Order Code RL31867
Pay Equity Legislation
in the 110th Congress
Updated January 5May 31, 2007
Jody Feder
Legislative Attorney
American Law Division
Linda Levine
Specialist in Labor Economics
Domestic Social Policy Division
Pay Equity Legislation
in the 110th Congress
Summary
The term “pay equity” originates from the fact that women as a group are paid
less than men. In 2005, for example, women with a strong commitment to the work
force earned about 77-81 cents for every dollar earned by men. As women’s earnings
as a percentage of men’s earnings have narrowed by less than 20 percentage points
over the past 40-plus years, 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.
AndIn addition, Title VII of the 1964 Civil Rights Act provides for the award of compensatory
compensatory and punitive damages to victims of “intentional” wage discrimination,
subject to caps
on the employer’s monetary liability.
The issue of pay equity has attracted substantial attention in recent Congresses.
A number of measures, including bills that would have provided additional remedies,
mandated “equal pay for equivalent jobs,” or required studies on pay inequity, have
been introduced in each of the last several congressional sessions, and similar
legislation is expected to be introduced in the 110th Congress. The following
bills have been introduced in the 110th Congress: H.R. 1338, H.R. 2019, S. 766, and
S. 1087.
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . .and Other Judicial Developments . . . . . . . 6
Legislation in the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
List of Tables
Table 1. Ratio of Female-to-Male Earnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Pay Equity Legislation
in the 110th 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, which mandates 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 relevant federal court cases. The report closes with a description of past bills
that have addressed the pay equity issue. Although these bills were introduced in
previous Congresses, none of them were enacted, and similar legislation is expected
to bepay
equity bills that have been introduced in the 110th Congress.
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.
Census Bureau data for 2005, the median earnings of women with a strong
commitment to the labor force were $31,963 while those of men were a substantially
higher $41,493.
1
29 U.S.C. § 206(d).
2
42 U.S.C. §§ 2000e et seq.
CRS-2
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 yearroundyear-
1
29 U.S.C. § 206(d).
2
42 U.S.C. §§ 2000e et seq.
CRS-2
round full-time earned $49,326 in 2005, while similarly educated men earned an
average of $75,130. Male high school graduates were paid $40,112 on average, well
above the $28,657 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 the same Census Bureau series on average
earnings among year-round full-time workers in 2005, female 18-24 year olds were
paid 91% as much as male 18-24 year olds; female 25-34 year olds earned 82% as
much as males in the same age group while female 35-44 year olds were paid 70%
as much as 35-44 year old men; female 45-54 year olds and 55-64 year olds earned
64% and 62%, respectively, of men’s wages in these age groups; and women at least
65 years olds were paid 48% as much as older men. Although these disparities
between seemingly comparable men and women sometimes are taken as proof of sexbased 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 the median earnings
series of the Census Bureau (columns 2 and 5) and of the Bureau of Labor Statistics
(columns 3 and 6) shown in the table, the ratio of female-to-male wages fluctuated
erratically and sometimes in different directions during the decade; 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, in the current decade
seems 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 less than 20
percentage points or less than half a percentage point per year. Consequently, by
2005, women with a strong attachment to the job market had come to earn about 7781cents7781 cents for every dollar earned by men.
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 age 16 and older who were in the labor force rose from 38%
in 1960 to 59% in 2005. Women today account for almost one-half of those in the labor
force (46%) compared to 33% some four decades earlier. The heightened commitment to
paid employment of married women with dependent children (under age 18) is particularly
noteworthy.
CRS-3
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
2006
n.a.
80.7
1982
61.7
65.4
2005
77.0
81.0
1982
61.7
65.41981
59.2
64.6
2004
76.6
80.4
1981
591980
60.2
64.64
2003
75.5
79.4
1980
60.2
64.41979
59.7
62.5
2002
76.6
77.9
1979
59.7
62.51978
59.4
n.a.
2001
76.3
76.1
1978
59.41977
58.9
n.a.
2000
73.7
76.0
1977
58.91976
60.2
n.a.
1999
72.3
76.5
1976
60.21975
58.8
n.a.
1998
73.2
76.3
19751974
58.8
n.a.
1997
74.2
74.4
1974
58.81973
56.6
n.a.
1996
73.8
75.0
1973
56.61972
57.9
n.a.
1995
71.4
75.5
1972
57.91971
59.5
n.a.
1994
72.0
76.4
19711970
59.54
n.a.
1993
71.5
77.1
1970
59.41969
58.9
n.a.
1992
70.8
75.8
19691968
58.92
n.a.
1991
69.9
74.2
1968
58.21967
57.8
n.a.
1990
71.6
71.9
19671966
57.86
n.a.
1989
68.7
70.1
1966
57.61965
59.9
n.a.
1988
66.0
70.2
19651964
59.91
n.a.
