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116th Congress }                                             { Report
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                             { 116-18

======================================================================

 
                         PAYCHECK FAIRNESS ACT

                                _______
                                

 March 18, 2019.--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]

      [Including cost estimate of the Congressional Budget Office]

    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, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.

                                CONTENTS

                                                                   Page
Purpose..........................................................     7
Committee Action.................................................     9
Summary..........................................................    15
Committee Views..................................................    17
Section-by-Section Analysis......................................    43
Explanation of Amendments........................................    47
Application of Law to the Legislative Branch.....................    47
Unfunded Mandate Statement.......................................    47
Earmark Statement................................................    47
Roll Call Votes..................................................    47
Statement of Performance Goals and Objectives....................    53
Duplication of Federal Programs..................................    53
Hearings.........................................................    53
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................    53
New Budget Authority and CBO Cost Estimate.......................    53
Committee Cost Estimate..........................................    56
Changes in Existing Law Made by the Bill, as Reported............    57
Minority Views...................................................    77

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Paycheck Fairness Act''.

SEC. 2. FINDINGS.

  Congress finds the following:
          (1) Women have entered the workforce in record numbers over 
        the past 50 years.
          (2) Despite the enactment of the Equal Pay Act 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.
          (3) In many instances, the pay disparities can only be due to 
        continued intentional discrimination or the lingering effects 
        of past discrimination. After controlling for educational 
        attainment, occupation, industry, union status, race, 
        ethnicity, and labor force experience roughly 40 percent of the 
        pay gap remains unexplained.
          (4) 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 women from realizing their full economic 
                potential, particularly in terms of labor force 
                participation and attachment;
                  (D) has been spread and perpetuated, through commerce 
                and the channels and instrumentalities of commerce, 
                among the workers of the several States;
                  (E) burdens commerce and the free flow of goods in 
                commerce;
                  (F) constitutes an unfair method of competition in 
                commerce;
                  (G) tends to cause labor disputes, as evidenced by 
                the tens of thousands of charges filed with the Equal 
                Employment Opportunity Commission against employers 
                between 2010 and 2016;
                  (H) interferes with the orderly and fair marketing of 
                goods in commerce; and
                  (I) in many instances, may deprive workers of equal 
                protection on the basis of sex in violation of the 5th 
                and 14th Amendments to the Constitution.
          (5)(A) Artificial barriers to the elimination of 
        discrimination in the payment of wages on the basis of sex 
        continue to exist decades after the enactment of the Fair Labor 
        Standards Act of 1938 (29 U.S.C. 201 et seq.) and the Civil 
        Rights Act of 1964 (42 U.S.C. 2000a et seq.).
          (B) These barriers have resulted, in significant part, 
        because the Equal Pay Act of 1963 has not worked as Congress 
        originally intended. Improvements and modifications to the law 
        are necessary to ensure that the Act provides effective 
        protection to those subject to pay discrimination on the basis 
        of their sex.
          (C) Elimination of such barriers would have positive effects, 
        including--
                  (i) providing a solution to problems in the economy 
                created by unfair pay disparities;
                  (ii) substantially reducing the number of working 
                women earning unfairly low wages, thereby reducing the 
                dependence on public assistance;
                  (iii) promoting stable families by enabling all 
                family members to earn a fair rate of pay;
                  (iv) remedying the effects of past discrimination on 
                the basis of sex and ensuring that in the future 
                workers are afforded equal protection on the basis of 
                sex; and
                  (v) ensuring equal protection pursuant to Congress' 
                power to enforce the 5th and 14th Amendments to the 
                Constitution.
          (6) The Department of Labor and the Equal Employment 
        Opportunity Commission carry out functions to help ensure that 
        women receive equal pay for equal work.
          (7) The Department of Labor is responsible for--
                  (A) collecting and making publicly available 
                information about women's pay;
                  (B) ensuring that companies receiving Federal 
                contracts comply with anti-discrimination affirmative 
                action requirements of Executive Order 11246 (relating 
                to equal employment opportunity);
                  (C) disseminating information about women's rights in 
                the workplace;
                  (D) helping women who have been victims of pay 
                discrimination obtain a remedy; and
                  (E) investigating and prosecuting systemic gender 
                based pay discrimination involving government 
                contractors.
          (8) The Equal Employment Opportunity Commission is the 
        primary enforcement agency for claims made under the Equal Pay 
        Act of 1963, and issues regulations and guidance on appropriate 
        interpretations of the law.
          (9) Vigorous implementation by the Department of Labor and 
        the Equal Employment Opportunity Commission, increased 
        information as a result of the amendments made by this Act, 
        wage data, and more effective remedies, will ensure that women 
        are better able to recognize and enforce their rights.
          (10) Certain employers have already made great strides in 
        eradicating unfair pay disparities in the workplace and their 
        achievements should be recognized.

SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.

  (a) Bona Fide Factor Defense and Modification of Same Establishment 
Requirement.--Section 6(d)(1) of the Fair Labor Standards Act of 1938 
(29 U.S.C. 206(d)(1)) is amended--
          (1) by striking ``No employer having'' and inserting ``(A) No 
        employer having'';
          (2) by striking ``any other factor other than sex'' and 
        inserting ``a bona fide factor other than sex, such as 
        education, training, or experience''; and
          (3) by inserting at the end the following:
  ``(B) The bona fide factor defense described in subparagraph (A)(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.''.
  (b) 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; or
                  ``(B) has inquired about, discussed, or disclosed the 
                wages of the employee or another employee;'';
                  (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)(B) shall not apply to instances in which an 
employee who has access to the wage information of other employees as a 
part of such employee's essential job functions discloses the wages of 
such other employees to individuals who do not otherwise have access to 
such information, unless such disclosure is in response to a complaint 
or charge or in furtherance of an investigation, proceeding, hearing, 
or action under section 6(d), 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 
        ``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''.
  (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 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.''.

SEC. 4. TRAINING.

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

SEC. 5. NEGOTIATION SKILLS TRAINING.

  (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. 6. RESEARCH, EDUCATION, AND OUTREACH.

  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--
          (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, 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.

SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN THE 
                    WORKPLACE.

  (a) In General.--There is established the Secretary of Labor's 
National Award for Pay Equity in the Workplace, which shall be awarded, 
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 shall set 
criteria for receipt of the award, including a requirement that an 
employer has made substantial effort to eliminate pay disparities 
between men and women, and deserves special recognition as a 
consequence of such effort. The Secretary shall establish procedures 
for the application and presentation of the award.
  (c) Business.--In this section, the term ``employer'' includes--
          (1)(A) a corporation, including a nonprofit corporation;
          (B) a partnership;
          (C) a professional association;
          (D) a labor organization; and
          (E) a business entity similar to an entity described in any 
        of subparagraphs (A) through (D);
          (2) an entity carrying out an education referral program, a 
        training program, such as an apprenticeship or management 
        training program, or a similar program; and
          (3) an entity carrying out a joint program, formed by a 
        combination of any entities described in paragraph (1) or (2).

SEC. 8. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT 
                    OPPORTUNITY COMMISSION.

  Section 709 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-8) is 
amended by adding at the end the following:
  ``(f)(1) Not later than 18 months after the date of enactment of this 
subsection, the Commission shall issue regulations to 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.''.

