------------
in H.R. 7 is also unworkable:

          Compensation decisions in the private sector are made 
        based on a variety of factors that are not capable of 
        an exact dollar-for-dollar comparison. Differences in 
        experience, education and performance, among other job-
        related factors, matter significantly for purposes of 
        setting compensation. How would an employer ever be 
        able to explain that it credited an employee with X 
        dollars for their 6.3 years of prior experience, and Y 
        dollars because the candidate went to a top tier school 
        versus Z dollars for a mid-tier school? It will be 
        virtually impossible for employers to meet such a 
        standard.\3\
---------------------------------------------------------------------------
    \3\Id. at 14.

    Even more egregious is that if a business owner somehow 
persuades the judge or jury that 100 percent of the 
differential was not based on sex, an employee is still 
entitled to argue that there are other ways to address this 
business need without a pay differential. In short, H.R. 7 
takes core management decisions out of the hands of business 
owners and places them squarely in the realm of judges, juries, 
and trial lawyers. This brazen attack on market economies and 
on private-sector discretion must be rejected.
    Moreover, H.R. 7 significantly limits the ability of 
business owners to justify differences in pay based on 
different work locations (a standard which has existed 
throughout the 56-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 (EEOC) to define 
``work establishment'' even more broadly) to prove pay 
discrimination. Ms. Olson pointed out in her testimony that a 
county can include urban and suburban areas with different 
commuting costs that could justify a pay differential.\4\ The 
practical elimination of a legitimate defense available to 
business owners under current law simply fails to recognize 
economic reality and our market-based economy.
---------------------------------------------------------------------------
    \4\Id. at 30.
---------------------------------------------------------------------------
H.R. 7 Drastically Expands Remedies
    H.R. 7 drastically expands remedies under the EPA to 
provide for unlimited compensatory damages, even where there is 
absolutely no showing that any pay disparity was the effect of 
intentional discrimination, as well as uncapped punitive 
damages. In doing so, H.R. 7 places claims of discrimination in 
wages based on sex in a more favorable position than similar 
claims of pay discrimination under Title VII or the Americans 
with Disabilities Act, which provide for limited compensatory 
and punitive damages in cases of intentional discrimination.
    Indeed, taken in concert with the remedies available under 
Title VII, remedies for claims of pay discrimination under H.R. 
7 would be greater than those available under any of our 
nation's current civil rights laws. Ms. Olson discussed in her 
testimony why these expanded remedies are inappropriate:

          The required showing for proof of an EPA violation is 
        lower than under Title VII, but the available damages 
        are higher. What is more, H.R. 7 would also allow for 
        uncapped punitive damages in addition to the EPA's 
        existing double recovery of economic damages. The 
        current damage mechanisms under the EPA serve their 
        intended purpose of eliminating wage disparities, 
        making employees whole, compensating employees with an 
        equal amount of special liquidated damages, and paying 
        all attorneys' fees and costs. These remedies are 
        appropriately proportional as a remedy for an 
        employer's actions that produce unintentional, unlawful 
        wage disparities. To upend this design through a 
        contortionist's attempt to carry over parts of Title 
        VII's remedial scheme in a selected manner, and expand 
        damages under lower proof requirements is not 
        appropriate.\5\
---------------------------------------------------------------------------
    \5\Id. at 25.

