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+
+ - FIGHTING FOR FAIRNESS: EXAMINING LEGISLATION TO CONFRONT WORKPLACE DISCRIMINATION
+
+[House Hearing, 117 Congress]
+[From the U.S. Government Publishing Office]
+
+
+ FIGHTING FOR FAIRNESS: EXAMINING
+ LEGISLATION TO CONFRONT
+ WORKPLACE DISCRIMINATION
+
+=======================================================================
+
+ JOINT HEARING
+
+ BEFORE THE
+
+ SUBCOMMITTEE ON
+ CIVIL RIGHTS AND
+ HUMAN SERVICES
+
+ AND THE
+
+ SUBCOMMITTEE ON
+ WORKFORCE PROTECTIONS
+
+ OF THE
+
+ COMMITTEE ON EDUCATION AND LABOR
+ U.S. HOUSE OF REPRESENTATIVES
+
+ ONE HUNDRED SEVENTEENTH CONGRESS
+
+ FIRST SESSION
+
+ __________
+
+ HEARING HELD IN WASHINGTON, DC, MARCH 18, 2021
+
+ __________
+
+ Serial No. 117-3
+
+ __________
+
+ Printed for the use of the Committee on Education and Labor
+
+[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
+
+ Available via: edlabor.house.gov or www.govinfo.gov
+
+ __________
+
+ U.S. GOVERNMENT PUBLISHING OFFICE
+43-871 PDF WASHINGTON : 2022
+
+-----------------------------------------------------------------------------------
+
+
+ COMMITTEE ON EDUCATION AND LABOR
+
+ ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
+
+RAUL M. GRIJALVA, Arizona VIRGINIA FOXX, North Carolina,
+JOE COURTNEY, Connecticut Ranking Member
+GREGORIO KILILI CAMACHO SABLAN, JOE WILSON, South Carolina
+ Northern Mariana Islands GLENN THOMPSON, Pennsylvania
+FREDERICA S. WILSON, Florida TIM WALBERG, Michigan
+SUZANNE BONAMICI, Oregon GLENN GROTHMAN, Wisconsin
+MARK TAKANO, California ELISE M. STEFANIK, New York
+ALMA S. ADAMS, North Carolina RICK W. ALLEN, Georgia
+MARK De SAULNIER, California JIM BANKS, Indiana
+DONALD NORCROSS, New Jersey JAMES COMER, Kentucky
+PRAMILA JAYAPAL, Washington RUSS FULCHER, Idaho
+JOSEPH D. MORELLE, New York FRED KELLER, Pennsylvania
+SUSAN WILD, Pennsylvania GREGORY F. MURPHY, North Carolina
+LUCY Mc BATH, Georgia MARIANNETTE MILLER-MEEKS, Iowa
+JAHANA HAYES, Connecticut BURGESS OWENS, Utah
+ANDY LEVIN, Michigan BOB GOOD, Virginia
+ILHAN OMAR, Minnesota LISA C. Mc CLAIN, Michigan
+HALEY M. STEVENS, Michigan DIANA HARSHBARGER, Tennessee
+TERESA LEGER FERNANDEZ, New Mexico MARY E. MILLER, Illinois
+MONDAIRE JONES, New York VICTORIA SPARTZ, Indiana
+KATHY E. MANNING, North Carolina SCOTT FITZGERALD, Wisconsin
+FRANK J. MRVAN, Indiana MADISON CAWTHORN, North Carolina
+JAMAAL BOWMAN, New York, Vice-Chair MICHELLE STEEL, California
+MARK POCAN, Wisconsin Vacancy
+JOAQUIN CASTRO, Texas Vacancy
+MIKIE SHERRILL, New Jersey
+JOHN A. YARMUTH, Kentucky
+ADRIANO ESPAILLAT, New York
+KWEISI MFUME, Maryland
+
+ Veronique Pluviose, Staff Director
+ Cyrus Artz, Minority Staff Director
+ ------
+ SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES
+
+ SUZANNE BONAMICI, Oregon, Chairwoman
+
+ALMA S. ADAMS, North Carolina RUSS FULCHER, Idaho, Ranking
+JAHANA HAYES, Connecticut Member
+TERESA LEGER FERNANDEZ, New Mexico GLENN THOMPSON, Pennsylvania
+FRANK J. MRVAN, Indiana LISA C. Mc CLAIN, Michigan
+JAMAAL BOWMAN, New York VICTORIA SPARTZ, Indiana
+KWEISI MFUME, Maryland SCOTT FITZGERALD, Wisconsin
+ROBERT C. ``BOBBY'' SCOTT, Virginia VIRGINIA FOXX, North Carolina (ex
+ (ex officio) officio)
+
+ SUBCOMMITTEE ON WORKFORCE PROTECTIONS
+
+ ALMA S. ADAMS, North Carolina, Chairwoman
+
+MARK TAKANO, California FRED KELLER, Pennsylvania,
+DONALD NORCROSS,New Jersey Ranking Member
+PRAMILA JAYAPAL, Washington ELISE M. STEFANIK, New York
+ILHAN OMAR, Minnesota MARIANNETTE MILLER-MEEKS, Iowa
+HALEY M. STEVENS, Michigan BURGESS OWENS, Utah
+MONDAIRE JONES, New York BOB GOOD, Virginia
+JOHN A. YARMUTH, Kentucky MADISON CAWTHORN, North Carolina
+ROBERT C. ``BOBBY'' SCOTT, Virginia MICHELLE STEEL, California
+ VIRGINIA FOXX, North Carolina (ex
+ officio)
+
+
+ C O N T E N T S
+
+ ----------
+ Page
+
+Hearing held on March 18, 2021................................... 1
+
+Statement of Members:
+ Bonamici, Hon. Suzanne, Chairwoman, Subcommittee on Civil
+ Rights
+ and Human Services......................................... 1
+ Prepared statement of.................................... 5
+ Adams, Hon. Alma S., Chairwoman, Subcommittee on Workforce
+ Protections................................................ 6
+ Prepared statement of.................................... 7
+ Fulcher, Hon. Russ, Ranking Member, Subcommittee on Civil
+ Rights
+ and Human Services......................................... 8
+ Prepared statement of.................................... 9
+ Keller, Hon. Fred, Ranking Member, Subcommittee on Workforce
+ Protections................................................ 10
+ Prepared statement of.................................... 11
+
+Statement of Witnesses:
+ Bakst, Dina, Co-Founder and Co-President of A Better Balance. 24
+ Prepared statement of.................................... 26
+ Goss Graves, Fatima, President and CEO of the National
+ Women's Law Center......................................... 92
+ Prepared statement of.................................... 95
+ McCann, Laurie, Senior Attorney with AARP Foundation......... 12
+ Prepared statement of.................................... 14
+ Olson, Camille, Esq., Partner, Seyfarth Shaw LLP............. 52
+ Prepared statement of.................................... 54
+
+Additional Submissions:
+ Chairwoman Bonamici:
+ Letter in support of the PWFA from Leading Private-Sector
+
+ Employers dated March 15, 2021......................... 151
+ Letter in support of the PWFA dated March 15, 2021....... 153
+ Letter from Working IDEAL................................ 160
+ Chairwoman Adams:
+ Letter from The Center for WorkLife Law.................. 168
+ Letter from the NETWORK Lobby for Catholic Social Justice 174
+ Letter in support of the PUMP for Working Mothers Act
+ dated