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 implement a survey to collect compensation data and 
        other employment-related data (including hiring, termination, 
        and promotion data) and designate 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. 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. 11. 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. 12. 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. 13. 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. 14. 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-six 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 earn, on average, 80 cents for every dollar 
earned by a White 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. 10, 2019).
    \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. 10, 2019); 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 1 (2018), https://www.aauw.org/aauw_check/pdf_download/
show_pdf.php?file=simple-truth-one-pager. 
---------------------------------------------------------------------------
    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;\6\ prohibits 
seeking or 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 subsdivision; 
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.\7\ 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 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 non-construction federal 
contractors.
---------------------------------------------------------------------------
    \4\Nat'l Women's Law Ctr., The Wage Gap: The Who, How, Why and What 
to Do 2 (2017), https://nwlc.org/wp-content/uploads/2016/09/The-Wage-
Gap-The-Who-How-Why-and-What-to-Do-2017.pdf.
    \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. 10, 2019).
    \6\Section 3(b)(2) of the amendment in the nature of a substitute 
provides that employees who have access to wage information of other 
employees as part of an essential job function are not protected if 
they disclose the wages to workers who do not otherwise have access to 
such information. Their wage disclosures are protected if: they reveal 
that information to an employee who also has access to that data, 
divulge their own wages, or disclose wages in response to or in 
furtherance of a government or internal employer investigation.
    \7\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;\8\ and Diana Furchtgott-
Roth, Director of the Center for Employment Policy at the 
Hudson Institute.
---------------------------------------------------------------------------
    \8\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 legislative 
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.\9\ 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.
---------------------------------------------------------------------------
    \9\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 Wednesday, February 13, 
2019, the House Committee on Education and Labor held a joint 
legislative hearing in the Subcommittee on Workforce 
Protections and the Subcommittee on Civil Rights and Human 
Services (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 Tuesday, 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.
    The ANS incorporates the provisions of H.R. 7 with the 
following modifications:
     It makes a number of technical corrections 
throughout the bill to ensure that congressional intent is 
clear.
     It updates Section 2, the findings section, to add 
evidence supporting the existence of the gender pay gap and 
evidence of the impact of the gender pay gap.
     It amends Section 5 to authorize grants for a 
negotiation and skills training program that aims to address 
all pay disparities, including through outreach to women and 
girls, and to provide the U.S. Secretary of Labor (Secretary of 
Labor) 18 months, instead of one year, to report to Congress on 
the effectiveness of the training program.
     It amends Section 6 to provide the Secretary of 
Labor 18 months, instead of one year, to implement the bills' 
research and education provisions, and it eliminates a 
requirement for the Secretary of Labor to conduct a national 
convening.
     It amends Section 7 to clarify that the National 
Pay Equity award is issued on an annual basis to one employer.
     It amends Section 11 to change the authorization 
of appropriations from $15 million to ``such sums as are 
necessary'' to carry out the Act.
     It adds Section 14, a standard severability 
clause.
    The following amendments to the ANS were offered, but not 
adopted:
     Congressman Bradley Byrne (R-AL-1) offered an 
amendment to amend the Fair Labor Standards Act of 1938 (FLSA) 
to limit ``reasonable'' attorney's fees in the event of a 
contingency fee case to no more than 15 percent of any judgment 
award to a plaintiff. The amendment failed by a vote of 21-25.
     Congressman Rick Allen (R-GA-12) offered an 
amendment to direct the Secretary of Labor to study and report 
back to Congress no later than 90 days after enactment a study 
to determine the effect of amendments made under section 3 
(bona fide factor defense, non-retaliation, enhanced penalties) 
on employers' ability to recruit, hire, promote, and increase 
the pay of employees irrespective of gender. If the Secretary 
finds the amendments are likely to significantly hinder 
employers' ability to recruit, hire, promote, and increase the 
pay of employees irrespective of gender, the amendments made by 
the section would not go into effect. The amendment failed by a 
vote of 20-25.
     Congressman Byrne offered an amendment to strike 
language in the ANS that allows a defense to gender-based pay 
differences based on a ``bona fide factor other than sex, such 
as education, training or experience'' and replace it with 
ambiguous language allowing a defense to gender-based 
discrimination based on ``a bona fide business-related reason 
other than sex.'' Accompanying that change, the Byrne amendment 
would have stripped out conditions establishing when such bona 
fide factor defense would apply. The amendment failed by a vote 
of 19-26.
     Congresswoman Virginia Foxx (R-NC-5), Ranking 
Member, offered an amendment to strike Section 8 relating to 
pay data collection by the EEOC. The amendment failed by a vote 
of 18-27.

