Fair Pay Act of 2023

I 118TH CONGRESS 1ST SESSION H. R. 1598 To amend the Fair Labor Standards Act of 1938 to prohibit discrimination in the payment of wages on account of sex, race, or national origin, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MARCH 14, 2023 Ms. NORTON introduced the following bill; which was referred to the Committee on Education and the Workforce A BILL To amend the Fair Labor Standards Act of 1938 to prohibit discrimination in the payment of wages on account of sex, race, or national origin, 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 SECTION 1. SHORT TITLE. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Fair Pay Act of 2023’’. 5 (b) REFERENCE.—Except as provided in section 8, 6 whenever in this Act an amendment or repeal is expressed 7 in terms of an amendment to, or repeal of, a section or 8 other provision, the reference shall be considered to be 9 VerDate Sep 11 2014 22:44 Mar 29, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1598.IH H1598 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 1598 IH made to a section or other provision of the Fair Labor 1 Standards Act of 1938 (29 U.S.C. 201 et seq.). 2 SEC. 2. FINDINGS. 3 Congress finds the following: 4 (1) Wage rate differentials exist between equiv- 5 alent jobs segregated by sex, race, and national ori- 6 gin in Government employment and in industries en- 7 gaged in commerce or in the production of goods for 8 commerce. 9 (2) Discrimination in hiring and promotion has 10 played a role in maintaining a segregated work 11 force. 12 (3) Many women and people of color work in 13 occupations dominated by individuals of their same 14 sex, race, and national origin. 15 (A) While a wage rate differential exists in 16 nearly every occupational field, traditionally 17 male jobs tend to pay better than traditionally 18 female jobs which require equal skill, effort, and 19 responsibility, and which are performed under 20 similar working conditions. 21 (B) Traditionally male jobs that are low- 22 wage require less skill, education, and certifi- 23 cations than traditionally female jobs that are 24 VerDate Sep 11 2014 22:44 Mar 29, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1598.IH H1598 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 1598 IH low-wage, despite their generally receiving high- 1 er pay. 2 (4) In 2015, a woman in the United States 3 working in a full-time, year-round job earned 80 4 cents for every dollar earned by a man working in 5 a full-time, year-round job. 6 (A) The wage gap is larger when the data 7 is disaggregated by race. Among women who 8 hold full-time, year-round jobs in the United 9 States, African-American women were paid on 10 average, only 63 percent of what White men 11 were paid in 2015, while Native Hawaiian and 12 Other Pacific Islander women were paid 60 per- 13 cent, American Indian and Alaska Native 14 women were paid 58 percent, and Hispanic and 15 Latina women were paid only 54 percent. 16 (B) The gender pay gap persists across 17 educational levels. As a result, women who com- 18 plete college degrees are less able to pay off 19 their student loans promptly, leaving them pay- 20 ing more and for a longer time than men. In 21 2012, among students who graduated in 2007– 22 2008, women working full-time had paid off 33 23 percent of their student loan debt on average, 24 VerDate Sep 11 2014 22:44 Mar 29, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1598.IH H1598 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 1598 IH while men working full-time had paid off 44 1 percent of their debt. 2 (C) In the United States, mothers are pri- 3 mary or sole breadwinners in nearly 40 percent 4 of families. Yet the wage gap for mothers is 5 larger than for women overall. According to 6 2013 data, mothers employed full-time, year 7 round are paid 71 cents for every dollar paid to 8 fathers. It is worse for single mothers with full- 9 time, year-round jobs, who are paid just 58 10 cents for every dollar paid to fathers. 11 (D) A conservative estimate is that women 12 employed in the United States lose a combined 13 total of nearly $500 billion every year due to 14 the wage gap. These women, their families, 15 businesses and the economy suffer as a result. 16 Lost wages mean families have less money to 17 save for the future or to spend on basic goods 18 and services—spending that helps drive the 19 economy. 20 (E) Statistical analysis shows that 62 per- 21 cent of the wage gap can be attributed to occu- 22 pational and industry differences; differences in 23 experience and education; and factors such as 24 race, region and unionization. That leaves 38 25 VerDate Sep 11 2014 22:44 Mar 29, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1598.IH H1598 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 1598 IH percent of the gap unaccounted for, leading re- 1 searchers to conclude that factors such as dis- 2 crimination and unconscious bias continue to 3 affect women’s wages. 