+ March 18, 2021......................................... 176
+ Letter in support of the PFA dated February 3, 2021...... 179
+ Prepared statement of Nikia Sankofa, Executive Director
+ of the
+ U.S. Breastfeeding Committee........................... 184
+ Bowman, Hon. Jamaal, a Representative in Congress from the
+ State of New York:
+ Letter from the Consortium for Citizens with Disablities. 191
+ Foxx, Hon. Virginia, a Representative in Congress from the
+ State of North Carolina:
+ Letter from Littler Workplace Policy Institute........... 193
+ Hayes, Hon. Jahana, a Representative in Congress from the
+ State of Connecticut:
+ Letter from the Equal Rights Advocates................... 197
+ Jones, Hon. Mondaire, a Representative in Congress from the
+ State of New York:
+ Letter from the American Association of University Women. 200
+ Leger Fernandez, Hon. Teresa, a Representative in Congress
+ from the State of New Mexico:
+ Letter from the National Partnership for Women & Families 202
+ Prepared statement from Physicians for Reproductive
+ Health................................................. 207
+ Stevens, Hon. Haley M., a Representative in Congress from the
+ State of Michigan:
+ Letter from the NETWORK Lobby for Catholic Social Justice 209
+ Questions submitted for the record by:
+ Chairwoman Adams......................................... 215
+ Omar, Hon. Ilhan, a Representative in Congress from the
+ State of
+ Minnesota
+
+
+
+ Scott, Hon. Robert C. "Bobby", a Representative in
+ Congress from the State of Virginia.................... 215
+ Spartz, Hon. Victoria, a Representative in Congress from
+ the State of Indiana................................... 245
+ Responses to questions submitted for the record by:
+ Ms. Bakst................................................ 212
+ Ms. Goss Graves.......................................... 214
+ Ms. Olson................................................ 245
+
+
+ FIGHTING FOR FAIRNESS: EXAMINING
+ LEGISLATION TO CONFRONT
+ WORKPLACE DISCRIMINATION
+
+ ----------
+
+
+ Thursday, March 18, 2021
+
+ House of Representatives,
+ Subcommittee on Civil Rights and Human Services,
+ Subcommittee on Workforce Protections,
+ Committee on Education and Labor,
+ Washington, DC.
+ The subcommittees met, pursuant to notice, at 10:15 a.m.
+via Zoom, Hon. Suzanne Bonamici (Chairwoman of the Subcommittee
+on Civil Rights and Human Services) presiding.
+ Present: Representatives Bonamici, Adams, Scott, Norcross,
+Hayes, Stevens, Leger Fernandez, Jones, Mrvan, Bowman, Yarmuth,
+Mfume, Fulcher, Keller, Thompson, Stefanik, Miller-Meeks, Good,
+McClain, Fitzgerald, Cawthorn, and Foxx.
+ Staff present: Tylease Alli, Chief Clerk; Phoebe Ball,
+Disability Counsel; Ilana Brunner, General Counsel; David
+Dailey, Counsel to the Chairman; Ijeoma Egekeze, Professional
+Staff; Alison Hard, Professional Staff; Sheila Havenner,
+Director of Information Technology; Eli Hovland, Policy
+Associate; Carrie Hughes, Director of Health and Human
+Services; Eunice Ikene, Labor Policy Advisor; Ariel Jona,
+Policy Associate; Andre Lindsay, Policy Associate; Richard
+Miller, Director of Labor Policy; Max Moore, Staff Assistant;
+Mariah Mowbray, Clerk/Special Assistant to the Staff Director;
+Udochi Onwubiko, Labor Policy Counsel; Kayla Pennebecker, Staff
+Assistant; Veronique Pluviose, Staff Director; Carolyn Ronis,
+Civil Rights Counsel; Theresa Thompson, Professional Staff;
+Banyon Vassar, Deputy Director of Information Technology; Cyrus
+Artz, Minority Staff Director; Courtney Butcher, Minority
+Director of Member Services and Coalitions; Rob Green, Minority
+Director of Workforce Policy; Georgie Littlefair, Minority
+Legislative Assistant; John Martin, Minority Workforce Policy
+Counsel; Hannah Matesic, Minority Director of Operations;
+Carlton Norwood, Minority Press Secretary; and John
+Witherspoon, Minority Professional Staff Member.
+ Chairwoman Bonamici. The Joint Hearing of the Subcommittee
+on Civil Rights and Human Services and the Subcommittee on
+Workforce Protections will come to order. Welcome everyone. I
+note that a quorum is present. The subcommittees are meeting
+today to hear testimony on Fighting for Fairness, Examining
+Legislation to Confront Workplace Discrimination.
+ This is an entirely remote hearing. All microphones will be
+kept muted as a general rule to avoid unnecessary background
+noise. Members and witnesses will be responsible for unmuting
+themselves when they are recognized to speak, or when they wish
+to seek recognition.
+ I also ask that Members please identify themselves before
+the speak. Members should keep their cameras on while in the
+proceeding. Members shall be considered present in the
+proceeding when they are visible on camera, and they shall be
+considered not present when they are not visible on camera. The
+only exception to this is if they are experiencing technical
+difficulty, and inform the committee staff of such difficulty.
+ If any Member experiences technical difficulties during the
+hearing you should stay connected on the platform, make sure
+you are muted, and use your phone to immediately call the
+committee's IT Director whose number was provided in advance.
+Should the Chair experience technical difficulty, or need to
+step away to vote on the floor, Dr. Adams is Chair of the
+Subcommittee on Workforce Protections, or another majority
+Member of one of the subcommittees if she's not available is
+hereby authorized to assume the gavel in the Chair's absence.
+ This is again, an entirely remote meeting. And as such the
+committee's hearing room is officially closed. Members who
+choose to sit with their individual devices in the hearing room
+must wear headphones to avoid feedback, echoes and distortion
+resulting from more than one person on the software platform
+sitting in the same room.