                                Summary

    Neither the EPA nor Title VII is sufficient in their 
current forms to achieve wage equality. 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.\10\ 
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.\11\
---------------------------------------------------------------------------
    \10\29 U.S.C. Sec. 255.
    \11\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.\12\ Although a 
plaintiff bringing a gender-based wage discrimination claim is 
entitled to back pay, compensatory damages,\13\ and punitive 
damages,\14\ compensatory and punitive damages do have monetary 
caps. These caps apply only to gender-based discrimination, and 
they vary depending on the size of the employer,\15\ but under 
no circumstance can these damages exceed $300,000.\16\ However, 
wage discrimination claims based upon race and national origin 
are uncapped, creating a two-tiered system where pay 
discrimination based on race and national origin is considered 
more egregious than pay discrimination based on sex. This has 
been the case since enactment of the Civil Rights Act of 1991.
---------------------------------------------------------------------------
    \12\42 U.S.C. Sec. 2000-e-5(e).
    \13\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).
    \14\Id. (punitive damages may be recovered when the employer acted 
with malice or reckless indifference).
    \15\Id.
    \16\42 U.S.C. Sec. 1981a.
---------------------------------------------------------------------------
    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 earn, on average, 80 cents for 
every dollar that a White man earns.\17\ The wage gap is even 
more substantial for some groups of women. For every dollar 
paid to White, non-Hispanic men, Black women typically make 
only 61 cents, Latina women only 53 cents, and American Indian 
or Alaskan Native women only 58 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 1 (2018), https://www.aauw.org/aauw_check/pdf_download/
show_pdf.php?file=simple-truth-one-pager.
    \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; 9to5 California; 9to5 Colorado; 9to5 
Georgia; 9to5 Wisconsin; A Better Balance; ACCESS Women's 
Health Justice; Advocacy and Training Center; AFL-CIO; PA AFL-
CIO; African American Ministers In Action; American Association 
of University Women (along with 55 individual chapters); 
American Civil Liberties Union; American Federation of 
Government Employees; American Federation of State; County; and 
Municipal Employees; American Federation of Teachers; American 
Psychological Association; Americans for Democratic Action; 
Anti-Defamation League; Atlanta Women for Equality; Bend the 
Arc: Jewish Action; Bozeman Business & Professional Women; 
California Employment Lawyers Association; California 
Federation of Business & Professional Women; Caring Across 
Generations; Casa de Esperanza: National [email protected] Network for 
Healthy Families and Communities; Center for Advancement of 
Public Policy; Center for Law and Social Policy; Citizen Action 
of New York; Clearinghouse on Women's Issues; Coalition of 
Labor Union Women (along with 22 individual chapters); 
Congregation of Our Lady of the Good Shepherd, US Provinces; 
Connecticut Women's Education and Legal Fund; Disciples Women; 
Ecumenical Poverty Initiative; Equal Pay Today; Equal Rights 
Advocates; Friends of the Delaware County Women's Commission; 
Futures Without Violence Gender Equality Law Center; Girls For 
Gender Equity; Girls Inc.; Grameen Development Society; Graphic 
Communications Conference/International Brotherhood of 
Teamsters Local 24M/9N; Greater New York Labor Religion 
Coalition; Hadassah, The Women's Zionist Organization of 
America, Inc.; Holy Spirit Missionary Sisters--USA-JPIC; Hope's 
Door; Indiana Institute for Working Families; Interfaith Worker 
Justice; International Alliance of Theatrical Stage Employees; 
International Association of Machinists and Aerospace Workers; 
International Association of Sheet Metal, Air, Rail and 
Transportation Workers Local 20; International Brotherhood of 
Electrical Workers--3rd District; International Brotherhood of 
Electrical Workers 29; International Federation of Professional 
and Technical Engineers International Union, United Automobile, 
Aerospace & Agricultural Implement Workers of America; JALSA: 
Jewish Alliance for Law and Social Action; Jewish Women 
International; Justice for Migrant Women; Lambda Legal; The 
Leadership Conference on Civil and Human Rights; League of 
Women Voters of St. Lawrence County, NY; Legal Aid At Work; 
Main Street Alliance; Maine Women's Lobby; McCree Ndjatou, 
PLLC; Methodist Federation for Social Action; MomsRising; 
Mississippi Black Women's Roundtable; NAACP; National Advocacy 
Center of the Sisters of the Good Shepherd; National Asian 
Pacific American Women's Forum; National Association of Letter 
Carriers; National Association of Working Women; National 
Center for Transgender Equality; National Committee on Pay 
Equity; National Council of Jewish Women; National Domestic 
Workers Alliance; National Education Association; National 
Employment Law Project; National Employment Lawyers Association 
(along with 7 individual chapters); National Federation of 
Business and Professional Women Clubs; National LGBTQ Task 
Force Action Fund; National Organization for Women (along with 
51 individual Chapters); National Partnership for Women & 
Families; National Resource Center on Domestic Violence; 
National Women's Law Center; NC Women United; NETWORK Lobby for 
Catholic Social Justice; New York Paid Leave Coalition; New 
York State Coalition Against Domestic Violence; North Carolina 
Justice Center; Oxfam America; PathWays PA; People For the 
American Way; Planned Parenthood Pennsylvania Advocates; PowHer 
NY; Progressive Maryland; Public Citizen; Restaurant 
Opportunities Centers United; Service Employees International 
Union; SEIU Local 668; Southwest Women's Law Center; Texas 
Business Women Inc.; Transport Workers Union; U.S. Women and 
Cuba Collaboration; U.S. Women's Chamber of Commerce; 
UltraViolet; Union for Reform Judaism; Unitarian Universalist 
Women's Federation; UNITE HERE! Local 57; United Church of 
Christ Justice and Witness Ministries; United Mine Workers of 
America; United Mine Workers of America District Two; United 
Nations Association of the United States; United State of 
Women; United Steelworkers (USW); United Steelworkers, District 
10; USW Local 1088; L.U. #1088 USW; UN Women USNC Metro New 
York Chapter; Voter Participation Center; Westminster 
Presbyterian Church; Women Employed; WNY Women's Foundation; 
Women of Reform Judaism; Women's All Points Bulletin, WAPB; 
Women's Voices; Women Vote Action Fund; WomenNC; Women's Law 
Project; YWCA USA; Zonta Club of Greater Queens; and Zonta Club 
of Portland.

