Order Code RL31867
CRS Report for Congress
Received through the CRS Web
Pay Equity Legislation
in the 108th109th Congress
Updated July 13, 2004May 11, 2005
Charles V. Dale
American Law Division
Linda Levine
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
Pay Equity Legislation
in the 108th109th Congress
Summary
The term “pay equity” originates from the fact that women as a group are paid
less than men. In 20022003, for example, women with a strong commitment to the work
force earned about 7776-79 cents for every dollar earned by men. As women’s earnings
as a percentage of men’s earnings have narrowed by just 15 percentage points over
the past 40-plus years (from about 60% in the 1960s and 1970s to more than 70%
since 1990), some members of the public policy community have argued that current
anti-discrimination laws should be strengthened and that additional measures should
be enacted. Others, in contrast, believe that further government intervention is
unnecessary because the gender wage gap will narrow on its own as women’s labor
market qualifications continue to more closely resemble those of men.
The Equal Pay Act (EPA), which amends the Fair Labor Standards Act (FLSA),
prohibits covered employers from paying lower wages to female than male
employees for “equal work” on jobs requiring “equal skill, effort, and responsibility”
and performed “under similar working conditions” at the same location. The FLSA
exempts some jobs (e.g., hotel service workers) from EPA coverage, and the EPA
makes exceptions for wage differentials based on merit or seniority systems, systems
that measure earnings by “quality or quantity” of production, or “any factor other
than sex.” The “equal work” standard embodies a middle ground between
demanding that two jobs be either exactly alike or that they be merely comparable.
The test applied by the courts focuses on job similarity and whether, given all the
circumstances, they require substantially the same skill, effort, and responsibility.
The EPA may be enforced by the government, or individual complainants, in civil
actions for wages unlawfully withheld and liquidated damages for willful violations.
And, Title VII of the 1964 Civil Rights Act provides for the award of compensatory
and punitive damages to victims of “intentional” wage discrimination, subject to caps
on the employer’s monetary liability.
The issue of pay equity attracted substantial attention in recent Congresses. The
Senate Committee on Health, Education, Labor, and Pensions held a hearing on
gender-based wage discrimination in June 2000. The following month, during floor
debate on marriage tax penalty legislation, an amendment was offered allowing wage
discrimination victims suing under the EPA – who may presently collect only
backpay and liquidated damages – full recovery of compensatory and punitive
damages for their injury, including emotional suffering and distress. The defeated
amendment was based on S. 74 (the Paycheck Fairness Act) in the 106th Congress,
which has been reintroduced in both the 107th (H.R. 781/S. 77) and 108th (H.R. 1688/
S. 16, S. 76) Congress. Also pending in the current Congress is the “Fair Pay Act
of 2003" (H.R. 1695/S. 841was reintroduced in each subsequent Congress – most recently as H.R. 1687/S.
841 in the 109th Congress. Also reappearing in the 109th Congress is the Fair Pay
Act of 2005 (H.R. 1697/S. 840), mandating “equal pay for equivalent jobs” without
regard to sex, race, or national origin. It has been introduced in each Congress since
the 103rdAnother measure in the 109th Congress, the
Equal Pay Improvement Report Act of 2005 (H.R. 157), directs the Equal
Employment Opportunity Commission to prepare a report on how the Fair Labor
Standards Act of 1938 has been used by public and private sector employees to foster
or exacerbate pay inequity. This report will be updated as warranted.
Contents
The Gender Wage Gap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Male-Female Pay Differential Over Time . . . . . . . . . . . . . . . . . . . . . . . 1
Explanations of and Remedies for the Gender Pay Differential . . . . . . . . . . 2
Legal and Legislative Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Laws that Combat Sex-Based Wage Discrimination . . . . . . . . . . . . . . . . . . . 5
“Comparable Worth” Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legislation in the 108th109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
List of Tables
Table 1. Ratio of Female-to-Male Earnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Pay Equity Legislation
in the 108th109th Congress
The persistence of gender-based wage disparities – commonly referred to as the
pay or wage gap – has been the subject of extensive debate and commentary.
Congress first addressed the issue nearly four decades ago in the Equal Pay Act of
1963,1 mandating an “equal pay for equal work” standard, and again the following
year in Title VII of the 1964 Civil Rights Act.2 Collection of compensation data, and
elimination of male/female pay disparities, are also integral to Labor Department
enforcement of Executive Order 11246, mandating nondiscrimination and
affirmative action by federal contractors. During the 1980's, some members of the
public policy community sought to advance the earnings of women relative to men
by pressing a “comparable worth” theory before state legislatures and in federal court
litigation. During the last decade of the 20th century and the initial years of the 21st
century, initiatives to strengthen and expand current federal remedies available to
victims of unlawful sex-based wage discrimination have been taken up in Congress.
