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.
IN THE SENATE OF THE UNITED STATES
April 12, 2011
Ms. MIKULSKI (for herself, Mr. AKAKA, Mrs. BOXER, Ms. CANTWELL, Mr.
CARDIN, Mr. CASEY, Mr. COONS, Mr. DURBIN, Mr. FRANKEN, Mrs. GILLIBRAND,
Mr. HARKIN, Mr. KERRY, Ms. KLOBUCHAR, Mr. LAUTENBERG, Mr. LEAHY, Mr.
LEVIN, Mrs. MCCASKILL, Mrs. MURRAY, Mr. REED, Mr. REID, Mrs. SHAHEEN,
Ms. STABENOW, Mr. WHITEHOUSE, Mr. WYDEN, Mr. MERKLEY, and Mrs. HAGAN)
introduced the following bill; which was read twice and referred to
the Committee on Health, Education, Labor, and Pensions
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Paycheck Fairness Act'.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Women have entered the workforce in record numbers over the past
(2) Despite the enactment of the Equal Pay Act of 1963, many women
continue to earn significantly lower pay than men for equal work.
These pay disparities exist in both the private and governmental sectors.
In many instances, the pay disparities can only be due to continued
intentional discrimination or the lingering effects of past discrimination.
(3) The existence of such pay disparities--
(A) depresses the wages of working families who rely on the wages
of all members of the family to make ends meet;
(B) undermines women's retirement security, which is often based
on earnings while in the workforce;
(C) prevents the optimum utilization of available labor resources;
(D) has been spread and perpetuated, through commerce and the channels
and instrumentalities of commerce, among the workers of the several
(E) burdens commerce and the free flow of goods in commerce;
(F) constitutes an unfair method of competition in commerce;
(G) leads to labor disputes burdening and obstructing commerce and
the free flow of goods in commerce;
(H) interferes with the orderly and fair marketing of goods in commerce;
(I) in many instances, may deprive workers of equal protection on
the basis of sex in violation of the 5th and 14th Amendments.
(4)(A) Artificial barriers to the elimination of discrimination in
the payment of wages on the basis of sex continue to exist decades
after the enactment of the Fair Labor Standards Act of 1938 (29 U.S.C.
201 et seq.) and the Civil Rights Act of 1964 (42 U.S.C. 2000a et
(B) These barriers have resulted, in significant part, because the
Equal Pay Act of 1963 has not worked as Congress originally intended.
Improvements and modifications to the provisions added by the Act
are necessary to ensure that the provisions provide effective protection
to those subject to pay discrimination on the basis of their sex.
(C) Elimination of such barriers would have positive effects, including--
(i) providing a solution to problems in the economy created by unfair
(ii) substantially reducing the number of working women earning
unfairly low wages, thereby reducing the dependence on public assistance;
(iii) promoting stable families by enabling all family members to
earn a fair rate of pay;
(iv) remedying the effects of past discrimination on the basis of
sex and ensuring that in the future workers are afforded equal protection
on the basis of sex; and
(v) ensuring equal protection pursuant to Congress's power to enforce
the 5th and 14th Amendments.
(5) The Department of Labor and the Equal Employment Opportunity Commission
have important and unique responsibilities to help ensure that women
receive equal pay for equal work.
(6) The Department of Labor is responsible for--
(A) collecting and making publicly available information about women's
(B) ensuring that companies receiving Federal contracts comply with
anti-discrimination affirmative action requirements of Executive
Order 11246 (relating to equal employment opportunity);
(C) disseminating information about women's rights in the workplace;
(D) helping women who have been victims of pay discrimination obtain
a remedy; and
(E) being proactive in investigating and prosecuting equal pay violations,
especially systemic violations, and in enforcing all of its mandates.
(7) The Equal Employment Opportunity Commission is the primary enforcement
agency for claims made under the provisions added by the Equal Pay
Act of 1963, and issues regulations and guidance on appropriate interpretations
of the law.
(8) With a stronger commitment by the Department of Labor and the
Equal Employment Opportunity Commission to their responsibilities,
increased information about the provisions added by the Equal Pay
Act of 1963, wage data, and more effective remedies, women will be
better able to recognize and enforce their rights.
(9) Certain employers have already made great strides in eradicating
unfair pay disparities in the workplace and their achievements should
SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.
(a) Bona Fide Factor Defense and Modification of Same Establishment
Requirement- Section 6(d)(1) of the Fair Labor Standards Act of 1938
(29 U.S.C. 206(d)(1)) is amended--
(1) by striking `No employer having' and inserting `(A) No employer
(2) by striking `any other factor other than sex' and inserting `a
bona fide factor other than sex, such as education, training, or experience';
(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; and (iii)
is consistent with business necessity. Such defense shall not apply
where the employee demonstrates that an alternative employment practice
exists that would serve the same business purpose without producing
such differential and that the employer has refused to adopt such alternative
`(C) For purposes of subparagraph (A), employees shall be deemed to
work in the same establishment if the employees work for the same employer
at workplaces located in the same county or similar political subdivision
of a State. The preceding sentence shall not be construed as limiting
broader applications of the term `establishment' consistent with rules
prescribed or guidance issued by the Equal Opportunity Employment Commission.'.