+ Members are also expected to adhere to social distancing,
+and safe healthcare guidelines including the use of masks, hand
+sanitizer and wiping down their areas, before and after their
+presence in the hearing room. In order to ensure that the
+committee's five-minute rule is adhered to, staff will be
+keeping track of time using the committee's field timer.
+ The field timer will appear in its own thumbnail picture
+and will be named 001_timer. There will not be a one-minute
+remaining warning. The field timer will sound its audio alarm
+when time is up. Members and witnesses are asked to wrap up
+promptly when their time has expired.
+ A roll call is not necessary to establish a quorum in
+official proceedings conducted remotely or with remote
+participation, but the committee has made it a practice
+whenever there is an official proceeding with remote
+participation for the clerk to call the roll to help make clear
+who is present at the start of the proceeding.
+ Members should say their name before announcing they are
+present. This helps the Clerk, and also helps those watching
+the platform and the livestream who may experience a few
+seconds delay.
+ At this time, I ask the Clerk to call the roll.
+ The Clerk. Chairwoman Bonamici?
+ Chairwoman Bonamici. Present.
+ The Clerk. Chairwoman Adams?
+ Chairwoman Adams. Present.
+ The Clerk. Mr. Scott?
+ Mr. Scott. Present.
+ The Clerk. Mr. Takano?
+ [No response.]
+ The Clerk. Mr. Norcross?
+ [No response.]
+ The Clerk. Ms. Jayapal?
+ [No response.]
+ The Clerk. Mrs. Hayes?
+ Mrs. Hayes. Present.
+ The Clerk. Ms. Omar?
+ [No response.]
+ The Clerk. Ms. Stevens?
+ [No response.]
+ The Clerk. Ms. Leger Fernandez?
+ [No response.]
+ The Clerk. Mr. Jones?
+ Mr. Jones. Present.
+ The Clerk. Mr. Mrvan?
+ Mr. Mrvan. Present.
+ The Clerk. Mr. Bowman?
+ Mr. Bowman. Present.
+ The Clerk. Mr. Yarmuth?
+ Mr. Yarmuth. Present.
+ The Clerk. Mr. Mfume?
+ [No response.]
+ The Clerk. Ranking Member Fulcher?
+ Mr. Fulcher. Fulcher here.
+ The Clerk. Ranking Member Keller?
+ Mr. Keller. Keller is here.
+ The Clerk. Mr. Thompson?
+ Mr. Thompson. Mr. Thompson is here.
+ The Clerk. Ms. Stefanik?
+ Ms. Stefanik. Present.
+ The Clerk. Mrs. Miller-Meeks?
+ [No response.]
+ The Clerk. Mr. Owens?
+ [No response.]
+ The Clerk. Mr. Good?
+ Mr. Good. Good is here.
+ The Clerk. Mrs. McClain?
+ [No response.]
+ The Clerk. Mrs. Spartz?
+ [No response.]
+ The Clerk. Mr. Fitzgerald?
+ Mr. Fitzgerald. I'm here.
+ The Clerk. Mr. Cawthorn?
+ Mr. Cawthorn. I am present thank you.
+ The Clerk. Mrs. Steel?
+ [No response.]
+ The Clerk. Chairwoman Bonamici that concludes the roll
+call.
+ Chairwoman Bonamici. Thank you very much.
+ Mr. Norcross. Don Norcross is here Madam Chairwoman.
+ Chairwoman Bonamici. Did somebody seek to be recognized?
+ Mr. Norcross. Donald Norcross. I am present.
+ Chairwoman Bonamici. Thank you, Mr. Norcross. Pursuant to
+Committee Rule 8(c), opening statements are limited to the
+subcommittee Chairs and Ranking Members. This allows us to hear
+from our witnesses sooner and provides all Members with
+adequate time to ask questions.
+ I recognize myself now for the purpose of making an opening
+Statement.
+ Every worker should be able to earn a living free from
+discrimination. But unfortunately, many women, people of color,
+older workers, workers with disabilities, and LGBTQ workers
+still experience persisted discrimination in the workplace,
+including pay disparities, limited opportunities, and
+harassment.
+ Today's hearing will examine four legislative solutions to
+protect workers from various forms of workplace discrimination.
+The Pregnant Workers Fairness Act, the Protecting Older Workers
+Against Discrimination Act, the Paycheck Fairness Act, and the
+Providing Urgent Maternal Protections for Nursing Mothers Act.
+ Women are on the front lines of the Coronavirus pandemic as
+essential workers, risking their lives every day to provide for
+our communities. At the same time, women are being forced out
+of the labor market.
+ In September 2020, four times more women left the labor
+force than men. The experiences of women of color are even
+harsher. As a mom and a policymaker, I know how important it is
+to protect the economic security of pregnant workers and
+working families.
+ It is unacceptable that in 2021 pregnant workers can still
+be forced to choose between a healthy pregnancy, or a paycheck.
+One simple accommodation, such as providing seating, water, and
+bathroom breaks, would allow them to stay safe on the job
+during their pregnancy.
+ The Pregnant Workers Fairness Act clearly establishes
+nationwide a pregnant worker's right to reasonable
+accommodations and guarantees that pregnant workers can seek
+those accommodations without facing discrimination or
+retaliation in the workplace.
+ It is a long overdue fix to the inadequate patchwork of
+protections under existing law. This bipartisan bill passed the
+House with overwhelming support in the 116th Congress, and I
+welcome the opportunity to work with my Republican colleagues
+to move this bill forward in a bipartisan manner again this
+year.
+ Pregnant workers are not the only workers facing
+discrimination on the job. Older workers are also vulnerable to
+workplace discrimination and have become increasingly
+vulnerable to discrimination during the COVID-19 pandemic.
+ Congress recognized the need to protect older workers from
+discrimination when in 1967 it enacted the Age Discrimination
+and Employment Act. But the Supreme Court severely eroded those
+protections in 2009 through its 5-4 decision in Gross v. FBL
+Financial Services.
+ In that case the court imposed a higher burden of proof
+than courts have previously required for age discrimination
+cases, and because of the court's opinion in Gross, workers
+must now prove that age discrimination was the sole motivating
+cause for their employer's adverse action, rather than just a
+motivating factor in their employer's adverse action.
+ The Protecting Older Workers Against Discrimination Act is
+a bipartisan legislative fix that would restore the pre-2009
+standard in age discrimination claims, thereby aligning the
+burden of proof with the same standards for proving
+discrimination based on sex, race, religion, and national
+origin.
+ Congress passed this bill with bipartisan support last
+Congress, and just this morning I joined Chairman Scott and
+Congressman Davis in reintroducing it.