This report begins by showing the trend in the male-female wage gap and by
examining the explanations that have been offered for its enduring presence. It next
discusses the major laws directed at eliminating sex-based wage discrimination as
well as the relevant federal court suits. The report closes with a description of bills
introduced thus far in the 108th109th Congress that would amend the Equal Pay Actaddress the pay equity issue.
The Gender Wage Gap
The Male-Female Pay Differential Over Time
The term “pay equity”originates from the fact that women as a group are paid
less than men. In 1960, half of all women employed year-round full-time (i.e., 50-52
weeks and at least 35 hours per week) earned more than $3,257 and half earned less
than that amount. In the same year, the median annual earnings of men employed
year-round full-time were $5,368. More than four decades later, according to U.S.
Bureau of the Census data for 20022003, the median earnings of women with a strong
commitment to the labor force were $30,203724 while those of men were a substantially
higher $39,42940,668.
It often is noted that even when comparisons are made between similar groups,
women still are paid less than men. Women with a bachelor’s degree employed year-yearround full-time earned $47,910 in 2003, while similarly educated men earned an
1
29 U.S.C. § 206(d).
2
42 U.S.C. §§ 2000e et seq.
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round full-time earned $47,747 in 2002, for example, while similarly educated men
earned an average of $69,964average of $69,913. Male high school graduates were paid $37,680 on
38,331 on average, well
above the $27,184956 paid to female high school graduates. Women
typically earn less
than men of the same age, as well. The wage gap is narrowest
among young adults,
and then it generally widens: according to Census Bureau data
for 20022003, female 18-241524 year olds were paid 9079% as much as male 1815-24 year olds;
female 25-44 year olds
earned 7967% as much as males in the same age group; and,
female 45-64 year olds
were paid 6959% as much as male 45-64 year olds. Although
these disparities between
seemingly comparable men and women sometimes are
taken as proof of sex-based
wage inequities, the data have not been adjusted to reflect
gender differences in all
characteristics that can legitimately affect relative wages
(e.g., college major or
uninterrupted years of employment).
The size of the male-female wage gap has shrunk at a slow and uneven pace
over time. As shown in Table 1, the pay differential narrowed steadily during the
1980s so that by the end of the decade women were being paid about 70 cents on the
dollar. The trend for the 1990s is less clear: according to both data series shown in
the table, the ratio of female-to-male wages fluctuated erratically over the decade;
and ratios derived from the U.S. Bureau of Labor Statistics’ and Bureau of the
Census’ data series moved in different directions. The current decade has, to date,
been marked by improvement in the pay differential according to both seriesseries of the Bureau of the Census (columns 2 and 5) and of
the Bureau of Labor Statistics (columns 3 and 6) moved in different directions. The
extent of improvement in the gender wage gap that occurred during the 1980s does
not appear to have been sustained during the 1990s. The trend, to date, during the
current decade seems largely positive.
Despite women’s greatly increased commitment to the labor force over the past
40-plus years,3 the observed or unadjusted wage gap has narrowed by just 15
percentage points. Consequently, women with a strong attachment to the job market
typically earned 77earned an average of 76-79 cents for every dollar earned by men in 20022003.
Explanations of and Remedies for the Gender Pay Differential
The existence and persistence of the gender wage gap has led to a search for
explanations. Basically, two schools of thought have developed. The human capital
explanation has a supply-side focus, that is, it looks at the personal characteristics of
working women and men. The sex-segregation-in-the-workplace or discrimination
explanation has a demand-side focus, that is, it looks at the characteristics of the jobs
in which women and men typically work.
3
The percentage of all women who were in the labor force rose from 38% in 1960 to 60%
in 2003. Women today account for almost one-half of those in the labor force (47%)
compared to 33% some four decades earlier. The heightened commitment to paid
employment of married women with children under age 18 at home is particularly
noteworthy.
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Table 1. Ratio of Female-to-Male Earnings
Year
Year-round
full-time
workers a
Full-time
workers b
Year
Year-round
full-time
workers a
Full-time
workers b
2003
--75.5
79.4
1981
59.2
64.6
2002
76.6
77.9
1980
60.2
64.4
2001
76.3
76.1
1979
59.7
62.5
2000
73.7
76.0
1978
59.4
n.a.