    This drastic expansion of remedies, particularly where they 
may be assessed without showing any discriminatory intent, tips 
the scales to favor outsized judgments unrelated to actual 
damages, and calls the entire rationale for the bill into 
question.
H.R. 7 Encourages Frivolous Class Action Lawsuits
    This bill's true intent to generate more lawsuits and line 
the pockets of trial lawyers is nowhere more evident than in 
its provisions to expand class action lawsuits. Currently under 
the FLSA, plaintiffs may sue on behalf of themselves and those 
similarly situated, thereby pursuing a collective action. To 
ensure that these suits are merit-based--and brought by those 
who wish to pursue them--workers must opt in to these 
collective suits. H.R. 7 reverses that presumption and 
eliminates those safeguards, instead deeming all potential 
class members to be joined to a suit, placing the affirmative 
burden on these individuals--who may not even know of the 
suit's existence--to opt out of a claim.
    Supporters of H.R. 7 have not adequately explained why a 
change is needed for collective actions under the EPA. Ms. 
Olson reached the conclusion that ``the current mechanism 
sufficiently balances the interests of employers and aggrieved 
employees, and the proponents of the bill have not sufficiently 
demonstrated a need for such a procedural overhaul.''\6\ The 
class action provisions in the bill are plainly designed to 
ensure that plaintiffs' lawyers get handsome financial payoffs 
to pursue class-action lawsuits, trumping any legitimate 
interest in protecting the paychecks of American workers, and 
these special-interest provisions should be rejected.
---------------------------------------------------------------------------
    \6\Id. at 18.
---------------------------------------------------------------------------
H.R. 7 Obstructs Recruitment and Hiring
    H.R. 7 includes highly prescriptive, unworkable 
prohibitions relating to recruitment and hiring. The bill 
prohibits a business owner from relying on the current or 
previous wage of a prospective employee in considering the 
individual for employment or determining the wages of the 
individual unless the individual voluntarily provides the wage 
information after a job offer has been made with a salary 
offer, and then only if the information will increase the 
salary offer. Ms. Olson explained the overly complex, 
impractical nature of this scheme:

          Prohibiting employers from relying on prior salary 
        information, even if it's voluntarily provided, until 
        after an offer that includes compensation information 
        has been extended will invoke an unnatural cadence that 
        does not reflect the realities of the workforce. 
        Indeed, human resources representatives will be forced 
        to issue ``Miranda-type'' warnings to applicants 
        advising them that they cannot provide information 
        regarding prior salary. And that even if they do, the 
        employer must make a salary offer unrelated to their 
        prior salary.\7\
---------------------------------------------------------------------------
    \7\Id. at 21.

    This provision is representative of how extreme and 
unrealistic H.R. 7 is in its approach to addressing 
compensation issues in the workplace. If enacted, workers and 
employers would be stuck trying to implement a stream of 
provisions that are unworkable.
H.R. 7 Eliminates Business Owners' Ability to Protect the 
        Confidentiality of Wage and Salary Data
    H.R. 7 undermines the ability of business owners to manage 
their enterprises by adopting broad, new anti-retaliation 
provisions relating to employee discussions of pay or 
compensation, extending restrictions far beyond what is already 
provided under federal law. Title VII, among other federal 
civil rights laws, protects employees in asserting their rights 
with respect to nondiscrimination in pay. The National Labor 
Relations Act also protects employees who discuss their wages 
as part of a concerted activity.
    However, H.R. 7 effectively eliminates the ability of a 
business owner 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. Ms. Olson 
explained the problems with this open-ended provision:

          H.R. 7 is written so broadly that employees would 
        have the right to inquire about, discuss, or disclose 
        wage information without limitation. . . . There is no 
        consideration of the reasonableness of the employee's 
        actions with respect to their inquiries, discussions, 
        or disclosures, nor is the permissibility of such 
        action tethered to the alleged underlying pay 
        disparity. Further, the proposed bill does not take 
        into account or protect the privacy rights of other 
        employees with respect to publicly disseminating 
        information about their pay, nor does it contain a 
        mechanism for balancing and protecting employers' 
        legitimate business concerns in maintaining 
        confidentiality of certain compensation information. 
        Under H.R. 7, an employee who chooses to post on social 
        media the wages of all other employees, by name, would 
        be deemed to be engaging in protected activity, against 
        which other employees and the employer would have no 
        recourse.\8\
---------------------------------------------------------------------------
    \8\Id. at 23.