+ Finally, I'd like to voice my strong support for the two
+other bipartisan bills under discussion today. The Paycheck
+Fairness Act, which this subcommittee and the Workforce
+Protection Subcommittee, also enthusiastically advanced last
+Congress, and the PUMP Act, which I know Chairwoman Adams will
+cover in detail.
+ The four bills we are discussing today take important steps
+toward workplace gender equity, healthy pregnancies, and
+improving the economic security of all workers. I thank the
+witnesses for their time today and I yield to the Ranking
+Member Mr. Fulcher for his opening Statement.
+ [The statement of Chairwoman Bonamici follows:]
+
+ Statement of Hon. Suzanne Bonamici, Chairwoman, Subcommittee on Civil
+ Rights and Human Services
+
+ Every worker should be able to earn a living free from
+discrimination, but unfortunately, many women, people of color, older
+workers, workers with disabilities, and LGBTQ workers still experience
+persistent discrimination in the workplace including, pay disparities,
+limited opportunities, and harassment. Today's hearing will examine
+four legislative solutions to protect workers from various forms of
+workplace discrimination, including: the Pregnant Workers Fairness Act,
+the Protecting Older Workers Against Discrimination Act, the Paycheck
+Fairness Act, and the Providing Urgent Maternal Protections for Nursing
+Mothers Act.
+ Women are on the frontlines of the coronavirus pandemic as
+essential workers, risking their lives every day to provide for our
+communities. At the same time, women are being forced out of the labor
+market. In September 2020, four times more women left the labor force
+than men. The experiences of women of color are even harsher.
+ As a mom and a policymaker, I know how important it is to protect
+the economic security of pregnant workers and working families. It is
+unacceptable that in 2021, pregnant workers can still be forced to
+choose a healthy pregnancy or a paycheck when simple accommodations--
+such as providing seating, water, and bathroom breaks--would allow them
+stay safe on the job during their pregnancy.
+ The Pregnant Workers Fairness Act clearly establishes nationwide a
+pregnant worker's right to reasonable accommodations and guarantees
+that pregnant workers can seek those accommodations without facing
+discrimination or retaliation in the workplace. It is a long overdue
+fix to the inadequate patchwork of protections under existing law. This
+bipartisan bill passed the House with overwhelming support in the 116th
+Congress, and I welcome the opportunity to work with my Republican
+colleagues to move this bill forward in a bipartisan manner again this
+year.
+ Pregnant workers are not the only workers facing discrimination on
+the job. Older workers are also vulnerable to workplace discrimination
+and have become increasingly vulnerable to discrimination during the
+COVID-19 pandemic.
+ Congress recognized the need to protect older workers from
+discrimination when in 1967 it enacted the Age Discrimination in
+Employment Act. The Supreme Court severely eroded those protections in
+2009, however, through its 5-4 decision in Gross v. FBL Financial
+Services, Inc. In that case the court imposed a higher burden of proof
+than courts had previously required for age discrimination cases.
+Because of the Court's opinion in Gross, workers must now prove that
+age discrimination was the sole motivating cause for their employer's
+adverse action, rather than just a motivating factor in their
+employer's adverse action.
+ The Protecting Older Workers Against Discrimination Act is a
+bipartisan legislative fix that would restore the pre-2009 standard in
+age discrimination claims, thereby aligning the burden of proof with
+the same standards for proving discrimination based on sex, race,
+religion, and national origin. Congress passed this bill with
+bipartisan support last Congress, and just this morning I joined
+Chairman Scott and Congressman Davis in reintroducing it.
+ Finally, I would like to voice my strong support for the two other
+bipartisan bills under discussion today: the Paycheck Fairness Act,
+which this Subcommittee and the Workforce Protections Subcommittee also
+enthusiastically advanced last Congress. And the PUMP Act, which I know
+Chairwoman Adams will cover in detail. The four bills we are discussing
+today take important steps toward workplace gender equity, healthy
+pregnancies, and improving the economic security of all workers.
+ I want to thank all the witnesses for their time today, and I yield
+to the Ranking Member, Mr. Fulcher for his opening Statement.
+ ______
+
+ Mr. Fulcher your sound is not clear, so we'll give you just
+a moment to see if we can hear you clearly. Mr. Fulcher would
+you like to try again? OK I recognize Mr. Fulcher. You have
+five minutes for your opening Statement. Mr. Fulcher it's still
+not clear. In the interest of time I'm going to go to
+Chairwoman Adams and then come right back to you and that will
+give you five minutes to work on your sound.
+ I recognize Chairwoman Adams for five minutes for your
+opening Statement.
+ Chairwoman Adams. Thank you, Madam Chair. In addition to
+the Pregnant Worker's Fairness Act, and Protecting Older
+Workers Against Discrimination Act, today's hearing will also
+examine the Paycheck Fairness Act, and the PUMP for Nursing
+Mothers Act, both of which are partially, or fully under the
+jurisdiction of the Subcommittee on Workforce Protections.
+ These bills address issues of basic fairness for women in
+the workplace. Today women earn on an average 82 cents on the
+dollar compared to white men. The wage gap is even worse for
+women of color. For example, black women earn an average of 63
+cents on the dollar, Native women earn average of 60 cents on
+the dollar, and Latino women earn an average of 55 cents on the
+dollar compared to white men.
+ The wage gap persists in nearly every line of work,
+regardless of education, experience, occupation, industry, or
+job title, and that's unacceptable. From the North Carolina
+House to the U.S. House for three decades, I've been fighting
+to close the gender wage gap.
+ Fifty-eight years have passed since the Equal Pay Act was
+enacted, and it's been 10 years since President Obama signed
+into law the Lilly Ledbetter Fair Pay Act, yet the promise of
+equal pay for equal work remains unfulfilled, or unfilled--
+unfulfilled excuse me.
+ The Paycheck Fairness Act is an opportunity for Congress to
+strengthen the Equal Pay Act, bolster the rights of working
+women, and put an end to the gender-based wage disparity once
+and for all. The Paycheck Fairness Act would require employers
+to prove that a pay disparity exists for legitimate reasons,
+ban retaliation against workers who discuss their wages, allow
+more workers to participate in class action lawsuits against
+systemic pay discrimination, prohibit employers from seeking
+the salary history of perspective employees, and develop a wage
+data collection system.
+ And provide a system to businesses to improve equal pay
+practices. The House passed this legislation with support of
+seven House Republicans in the 116th Congress, and we look
+forward to passing it again this year.
+ Nursing workers are in need of protections in the
+workplace, to be able to maintain breast feeding when they
+return to work. More than 10 years ago the Break Time for
+Nursing Mothers Act was enacted, requiring employers to provide
+eligible nursing workers with unpaid break time, and a clean
+private space to pump.