                            Committee Views

    The Committee on Education and Labor is committed to 
protecting the rights of individuals in the workplace. Fifty-
six 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 56 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 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 as compared to a man, 
the EPA does provide employers with affirmative defenses to 
justify the differences in pay if such differences are based 
on: (1) seniority systems; (2) merit systems; (3) 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).
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                    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.
---------------------------------------------------------------------------
    Before the Civil Rights Act of 1991 amended Title VII, 
White women could only recover equitable relief for intentional 
sex discrimination.\36\ Although the Civil Rights Act of 1991 
allowed 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.\37\ 
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.\38\ 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.''\39\
---------------------------------------------------------------------------
    \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 250.
    \38\Id. at 301.
    \39\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.\40\ Key differences are outlined 
below.
---------------------------------------------------------------------------
    \40\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.\41\ The 
Lilly Ledbetter Fair Pay Act of 2009 directly addressed the 
180-day statute of limitation established in Ledbetter v. 
Goodyear Tire & Rubber Company, Inc., where the U.S. Supreme 
Court found that Lilly Ledbetter's equal pay claim was time-
barred due to it being filed more than 180 days after the 
initial act of discrimination.\42\ The Lilly Ledbetter Fair Pay 
Act of 2009 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.\43\
---------------------------------------------------------------------------
    \41\29 U.S.C. Sec. 255.
    \42\Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 
(2007).
    \43\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 a man and a woman 
working in the same establishment and doing substantially 
similar jobs are receiving unequal pay. However, she does not 
bear the burden of proving that the employer intentionally 
committed wage-based gender discrimination. Once the employee 
has made a showing of unequal pay, the burden of proof shifts 
to the employer to show that the pay inequity is not due to 
gender discrimination.\44\
---------------------------------------------------------------------------
    \44\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 
against her, and she retains the burden of proving 
discrimination throughout the case. However, unlike an EPA 
complainant, a Title VII plaintiff is not required to 
demonstrate that she performed substantially similar (or equal) 
work as higher paid males, so long as she has other evidence of 
discrimination such as proof that a man worked fewer hours or 
evidence that she would have been paid more had she been a 
man.\45\
---------------------------------------------------------------------------
    \45\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.\46\ Conversely, under 
Title VII, a prevailing plaintiff for a gender-based wage claim 
is entitled to back pay, compensatory damages,\47\ and punitive 
damages\48\ for intentional wage discrimination.\49\ 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.\50\ 
However, in no event may these damages exceed $300,000.\51\
---------------------------------------------------------------------------
    \46\29 U.S.C. Sec. 216; 29 U.S.C. Sec. 260.
    \47\H.R. Rep. No. 110-783 at 14 (2008) (internal citations and 
quotations omitted).
    \48\Id. (internal citations and quotations omitted) (punitive 
damages may be recovered when the employer acted with malice or 
reckless indifference).
    \49\Id.
    \50\Id.
    \51\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.\52\ Such contracts may be between 
employee and employer or between businesses. Plaintiffs in 
Section 1981 cases may recover compensatory and punitive 
damages, and like those claims under Title VII, 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.
---------------------------------------------------------------------------
    \52\42 U.S.C. Sec. 1981(a).
---------------------------------------------------------------------------

