Paycheck Fairness Act

II 117TH CONGRESS 1ST SESSION S. 205 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 FEBRUARY 3, 2021 Mrs. MURRAY (for herself, Ms. BALDWIN, Mr. BENNET, Mr. BLUMENTHAL, Mr. BOOKER, Mr. BROWN, Ms. CANTWELL, Mr. CARDIN, Mr. CARPER, Mr. CASEY, Mr. COONS, Ms. CORTEZ MASTO, Ms. DUCKWORTH, Mr. DURBIN, Mrs. FEINSTEIN, Mrs. GILLIBRAND, Ms. HASSAN, Mr. HEIN- RICH, Mr. HICKENLOOPER, Ms. HIRONO, Mr. KAINE, Mr. KELLY, Mr. KING, Ms. KLOBUCHAR, Mr. LEAHY, Mr. LUJA´N, Mr. MANCHIN, Mr. MARKEY, Mr. MENENDEZ, Mr. MERKLEY, Mr. MURPHY, Mr. OSSOFF, Mr. PADILLA, Mr. PETERS, Mr. REED, Ms. ROSEN, Mr. SANDERS, Mr. SCHATZ, Mr. SCHUMER, Mrs. SHAHEEN, Ms. SINEMA, Ms. SMITH, Ms. STABENOW, Mr. TESTER, Mr. VAN HOLLEN, Mr. WARNER, Mr. WARNOCK, Ms. WARREN, Mr. WHITEHOUSE, and Mr. WYDEN) intro- duced the following bill; which was read twice and referred to the Com- mittee on Health, Education, Labor, and Pensions A BILL 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 Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 05:30 Feb 17, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S205.IS S205 kjohnson on DSK79L0C42PROD with BILLS 2 •S 205 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Paycheck Fairness 2 Act’’. 3 SEC. 2. FINDINGS. 4 Congress finds the following: 5 (1) Women have entered the workforce in 6 record numbers over the past 50 years. 7 (2) Despite the enactment of the Equal Pay Act 8 of 1963, many women continue to earn significantly 9 lower pay than men for equal work. These pay dis- 10 parities exist in both the private and governmental 11 sectors. Pay disparities are especially severe for 12 women and girls of color. 13 (3) In many instances, the pay disparities can 14 only be due to continued intentional discrimination 15 or the lingering effects of past discrimination. After 16 controlling for educational attainment, occupation, 17 industry, union status, race, ethnicity, and labor 18 force experience roughly 40 percent of the pay gap 19 remains unexplained. 20 (4) The existence of such pay disparities— 21 (A) depresses the wages of working fami- 22 lies who rely on the wages of all members of the 23 family to make ends meet; 24 VerDate Sep 11 2014 05:30 Feb 17, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S205.IS S205 kjohnson on DSK79L0C42PROD with BILLS 3 •S 205 IS (B) undermines women’s retirement secu- 1 rity, which is often based on earnings while in 2 the workforce; 3 (C) prevents women from realizing their 4 full economic potential, particularly in terms of 5 labor force participation and attachment; 6 (D) has been spread and perpetuated, 7 through commerce and the channels and instru- 8 mentalities of commerce, among the workers of 9 the several States; 10 (E) burdens commerce and the free flow of 11 goods in commerce; 12 (F) constitutes an unfair method of com- 13 petition in commerce; 14 (G) tends to cause labor disputes, as evi- 15 denced by the tens of thousands of charges filed 16 with the Equal Employment Opportunity Com- 17 mission against employers between 2010 and 18 2016; 19 (H) interferes with the orderly and fair 20 marketing of goods in commerce; and 21 (I) in many instances, may deprive workers 22 of equal protection on the basis of sex in viola- 23 tion of the 5th and 14th Amendments to the 24 Constitution. 25 VerDate Sep 11 2014 05:30 Feb 17, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S205.IS S205 kjohnson on DSK79L0C42PROD with BILLS 4 •S 205 IS (5)(A) Artificial barriers to the elimination of 1 discrimination in the payment of wages on the basis 2 of sex continue to exist decades after the enactment 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 4 201 et seq.) and the Civil Rights Act of 1964 (42 5 U.S.C. 2000a et seq.). 6 (B) These barriers have resulted, in significant 7 part, because the Equal Pay Act of 1963 has not 8 worked as Congress originally intended. Improve- 9 ments and modifications to the law are necessary to 10 ensure that the Act provides effective protection to 11 those subject to pay discrimination on the basis of 12 their sex. 13 (C) Elimination of such barriers would have 14 positive effects, including— 15 (i) providing a solution to problems in the 16 economy created by unfair pay disparities; 17 (ii) substantially reducing the number of 18 working women earning unfairly low wages, 19 thereby reducing the dependence on public as- 20 sistance; 21 (iii) promoting stable families by enabling 22 all family members to earn a fair rate of pay; 23 (iv) remedying the effects of past discrimi- 24 nation on the basis of sex and ensuring that in 25 VerDate Sep 11 2014 05:30 Feb 17, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S205.IS S205 kjohnson on DSK79L0C42PROD with BILLS 5 •S 205 IS the future workers are afforded equal protection 1 on the basis of sex; and 2 (v) ensuring equal protection pursuant to 3 Congress’ power to enforce the 5th and 14th 4 Amendments to the Constitution. 