(b) Nonretaliation Provision- Section 15 of the Fair Labor Standards
Act of 1938 (29 U.S.C. 215) is amended--
(1) in subsection (a)(3), by striking `employee has filed' and all
that follows through `committee;' 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; or
`(B) has inquired about, discussed, or disclosed the wages of the
employee or another employee;'; and
(2) by adding at the end the following:
`(c) Subsection (a)(3)(B) shall not apply to instances in which an employee
who has access to the wage information of other employees as a part
of such employee's essential job functions discloses the wages of such
other employees to an individual who does not otherwise have access
to such information, unless such disclosure is in response to a charge
or complaint 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.'.
(c) Enhanced Penalties- Section 16(b) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 216(b)) is amended--
(1) by inserting after the first sentence the following: `Any employer
who violates section 6(d) shall additionally be liable for such compensatory
damages, or, 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 `either
of the preceding sentences' and inserting `any of the preceding sentences
of this subsection';
(3) in the sentence beginning `No employees shall', by striking `No
employees' and inserting `Except with respect to class actions brought
to enforce section 6(d), no employee';
(4) by inserting after the sentence referred to in paragraph (3),
the following: `Notwithstanding any other provision of Federal law,
any action brought to enforce section 6(d) may be maintained as a
class action as provided by the Federal Rules of Civil Procedure.';
(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
(d) Action by Secretary- Section 16(c) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 216(c)) is amended--
(1) in the first sentence--
(A) by inserting `or, in the case of a violation of section 6(d),
additional compensatory or punitive damages, 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 last sentence--
(A) by striking `commenced in the case' and inserting `commenced--
(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
SEC. 4. TRAINING.
The Equal Employment Opportunity Commission and the Office of Federal
Contract Compliance Programs, subject to the availability of funds appropriated
under section 10, shall provide training to Commission employees and
affected individuals and entities on matters involving discrimination
in the payment of wages.
SEC. 5. NEGOTIATION SKILLS TRAINING FOR GIRLS AND WOMEN.
(1) IN GENERAL- The Secretary of Labor, after consultation with the
Secretary of Education, is authorized to establish and carry out a
(2) GRANTS- In carrying out the program, the Secretary of Labor may
make grants on a competitive basis to eligible entities, to carry
out negotiation skills training programs for girls and women.
(3) ELIGIBLE ENTITIES- To be eligible to receive a grant under this
subsection, an entity shall be a public agency, such as a State, a
local government in a metropolitan statistical area (as defined by
the Office of Management and Budget), a State educational agency,
or a local educational agency, a private nonprofit organization, or
a community-based organization.
(4) APPLICATION- To be eligible to receive a grant under this subsection,
an entity shall submit an application to the Secretary of Labor at
such time, in such manner, and containing such information as the
Secretary of Labor may require.
(5) USE OF FUNDS- An entity that receives a grant under this subsection
shall use the funds made available through the grant to carry out
an effective negotiation skills training program that empowers girls
and women. The training provided through the program shall help girls
and women strengthen their negotiation skills to allow the girls and
women to obtain higher salaries and rates of compensation that are
equal to those paid to similarly situated male employees.
(b) Incorporating Training Into Existing Programs- The Secretary of
Labor and the Secretary of Education shall issue regulations or policy
guidance that provides for integrating the negotiation skills training,
to the extent practicable, into programs authorized under--
(1) in the case of the Secretary of Education, the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.), the Carl
D. Perkins 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 Investment
Act of 1998 (29 U.S.C. 2801 et seq.), and other programs carried out
by the Department of Labor that the Secretary of Labor determines
to be appropriate.
(c) Report- Not later than 1 year after the date of enactment of this
Act, and annually thereafter, the Secretary of Labor and the Secretary
of Education shall prepare and submit to Congress a report describing
the activities conducted under this section and evaluating the effectiveness
of such activities in achieving the purposes of this Act.
SEC. 6. RESEARCH, EDUCATION, AND OUTREACH.
The Secretary of Labor shall conduct studies and provide information
to employers, labor organizations, and the general public concerning
the means available to eliminate pay disparities between men and women,
(1) conducting and promoting research to develop the means to correct
expeditiously the conditions leading to the pay disparities;
(2) publishing and otherwise making available to employers, labor
organizations, professional associations, educational institutions,
the media, and the general public the findings resulting from studies
and other materials, relating to eliminating the pay disparities;
(3) sponsoring and assisting State and community informational and
(4) providing information to employers, labor organizations, professional
associations, and other interested persons on the means of eliminating
the pay disparities;
(5) recognizing and promoting the achievements of employers, labor
organizations, and professional associations that have worked to eliminate
the pay disparities; and
(6) convening a national summit to discuss, and consider approaches
for rectifying, the pay disparities.
SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN THE
(a) In General- There is established the Secretary of Labor's National
Award for Pay Equity in the Workplace, which shall be awarded, as appropriate,
to encourage proactive efforts to comply with section 6(d) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 206(d)).
(b) Criteria for Qualification- The Secretary of Labor shall set criteria
for receipt of the award, including a requirement that an employer has
made substantial effort to eliminate pay disparities between men and
women, and deserves special recognition as a consequence of such effort.
The Secretary shall establish procedures for the application for and
presentation of the award.
(c) Employer- In this section, the term `employer' includes--
(1)(A) a corporation, including a nonprofit corporation;
(C) a professional association;
(D) a labor organization; and
(E) a business entity similar to an entity described in any of subparagraphs
(A) through (D);
(2) an entity carrying out an education referral program, a training
program, such as an apprenticeship or management training program,
or a similar program; and
(3) an entity carrying out a joint program, formed by a combination
of any entities described in paragraph (1) or (2).
SEC. 8. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT OPPORTUNITY
Section 709 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-8) is amended
by adding at the end the following:
`(f)(1) Not later than 18 months after the date of enactment of this
subsection, the Commission shall--
`(A) complete a survey of the data that is currently available to
the Federal Government relating to employee pay information for use
in the enforcement of Federal laws prohibiting pay discrimination
and, in consultation with other relevant Federal agencies, identify
additional data collections that will enhance the enforcement of such
`(B) based on the results of the survey and consultations under subparagraph
(A), issue regulations to provide for the collection of pay information
data from employers as described by the sex, race, and national origin
`(2) In implementing paragraph (1), the Commission shall have as its
primary consideration the most effective and efficient means for enhancing
the enforcement of Federal laws prohibiting pay discrimination. For
this purpose, the Commission shall consider factors including the imposition
of burdens on employers, the frequency of required data collection reports
(including which employers should be required to prepare reports), appropriate
protections for maintaining data confidentiality, and the most effective
format for the data collection reports.'.
SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND PAY EQUITY DATA COLLECTION.
(a) Bureau of Labor Statistics Data Collection- The Commissioner of
Labor Statistics shall continue to collect data on women workers in
the Current Employment Statistics survey.
(b) Office of Federal Contract Compliance Programs Initiatives- The
Director of the Office of Federal Contract Compliance Programs shall
ensure that employees of the Office--
(1)(A) shall use the full range of investigatory tools at the Office's
disposal, including pay grade methodology;
(B) in considering evidence of possible compensation discrimination--
(i) shall not limit its consideration to a small number of types
of evidence; and
(ii) shall not limit its evaluation of the evidence to a small number
of methods of evaluating the evidence; and
(C) shall not require a multiple regression analysis or anecdotal
evidence for a compensation discrimination case;
(2) for purposes of its investigative, compliance, and enforcement
activities, shall define `similarly situated employees' in a way that
is consistent with and not more stringent than the definition provided
in item 1 of subsection A of section 10-III of the Equal Employment
Opportunity Commission Compliance Manual (2000), and shall consider
only factors that the Office's investigation reveals were used in
making compensation decisions; and
(3) shall reinstate the Equal Opportunity Survey, as required by section
60-2.18 of title 41, Code of Federal Regulations (as in effect on
September 7, 2006), designating not less than half of all nonconstruction
contractor establishments each year to prepare and file such survey,
and shall review and utilize the responses to such survey to identify
contractor establishments for further evaluation and for other enforcement
purposes as appropriate.
(c) Department of Labor Distribution of Wage Discrimination Information-
The Secretary of Labor shall make readily available (in print, on the
Department of Labor website, and through any other forum that the Department
may use to distribute compensation discrimination information), accurate
information on compensation discrimination, including statistics, explanations
of employee rights, historical analyses of such discrimination, instructions
for employers on compliance, and any other information that will assist
the public in understanding and addressing such discrimination.
SEC. 10. AUTHORIZATION OF APPROPRIATIONS.
(a) Authorization of Appropriations- There is authorized to be appropriated
$15,000,000 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 businesses in complying
with the requirements of this Act and the amendments made by this Act.
(c) Small Businesses- A small business shall be exempt from the provisions
of this Act to the same extent that such business is exempt from the
requirements of the Fair Labor Standards Act of 1938 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 amendment made by this Act, shall affect
the obligation of employers and employees to fully comply with all applicable
immigration laws, including any penalties, fines, or other sanctions.