1987
65.2
70.0
1964
59.11963
58.9
n.a.
1986
64.3
69.2
1963
58.91962
59.3
n.a.
1985
64.6
68.2
19621961
59.32
n.a.
1984
63.7
67.8
1961
59.21960
60.7
n.a.
1983
63.6
66.7
1960
60.7
n.a.
Source: U.S. Census Bureau data on year-round/full-time workers, and U.S. Bureau of Labor
Statistics data on full-time workers.
Note: The wage gap based on annual data (columns 2 and 5) is wider than the wage gap based on
weekly data (columns 3 and 6) because women generally work fewer weeks and hours per week than
men. In addition, the annual data include self-employed workers who have larger earnings differences
by gender than the wage and salary workers covered by the weekly series. Regardless of the 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.
n.a. = not available
a. Based on median annual earnings of all workers age 15 or older (14 or older before 1980) employed
year-round full-time (i.e., 50-52 weeks in a year and at least 35 hours in a week), including the
self-employed. Before 1989, earnings covered civilian workers only.
b. Based on median weekly earnings of wage and salary workers age 16 or older employed full-time.
CRS-4
Some researchers have tried to explain the pay gap by examining differences in
the average amounts of human capital (e.g., educational attainment) accumulated 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 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 typically propose that a job evaluation be
conducted on all positions within a firm 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
4
See CRS Report 98-278, The Gender Wage Gap and Pay Equity: Is
Comparable Worth
the Next Step?, by Linda Levine., for a review of empirical analyses of the male-female wage
gap. (Hereafter cited as CRS Report 98-278, The Gender Wage Gap and Pay Equity.)
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.
CRS-5
Employers would then raise the wages of workers in all jobs or in 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 passage of the EPA, Congress enacted the comprehensive code of
anti-discrimination 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
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, for information on the
potential labor market effects of relying upon job evaluation as a wage-setting mechanism
to implement comparable worth.
7
29 U.S.C. § 206(d)(1).
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).
CRS-6
employer would have paid her more had she been a male. Thus, a violation of the
EPA will alwaysgenerally 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
Developments
Litigation
and
Other
Judicial
During the 1980s, some litigants 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 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.15 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
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).
CRS-7
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
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. That case, AFSCME v. State of
Washington,16 held 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.”17 Earlier, in Spaulding v. University of Washington,18 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.19
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 proceed a class action on behalf of more than 1.5
million current and former female employees of Wal-Mart retail stores nationwide.
In Dukes et al. v. Wal-Mart Stores, Inc.,20 the plaintiffs 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 consideredthe district court considered only whether the evidence raised
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
16
770 F. 2d 1401 (9th Cir. 1985).
17
Id. at 1407.
18
740 F. 2d 686 (9th Cir. 1984).
19
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).
20
222 F.R.D. 137 (N.D.Cal. 2004).
CRS-8
of plaintiffs’ discrimination claims or any issue of Wal-Mart liability. In its opinion,
however, the court noted:
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.21
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 The court 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 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.”22
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.23
Wal-Mart has stated that it will appeal Judge Jenkins’ class action
certification.24 If that appeal fails, and the case appealed the district court’s class action certification, but the
appellate court upheld the class action certification.24 If, as expected, the case now
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.25 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’the ruling in the Wal-Mart case, the investment firm Morgan
Stanley has
reportedly agreed to pay $54 million to settle government claims that it
systematically systematically
underpaid and failed to promote its women executives. Allegations of
sexual 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 other
potential discrimination victims who are able prove their claims, and another
$2 $2
million to establish internal anti-discrimination 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
21
Id. at 155.
22
Id. at 142.
23
Id. at 166.
24
Amy Joyce, “Wal-Mart to Appeal Status of Class Action Bias Suit,” Washington Post,
Aug. 6, 2005, at D01United States v. Jacobo-Gil, 474 F.2d 1213 (9th Cir. 1973).
25
Dukes, 222 F.R.D. at 149.
CRS-9
settlement and its progress at preventing discrimination.26 Shortly after settlement
in the Morgan Stanley case, Boeing agreed to settle a similar pay equity lawsuit, and
Costco was sued for similar reasons.27
Legislation in the 110th Congress
The issue of pay equity has garnered considerable congressional attention in
recent years. A number of measures have been introduced in each of the last several
congressional sessions, and similar legislation is expected to be introduced in the
110th Congress. For example, the Senate Committee on Health, Education, Labor,
and Pensions held a hearing on gender-based wage discrimination in June 2000.28
A month later, during floor debate on marriage tax penalty legislation, Senator
Harkin offered an amendment for the Democratic Leadership that would have
allowed wage discrimination victims suing under the EPA — which presently
permits 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,29 a measure since reintroduced in each succeeding
Congress.30 Another measure, the Fair Pay Act of 2005 (H.R. 1697 and S. 840),
which has predecessors dating back to the 103rd Congress, could, if reintroduced,
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. Another pay equity
bill proposed in a previous Congress was H.R. 157, the “Equal Pay Improvement
Report Act of 2005.” If reintroduced in the 110th Congress, it would direct 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. Because many of these bills are likely to be reintroduced
in the 110th Congress, they are described in detail below.