+ Unfortunately, gaps in the law limit the number of workers
+entitled to these protections, and our workers can hold their
+employers accountable when they violate these requirements. The
+PUMP for Nursing Mothers Act is a bipartisan bill that closes
+gaps that excluded nearly nine million employees who are
+exempted from overtime protections.
+ The bill also ensures nursing workers have access to
+appropriate remedies when their employees fail to provide break
+time and appropriate pumping space. It also clarifies that if
+an employee is not completely relieved of duty during a break,
+that time is considered hours worked for the purposes of
+minimum wage and overtime requirements.
+ Every worker who chooses to nurse understands the
+importance of being able to express breast milk, and the severe
+health consequences of failing to do so. This legislation is a
+simple improvement to existing law that will have a meaningful
+impact on nursing workers across the country.
+ I strongly support all four bills under discussion today,
+and I will now yield back to you Madam Chair.
+ [The statement of Chairwoman Adams follows:]
+
+Statement of Hon. Alma S. Adams, Chairwoman, Subcommittee on Workforce
+ Protections
+
+ In addition to the Pregnant Workers Fairness Act and the Protecting
+Older Workers Against Discrimination Act, today's hearing will also
+examine the Paycheck Fairness Act and the PUMP for Nursing Mothers Act,
+both of which are partially or fully under the jurisdiction of the
+subcommittee on Workforce Protections.
+ These bills address issues of basic fairness for women in the
+workplace.
+ Today, women earn, on average, 82 cents on the dollar compared to
+all men. The wage gap is even worse for women of color. For example,
+Black women earn an average of 63 cents on the dollar, Native women
+earn an average of 60 cents on the dollar, and Latina women earn an
+average of 55 cents on the dollar compared to white men. The wage gap
+persists in nearly every line of work, regardless of education,
+experience, occupation, industry, or job title.
+ That is unacceptable. From the North Carolina House to the U.S.
+House, for three decades, I have been fighting to close the gender wage
+gap.
+ Fifty-eight years have passed since the Equal Pay Act was enacted,
+and it's been ten years since President Obama signed into law the Lilly
+Ledbetter Fair Pay Act, yet the promise of equal pay for equal work
+remains unfulfilled.
+ The Paycheck Fairness Act is an opportunity for Congress to
+strengthen the Equal Pay Act, bolster the rights of working women, and
+put an end to the gender-based wage disparity once and for all.
+ The Paycheck Fairness Act would:
+
+ Require employers to prove that a pay disparity exists for
+ legitimate reasons;
+
+ Ban retaliation against workers who discuss their wages;
+
+ Allow more workers to participate in class action lawsuits
+ against systemic pay discrimination;
+
+ Prohibit employers from relying on the salary history of
+ prospective employees; and
+
+ Develop wage data collection systems and provide assistance
+ to businesses to improve equal pay practices.
+
+ The House passed this legislation with support of 7 House
+Republicans in the 116th Congress, and we look forward to passing it
+again his year.
+ Nursing workers also need protections in the workplace to be able
+to maintain breastfeeding when they return to work.
+ More than ten years ago, the Break Time for Nursing Mothers Act was
+enacted, requiring employers to provide eligible nursing workers with
+unpaid break time and a clean, private space to pump. Unfortunately,
+gaps in the law limit the number of workers entitled to these
+protections and how workers can hold their employers accountable when
+they violate these requirements.
+ The PUMP for Nursing Mothers Act is a bipartisan bill that closes
+gaps that excluded nearly 9 million employees who are exempted from
+overtime protections. The bill also ensures nursing workers have access
+to appropriate remedies when their employers fail to provide break time
+and appropriate pumping space. It also clarifies that, if an employee
+is not completely relieved of duty during a break, that time is
+considered hours worked for the purposes of minimum wage and overtime
+requirements.
+ Every worker who chooses to nurse understands the importance of
+being able to express breast milk and the severe health consequences of
+failing to do so. This legislation is a simple improvement to existing
+law that will have a meaningful impact on nursing workers across the
+country.
+ I strongly support all four bills under discussion today and I will
+now yield to the Ranking Member, Mr. Keller.
+ ______
+
+ Chairwoman Bonamici. Thank you, Chair Adams, and I now
+recognize Ranking Member Fulcher for five minutes for your
+opening Statement.
+ Mr. Fulcher. Thank you, Madam Chair. I think I understand
+now how some of our remote students feel with their struggles
+in learning remotely. Thank you to all of our witnesses for
+joining us here today. Thank you again Madam Chair.
+ We all agree that discrimination in America's workplace is
+wrong and should not be tolerated. That's why there are laws
+prohibiting such egregious behavior. And while the reported
+intent behind this legislation is admiral, good intentions
+don't always bring good policy.
+ Good policy comes from thorough examination and bipartisan
+collaboration. This hearing is far from thorough as we are
+considering all at once four separate and distinct bills that
+make significant changes to very important laws.
+ It's also not bipartisan. If my colleagues across the aisle
+were truly interested in bipartisan collaboration on these
+bills, they would have allowed more than one Republican witness
+to testify. This will not result in a fair or adequate
+examination of the underlying issues, and it certainly misses
+the mark regarding today's hearing title ``Fighting for
+Fairness.''
+ Although today's hearing will cover a number of bills, I'll
+comment on one bill that is particularly troubling. The so-
+called Protecting Older Workers from Discrimination Act is just
+another empty promise wrapped in a convenient title. There's no
+evidence of data that suggests this bill is needed.
+ It's already against the law to discriminate in the
+workplace because of an individual's age. Congress has enacted
+significant laws prohibiting the employment discrimination,
+including the Age Discrimination Employment Act, the Americas
+with Disabilities Act, and Rehabilitation Act, and the Civil
+Rights Act.
+ Additionally, employment trends for older workers are
+positive in recent decades. In 2019 older workers earn 7
+percent more than the median income for all workers compared to
+20 years ago when older workers earned 23 percent less than the
+median for all workers.
+ In Idaho today, workers 45 to 64 are earning 19.6 percent
+more than all workers in the State. This trend is expected to
+continue as we recover economically from COVID-19. The only
+parties likely to win if the bill is enacted into law are the
+trial lawyers. The bill will increase frivolous legal claims
+against business owners, thereby taking away valuable resources
+from efforts to prevent harassment and discrimination.
+ The bill disregards current law. Real world workplace
+solutions, and Supreme Court precedent ultimately rewarding
+trial lawyers at the expense of older Americans. I thank the
+witnesses for being here today. I hope as Members of this
+Committee we'll be able to work together in the future on real
+solutions to real problems. Madam Chair I yield back.
