S.168 - Fair Pay Act of 2013
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.
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Mr. HARKIN (for himself, Mr. LEAHY, Mrs. BOXER, Mrs. MURRAY, Mr. LAUTENBERG, Mr. BROWN, Mr. BLUMENTHAL, and Mrs. GILLIBRAND) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and PensionsCommentsClose CommentsPermalink
SECTION 1. SHORT TITLE.
(b) Reference- Except as provided in section 8, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Fair Labor Standards Act of 1938 (
SEC. 2. FINDINGS.
(1) Wage rate differentials exist between equivalent jobs segregated by sex, race, and national origin in Government employment and in industries engaged in commerce or in the production of goods for commerce.CommentsClose CommentsPermalink
(5)(A) In 2009, a woman in the United States working in a full-time, year-round job earned 77 cents for every dollar earned by a man working in a full-time, year-round job.CommentsClose CommentsPermalink
(B) A 2007 study found that--even when accounting for key factors generally known to influence earnings such as race, educational attainment, and experience--nearly half (49.3 percent) of the pay gap can be explained by differences in the industries and occupations that men and women work in, and 41 percent of the pay gap cannot be accounted for but may be partially explained by discrimination in the workplace.CommentsClose CommentsPermalink
(7) Artificial barriers to the elimination of discrimination in compensation based upon sex, race, and national origin continue to exist more than 4 decades after the passage of section 6(d) of the Fair Labor Standards Act of 1938, the Equal Pay Act of 1963, and the Civil Rights Act of 1964 (
SEC. 3. EQUAL PAY FOR EQUIVALENT JOBS.
‘(h)(1)(A) Except as provided in subparagraph (B), no employer having employees subject to any provision of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex, race, or national origin by paying wages to employees in such establishment in a job that is dominated by employees of a particular sex, race, or national origin at a rate less than the rate at which the employer pays wages to employees in such establishment in another job that is dominated by employees of the opposite sex or of a different race or national origin, respectively, for work on equivalent jobs.CommentsClose CommentsPermalink
‘(iv) a differential based on a bona fide factor other than sex, race, or national origin, such as education, training, or experience, except that this clause shall apply only if--CommentsClose CommentsPermalink
‘(BB) furthers a legitimate business purpose, except that this item shall not apply if 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; andCommentsClose CommentsPermalink
‘(II) upon the employer succeeding under subclause (I), the employee fails to demonstrate that the differential produced by the reliance of the employer on such factor is itself the result of discrimination on the basis of sex, race, or national origin by the employer.CommentsClose CommentsPermalink
‘(C) The Equal Employment Opportunity Commission shall issue guidelines specifying criteria for determining whether a job is dominated by employees of a particular sex, race, or national origin for purposes of subparagraph (B)(iv). Such guidelines shall not include a list of such jobs.CommentsClose CommentsPermalink
‘(D) An employer who is paying a wage rate differential in violation of subparagraph (A) shall not, in order to comply with the provisions of such subparagraph, reduce the wage rate of any employee.CommentsClose CommentsPermalink
‘(2) No labor organization or its agents representing employees of an employer having employees subject to any provision of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1)(A).CommentsClose CommentsPermalink
‘(3) For purposes of administration and enforcement of this subsection, any amounts owing to any employee that have been withheld in violation of paragraph (1)(A) shall be deemed to be unpaid minimum wages or unpaid overtime compensation under this section or section 7.CommentsClose CommentsPermalink
‘(A) The term ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.CommentsClose CommentsPermalink
‘(B) The term ‘equivalent jobs’ means jobs that may be dissimilar, but whose requirements are equivalent, when viewed as a composite of skills, effort, responsibility, and working conditions.’.CommentsClose CommentsPermalink
(b) Conforming Amendment- Section 13(a) (
SEC. 4. PROHIBITED ACTS.
‘(6) to discriminate against any individual because such individual has opposed any act or practice made unlawful by section 6(h) or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce section 6(h); orCommentsClose CommentsPermalink
‘(7) to discharge or in any other manner discriminate against, coerce, intimidate, threaten, or interfere with any employee or any other person because the employee inquired about, disclosed, compared, or otherwise discussed the employee’s wages or the wages of any other employee, or because the employee exercised, enjoyed, aided, or encouraged any other person to exercise or enjoy any right granted or protected by section 6(h).’.CommentsClose CommentsPermalink
SEC. 5. REMEDIES.
(1) by inserting after the first sentence the following: ‘Any employer who violates subsection (d) or (h) of section 6 shall additionally be liable for such compensatory or punitive damages as may be appropriate, except that the United States shall not be liable for punitive damages.’;CommentsClose CommentsPermalink
(4) in the sentence beginning ‘The court in’, 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’; andCommentsClose CommentsPermalink
(2) in the second sentence, by inserting before the period the following: ‘and, in the case of a violation of subsection (d) or (h) of section 6, additional compensatory or punitive damages’; andCommentsClose CommentsPermalink
‘(f) In any action brought under this section for a violation of section 6(h), the court shall, in addition to any other remedies awarded to the prevailing plaintiff or plaintiffs, allow expert fees as part of the costs. Any such action may be maintained as a class action as provided by the Federal Rules of Civil Procedure.’.CommentsClose CommentsPermalink
SEC. 6. RECORDS.