1999
72.2
76.5
1977
58.9
n.a.
1998
73.2
76.3
1976
60.2
n.a.
1997
74.2
74.4
1975
58.8
n.a.
1996
73.8
75.0
1974
58.8
n.a.
1995
71.4
75.5
1973
56.6
n.a.
1994
72.0
76.4
1972
57.9
n.a.
1993
71.5
77.1
1971
59.5
n.a.
1992
70.8
75.8
1970
59.4
n.a.
1991
69.9
74.2
1969
58.9
n.a.
1990
71.6
71.9
1968
58.2
n.a.
1989
68.7
70.1
1967
57.8
n.a.
1988
66.0
70.2
1966
57.6
n.a.
1987
65.2
70.0
1965
59.9
n.a.
1986
64.3
69.2
1964
59.1
n.a.
1985
64.6
68.2
1963
58.9
n.a.
1984
63.7
67.8
1962
59.3
n.a.
1983
63.6
66.7
1961
59.2
n.a.
1982
61.7
65.4
1960
60.7
n.a.
Source: U.S. Bureau of the Census data on year-round/full-time workers, and U.S. Bureau of Labor
Statistics data on full-time workers.
Note: Annual data produces a wider wage gap thanThe wage gap based on annual data is wider than the wage gap based on weekly data because
women typicallygenerally work fewer
weeks and hours per week than men. In addition, the annual data includes include
self-employed workers who
have larger earnings differences by gender than the wage and salary
workers covered by the weekly
series. Regardless of timethe interval, the gender wage gap would be wider
if all workers were compared
because relatively more women than men work part-time or part-year
schedules.
a
n.a. = not available
a. Based on median annual earnings of all workers age 15 or older (14 or older before 1980) who work
employed year-round full-time (i.e., 50-52 weeks in a year and at least 35 hours in a week),
including the selfemployedself-employed. Before 1989, earnings covered civilian workers only.
b
. Based on median weekly earnings of wage and salary workers age 16 or older who workemployed full-time.
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Some researchers have tried to explain the pay gap by examining differences
in in
the average amounts of human capital (e.g., educational attainment) accumulated
by by
women and men. Other researchers have looked to job-related factors for an
explanation of the wage gap, with some particularly focusing on the relationship
between sex segregation in the workplace and women’s comparatively low wages.
(In this instance, segregation refers to the clustering of women and men in different
occupational groups, in different occupations within these groups, in different jobs
within these occupations, and in different industries or firms performing the same
jobs.) Still others have attributed the wage gap to a combination of personal
characteristics (e.g., number of hours worked per week or year) and job
characteristics (e.g., extent of unionization or size of firm). Although adjusting
women’s and men’s wages for human capital and job-related differences
considerably narrows the pay gap, it does not entirely eliminate it.4
Those who ascribe to the human capital explanation of the gender wage
disparity argue that as women increasingly become like men in terms of their
participation in the workforce, women’s earnings will further approach those of men.
They thus believe that no government intervention is warranted to achieve pay equity
beyond current anti-discrimination measures. Others believe that sex-based wage
discrimination is responsible for the pay gap that remains after accounting for gender
differences in labor market qualifications. They support strengthened government
enforcement of anti-discrimination laws and regulations, enhanced government
dissemination of information about and provision of training in comparatively highpaying nontraditional jobs for women,5 or employers paying female and male
employees in comparable jobs the same wages. In the 1980s, the latter perspective
led to largely unsuccessful lawsuits that brought “comparable worth” claims under
Title VII of the Civil Rights Act. (These lawsuits are discussed in the next section
of this report.)
The idea motivating comparable worth is that the size of a worker’s paycheck
should be related to job content rather than to the predominant sex of employees in
an occupation. Comparable worth proponents argue that some jobs are undervalued
– that is, pay relatively low wages – because they are largely held by women.
Instead Instead
of continuing to largely rely on supply-demand conditions in the labor market
to set
wages and instead of waiting for further lessening of sex segregation in the
workplace, comparable worth advocates oftentypically propose that a single job evaluation
study of be
conducted on all positions within a firm be conducted so they can be compared with each
other in
terms of such attributes as skill, effort, responsibility, and working
conditions.