+ [The statement of Ranking Member Fulcher follows:]
+
+ Statement of Hon. Russ Fulcher, Ranking Member, Subcommittee on Civil
+ Rights and Human Services
+
+ Republicans and Democrats agree that discrimination in any form is
+wrong. It should not be tolerated in America's workplaces. That's why
+there are laws prohibiting such egregious behavior. And while the
+purported intent behind the legislation before us is admirable, good
+intentions don't always bring good policy.
+ Good policy comes from thorough examination and bipartisan
+collaboration. This hearing is far from thorough, as we are considering
+all at once, four separate and distinct bills that make significant
+changes to very important laws.
+ It's also not bipartisan. If Democrats were truly interested in
+bipartisan collaboration on these bills, they would have allowed more
+than ONE Republican witness to testify. This will not result in a fair
+or adequate examination of the underlying issues and certainly misses
+the mark regarding today's hearing title `fighting for fairness.'
+ Although today's hearing will cover a number of bills, I'll comment
+on one bill that is particularly troubling. The so-called Protecting
+Older Workers Against Discrimination Act is just another empty promise
+from Democrats wrapped in a convenient title.
+ There is no evidence or data that suggests this bill is needed. It
+is already against the law to discriminate in the workplace because of
+an individual's age. Congress has enacted significant laws prohibiting
+employment discrimination, including the Age Discrimination in
+Employment Act, the Americans with Disabilities Act, the Rehabilitation
+Act, and the Civil Rights Act.
+ Additionally, employment trends for older workers are positive in
+recent decades. In 2018, older workers earned 7 percent more than the
+median income for all workers, compared to 20 years ago when older
+workers earned 23 percent less than the median for all workers. In
+Idaho today, workers 45 to 64 years old are earning 19.6 percent more
+than all workers in the State. This trend is expected to continue as we
+recover economically from COVID-19.
+ The only parties who will `win,' in nearly all cases if the bill is
+enacted into law, are trial lawyers. The bill will also increase
+frivolous legal claims against business owners. These undeserving
+claims will take valuable resources away from efforts to prevent
+harassment and discrimination.
+ This bill being pushed by Democrats disregards current law, real-
+world workplace situations, and Supreme Court precedent; ultimately
+rewarding trial lawyers at the expense of older Americans.
+ I thank the witnesses for being here today. I hope as Members of
+this Committee, we will be able to work together in the future on real
+solutions to real problems instead of gifting trial lawyers a payout
+under the guise of `protecting' older workers. I yield back.
+ ______
+
+ Chairwoman Adams. Thank you very much Ranking Member
+Fulcher and I now recognize the Ranking Member of the
+Subcommittee on Workforce Protections, Mr. Keller, for the
+purposes of making an opening Statement.
+ Mr. Keller. Thank you to both of our Chairwomen, Ranking
+Member Fulcher and to all our witnesses for joining us today.
+I'd first like to associate myself with the remarks made by
+Ranking Member Fulcher about the structure of the hearing
+unfolding here today.
+ Only allowing the minority to invite one witness for a
+legislative hearing covering four different bills, is far from
+unifying, and will not result in a thorough bipartisan
+examination of the important topics before us. I'd like to
+comment specifically on one of the bills being discussed today,
+H.R. 7. Equal work deserves equal pay, regardless of the sex of
+the employee.
+ In America this is the law. Paying women less than men for
+equal work is wrong and illegal. If employers are doing so,
+they are wrong, and they are breaking the law. No one here
+disagrees with that fact. That's why Congress enacted the Equal
+Pay Act of 1963, which made it illegal to pay different wages
+to women for equal work.
+ The following year Congress enacted even broader,
+nondiscrimination laws making it illegal for employers to
+discriminate because of race, color, national origin, religion
+and sex, in Title VII of the Civil Rights Act. These landmark
+laws are important affirmation of who we are and what we
+believe as a country, that workplace discrimination is
+repugnant and illegal, and quite frankly, discrimination of any
+kind in our country is unacceptable.
+ H.R. 7, the so-called Paycheck Fairness Act is a false
+promise that creates opportunities and advantages for trial
+lawyers, not for working women. Instead of treating sex
+discrimination charges with the seriousness they deserve, the
+Paycheck Fairness Act is designed to make it easier for trial
+lawyers to bring more suits of questionable validity for the
+purpose of siphoning off unlimited pay days from settlements
+and jury awards, lining their own pockets and dragging women
+through tedious, never-ending legal turmoil.
+ The Paycheck Fairness Act offers no new or meaningful
+protections against pay discrimination, rather it dramatically
+limits the ability of employers to defend themselves against
+claims of discrimination based on pay disparities that result
+from legitimate factors.
+ Just 2 months ago the women's labor force participation
+rate hit a 33 year low, the lowest it's been since 1988. At a
+time when women are leaving the work force in droves, largely
+due to COVID-19, and lengthy school closures, the last thing we
+should be doing is dragging working women through never-ending
+legal turmoil while making it easier for trial lawyers to score
+unlimited pay days.
+ All employees should be valued for their recognizable
+contributions to the American work force and economy. Instead
+of working on redundant laws to line the trial lawyer's
+pockets, this committee should be focused on policies that
+foster individual freedom, innovation, and progressive economic
+policies so all workers and jobseekers have opportunities to
+achieve life-long success. Thank you and I yield back.
+ [The statement of Ranking Member Keller follows:]
+
+ Statement of Hon. Fred Keller, Ranking Member, Subcommittee on
+ Workforce Protections
+
+ Thank you, to both of our Chairwomen, Ranking Member Fulcher, and
+to all our witnesses for joining us today.
+ I'd first like to associate myself with the remarks made by Ranking
+Member Fulcher about the structure of the hearing unfolding here today.
+Only allowing the minority to invite one witness for a `legislative'
+hearing covering four different bills is far from `unifying' and will
+not result in a thorough, bipartisan examination of the important
+topics before us.
+ I'd like to comment specifically on one of the bills being
+discussed today, H.R. 7. Equal work deserves equal pay, regardless of
+the sex of the employee. In America, this is the law. Paying women less
+than men for equal work is wrong and illegal. Employers who continue to
+do so are wrong and they are breaking the law. No one here disagrees
+with that fact.
+ That's why Congress enacted the Equal Pay Act of 1963, which made
+it illegal to pay different wages to women for equal work. The
+following year, Congress enacted even broader nondiscrimination laws,
+making it illegal for employers to discriminate because of race, color,
+national origin, religion, and sex in Title VII of the Civil Rights
+Act.
+ These landmark laws are an important affirmation of who we are and
+what we believe as a country: that workplace discrimination is
+repugnant and illegal.