If reintroduced in the 110th Congress, the Paycheck Fairness Act would 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 bill 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,
A federal district court recently granted classaction status to the plaintiffs in the Costco lawsuit,28 although the company is
planning to appeal the decision.29
Meanwhile, the Supreme Court recently issued a decision that may make it more
difficult for employees to sue for pay discrimination under Title VII. In Ledbetter v.
Goodyear Tire & Rubber Co., Inc.,30 the female plaintiff alleged that past sex
discrimination had resulted in lower pay increases and that these past pay decisions
continued to affect the amount of her pay throughout her employment, resulting in
a significant pay disparity between her and her male colleagues by the end of her
nearly twenty year career. Under Title VII, plaintiffs are required to file suit within
180 days “after the alleged unlawful employment practice occurred.”31 Although the
plaintiff argued that each paycheck she received constituted a new violation of the
statute and therefore reset the clock with regard to filing a claim, the Court rejected
this argument, reasoning that “a new violation does not occur, and a new charging
period does not commence, upon the occurrence of subsequent nondiscriminatory
acts that entail adverse effects resulting from the past discrimination.”32 As a result,
the Court held that the plaintiff had not filed suit in a timely manner. Although the
decision may limit some pay discrimination claims based on Title VII, individuals
may still sue for sex discrimination that results in pay bias under the EPA, which
does not contain the 180-day filing requirement.
Legislation in the 110th Congress
The issue of pay equity has garnered considerable congressional attention in
recent years. A number of measures have been introduced in each of the last several
congressional sessions, and similar bills were recently introduced in the 110th
Congress. In April 2007, both the House Committee on Education and Labor and the
Senate Committee on Health, Education, Labor, and Pensions held hearings on
26
Brooke A. Masters, “Wall Street Sex-Bias Case Settled; Morgan Stanley Agrees to Pay
$54 Million,” Washington Post, July 13, 2004, at E01.
27
Brooke A. Masters and Amy Joyce, “Costco is the Latest Class-Action Target; Lawyers’
Interest Increases in Potentially Lucrative Discrimination Suits,” Washington Post, Aug. 18,
2004, at A01.
28
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).
29
30
146 Cong. Rec. S7047 (daily ed. 7-17-2000).
H.R. 781 and S. 77, 108th Cong. 1st Sess.; and H.R. 1688 and S. 16, S. 76, 108th Cong. 1st
Sess.; H.R. 1687 and S. 841, 109th Congress, 1st Sess.
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while this bill adheres to current equal work standards of the EPA, it would reform
the procedures and remedies for August
18, 2004, at A01.
28
Ellis v. Costco Wholesale Corp., 240 F.R.D. 627 (D. Cal. 2007).
29
Abigail Goldman, “Costco Job-Bias Lawsuit Advances,” Los Angeles Times, January 12,
2007, at C2.
30
2007 U.S. LEXIS 6295 (U.S. 2007).
31
42 U.S.C. § 2000e-2(a)(1).
32
Ledbetter v. Goodyear Tire & Rubber Co., 2007 U.S. LEXIS 6295, *19 (U.S. 2007).
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gender-based wage discrimination and proposed pay equity legislation.33 This
proposed legislation is described below.
Introduced in each of the last several congressional sessions, the Paycheck
Fairness Act (H.R. 1338 and S. 766) would increase penalties for employers who pay
different wages to men and women for “equal work,” and would add programs for
training, research, technical assistance, and pay equity employer recognition awards.
The bill 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 this bill adheres to current equal
work standards of the EPA, it 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.3134 Compensatory damages are not authorized, and
consequently, awards do not include sums for physical or mental distress, medical
expenses, or other costs.32 But provisions proposed in previous versions of the
Paycheck Fairness Act would have authorized35 Provisions proposed in the Paycheck Fairness Act,
however, would authorize EPA class actions and “such
compensatory and punitive
damages as may be appropriate.”33 In addition, the bill
would have established more would establish 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 would have had to prove that
it was “job related” or furthered a
“legitimate business purpose,” that it hadwas “actually
[been] applied and used reasonably in
light of the asserted justification,” and that the
employer’s purpose could not have been be
accomplished by less discriminatory
alternative means.34 Proposed safeguards would also have protected
also 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.35
The Fair Pay Act, if reintroduced in the 110th (H.R. 2019 and S. 1087), which has predecessors dating back
to the 103rd Congress, would go further 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,36
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 significantly narrowed by the Fair Pay Act.37 A
compensatory and punitive damages remedy, without statutory limit, would replace
the present EPA backpay and liquidated damages scheme, based on the Fair Labor
Standards Act.38
31
29 U.S.C. §§ 216-17.
32 to minority groups than Title VII in many cases.