Employers would then raise the wages of workers in all jobs or in female-dominated
4
For more information see CRS Report 98-278, The Gender Wage Gap and Pay Equity:
Is Comparable Worth the Next Step?
5
Congress has attempted to reduce occupational segregation. The Women in
Apprenticeship and Nontraditional Occupations Act (WANTO, P.L. 102-530) provides
technical assistance to employers and unions to promote women’s employment in
apprenticeable and other nontraditional jobs. Through FY1995, the Nontraditional
Employment for Women Act (P.L. 102-235) had authorized the use of the Job Training
Partnership Act’s discretionary funds to develop demonstration programs to help women
enter high-paying jobs where they were underrepresented.
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female-dominated jobs deemed to be underpaid on the basis of the evaluation (i.e.,
jobs with wages
below other jobs having the same total scores on the attributes
included in the
evaluation would be awarded raises).6
Legal and Legislative Background
Laws that Combat Sex-Based Wage Discrimination
The Equal Pay Act (EPA) is a 1963 amendment to the Fair Labor Standards Act
that makes it illegal to pay different wages to employees of the opposite sex for equal
work on jobs the performance of which requires “equal skill, effort, and
responsibility,” and which are “performed under similar working conditions.”7 The
act also prohibits labor organizations and their agents from causing or attempting to
cause sex-based wage discrimination by employers. Specifically permitted by the
EPA, however, are wage differentials based on seniority systems, merit systems,
systems that measure earnings by quality or quantity of production, or “any factor
other than sex.”8 The “equal work” standard embodies a middle ground between
demanding that two jobs be either exactly alike or that they merely be comparable.
The test applied by the courts focuses on job similarity and whether, in light of all
the circumstances, they require substantially the same skill, effort, and responsibility.9
An employer may not attempt to equalize wages to comply with the EPA by lowering
the rate of pay for any employee.10
A year after the EPA, Congress enacted the comprehensive code of antidiscrimination rules based on race, color, national origin, religion and sex found in
Title VII of the Civil Rights Act. The EPA and Title VII provide overlapping
coverage for claims of sex-based wage discrimination, but differ in important
substantive, procedural and remedial aspects. A crucial difference is that the “equal
work” standard of the EPA – requiring “substantial” identity between compared
male and female jobs – does not limit an employer’s liability for intentional wage
discrimination under Title VII. For example, in Miranda v. B & B Cash Grocery
Store, Inc.,11 the plaintiff’s inability to demonstrate that she performed the same work
as higher paid males did not preclude a Title VII claim based on evidence male
employees who performed fewer duties were paid more than she, or that the
employer would have paid her more had she been a male. Thus, a violation of the
6
See CRS Report 98-278, The Gender Wage Gap and Pay Equity: Is Comparable Worth
the Next Step?, for information on job evaluation as a wage-setting mechanism and the
potential labor market effects of implementing the comparable worth approach to remedying
gender wage differentials.
7
Id.
8
Id.
9
E.g. EEOC v. Madison Community United School District, 818 F.2d 577 (7th Cir.
1987)(“equal work” requires a substantial identity rather than an absolute identity).
10
29 U.S.C. § 206(d)(1).
11
975 F.2d 1518 (11th Cir. 1992).
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EPA will always violate Title VII, but the converse is not true.12 Additionally, the
remedies for violation of the two laws differ. Under the EPA, a prevailing plaintiff
may obtain backpay for any wages unlawfully withheld as the result of pay
inequality and twice that amount in liquidated damages for a willful violation. By
contrast, the Civil Rights Act of 1991 added to the back pay remedy authorized by
Title VII a provision for jury trials and compensatory and punitive damages for
victims of “intentional” sex discrimination, in wage cases and otherwise.13 Such
damages may only be recovered, however, in cases of intentional discrimination, not
in so-called “disparate impact” cases alleging the adverse effect of a facially neutral
employment practice on a protected group member. In addition, the Title VII
damages remedy is limited by dollar “caps,” which vary depending on the size of the
employer.14
“Comparable Worth” Litigation
During the 1980s, some tried to substitute job equivalency for the “equal work
standard” in the EPA through so-called comparable worth Title VII cases. As
previously mentioned, whole classes of jobs are undervalued according to
comparable worth theory because they traditionally have been predominately held by
women. Because of alleged labor market bias against female-dominated jobs, Title
VII plaintiffs contended that pay discrimination claims should not be limited by the
EPA standard, requiring that jobs be substantially “equal” or similar for different pay
rates to be considered discriminatory. Instead, Title VII wage-based discrimination
actions against employers could be predicated on job evaluation studies, they argued,
which compared the value of women’s jobs to those of men who perform work that
is dissimilar, but of equivalent or comparable worth to the employer.