+ H.R. 7, the so-called Paycheck Fairness Act, is a false promise
+that creates opportunities and advantages for trial lawyers-not for
+working women. Instead of treating sex discrimination charges with the
+seriousness they deserve, the `Paycheck Fairness' Act is designed to
+make it easier for trial lawyers to bring more suits of questionable
+validity for the purpose of siphoning off unlimited paydays from
+settlements and jury awards, lining their own pockets and dragging
+women through tedious, never-ending legal turmoil.
+ The `Paycheck Fairness' Act offers no new or meaningful protections
+against pay discrimination. Rather, it dramatically limits the ability
+of employers to defend against claims of discrimination based on pay
+disparities that result from legitimate factors.
+ Just two months ago, the women's labor force participation rate hit
+a 33-year low, the lowest it's been since 1988. At a time when women
+are leaving the work force in droves, largely due to COVID-19 and
+lengthy school closures, the last thing we should be doing is dragging
+working women through never-ending legal turmoil while making it easier
+for trial lawyers to score unlimited paydays.
+ All employees should be valued for their recognizable contributions
+to the American work force and economy. Instead of working to line
+trial lawyers' pockets, this Committee should be focused on polices
+that foster individual freedom, innovation, and pro-growth economic
+policies so all workers and job seekers have opportunities to achieve
+life-long success.
+ ______
+
+ Chairwoman Bonamici. Thank you Ranking Member Keller.
+Without objection all other Members who wish to insert written
+Statements into the record may do so by submitting them to the
+Committee Clerk electronically in Microsoft Word format by 5
+p.m. on April 1, 2021.
+ I will now introduce the witnesses. Ms. Laurie McCann is a
+Senior Attorney with AARP Foundation Litigation. Her principle
+responsibilities include litigation and amicus curiae
+participation for AARP on a broad range of age discrimination
+and other employment issues. McCann is a noted speaker on the
+Aging Workforce.
+ Ms. Dina Bakst is Co-Founder and Co-President of A Better
+Balance, a leading national legal advocacy organization
+headquartered in New York City. A Better Balance is dedicated
+to advancing the rights of working families, promoting fairness
+in the workplace, and helping workers across the economic
+spectrum care for themselves and their families without risking
+their economic security.
+ Ms. Camille Olson is a partner in the law firm Seyfarth
+Shaw LLP. Since 2013 Ms. Olson has served as Chairperson of the
+United States Chamber of Commerce's Equal Employment
+Opportunity EEO Subcommittee. She has represented companies
+nationwide in all areas of litigation.
+ Ms. Fatima Goss Graves is the President and CEO of the
+National Women's Law Center. Ms. Goss Graves has served in
+numerous roles at the National Women's Law Center for more than
+a decade, and has a distinguished track record working across a
+broad set of issues central to women's lives, including income
+security, health and reproductive rights, education access, and
+workplace justice.
+ We appreciate the witnesses for participating today, and we
+look forward to your testimony. Let me remind the witnesses
+that we have read your witness Statements and they will appear
+in full in the hearing record. Pursuant to Committee Rule 8(d)
+and committee practice, you are each asked to limit your oral
+presentation to a five-minute summary of your written
+Statement. I also wanted to remind the witnesses that pursuant
+to Title 18 of the U.S. Code, Section 1001, it is illegal to
+knowingly and willfully falsify any Statement, representation,
+writing, document, or material fact presented to Congress or
+otherwise conceal or cover up a material fact. During your
+testimony, staff will be keeping track of the time and will use
+a chime to signal when one minute is left and when time is up
+entirely. They will sound a short chime when there is one
+minute left and a longer chime when time is up. Please be
+attentive to the time and wrap up when your time is over and
+then re-mute your system. If you experience any technical
+difficulties during your testimony or later in the hearing,
+please stay connected on the platform, make sure you are muted
+and use your phone to immediately call the committee's IT
+director, whose number been provided in advance. We will let
+all the witnesses make their presentations before we move to
+Member questions, and when answering a question, please
+remember to unmute your microphone. I will first recognize Ms.
+McCann.
+
+ STATEMENT OF LAURIE McCANN, SENIOR ATTORNEY WITH AARP
+ FOUNDATION, WASHINGTON DC
+
+ Ms. McCann. Chairs Adam and Bonamici, Ranking Members
+Fulcher and Keller and Members of the committee. On behalf of
+our nearly 38 million members, and all older Americans, AARP
+thanks you for inviting us to testify concerning the need to
+confront workplace discrimination, and the role The Protecting
+Older Workers Against Discrimination Act would play in doing
+so.
+ For older individuals, age discrimination is the most
+significant barrier to both getting and staying employed. The
+COVID-19 pandemic has only amplified age discrimination. High
+and persistent unemployment, compounded by the health risks of
+COVID-19 threatens the retirement security of older workers,
+especially women over the age of 55.
+ A key reason age discrimination remains stubbornly
+persistent is because ageism in our culture remains stubbornly
+entrenched, quite possibly ageism is one of the last acceptable
+forms of prejudice in our society.
+ Too often courts fail to interpret the Age Discrimination
+Employment Act as a remedial civil rights statute which then
+results in its protections being weakened. Perhaps the worst
+example of the increasingly cramped reading of the ADEA by the
+courts is Gross versus FBL Financial Services, a more than 10
+year-old Supreme Court decision and the impetus of the POWADA
+legislation.
+ Not long after the decision I accompanied Jack Gross as he
+visited Members of this body to encourage passage of the very
+same legislation we are discussing today.
+ Mr. Gross's employer underwent a merger after he had had a
+successful 30 year career. Older workers who did not accept a
+buyout were demoted and replaced by younger workers.
+ Jack went to court and a jury awarded him about $47,000.00
+in lost compensation. So when his case was appealed to the
+Supreme Court, the court rules that the ADEA requires a much
+stricter showing of causation than other forms of
+discrimination.
+ It was no longer enough to prove that age was one of the
+motivating factors behind an employer's conduct, the court
+rules that older workers must prove that age was a decision but
+for cause for the employer's actions.
+ The Gross decision has made it far more difficult for older
+workers to get their day in court, and even more difficult to
+prevail. I just explained how in Jack's own case, he won under
+the motivating factor framework, but after the Supreme Court
+changed the rules and required him to retry his case under the
+new higher standards, he lost, despite having proven the same
+facts with the same parties in the same court as before.
+ In another case from Jack's home State of Iowa, an older
+employer brought an age discrimination case both under the ADEA
+and the Iowa Civil Rights Act. Under the ADEA Gross's but for
+standard governed, but under the Iowa State law workers need
+only show that discrimination was a motivating factor in the
+adverse treatment.
+ A single court applying the different standards to the very
+same set of facts reached opposite conclusions. The worker lost
+her ADEA case due to Gross, but her State law claim survived.