    These provisions in the bill contain no limiting principle 
and will very likely harm workers and business owners. They 
should be eliminated.
H.R. 7 Mandates Intrusive and Unnecessary Government Collection of 
        Worker Pay Data
    H.R. 7 directs EEOC to collect compensation data from 
business owners disaggregated by the sex, race, and national 
origin of workers, including, for the first time ever, hiring, 
termination, and promotion data. This sweeping collection would 
go even further than the Obama administration's discredited 
proposal in 2016 to collect pay data,\9\ which did not include 
hiring, termination, and promotion data. Pursuant to the Obama 
administration proposal, EEOC collected pay data for 2017 and 
2018, but the agency has since discontinued the pay data 
collection.\10\
---------------------------------------------------------------------------
    \9\Press Release, EEOC to Collect Summary Pay Data (Sept. 29, 
2016).
    \10\Notice of Information Collection--Request for new Control 
Number for a Currently Approved Collection: Employer Information Report 
(EEO-1) Component 1; Revision of Existing Approval for EEO-1 Component 
2, 84 Fed. Reg. 48,138, 48,141 (Sept. 12, 2019).
---------------------------------------------------------------------------
    As with the Obama administration scheme, this mandate 
raises serious privacy and confidentiality concerns. Time and 
again there have been massive and harmful data breaches of 
federal agencies. These reams of data would create yet another 
valuable target, and H.R. 7 fails to address how the data will 
be protected. Aggregated data published at the regional and 
industrial level could reveal salaries of individual workers, 
which is proprietary data. EEOC would also share the data with 
the U.S. Department of Labor (DOL), which could release 
sensitive data pursuant to a Freedom of Information Act 
request.
    It is highly unlikely that the data in question will be 
useful to EEOC or the public. To the extent pay discrimination 
exists, it is doubtful that amassing pay data in this manner 
will effectively combat such discrimination. The raw data 
collected will not account for the many factors that may 
explain pay differences, such as skill levels and regional 
differences in compensation, and will result in information 
that is misleading and confusing.
    Finally, this mandate is uniquely burdensome. In 2019, EEOC 
estimated that annual costs to employers of submitting 
information reports with pay data to the agency was more than 
$610 million in 2017 and 2018. EEOC also determined that the 
``unproven utility to its enforcement program of the pay data . 
. . is far outweighed by the burden imposed on employers that 
must comply with the reporting obligation.''\11\
---------------------------------------------------------------------------
    \11\Id.
---------------------------------------------------------------------------
    In addition to the intrusive government collection of pay 
data, there are substantive concerns with changes to the EPA 
contained in H.R. 7--changes that make it impossible to defend 
legitimate pay differences, improperly allow unlimited 
compensatory and punitive damages, and inappropriately expand 
class actions, as well as obstructing the recruiting and hiring 
process. The concerns outlined here represent but a few of the 
most egregious policy flaws in H.R. 7. Whether singly or taken 
as a whole, the provisions of H.R. 7 must be rejected.