Although not a comparable worth case, County of Washington v. Gunther,15 held
that the EPA’s equal work standard was not a restriction on Title VII relief for
intentional sex-based discrimination in pay between dissimilar male and female jobs.
But the Supreme Court did not speak specifically to the Title VII standard of proof
for wage discrimination, since in Gunther the county’s intention was clearly
demonstrated by its failure to redress underpayment of wages to female employees
revealed by its own pay evaluation study. Outside of such “refusal to pay” cases,
however, where no market surveys or pay evaluations were done, the courts have
12
29 C.F.R. § 1620.27(a).
13
42 U.S.C. § 1981A.. Compensatory damages include “future pecuniary losses, emotional
pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other
nonpecuniary losses.” Punitive damages may be recovered where the employer acted “with
malice or with reckless indifference” to the complaining employee’s federally protected
rights.
14
The sum total of compensatory and punitive damages awarded may not exceed $50,000
in the case of an employer with more than 14 and fewer than 101 employees; $100,000 in
the case of an employer with more than 100 and fewer than 201 employees; $200,000 in the
case of an employer with more than 200 and fewer than 500 employees; and $300,000 in the
case of an employer with more than 500 employees.
15
452 U.S. 161 (1981).
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been reluctant to second-guess the wage rate dictated by the local labor market for
dissimilar jobs. In a pair of decisions, the Ninth Circuit firmly rejected Title VII
liability for a public employer’s failure to pay equal wages to male and female
employees allegedly performing comparable duties. AFSCME v. State of
Washington16 ruled that the state lawfully paid employees in predominantly male job
classifications more than it paid employees in predominantly female classifications,
even though a state-commissioned study concluded that the male and female
classifications were “comparable.” Reliance on market forces of supply and demand
to set compensation for dissimilar male and female jobs was not per se illegal since
“[n]either law nor logic deems the free market system a suspect enterprise.” The
state “may” have discretion to enact a comparable worth plan, the court held, but
“Title VII does not obligate it to eliminate an economic inequality which it did not
create.” Earlier, in Spaulding v. University of Washington17 the same court denied
a comparable worth claim by members of the female nursing faculty of the University
of Washington who alleged that they were underpaid by comparison to other faculty
departments.18
Some more recent judicial developments in equal pay and promotional
opportunities for women should also be noted. On June 21, 2004, a federal district
judge in San Francisco permitted to go forward a class action on behalf of more than
1.5 million current and former female employees of Wal-Mart retail stores
nationwide. Plaintiffs in Dukes et al. v. Wal-Mart Stores, Inc.19 claim that women
over the past five years have been paid less than male workers in comparable
positions and that the company systematically passed over female employees when
awarding promotions to management. According to two studies conducted by a
sociologist and a statistician for the plaintiffs, 65 percent of Wal-Mart’s hourly
employees were women, but women make up only 33 percent of all management
positions. The gender gap was even more striking when employment categories are
further broken down; while the vast majority of Wal-Mart’s cashiers are women, only
a small fraction are store managers, the top in-store management position. The
studies also found that women employed on a full-time hourly basis earned less per
year on average than their male counterparts, and the short fall was substantial for
female store managers.
At this initial stage, Judge Jenkins only considered whether the evidence raised
issues of law and fact common to all members of the proposed class sufficient for
a class action to proceed under federal law. The court did not decide the merits of
plaintiffs’ discrimination claims or any issue of Wal-Mart liability. In its opinion,
however, the court noted that
16
770 F. 2d 1401, 1407 (9th Cir. 1985).
17
740 F. 2d 686 (9th Cir. 1984).
18
See also American Nurses Ass’n v. State of Illinois, 606 F. Supp. 1313 (N.D.Ill.
1985)(Congress never intended to incorporate a comparable worth standard in Title VII and
such a concept is neither sound nor workable).
19
No. C 01-02252 MJJ (Order Granting in Part and Denying in Part Motion for Class
Certification)(N.D. Cal. 6-21-2004)(slip opinion22 F.R.D. 137 (N.D.Cal. 2004).