5 (6) The Department of Labor and the Equal 6 Employment Opportunity Commission carry out 7 functions to help ensure that women receive equal 8 pay for equal work. 9 (7) The Department of Labor is responsible 10 for— 11 (A) collecting and making publicly avail- 12 able information about women’s pay; 13 (B) ensuring that companies receiving 14 Federal contracts comply with anti-discrimina- 15 tion affirmative action requirements of Execu- 16 tive Order 11246 (relating to equal employment 17 opportunity); 18 (C) disseminating information about wom- 19 en’s rights in the workplace; 20 (D) helping women who have been victims 21 of pay discrimination obtain a remedy; and 22 (E) investigating and prosecuting systemic 23 gender based pay discrimination involving gov- 24 ernment contractors. 25 VerDate Sep 11 2014 05:30 Feb 17, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S205.IS S205 kjohnson on DSK79L0C42PROD with BILLS 6 •S 205 IS (8) The Equal Employment Opportunity Com- 1 mission is the primary enforcement agency for 2 claims made under the Equal Pay Act of 1963, and 3 issues regulations and guidance on appropriate in- 4 terpretations of the law. 5 (9) Vigorous implementation by the Depart- 6 ment of Labor and the Equal Employment Oppor- 7 tunity Commission, increased information as a result 8 of the amendments made by this Act, wage data, 9 and more effective remedies, will ensure that women 10 are better able to recognize and enforce their rights. 11 (10) Certain employers have already made 12 great strides in eradicating unfair pay disparities in 13 the workplace and their achievements should be rec- 14 ognized. 15 SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY RE- 16 QUIREMENTS. 17 (a) BONA FIDE FACTOR DEFENSE AND MODIFICA- 18 TION OF SAME ESTABLISHMENT REQUIREMENT.—Section 19 6(d)(1) of the Fair Labor Standards Act of 1938 (29 20 U.S.C. 206(d)(1)) is amended— 21 (1) by striking ‘‘No employer having’’ and in- 22 serting ‘‘(A) No employer having’’; 23 VerDate Sep 11 2014 05:30 Feb 17, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S205.IS S205 kjohnson on DSK79L0C42PROD with BILLS 7 •S 205 IS (2) by striking ‘‘any other factor other than 1 sex’’ and inserting ‘‘a bona fide factor other than 2 sex, such as education, training, or experience’’; and 3 (3) by inserting at the end the following: 4 ‘‘(B) The bona fide factor defense described in sub- 5 paragraph (A)(iv) shall apply only if the employer dem- 6 onstrates that such factor (i) is not based upon or derived 7 from a sex-based differential in compensation; (ii) is job- 8 related with respect to the position in question; (iii) is con- 9 sistent with business necessity; and (iv) accounts for the 10 entire differential in compensation at issue. Such defense 11 shall not apply where the employee demonstrates that an 12 alternative employment practice exists that would serve 13 the same business purpose without producing such dif- 14 ferential and that the employer has refused to adopt such 15 alternative practice. 16 ‘‘(C) For purposes of subparagraph (A), employees 17 shall be deemed to work in the same establishment if the 18 employees work for the same employer at workplaces lo- 19 cated in the same county or similar political subdivision 20 of a State. The preceding sentence shall not be construed 21 as limiting broader applications of the term ‘establish- 22 ment’ consistent with rules prescribed or guidance issued 23 by the Equal Employment Opportunity Commission.’’. 24 VerDate Sep 11 2014 05:30 Feb 17, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S205.IS S205 kjohnson on DSK79L0C42PROD with BILLS 8 •S 205 IS (b) NONRETALIATION PROVISION.—Section 15 of the 1 Fair Labor Standards Act of 1938 (29 U.S.C. 215) is 2 amended— 3 (1) in subsection (a)— 4 (A) in paragraph (3), by striking ‘‘em- 5 ployee has filed’’ and all that follows and insert- 6 ing ‘‘employee— 7 ‘‘(A) has made a charge or filed any com- 8 plaint or instituted or caused to be instituted 9 any investigation, proceeding, hearing, or action 10 under or related to this Act, including an inves- 11 tigation conducted by the employer, or has tes- 12 tified or is planning to testify or has assisted or 13 participated in any manner in any such inves- 14 tigation, proceeding, hearing or action, or has 15 served or is planning to serve on an industry 16 committee; or 17 ‘‘(B) has inquired about, discussed, or dis- 18 closed the wages of the employee or another 19 employee (such as by inquiring or discussing 20 with the employer why the wages of the em- 21 ployee are set at a certain rate or