                     THE FLAWED ``WAGE GAP'' THEORY

    Advocates of H.R. 7 claim that despite two federal laws 
prohibiting pay discrimination, female workers are still paid 
on average considerably less than male workers, and, as a 
result, a pernicious ``wage gap'' exists. According to Bureau 
of Labor Statistics (BLS) data, female weekly earnings were 82 
percent of male weekly earnings in 2019, as compared to 62 
percent in 1979.\12\ Supporters of H.R. 7 argue that this 
flawed theory makes enactment of the bill necessary.
---------------------------------------------------------------------------
    \12\U.S. Dep't of Lab, Bureau of Lab. Statistics, BLS Reports, 
Highlights of women's earnings in 2019 (Dec. 2020).
---------------------------------------------------------------------------
    However, many experts effectively argue the ``wage gap'' 
between men and women is not necessarily the product of 
workplace discrimination. In fact, most of the gap disappears 
when factors such as hours worked per week, rate of leaving the 
labor force, and industry and occupation are considered.\13\ 
For example, among full-time workers, men are more likely than 
women to choose to work more than 40 hours per week. In 2019, 
25 percent of men who usually work full time worked 41 or more 
hours per week, compared with 14 percent of women. For those 
who worked exactly a 40-hour work week, women earned 87 percent 
as much as men.\14\
---------------------------------------------------------------------------
    \13\See, e.g., CONSAD Research Corp., An Analysis of Reasons for 
the Disparity in Wages Between Men and Women 1-2 (prepared for the U.S. 
Dep't of Labor) (Jan. 12, 2009), https://www.shrm.org/hr-today/public-
policy/hr-public-policy-issues/Documents/
Gender%20Wage%20Gap%20Final%20Report.pdf.
    \14\U.S. Dep't of Labor, supra note 12.
---------------------------------------------------------------------------
    Other factors, including work experience, job tenure, and 
preferences for non-wage benefits, such as health insurance and 
other fringe benefits, further reduce the ``gap.'' A 2020 study 
by the compensation software company PayScale found that when 
accounting for job title, years of experience, industry, 
location, and other compensable factors, women earned 98 
percent as much as men.\15\ A 2020 research paper funded by the 
U.S. Census Bureau found that 41 percent of the gender wage gap 
can be explained by standard demographic and economic 
characteristics, including work history, industry, and 
occupation.\16\ A 2009 study commissioned by DOL found a gender 
wage gap between 4.8 and 7.1 percent when controlling for 
economic variables between men and women.\17\
---------------------------------------------------------------------------
    \15\PayScale, The State of the Gender Pay Gap 2020, https://
www.payscale.com/data/gender-pay-gap.
    \16\Thomas B. Foster et al., An Evaluation of the Gender Wage Gap 
Using Linked Survey and Administrative Data, Working Paper No. CES-20-
34 (U.S. Census Bureau Ctr. for Econ. Studies, Nov. 2020), https://
www2.census.gov/ces/wp/2020/CES-WP-20-34.pdf. This paper has not 
undergone the review accorded Census Bureau publications and is not 
endorsed by the agency.
    \17\CONSAD Research Corp., supra note 13, at 1.
---------------------------------------------------------------------------
    A 2018 Harvard University study found that the gap in pay 
between female and male bus and train operators working for the 
Massachusetts Bay Transportation Authority (MBTA) can be 
explained by the workplace choices that women and men make, 
rather than other factors such as discrimination.\18\ The study 
found the earnings gap for MBTA bus and train operators is 
explained by the fact that the male operators took 48 percent 
fewer unpaid hours off and worked 83 percent more overtime 
hours per year than the female operators. These differences are 
not due to any different work options faced by female and male 
operators. Rather, the study found that the female operators 
had a greater demand for workplace flexibility and a lower 
demand for overtime work hours than the male operators.
---------------------------------------------------------------------------
    \18\Valentin Bolotnyy and Natalia Emanuel, Why Do Women Earn Less 
Than Men? Evidence from Bus and Train Operators (Harvard Univ., Working 
Paper, Jan. 2, 2019), https://scholar.harvard.edu/bolotnyy/
publications/why-do-women-earn-less-men-evidence-bus-and-train-
operators-job-market-paper.
---------------------------------------------------------------------------
    The Harvard MBTA study is noteworthy because the workplace 
characteristics of the female operators are entirely comparable 
to those of the male operators. All operators are represented 
by the same union, and all are covered by the same collective 
bargaining agreement. The study found the earnings gap persists 
even when seniority was the same, which means that differences 
in choices women and men made when faced with the same options 
in the MBTA workplace can fully explain the earnings gap. 
Because of the strict seniority system, the study debunked 
discrimination as a cause of the gender earnings gap at the 
MBTA.
    In sum, there is a lack of definitive evidence that a 
``wage gap'' caused by gender-based discrimination in pay 
exists. The flawed premise of the ``wage gap'' does not justify 
the enactment of radical, sweeping reforms to the EPA and other 
federal laws contained in H.R. 7.