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Plaintiffs present largely uncontested descriptive statistics which show that
women working at Wal-Mart stores are paid less than men in every region, that
pay disparities exist in most job categories, that the salary gap widens over time,
that women take longer to enter management positions, and that the higher one
looks in the organization the lower the percentage of women.20
Wal-Mart argued that any disparities were the result of decentralized decisionmaking at the regional and local level, not the result of any systematic employer bias,
and that a massive class-action would be too large to administer. Judge Jenkins
rejected that argument, however, noting that Title VII “contains no special exception
for large employers.” Moreover, “[i]nsulating our nation’s largest employers from
allegations that they have engaged in a pattern or practice of gender or racial
discrimination – simply because they are large – would seriously undermine these
imperatives.” Thus, any “inference” of discrimination in company compensation
and promotion policies was found to “affect all plaintiffs in a common manner,” and
warranted the requested class certification.
Wal-Mart has stated that it will appeal Judge Jenkins’ class action certification.
If that appeal fails, and the case goes to trial, the female plaintiffs carry the burden
of proving that the company engaged in an intentional pattern and practice of
discriminating in pay and promotions. The record to date suggests that this may be
no easy task, in part due to subjectivity in the company’s personnel procedures and
the fact that, prior to January 2003, the company apparently failed to post or
document most available promotion opportunities.21 There may be limited data on
how many employees, male or female, applied for most of these positions. But if
they prevail, whether at trial or by settlement, substantial monetary damages may be
available to members of plaintiff class under Title VII. Since Judge Jenkins’ ruling,
for example, the investment firm Morgan Stanley has reportedly agreed to pay $54
million to settle government claims that it systematically underpaid and failed to
promote its women executives. Allegations of sexual harassment were also involved
in the case. Beyond $12 million set aside to pay the lead plaintiff, a consent decree
provides $40 million for any of about 340 other potential discrimination victims who
are able prove their claims, and another $2 million to establish internal antidiscrimination programs. For a period of three years, the decree requires
appointment of a firm ombudsman for sex discrimination issues and of an external
monitor to review Morgan Stanley’s adherence to the settlement and its progress at
preventing discrimination.22
Legislation in the 108th109th Congress
The issue of pay equity has garnered considerable attention in recent years. The
Senate Committee on Health, Education, Labor, and Pensions held a hearing on
20
Id. at p. 28.
21
Id. at p. 17.
22
See Washington Post, E-1,5 (7-13-2004).
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gender-based wage discrimination in June 2000.23 A month later, during floor debate
on marriage tax penalty legislation, Senator Harkin offered an amendment for the
Democratic Leadership allowing wage discrimination victims suing under the EPA
– who maywhich presently collectpermits only backpay and liquidated damages – awards – to obtain
full recovery
of compensatory and punitive damages for their injury, including
emotional suffering
and distress. The defeated amendment was based on S. 74 (the
Paycheck Fairness
Act) in the 106th Congress,24 a measure since reintroduced into both the 107th and
108thin each
succeeding Congress.25 Another measure, the Fair Pay Act of 2003 ( H.R. 1695 and S.
841), which has been introduced in each Congress since the 103rd, promises to
resurrect 2005 (H.R. 1697 and
S. 840), which has predecessors dating back to the 103rd Congress, could reawaken
the comparable worth legal debate by redefining the basic statutory standard
of the
EPA to require that employers pay equal wages for work in jobs determined
to be
“equivalent” in some largely undefined manner.
The Paycheck Fairness Act, was reintroduced in the 108th Congress as H.R.
1688 and S. 76, and is also included in Title VI of S. 16, the Equal Rights and Equal
Dignity for Americans Act of 2003. These companion bills propose to increase
penalties for employers who pay different wages to men and women for “equal
work,” and add programs for training, research, technical assistance and pay equity
employer recognition awards. The proposals also would make it more difficult for
employers to avoid EPA liability by invoking the act’s affirmative defense for
differential wage payments “based on a bona fide factor other than sex.” More
specifically, the bills adhere to current equal work standards of the EPA, but would
reform the procedures and remedies for enforcing the law. Under the EPA, as noted,
prevailing plaintiffs may recover backpay in an amount equal to the total difference
between wages actually received and those to which they are lawfully entitled and an
additional amount equal to the backpay award as liquidated damages.26
Compensatory damages are not authorized, and consequently, awards do not include
sums for physical or mental distress, medical expenses, or other costs.27 But new
provisions proposed by the Paycheck Fairness Act authorize EPA class actions and
“such compensatory and punitive damages as may be appropriate.”28 In addition, the
bills propose more restrictive standards for proof by employers of an affirmative
defense to EPA liability based on any “bona fide factor other than sex.” Thus, for a
pay factor to be “bona fide,” the employer has to prove that it was “job related” or
furthered a “legitimate business purpose,” that it was “actually applied and used
reasonably in light of the asserted justification,” and that the employer’s purpose Another pay equity proposal in the
new Congress is H.R. 157, the “Equal Pay Improvement Report Act of 2005.” It
directs the Equal Employment Opportunity Commission to prepare a report on how
the Fair Labor Standards Act of 1938 has been used by public and private sector
employees to foster or exacerbate pay inequity.