4 (5) The existence of such wage rate differen- 5 tials— 6 (A) depresses wages and living standards 7 for employees necessary for their health and ef- 8 ficiency; 9 (B) prevents the maximum utilization of 10 the available labor resources; 11 (C) tends to cause labor disputes, thereby 12 burdening, affecting, and obstructing com- 13 merce; 14 (D) burdens commerce and the free flow of 15 goods in commerce; 16 (E) constitutes an unfair method of com- 17 petition; and 18 (F) contributes to poor living conditions, 19 poor nutrition, and fewer opportunities for fam- 20 ilies with children under 18 where the mother 21 is the sole or primary breadwinner. 22 (6) Section 6(d) of the Fair Labor Standards 23 Act of 1938 prohibits discrimination in compensa- 24 tion for ‘‘equal work’’ on the basis of sex. 25 VerDate Sep 11 2014 22:44 Mar 29, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1598.IH H1598 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 1598 IH (7) Artificial barriers to the elimination of dis- 1 crimination in compensation based upon sex, race, 2 and national origin continue to exist more than five 3 decades after the passage of section 6(d) of the Fair 4 Labor Standards Act of 1938, the Equal Pay Act of 5 1963, and the Civil Rights Act of 1964 (42 U.S.C. 6 2000a et seq.). Elimination of such barriers would 7 have positive effects. 8 (A) Problems in the economy created by 9 discrimination through wage rate differentials 10 would be reduced. In 2012, the U.S. economy 11 would have produced additional income of 12 $447.6 billion if women received equal pay; this 13 represents 2.9 percent of 2012 gross domestic 14 product. 15 (B) Fewer working women and people of 16 color would earn low wages, thereby reducing 17 dependence on public assistance. The total in- 18 crease in women’s earnings with pay equity rep- 19 resents more than 14 times what the Federal 20 and State governments spent in fiscal year 21 2012 on Temporary Assistance to Needy Fami- 22 lies. 23 (C) Working family members earning a 24 fair rate of pay would encourage stable families 25 VerDate Sep 11 2014 22:44 Mar 29, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1598.IH H1598 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 1598 IH and reduce poverty. The poverty rate for all 1 working women would be cut in half, falling to 2 3.9 percent from 8.1 percent. The very high 3 poverty rate for working single mothers would 4 fall by nearly half, from 28.7 percent to 15.0 5 percent, and two-thirds would receive a pay in- 6 crease. 7 SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS. 8 (a) AMENDMENT.—Section 6 (29 U.S.C. 206) is 9 amended by adding at the end the following: 10 ‘‘(h)(1)(A) Except as provided in subparagraph (B), 11 no employer having employees subject to any provision of 12 this section shall discriminate, within any establishment 13 in which such employees are employed, between employees 14 on the basis of sex, race, or national origin by paying 15 wages to employees in such establishment in a job that 16 is dominated by employees of a particular sex, race, or 17 national origin at a rate less than the rate at which the 18 employer pays wages to employees in such establishment 19 in another job that is dominated by employees of the oppo- 20 site sex or of a different race or national origin, respec- 21 tively, for work on equivalent jobs, nor shall such employer 22 between such employees discriminate on the basis of sex, 23 race, or national origin in any other terms, conditions, 24 privileges, or benefits of employment. 25 VerDate Sep 11 2014 22:44 Mar 29, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1598.IH H1598 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 1598 IH ‘‘(B) Nothing in subparagraph (A) shall prohibit the 1 payment of different wage rates to employees where such 2 payment is made pursuant to— 3 ‘‘(i) a seniority system; 4 ‘‘(ii) a merit system; 5 ‘‘(iii) a system that measures earnings by quan- 6 tity or quality of production; or 7 ‘‘(iv) a differential based on a bona fide factor 8 other than sex, race, or national origin, such as edu- 9 cation, training, or experience, except that this 10 clause shall apply only if— 11 ‘‘(I) the employer demonstrates that— 12 ‘‘(aa) such factor— 13 ‘‘(AA) is job-related with respect 14 to the position in question; or 15 ‘‘(BB) furthers a legitimate busi- 16 ness purpose, except that this item 17 shall not apply if the employee dem- 18 onstrates that an alternative employ- 19 ment practice exists that would serve 20 the same business purpose without 21 producing such differential and that 22 the employer has refused to adopt 23 such alternative practice; and 24 VerDate Sep 11 2014 22:44 Mar 29, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1598.IH H1598 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 1598 IH ‘‘(bb) such factor was actually applied 1 and used reasonably in light of the as- 2 serted justification; and 3 ‘‘(II) upon the employer succeeding under 4 subclause (I), the employee fails to demonstrate 5 that the differential produced by the reliance of 6 the employer on such factor is itself the result 7 of discrimination on the basis of sex, race, or 8 national origin by the employer. 