‘(2) Every employer subject to section 6(h) shall preserve records that document and support the method, system, calculations, and other bases used by the employer in establishing, adjusting, and determining the wage rates paid to the employees of the employer. Every employer subject to section 6(h) shall preserve such records for such periods of time, and shall make such reports from the records to the Equal Employment Opportunity Commission, as shall be prescribed by the Equal Employment Opportunity Commission by regulation or order as necessary or appropriate for the enforcement of the provisions of section 6(h) or any regulation promulgated pursuant to section 6(h).’.CommentsClose CommentsPermalink
‘(3) Every employer subject to section 6(h) that has 25 or more employees on any date during the first or second year after the effective date of this paragraph, or 15 or more employees on any date during any subsequent year after such second year, shall, in accordance with regulations promulgated by the Equal Employment Opportunity Commission under paragraph (8), prepare and submit to the Equal Employment Opportunity Commission for the year involved a report signed by the president, treasurer, or corresponding principal officer, of the employer that includes information that discloses the wage rates paid to employees of the employer in each classification, position, or job title, or to employees in other wage groups employed by the employer, including information with respect to the sex, race, and national origin of employees at each wage rate in each classification, position, job title, or other wage group.’.CommentsClose CommentsPermalink
‘(4) The rules and regulations promulgated by the Equal Employment Opportunity Commission under paragraph (8), relating to the form of such a report, shall include requirements to protect the confidentiality of employees, including a requirement that the report shall not contain the name of any individual employee.’.CommentsClose CommentsPermalink
‘(5) The Equal Employment Opportunity Commission may publish any information and data that the Equal Employment Opportunity Commission obtains pursuant to the provisions of paragraph (3). The Equal Employment Opportunity Commission may use the information and data for statistical and research purposes, and compile and publish such studies, analyses, reports, and surveys based on the information and data as the Equal Employment Opportunity Commission may consider appropriate.CommentsClose CommentsPermalink
‘(6) In order to carry out the purposes of this Act, the Equal Employment Opportunity Commission shall by regulation make reasonable provision for the inspection and examination by any person of the information and data contained in any report submitted to the Equal Employment Opportunity Commission pursuant to paragraph (3).CommentsClose CommentsPermalink
‘(7) The Equal Employment Opportunity Commission shall by regulation provide for the furnishing of copies of reports submitted to the Equal Employment Opportunity Commission pursuant to paragraph (3) to any person upon payment of a charge based upon the cost of the service.CommentsClose CommentsPermalink
‘(8) The Equal Employment Opportunity Commission shall issue rules and regulations prescribing the form and content of reports required to be submitted under paragraph (3) and such other reasonable rules and regulations as the Equal Employment Opportunity Commission may find necessary to prevent the circumvention or evasion of such reporting requirements. In exercising the authority of the Equal Employment Opportunity Commission under paragraph (3), the Equal Employment Opportunity Commission may prescribe by general rule simplified reports for employers for whom the Equal Employment Opportunity Commission finds that because of the size of the employers a detailed report would be unduly burdensome.’.CommentsClose CommentsPermalink
SEC. 7. RESEARCH, EDUCATION, AND TECHNICAL ASSISTANCE PROGRAM; REPORT TO CONGRESS.
‘(4) The Equal Employment Opportunity Commission shall conduct studies and provide information and technical assistance to employers, labor organizations, and the general public concerning effective means available to implement the provisions of section 6(h) prohibiting wage rate discrimination between employees performing work in equivalent jobs on the basis of sex, race, or national origin. Such studies, information, and technical assistance shall be based on and include reference to the objectives of such section to eliminate such discrimination. In order to achieve the objectives of such section, the Equal Employment Opportunity Commission shall carry on a continuing program of research, education, and technical assistance including--CommentsClose CommentsPermalink
‘(B) publishing and otherwise making available to employers, labor organizations, professional associations, educational institutions, the various media of communication, and the general public the findings of studies and other materials for promoting compliance with section 6(h);CommentsClose CommentsPermalink
‘(D) providing technical assistance to employers, labor organizations, professional associations and other interested persons on means of achieving and maintaining compliance with the provisions of section 6(h).CommentsClose CommentsPermalink
‘(5) The report submitted biennially by the Secretary to Congress under paragraph (1) shall include a separate evaluation and appraisal regarding the implementation of section 6(h).’.CommentsClose CommentsPermalink
SEC. 8. CONFORMING AMENDMENTS.
(2) REMEDIES- Section 203(b) of such Act (