                          REPUBLICAN AMENDMENT

    Recognizing the fundamental failures of policy contained in 
H.R. 7, Representative Elise Stefanik (R-NY) offered a 
substitute amendment during the Committee markup to highlight 
Republican priorities and solutions for working women and men.
    Representative Stefanik's amendment strengthens the EPA 
while eliminating the multiple provisions in H.R. 7 that make 
it impossible for a business owner to defend a pay 
differential. This amendment strengthens the EPA by replacing 
the ``factor other than sex'' defense with the language ``a 
bona fide business-related factor other than sex.'' This change 
would make clear to the courts that the ``other than sex'' 
defense cannot be used as a loophole or excuse for relying on 
sex as a factor when there is a pay differential. The Stefanik 
amendment also strikes the remaining provision in H.R. 7 
relating to defenses. These unnecessary provisions require 
that, even when a business owner already shows the factor 
causing the pay differential is ``other than sex,'' it must 
meet several illogical and insurmountable burdens, effectively 
paving an unimpeded path to the promise of unlimited punitive 
and compensatory damages to line the pockets of trial lawyers.
    To encourage proactive steps by employers, and taking its 
cue from Massachusetts' pay equity law\19\ and Ms. Olson's 
testimony, Representative Stefanik's amendment provides an 
affirmative defense to an EPA claim if an employer self-audits 
its pay practices to identify potentially unlawful pay 
differentials and takes action to address pay differentials. 
The audit must be conducted in good faith, reasonable in detail 
and scope relative to the size of the employer, and conducted 
within the prior three years. If a self-audit is not reasonable 
in detail and scope but meets the other criteria, then the 
employer will not be liable for liquidated damages. In 
addition, the employer's audit and subsequent actions related 
to the audit cannot be used in a claim against the employer, 
and no negative inference can be made against an employer who 
conducts a self-audit. Ms. Olson's testimony endorsed 
provisions such as this to encourage more employers to conduct 
self-evaluations to identify and rectify potentially unlawful 
pay differentials.\20\
---------------------------------------------------------------------------
    \19\Mass. Gen. Laws ch. 149, Sec. 105A(d).
    \20\Olson statement, supra note 2, at 30-32.
---------------------------------------------------------------------------
    To ensure recruitment and hiring practices are not unduly 
interfered with, Representative Stefanik's amendment ensures 
employers may act on wage information that has been voluntarily 
provided by a prospective employee. The amendment also ensures 
that the employer may have a salary expectation conversation 
with a prospective employee. In contrast, H.R. 7 forbids 
employers from relying on wage history voluntarily provided by 
the prospective employee until after the employer makes a job 
offer, including a salary offer, to the prospective employee. 
This seemingly requires the employer to warn the prospective 
employee, with a Miranda-style warning, not to volunteer any of 
the prospective employee's wage history. Even then, the 
employer can only rely on the voluntarily provided wage history 
to increase the salary offer. This scheme in H.R. 7 is 
unworkable and may harm prospective employees who have 
unrealistic salary expectations. The business necessity 
requirement in the PFA also makes discretionary salary offers, 
such as to recruit a prospective employee from another firm, 
likely to be unlawful.
    To protect employees from violations of their privacy, 
Representative Stefanik's amendment ensures employers may place 
reasonable limitations on the time, place, and manner of 
employees' discussions, disclosures, or inquiries about 
employee wages, including that any disclosures must be 
voluntary. In contrast, H.R. 7 does not allow the employer to 
place reasonable limits on these disclosures. This could result 
in disclosures that may violate the privacy of employees and 
the confidentiality of proprietary information.\21\
---------------------------------------------------------------------------
    \21\See id. at 21-24.
---------------------------------------------------------------------------
    Crucially, Representative Stefanik's amendment does not 
require EEOC to collect pay data from employers. This wise 
omission reflects Committee Republicans' grave concerns with 
the government collection of pay data mandated in H.R. 7. The 
bill requires EEOC to collect worker compensation data from 
business owners disaggregated by sex, race, and national origin 
of employees, including, for the first time ever, hiring, 
termination, and promotion data. This astounding government 
collection of worker pay data raises significant privacy and 
confidentiality concerns. Further, the utility of this data is 
doubtful, and whether EEOC would be able to manage and 
interpret this massive amount of pay data appropriately is 
questionable. Finally, the data collection requirement would 
impose an extremely costly and uniquely burdensome mandate on 
business owners, requiring them to submit reams of proprietary 
data to the government, the uses of which are not adequately 
explained in the bill.
    Representative Stefanik's amendment embodies a responsible, 
workable approach to address compensation issues in the 
workplace, which the Democrats unanimously rejected in favor of 
H.R. 7's numerous top-down, impractical, and ludicrous 
provisions.

                               CONCLUSION

    H.R. 7 is a fundamentally flawed bill that does nothing to 
ensure ``paycheck fairness.'' The bill's proponents have failed 
to demonstrate that its provisions are needed or will prove 
workable. H.R. 7 is instead a gift for trial lawyers, the main 
beneficiaries of the bill. For these reasons, and all of those 
set forth above, Committee Republicans oppose the enactment of 
H.R. 7 as reported from the Committee on Education and Labor.

                                   Virginia Foxx,
                                           Ranking Member.
                                   Joe Wilson.
                                   Glenn ``GT'' Thompson.
                                   Tim Walberg.
                                   Glenn Grothman.
                                   Elise M. Stefanik.
                                   Rick W. Allen.
                                   Jim Banks.
                                   James Comer.
                                   Fred Keller.
                                   Gregory F. Murphy, M.D.
                                   Mariannette Miller Meeks, M.D.
                                   Burgess Owens.
                                   Lisa C. McClain.
                                   Diana Harshbarger.
                                   Scott Fitzgerald.
                                   Madison Cawthorn.

                                  [all]