9 ‘‘(C) The Equal Employment Opportunity Commis- 10 sion shall issue guidelines specifying criteria for deter- 11 mining whether a job is dominated by employees of a par- 12 ticular sex, race, or national origin for purposes of sub- 13 paragraph (B)(iv). Such guidelines shall not include a list 14 of such jobs. 15 ‘‘(D) An employer who is paying a wage rate differen- 16 tial in violation of subparagraph (A) shall not, in order 17 to comply with the provisions of such subparagraph, re- 18 duce the wage rate of any employee. 19 ‘‘(2) No labor organization or its agents representing 20 employees of an employer having employees subject to any 21 provision of this section shall cause or attempt to cause 22 such an employer to discriminate against an employee in 23 violation of paragraph (1)(A). 24 VerDate Sep 11 2014 22:44 Mar 29, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1598.IH H1598 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 1598 IH ‘‘(3) For purposes of administration and enforcement 1 of this subsection, any amounts owing to any employee 2 that have been withheld in violation of paragraph (1)(A) 3 shall be deemed to be unpaid minimum wages or unpaid 4 overtime compensation under this section or section 7. 5 ‘‘(4) In this subsection: 6 ‘‘(A) The term ‘labor organization’ means any 7 organization of any kind, or any agency or employee 8 representation committee or plan, in which employ- 9 ees participate and that exists for the purpose, in 10 whole or in part, of dealing with employers con- 11 cerning grievances, labor disputes, wages, rates of 12 pay, hours of employment, or conditions of work. 13 ‘‘(B) The term ‘equivalent jobs’ means jobs that 14 may be dissimilar, but whose requirements are 15 equivalent, when viewed as a composite of skills, ef- 16 fort, responsibility, and working conditions.’’. 17 (b) CONFORMING AMENDMENT.—Section 13(a) (29 18 U.S.C. 213(a)) is amended in the matter before paragraph 19 (1) by striking ‘‘section 6(d)’’ and inserting ‘‘sections 6 20 (d) and (h)’’. 21 SEC. 4. PROHIBITED ACTS. 22 Section 15(a) (29 U.S.C. 215(a)) is amended— 23 (1) by striking the period at the end of para- 24 graph (5) and inserting a semicolon; and 25 VerDate Sep 11 2014 22:44 Mar 29, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H1598.IH H1598 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 1598 IH (2) by adding after paragraph (5) the following: 1 ‘‘(6) to discriminate against any individual be- 2 cause such individual has opposed any act or prac- 3 tice made unlawful by section 6(h) or because such 4 individual made a charge, testified, assisted, or par- 5 ticipated in any manner in an investigation, pro- 6 ceeding, or hearing to enforce section 6(h); or 7 ‘‘(7) to discharge or in any other manner dis- 8 criminate against, coerce, intimidate, threaten, or 9 interfere with any employee or any other person be- 10 cause the employee inquired about, disclosed, com- 11 pared, or otherwise discussed the employee’s wages 12 or the wages of any other employee, or because the 13 employee exercised, enjoyed, aided, or encouraged 14 any other person to exercise or enjoy any right 15 granted or protected by section 6(h).’’. 16 SEC. 5. REMEDIES. 17 (a) ENHANCED PENALTIES.—Section 16(b) (29 18 U.S.C. 216(b)) is amended— 19 (1) by inserting after the first sentence the fol- 20 lowing: ‘‘Any employer who violates subsection (d) or 21 (h) of section 6 shall additionally be liable for such 22 compensatory or punitive damages as may be appro- 23 priate, except that the United States shall not be lia- 24 ble for punitive damages.’’; 25 VerDate Sep 11 2014 22:44 Mar 29, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H1598.IH H1598 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 1598 IH (2) in the sentence beginning ‘‘An action to’’, 1 by inserting ‘‘any of’’ after ‘‘prescribed in’’; 2 (3) in the sentence beginning ‘‘No employees’’, 3 by striking ‘‘No employees’’ and inserting ‘‘Except 4 with respect to class actions brought under sub- 5 section (f), no employee’’; 6 (4) in the sentence beginning ‘‘The court in’’, 7 by striking ‘‘in such action’’ and inserting ‘‘in any 8 action brought to recover the liability prescribed in 9 any of the preceding sentences of this subsection’’; 10 and 11 (5) by striking ‘‘section 15(a)(3)’’ each place it 12 occurs and inserting ‘‘paragraphs (3), (6), an [Text truncated for display. 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