Order Code RL30902
CRS Report for Congress
Received through the CRS Web
Pay Equity Legislation
In the 107th Congress
Updated May 30, 2001
Charles V. Dale
American Law Division
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
Pay Equity Legislation
In the 107th Congress
The term “pay equity” originates from the fact that women as a group are paid
less than men. In 2000, for example, women with a strong commitment to the work
force earned 76 cents for every dollar earned by men. As women’s earnings as a
percentage of men’s earnings have narrowed by just 12 percentage points over the
past four decades (from about 60% in the 1960s and 1970s to more than 70% in the
1990s), some members of the public policy community have argued that current antidiscrimination 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 more attention during the 106th Congress than
it has in a number of years. The Senate Committee on Health, Education, Labor, and
Pensions held a hearing on gender-based wage discrimination 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 The Paycheck Fairness Act (H.R. 781/S. 77) was introduced
in a similar form in the 107th Congress.
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Laws that Combat Sex-Based Wage Discrimination . . . . . . . . . . . . . . . . . . 4
“Comparable Worth” Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legislation in the 107th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
List of Tables
Table 1. Ratio of Female-to-Male Median Earnings . . . . . . . . . . . . . . . . . . . . . 3
Pay Equity Legislation
In the 107th 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 107th Congress that would amend the Equal Pay Act.
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. Some four decades later, according to U.S. Bureau
of the Census data, the median earnings of women with a strong commitment to the
labor force were $26,324 while those of men were a substantially higher $36,476.
Thus, over the 40-year period, women went from earning 60.7% as much as men to
earning 72.2% as much as men.
29 U.S.C. § 206(d).
42 U.S.C. §§ 2000e et seq.
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 earned $32,546
in 1999, for example, while similarly educated men earned an average of $57,706.
Male high school graduates were paid $30,414 on average, well above the $18,092
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 1999, female 18-24 year olds
were paid 80% as much as male 18-24 year olds; female 25-34 year olds earned 68%
as much as males in the same age group; female 35-44 year olds, 58%; female 45-54
year olds, 54%; and, female 55-64 year olds were paid 52% as much as male 55-64
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 two series moved in different directions, with one showing a
worsening of the pay gap while the other was showing an improvement.
Despite women’s greatly increased commitment to the labor force over the past
few decades,3 the observed or unadjusted wage gap has narrowed by just 12
percentage points. Consequently, women with a strong attachment to the job market
typically earned 76 cents for every dollar earned by men in 2000.
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.
Some researchers have tried to justify 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
The percentage of all women who were in the labor force rose from 38% in 1960 to 60% in
2000. Women today account for almost one-half of those in the labor force compared to 33%
four decades earlier. The heightened commitment to paid employment of married women with
children under age 18 at home is particularly noteworthy.
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 the wage differential. 4
Table 1. Ratio of Female-to-Male Median Earnings
Source: Series on year-round full-time workers are from the U.S. Bureau of the Census. Series on
full-time workers are from the U.S. Bureau of Labor Statistics.
Note: The wage ratio based on annual data (columns 2 and 5) is wider than the wage ratio based on
weekly data (columns 3 and 6) because women generally work fewer weeks and fewer hours per
week than men. In addition, the annual series covers self-employed workers who have larger
earnings differences than the wage and salary workers covered by the weekly series. Regardless of
the data series, the ratio of female-to-male earnings would be lower if all workers were included
because relatively more women than men work part-time or part-year schedules.
Based on based on median annual earnings for all workers age 15 or older who worked 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.
Based on median weekly earnings for wage and salary workers age 16 or older who worked at least
35 hours in a week.
For more information see CRS Report 98-278, The Gender Wage Gap and Pay Equity: Is
Comparable Worth the Next Step?, by Linda Levine. (Hereafter cited as CRS Report 98-278,
The Gender Wage Gap and Pay Equity: Is Comparable Worth the Next Step?)
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
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 often propose that a single job evaluation study of
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
jobs deemed to be underpaid on the basis of the evaluation (i.e., jobs with wages
below other jobs with the same total scores on the attributes included in the
evaluation would be raised).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
Congress has attempted to reduce occupational segregation. Through FY1995, the
Nontraditional Employment for Women Act (P.L. 102-235) 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. 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.
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
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 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
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).
29 U.S.C. § 206(d)(1).
975 F.2d 1518 (11th Cir. 1992).
29 C.F.R. § 1620.27(a).
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.
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 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
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
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.
452 U.S. 161 (1981).
770 F. 2d 1401, 1407 (9th Cir. 1985).
740 F. 2d 686 (9th Cir. 1984).
of Washington who alleged that they were underpaid by comparison to other faculty
Legislation in the 107th Congress
The issue of pay equity attracted more attention during the 106th Congress than
it has in a number of years. The Senate Committee on Health, Education, Labor, and
Pensions held a hearing on gender-based wage discrimination in June 2000.19 The
following month, during floor debate on marriage tax penalty legislation (H.R. 4810),
Senator Harkin offered an amendment for the Democratic Leadership 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
(3847) was based on S. 74 (the Paycheck Fairness Act) in the 106th Congress.20
Another measure, the “Fair Pay Act of 1999" ( H.R. 1271 and S. 702) promised to
resurrect 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 107th Congress as H.R.
781/S. 77, and is also included in Title II of S. 8, the “Enhancing Economic Security
for America’s Working Families Act.” The 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.21 Compensatory damages
are not authorized, and consequently, awards do not include sums for physical or
mental distress, medical expenses, or other costs.22 But new provisions proposed by
these companion House and Senate measures authorize EPA class actions and “such
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).
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).
146 Cong. Rec. S7047 (daily ed. 7-17-2000).
29 U.S.C. §§ 216-17.
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).
compensatory and punitive damages as may be appropriate.”23 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 could not be
accomplished by less discriminatory alternative means.24 The measures propose new
safeguards to protect employees from retaliation for making inquiries or disclosures
concerning employee wages and for filing a charge or participating in any manner in
The “Fair Pay Act of 2001,” proposed by H.R. 1362 and S. 684, would
fundamentally expand the scope of the EPA, which is presently confined to sex-based
wage differentials, by adding racial and ethnic minorities as classes protected from
discrimination by that law. Intentional wage discrimination against these groups is
already prohibited by Title VII. But the two laws 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, 26 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,” was
eliminated 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 companion House and Senate measures, would also redefine
the basic statutory standard of the EPA by requiring employers to pay equal wages
for work “in equivalent jobs.” Unlike the current law, such amendment would permit
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 “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.”27 By substituting job equivalency for the
“equal work standard” in the EPA, the Fair Pay Act could resurrect 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 bills concerns employer
recordkeeping and the conduct of technical assistance, research and educational
programs by federal agencies. The Fair Pay Act of 2001 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
S. 77, H.R. 781, § 3(b).
Id. at §3(a).
Id. at §3(d).
See Fallon v. State of Illinois, 882 F.2d 1206 (7th Cir. 1989).
H.R. 1362, § 3(a); S 684, § 3(a).
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.”28 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.”29
The Paycheck Fairness Act also is concerned with record-keeping and data
collection for better enforcement of the law. The measure directs the Equal
Employment Opportunity Commission (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 also is mandated 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.30
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.31 Technical assistance
and a recognition program would reward employers who voluntarily adjust their wage
scales pursuant to such a job evaluation.32 Finally, a “National Award for Pay Equity
in the Workplace” is to be established by these bills to recognize employers who
demonstrate “substantial effort to eliminate pay disparities between men and
Id at § 6(e).
Id. at § 7.
S. 77, H.R. 781, § 8.
Id. at § 6.