salary);’’; 22 (B) in paragraph (5), by striking the pe- 23 riod at the end and inserting ‘‘; or’’; and 24 (C) by adding at the end the following: 25 VerDate Sep 11 2014 05:30 Feb 17, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S205.IS S205 kjohnson on DSK79L0C42PROD with BILLS 9 •S 205 IS ‘‘(6) to require an employee to sign a contract 1 or waiver that would prohibit the employee from dis- 2 closing information about the employee’s wages.’’; 3 and 4 (2) by adding at the end the following: 5 ‘‘(c) Subsection (a)(3)(B) shall not apply to instances 6 in which an employee who has access to the wage informa- 7 tion of other employees as a part of such employee’s essen- 8 tial job functions discloses the wages of such other employ- 9 ees to individuals who do not otherwise have access to such 10 information, unless such disclosure is in response to a 11 complaint or charge or in furtherance of an investigation, 12 proceeding, hearing, or action under section 6(d), includ- 13 ing an investigation conducted by the employer. Nothing 14 in this subsection shall be construed to limit the rights 15 of an employee provided under any other provision of 16 law.’’. 17 (c) ENHANCED PENALTIES.—Section 16(b) of the 18 Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)) is 19 amended— 20 (1) by inserting after the first sentence the fol- 21 lowing: ‘‘Any employer who violates section 6(d) 22 shall additionally be liable for such compensatory 23 damages, or, where the employee demonstrates that 24 the employer acted with malice or reckless indiffer- 25 VerDate Sep 11 2014 05:30 Feb 17, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S205.IS S205 kjohnson on DSK79L0C42PROD with BILLS 10 •S 205 IS ence, punitive damages as may be appropriate, ex- 1 cept that the United States shall not be liable for 2 punitive damages.’’; 3 (2) in the sentence beginning ‘‘An action to’’, 4 by striking ‘‘the preceding sentences’’ and inserting 5 ‘‘any of the preceding sentences of this subsection’’; 6 (3) in the sentence beginning ‘‘No employees 7 shall’’, by striking ‘‘No employees’’ and inserting 8 ‘‘Except with respect to class actions brought to en- 9 force section 6(d), no employee’’; 10 (4) by inserting after the sentence referred to 11 in paragraph (3), the following: ‘‘Notwithstanding 12 any other provision of Federal law, any action 13 brought to enforce section 6(d) may be maintained 14 as a class action as provided by the Federal Rules 15 of Civil Procedure.’’; and 16 (5) in the sentence beginning ‘‘The court in’’— 17 (A) by striking ‘‘in such action’’ and in- 18 serting ‘‘in any action brought to recover the li- 19 ability prescribed in any of the preceding sen- 20 tences of this subsection’’; and 21 (B) by inserting before the period the fol- 22 lowing: ‘‘, including expert fees’’. 23 VerDate Sep 11 2014 05:30 Feb 17, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S205.IS S205 kjohnson on DSK79L0C42PROD with BILLS 11 •S 205 IS (d) ACTION BY SECRETARY.—Section 16(c) of the 1 Fair Labor Standards Act of 1938 (29 U.S.C. 216(c)) is 2 amended— 3 (1) in the first sentence— 4 (A) by inserting ‘‘or, in the case of a viola- 5 tion of section 6(d), additional compensatory or 6 punitive damages, as described in subsection 7 (b),’’ before ‘‘and the agreement’’; and 8 (B) by inserting before the period the fol- 9 lowing: ‘‘, or such compensatory or punitive 10 damages, as appropriate’’; 11 (2) in the second sentence, by inserting before 12 the period the following: ‘‘and, in the case of a viola- 13 tion of section 6(d), additional compensatory or pu- 14 nitive damages, as described in subsection (b)’’; 15 (3) in the third sentence, by striking ‘‘the first 16 sentence’’ and inserting ‘‘the first or second sen- 17 tence’’; and 18 (4) in the sixth sentence— 19 (A) by striking ‘‘commenced in the case’’ 20 and inserting ‘‘commenced— 21 ‘‘(1) in the case’’; 22 (B) by striking the period and inserting ‘‘; 23 or’’; and 24 (C) by adding at the end the following: 25 VerDate Sep 11 2014 05:30 Feb 17, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S205.IS S205 kjohnson on DSK79L0C42PROD with BILLS 12 •S 205 IS ‘‘(2) in the case of a class action brought to en- 1 force section 6(d), on the date on which the indi- 2 vidual becomes a party plaintiff to the class action.’’. 3 SEC. 4. TRAINING. 4 The Equal Employment Opportunity Commission 5 and the Office of Federal Contract Compliance Programs, 6 subject to the availability of funds appropriated under sec- 7 tion 11, shall provide training to Commission employees 8 and affected individuals and entities on matters involving 9 discrimination in the payment of wages. 10 SEC. 5. NEGOTIATION SKILLS TRAINING. 11 (a) PRO [Text truncated for display. Full text available on Congress.gov.]