Authors: Lilly Ledbetter
Grace and Grit (34 page)
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Excerpted testimony of Lisa M. Maatz, Director of Public Policy and Government Relations, American Association of University Women, Hearing by Joint Economic Committee, United States Congress, “Equal Pay for Equal Work? New Evidence on the Persistence of the Gender Pay Gap,” April 28, 2009
W
HAT WILL THE
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Fairness Act is a comprehensive bill that strengthens the Equal Pay Act by taking meaningful steps to create incentives for employers to follow the law, empower women to negotiate for equal pay, and strengthen federal outreach and enforcement efforts. The bill would also deter wage discrimination by strengthening penalties for equal pay violations, and by prohibiting retaliation against workers who inquire about employers’ wage practices or disclose their own wages.
T
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Close a Loophole in Affirmative Defenses for Employers
. The legislation clarifies acceptable reasons for differences in pay by requiring employers to demonstrate that wage gaps between men and women doing the same work have a business justification and are truly a result of factors other than sex.
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Fix the “Establishment” Requirement
. The bill would clarify the establishment provision under the Equal Pay Act, which would allow for reasonable comparisons between employees within clearly defined geographical areas to determine fair wages. This
provision is based on a similar plan successfully used in the state of Illinois.
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Prohibit Employer Retaliation
. The legislation would deter wage discrimination by prohibiting retaliation against workers who inquire about employers’ wage practices or disclose their own wages.
(Note: Employees with access to colleagues’ wage information in the course of their work, such as human resources employees, may still be prohibited from sharing that information.)
This non-retaliation provision would have been particularly helpful to Lilly Ledbetter, because Goodyear prohibited employees from discussing or sharing their wages. This policy delayed her discovery of the discrimination against her by more than a decade.
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Improve Equal Pay Remedies
. The bill would deter wage discrimination by strengthening penalties for equal pay violations by providing women with a fair option to proceed in an opt-out class action suit under the Equal Pay Act, and allowing women to receive punitive and compensatory damages for pay discrimination. The bill’s measured approach levels the playing field by ensuring that women can obtain the same remedies as those subject to discrimination on the basis of race or national origin.
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Increase Training, Research and Education
. The legislation would authorize additional training for Equal Employment Opportunity Commission staff to better identify and handle wage disputes. It would also aid in the efficient and effective enforcement of federal anti–pay discrimination laws by requiring the EEOC to develop regulations directing employers to collect wage data, reported by the race, sex, and national origin of employees. The bill would also require the U.S. Department of Labor to reinstate activities that promote equal pay, such as: directing educational programs, providing technical assistance to employers, recognizing businesses that address the wage gap, and conducting and promoting research about pay disparities between men and women.
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Establish Salary Negotiation Skills Training
. The bill would
create a competitive grant program to develop salary negotiation training for women and girls.
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Improve Collection of Pay Information
. The bill would also reinstate the Equal Opportunity Survey, to enable targeting of the Labor Department’s enforcement efforts by requiring all federal contractors to submit data on employment practices such as hiring, promotions, terminations and pay. This survey was developed over two decades and three presidential administrations, was first used in 2000, but was rescinded by the Department of Labor in 2006.
The Paycheck Fairness Act maintains the protections currently provided to small businesses under the Equal Pay Act, and updates its remedies and protections using familiar principles and concepts from other civil rights laws. These new provisions are not onerous and are well-known to employers, the legal community, and the courts. As a result, the legislation will enhance women’s civil rights protections while simultaneously protecting the job-creating capacity of small businesses.
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111th Congress
1st Session
H.R. 12
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 Representatives of the United States of America in Congress assembled
,
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This Act may be cited as the “Paycheck Fairness Act”.
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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 in 1963, many women continue to earn significantly lower pay than men for equal work. These pay disparities exist in both the private and governmental sectors. In many instances, the pay disparities can only be due to continued intentional discrimination or the lingering effects of past discrimination.
(3) The existence of such pay disparities—
(A) depresses the wages of working families who rely on the wages of all members of the family to make ends meet;
(B) undermines women’s retirement security, which is often based on earnings while in the workforce;
(C) prevents the optimum utilization of available labor resources;
(D) has been spread and perpetuated, through commerce and the channels and instrumentalities of commerce, among the workers of the several States;
(E) burdens commerce and the free flow of goods in commerce;
(F) constitutes an unfair method of competition in commerce;
(G) leads to labor disputes burdening and obstructing commerce and the free flow of goods in commerce;
(H) interferes with the orderly and fair marketing of goods in commerce; and
(I) in many instances, may deprive workers of equal protection on the basis of sex in violation of the 5th and 14th amendments.
(4) (A) Artificial barriers to the elimination of discrimination in the payment of wages on the basis of sex continue to exist decades after the enactment of the Fair Labor Standards Act of 1938
(29 U.S.C. 201 et seq.) and the Civil Rights Act of 1964 (42 U.S.C. 2000a et seq.).
(B) These barriers have resulted, in significant part, because the Equal Pay Act 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.
(5) The Department of Labor and the Equal Employment Opportunity Commission have important and unique responsibilities to help ensure that women receive equal pay for equal work.
(6) The Department of Labor is responsible for—
(A) collecting and making publicly available information about women’s 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) being proactive in investigating and prosecuting equal
pay violations, especially systemic violations, and in enforcing all of its mandates.
(7) The Equal Employment Opportunity Commission is the primary enforcement agency for claims made under the Equal Pay Act, and issues regulations and guidance on appropriate interpretations of the law.
(8) With a stronger commitment by the Department of Labor and the Equal Employment Opportunity Commission to their responsibilities, increased information as a result of the amendments made by this Act to the Equal Pay Act of 1963, wage data, and more effective remedies, women will be better able to recognize and enforce their rights.
(9) Certain employers have already made great strides in eradicating unfair pay disparities in the workplace and their achievements should be recognized.
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(a) B
ONA-FIDE
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ACTOR
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EFENSE AND
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ODIFICATION OF
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AME
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STABLISHMENT
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EQUIREMENT
—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; and (iii) is consistent with business necessity. Such defense shall not apply where the employee demonstrates that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative 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 Opportunity Employment Commission.”.
(b) N
ONRETALIATION
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ROVISION
—Section 15 of the Fair Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)) is amended—
(1) in subsection (a)(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.”; 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.”.