The Paycheck Fairness Act, returns to the 109th Congress as H.R. 1687 and S.
841. These companion bills propose an increase in penalties for employers who pay
different wages to men and women for “equal work,” and add programs for training,
research, technical assistance and pay equity employer recognition awards. The
proposals would also make it more difficult for employers to avoid EPA liability by
invoking the act’s affirmative defense for differential wage payments “based on a
bona fide factor other than sex.” In short, while these bills adhere to current equal
work standards of the EPA, they would reform the procedures and remedies for
enforcing the law.
Under the EPA, as noted, prevailing plaintiffs may recover backpay in an
amount equal to the total difference between wages actually received and those to
which they are lawfully entitled and an additional amount equal to the backpay award
as liquidated damages.26 Compensatory damages are not authorized, and
consequently, awards do not include sums for physical or mental distress, medical
expenses, or other costs.27 But new provisions proposed by the Paycheck Fairness
Act would authorize EPA class actions and “such compensatory and punitive
damages as may be appropriate.”28 In addition, the bills proposed more restrictive
standards for proof by employers of an affirmative defense to EPA liability based on
any “bona fide factor other than sex.” Thus, for a pay factor to be “bona fide,” the
23
See “Hearing on Examining Gender-Based Wage Discrimination,” before the. Senate
Comm. On Health, Education, Labor, and Pensions, 106th Cong. 2d Session (June 8, 2000).
24
146 Cong. Rec. S7047 (daily ed. 7-17-2000).
25
H.R. 781 and S. 77, 108th Cong. 1st Sess.; and H.R. 1688 and S. 16, S. 76, 108th Cong.
1 Sess.
st
1st
Sess.; H.R. 1687 and S. 841, 109th Congress, 1st Sess.
26
29 U.S.C. §§ 216-17.
27
E.g. Hybki v. Alexander & Alexander, Inc., 536 F. Supp. 483 (W.D.Mo.
1982)(emphasizing damages for pain and suffering are not available under the EPA).
28
S. 76841, H.R. 16881687, § 3(b).
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could not be accomplished e).
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employer would have to prove that it was “job related” or furthered a “legitimate
business purpose,” that it was “actually applied and used reasonably in light of the
asserted justification,” and that the employer’s purpose could not be accomplished
by less discriminatory alternative means.29 New
safeguards are also proposed to
protect employees from retaliation for making
inquiries or disclosures concerning
employee wages and for filing a charge or
participating in any manner in EPA
proceedings.30
The Fair Pay Act of 20032005 would go further in fundamentally expanding the
by proposing a fundamental
expansion to the scope of the EPA, which is presently confined to sex-based wage
differentials, by
adding racial and ethnic minorities as protected classes under that
law. Intentional
wage discrimination against these groups is already prohibited by
Title VII. But Title
VII and the EPA have different standards of proof, and because
proof of intent to
discriminate is not required by the “equal pay for equal work”
standard of the EPA,31
it may provide greater protection to minority groups than Title
VII in many cases.
The EPA’s catchall exception, affording employers broad
immunity for pay
differentials attributable to “factors other than sex,” would be eliminatedsignificantly
narrowed by the Fair
Pay Act.32 A compensatory and punitive damages remedy,
without statutory limit,
would replacehave replaced the present EPA backpay and liquidated
damages scheme, based on
the Fair Labor Standards Act.33
Significantly, H.R. 16951697 and S. 841 would840 also redefine the basic statutory
standard standard
of the EPA by requiring employers to pay equal wages regardless of sex,
race, or
national origin to workers in “equivalent jobs.” Unlike the current law, such
amendment would permit Equal Pay Equal Pay
Act claims to be based on wage disparities
between dissimilar jobs, – e.g., a janitor and a clerk, which are determined to be
clerk – would be permitted if they aredetermined to be “equivalent” in some largely
undefined manner. According to the bills, “equivalent
jobs” are those “whose
requirements are equivalent, when viewed as a composite of
skills, effort,
responsibility, and working conditions.”3234 By substituting job
equivalency for the
“equal work standard” in the EPA, the Fair Pay Act could
resurrect legal arguably could revive legal
issues similar to those confronted by the federal courts during the
1980's in so-called
“comparable worth” Title VII cases.