33
See “Strengthening the Middle Class: Ensuring Equal Pay for Women,” before the House
Comm. on Education and Labor, 110th Cong. 1st Session (April 24, 2007); “Closing the Gap:
Equal Pay for Women Workers,” before the Senate Comm. on Health, Education, Labor,
and Pensions, 110th Cong. 1st Session (April 12, 2007).
34
29 U.S.C. §§ 216-17.
35
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).
33
See, e.g., S. 841, H.R. 1687, § 3(e), 109th Congress, 1st Sess.
34
Id. at § 3(a).
35
Id. at § 3(d).
36
See Fallon v. State of Illinois, 882 F.2d 1206 (7th Cir. 1989).
37
S. 840, H.R. 1697, § 3(a), 109th Congress, 1st Sess.
38
Id. § 5(b).
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Significantly, the Fair Pay Act, if reintroduced, would also redefine the basic
statutory 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, Equal Pay Act claims based on wage disparities between dissimilar jobs — e.g.,
a janitor and a clerk — would be permitted if they are determined to be “equivalent”
in some largely undefined manner. By substituting job equivalency for the “equal
work standard” in the EPA, the Fair Pay Act 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 earlier pay equity bills
concerns employer recordkeeping and the conduct of technical assistance, research
and educational programs by federal agencies. For example, the Fair Pay Act, if
reintroduced, would require 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 and wage or salary level.
Such reports would be available for “reasonable” inspection and examination upon
request of any person, pursuant to EEOC regulations, and could be used by the
Commission for such “statistical and research purposes . . . as it may deem
appropriate.”39 The EEOC would also be 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 employees working “in equivalent
jobs.”40
If reintroduced, the Paycheck Fairness Act would also mandate record-keeping
and 36
See Fallon v. State of Illinois, 882 F.2d 1206 (7th Cir. 1989).
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The EPA’s catchall exception, affording employers broad immunity for pay
differentials attributable to “factors other than sex,” would be significantly narrowed
by the Fair Pay Act. A compensatory and punitive damages remedy, without
statutory limit, would replace the present EPA backpay and liquidated damages
scheme, based on the Fair Labor Standards Act.
Significantly, the Fair Pay Act would also redefine the basic statutory 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, Equal Pay
Act claims based on wage disparities between dissimilar jobs — e.g., a janitor and
a clerk — would be permitted if they are determined to be “equivalent” in some
largely undefined manner. By substituting job equivalency for the “equal work
standard” in the EPA, the Fair Pay Act 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 proposed pay equity bills
concerns employer recordkeeping and the conduct of technical assistance, research,
and educational programs by federal agencies. For example, the Fair Pay Act would
require 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 and wage or salary level. Such reports would be available for
“reasonable” inspection and examination upon request of any person, pursuant to
EEOC regulations, and could be used by the Commission for such “statistical and
research purposes . . . as it may deem appropriate.” The EEOC would also be
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 employees working “in equivalent jobs.”
Likewise, the Paycheck Fairness Act would also mandate record-keeping and
data collection for better enforcement of the law. The measure would direct 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 federal anti-discrimination efforts. The EEOC would be
required to 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.41 In addition, the Secretary
of Labor would be 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.42 Technical assistance and a recognition
program would be rewarded to employers who voluntarily adjust their wage scales
pursuant to such a job evaluation.43 Finally, a “National Award for Pay Equity in the
Workplace” would be established by these bills to recognize employers who
39
H.R. 1697, § 3(a); S 840, § 6(e), 109th Congress, 1st Sess.
40
Id. at § 7.
41
S. 841, H.R. 1687, § 9, 109th Congress, 1st Sess.
42
Id. at § 7(a).
43
Id.
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demonstrate “substantial effort to eliminate pay disparities between men and
women.”44
As noted, another pay equity proposal in a previous Congress was H.R. 157, the
“Equal Pay Improvement Report Act of 2005.” The bill, if reintroduced in the 110th
Congress, would propose no substantive amendments to the EPA or other federal
anti-discrimination laws, as would the Paycheck Fairness and Fair Pay Act bills.
Instead, it would direct 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
employee’s gender, race, color, religion, or national origin, or such other factor
as the Commission finds relevant.
44
Id. at § 8. Finally, a “National Award for Pay Equity in the
Workplace” would be established by these bills to recognize employers who
demonstrate “substantial effort to eliminate pay disparities between men and
crsphpgw
women.”