                  WOMEN CONTINUE TO EARN LESS THAN MEN

    While progress has been made, equal pay for women is not 
yet a reality. Kristin Rowe-Finkbeiner testified at the Joint 
Subcommittee Hearing about a woman named Valerie who discovered 
this firsthand:

        [She] discovered that the male co-worker who had been 
        hired on the same day she was hired was being paid 
        substantially more, even though they had the same job 
        title and she had more duties and responsibilities. 
        Valerie went directly to the owner to request an 
        increase to match her co-worker's wage. She was told 
        because her co-worker was married and male, he 
        ``needed'' a higher income than she did. Valerie 
        pointed out that since he was married and his wife also 
        worked outside the house, he actually had two incomes 
        to cover his bills; while she was single and struggling 
        to keep her head above water. Her boss was cordial but 
        adamant that that was his policy, and she had no choice 
        but to live with it.\53\
---------------------------------------------------------------------------
    \53\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 Kristin Rowe-Finkbeiner, CEO/Executive Director 
of Moms Rising, at 3) [Hereinafter Rowe-Finkbeiner Testimony].

    As previously noted, a woman working full-time, year-round 
earns 80 cents for every dollar a White male makes.\54\ 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 $403,440 in earnings over a 40-year career.\55\ To 
make up for this gap in lifetime earnings, this working woman 
would have to work ten years longer than her White male 
counterpart.\56\ 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.\57\ In 2011, women aged 
65 and older received a total income of $22,069 on average as 
compared to $41,134 for men.\58\ The average Social Security 
benefit is $14,044 for women as compared to $18,173 for men of 
the same age.\59\ 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).\60\ 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.\61\
---------------------------------------------------------------------------
    \54\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=simple-truth-one-pager.
    \55\Nat'l Women's Law Ctr., The Wage Gap: The Who, How, Why and 
What to Do 2 (2017), https://nwlc.org/wp-content/uploads/2016/09/The-
Wage-Gap-The-Who-How-Why-and-What-to-Do-2017.pdf.
    \56\Id.
    \57\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/wp-content/
uploads/wpallimport/files/iwpr-export/publications/D503-
ImportanceofSS.pdf.
    \58\Id.
    \59\Nat'l Women's Law Ctr., The Wage Gap: The Who, How, Why and 
What to Do 2 (2017), https://nwlc.org/wp-content/uploads/2016/09/The-
Wage-Gap-The-Who-How-Why-and-What-to-Do-2017.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/wp-content/uploads/
wpallimport/files/iwpr-export/publications/D503-ImportanceofSS.pdf (see 
figure 4).
    \60\Jessica Milli et al., The Impact of Equal Pay on Poverty and 
the Economy 2 (2017), https://iwpr.org/wp-content/uploads/2017/04/
C455.pdf.
    \61\Id.
---------------------------------------------------------------------------
    Research indicates that women experience a pay gap in 
nearly every line of work, regardless of education, experience, 
occupation, industry, and job title.\62\ In fact, 38 percent of 
the pay gap remains unexplained even when accounting for these 
variables.\63\ ``Most researchers attribute this portion [of 
the wage gap] to factors such as discrimination and socially 
constructed gender norms . . .''\64\ The wage gap remains even 
when controlling for educational attainment.\65\ Women with a 
bachelor's degree earn roughly equivalent to men with an 
associate's degree and earn 26 percent less than their male 
peers with a college degree.\66\ Even in fields where women 
make up a substantial share of the workforce and controlling 
for experience, skills, education, race, and region, a wage gap 
remains.\67\ Additionally, research demonstrates that when 
women move into a field of work in large numbers, wages 
decline.\68\
---------------------------------------------------------------------------
    \62\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