Another aspect of EPA enforcement addressed by the current bills concerns employer
employer recordkeeping and the conduct of technical assistance, research and educational
educational programs by federal agencies. The Fair Pay Act of 2003 would require all covered
2005 requires all
covered employers to maintain comprehensive records of “the method, system,
calculations,
and other bases used” to set employee wages and to file annual reports
with the Equal
Employment Opportunity Commission (EEOC) detailing the racial,
ethnic, and
gender composition of the employer’s workforce broken down by job classification
29
Id. at § 3(a).
30
Id. at § 3(d).
31
See Fallon v. State of Illinois, 882 F.2d 1206 (7th Cir. 1989).
32
S. 840, H.R. 1697, § 3(a).
33
Id. § 5(b).
34
H.R. 1697, § 3(a); S 840, § 3(a).
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classification and wage or salary level. Such reports would be available for
“reasonable”
inspection and examination upon request of any person, pursuant to EEOC
EEOC regulations, and could be used by the Commission for such “statistical and research
research purposes . . . as it may deem appropriate.”3335 The EEOC would also be required to
29
Id. at §3(a).
30
Id. at §3(d).
31
See Fallon v. State of Illinois, 882 F.2d 1206 (7th Cir. 1989).
32
H.R. 1695, § 3(a); S 841, § 3(a).
33
Id at § 6(e).
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have
been required to “carry on a continuing program of research, education, and technical
assistance” to
implement the proposed ban on racial, ethnic, or gender discrimination between
between employees working “in equivalent jobs.”3436
The Paycheck Fairness Act also is concerned withmandates record-keeping and data
collection collection
for better enforcement of the law. The measure directs the EEOC to
survey data
currently available to the government and, in consultation with sister
agencies, to
identify additional sources of pay information that may be marshaled to
support support
federal anti-discrimination efforts. The EEOC also is mandated to issue
must issue regulations for the
collection of pay data from employers based on sex, race, and
ethnicity, taking into
consideration the burden placed on employers and the need to
protect the
confidentiality of required reports.3537 In addition, the Secretary of Labor
is directed
to develop job evaluation guidelines based on objective factors of
education, skill,
independence, and decision-making responsibility for voluntary use
by employers in
eliminating unfair pay disparities between traditionally male- and
female-dominated
occupations.3638 Technical assistance and a recognition program
would rewardbe rewarded
to employers who voluntarily adjust their wage scales pursuant to such
a job
evaluation.3739 Finally, a “National Award for Pay Equity in the Workplace”
would be would
have been established by these bills to recognize employers who demonstrate
“substantial effort to eliminate pay disparities between men and women.”38
34
Id. at § 7.
35
S. 76, H.R. 1688, § 8.
36
Id. at § 6.
37
Id.
38
Id.40
As noted, another proposal in the 109th Congress addressing pay equity issues
is H.R. 157, the “Equal Pay Improvement Report Act of 2005.” The bill, introduced
by Representative Millender-McDonald on January 4, 2005 proposes no substantive
amendments to the EPA or other federal anti-discrimination laws, as do the Paycheck
Fairness and Fair Pay Act bills. Instead, it directs the EEOC, in collaboration with
other federal agencies, to report to the Congress respecting the Fair Labor Standards
Act’s impact on discriminatory wage inequities. Thus, § 2 of the bill would require:
Not later than one year after the date of enactment of this Act, the Equal
Employment Opportunity Commission, using information supplied by the
Department of Labor, the Office of Management and Budget, and the General
Accounting Office, [sic] shall submit a report to the Congress making findings
and recommendations relating to how the Fair Labor Standards Act of 1938 (29
U.S.C. 201 et seq.) has been used by public and private sector employers to
foster or exacerbate pay inequities, especially such inequities based on an
35
Id at § 6(e).
36
Id. at § 7.
37
S. 841, H.R. 1687, § 9.
38
Id. at § 7(a).
39
Id.
40
Id. at § 8.
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employee’s gender, race, color, religion, or national origin, or such other factor
as the Commission finds relevant.