+ The Gross decision has sent a terrible message to employers
+and the court, that age discrimination isn't as wrong as other
+forms of discrimination, that some age discrimination is OK, as
+long as the employer can point to other lawful motives that may
+have also played a role, employers will escape liability
+altogether.
+ In this manner the Gross decision undermined Congress's
+mandate for how they expected the ADEA to be enforced, that age
+discrimination would play no role in employment decision.
+POWADA does not expand civil rights, it has long been a
+bipartisan straightforward restoration of the standard that was
+in effect before 2009.
+ Discrimination is discrimination, and POWADA clarified
+Congress's intent that no amount of unlawful discrimination in
+the workplace is acceptable. Congress should pass POWADA as
+soon as possible. Thank you again for inviting AARP to testify.
+ [The prepared Statement of Ms. McCann follows:]
+
+ Prepared statement of Laurie McCann
+[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
+
+
+ Chairwoman Bonamici. Thank you for your testimony, and we
+will now hear from Ms. Bakst. Ms. Bakst you are recognized for
+five minutes for your testimony.
+
+ STATEMENT OF DINA BAKST, CO-FOUNDER AND CO-PRESIDENT OF A
+ BETTER BALANCE
+
+ Ms. Bakst. Thank you to the chairs, Ranking Members, and
+distinguished Members of the subcommittee for the opportunity
+to testify today in support of the Pregnant Workers Fairness
+Act, and the PUMP for Nursing Mothers Act.
+ A Better Balance is a national legal advocacy organization
+dedicated to advancing justice so workers can care for
+themselves and their loved ones without risking their economic
+security. We founded A Better Balance 15 years ago because we
+recognized that a lack of fair and supportive workplace laws
+and policies, the care crisis, was disproportionately harming
+women, especially black and Latino mothers in low-wage jobs.
+ This bias and inflexibility often kicks in when women
+become pregnant, and then snowballs until lasting economic
+disadvantage. We call this the pregnancy penalty, and since day
+one A Better Balance has recognized it as a key barrier to
+gender equality in America.
+ We've heard from thousands of women in both the public and
+private sector on our free legal help line who have experienced
+the harsh blow of the pregnancy penalty. Armanda Legros, a
+mother on Long Island who was forced out of her job at an
+armored truck company because her employer would not
+accommodate her lifting restriction.
+ Without an income she struggled to feed her newborn and her
+young child. As she told the Senate Help Committee in 2014
+``Once my baby arrived, just putting food on the table for him
+and my 4 year old was a challenge. I was forced to use water in
+his cereal at times because I could not afford milk.''
+ Years later we're still hearing the same stories of
+pregnant women who are fired, or forced out instead of being
+granted temporary, reasonable accommodations. This time it's
+with a global pandemic in the backdrop that has forced millions
+of women to risk their health, or leave the workplace, with a
+lack of paid leave and childcare exacerbating these challenges.
+ At the height of the pandemic we heard from Tasia, a
+pregnant retail worker in Missouri who called us because a
+store's water fountain was shut down due to COVID-19 safety
+concerns. To avoid dehydration, which can lead to significant
+health consequences during pregnancy, she asked her manager if
+she could keep a water bottle behind the counter. He refused.
+ Worried about the health of her pregnancy she left her job.
+Sarah, a healthcare worker in Kansas, resorted to pumping milk
+in her car just once a day after her boss disparaged her for
+pumping at work. She frequently became engorged and suffered
+from painful clogged milk ducts. Her milk supply dropped.
+ This took place in spite of the fact that at least of her
+coworkers regularly took smoke groups multiple times a day.
+Why, nearly 10 years later was Tasia in the same position as
+Armanda? Why didn't Sarah have any recourse when she needed to
+pump?
+ Why have we heard from hundreds more women in the same
+exact position? The answer is gaps in the law itself. Neither
+the Pregnancy Discrimination Act, nor the Americans With
+Disabilities Act provide an explicit right for pregnant workers
+with no limitations, and need accommodations to maintain a
+healthy pregnancy?
+ In our 2019 report, long overdue, we found that pregnant
+workers are losing two-thirds of their pregnancy accommodation
+cases because the 2015 Supreme Court case, Young versus UPS,
+laid out an overly complicated burdensome standard requiring
+pregnant workers to jump through legal hoops and prove
+discrimination to get something as simple as a water bottle.
+ This standard is unfair and a barrier to justice,
+especially for black and Latino women in low-wage, inflexible
+and physically demanding jobs who need timely accommodations to
+protect their health and their paycheck. Alternatively, the
+Americans With Disabilities Act covers those with disabilities,
+but a worker with a routine pregnancy who needs an
+accommodation to prevent a complication is completely out of
+luck.
+ The Pregnant Worker Fairness Act would finally put an end
+to the second class treatment and ensure that pregnant workers
+have an affirmative right to workplace accommodations. I was
+honored to testify in this legislation in October 2019, which
+passed in the House this past September with overwhelming
+bipartisan support, in the midst of a global pandemic and
+[inaudible] session.
+ There is simply no reason for it not to pass again without
+delay. The 2010 Breaktime for Nursing Mothers Law is also
+falling well short due to broad exclusions and weak enforcement
+mechanisms. Due to where the law is placed in the Fair Labor
+Standards Act, nearly 9 million women of child-bearing age are
+excluded from the law's protections.
+ Those who are covered have no effective remedy for
+violations of the law. One Federal judge put it best, calling
+the Breaktime Law's remedy ``toothless'', and the law's
+incentive to terminate a breastfeeding worker, rather than
+accommodate her, ``an absurdity.''
+ Extensive research shows that breastfeeding has immense
+benefits for mothers and children from preventing breast cancer
+in moms, to preventing obesity and asthma in children. While
+most women start out breastfeeding, the numbers sharply drop as
+time goes on.
+ This is often because women lack the workplace supports to
+continue breastfeeding. The PUMP Act will change that by
+closing gaps in the law, and finally guaranteeing fair
+treatment to nursing mothers. As Armanda told the Senate Help
+Committee, having a baby should not mean losing your job. It
+should not lead to fear and financial dire straits.
+ In 2021 women in America should not be forced to choose
+between becoming a mother and earning a paycheck. Passage of
+these critical measures is long overdue. Thank you.
+ [The prepared Statement of Ms. Bakst follows:]
+
+ Prepared statement of Dina Bakst
+[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
+
+ Chairwoman Bonamici. Thank you for your testimony and next
+we will hear from Ms. Olson. Ms. Olson you are recognized for
+five minutes for your testimony.
+
+ STATEMENT OF CAMILLE OLSON, ESQ., PARTNER, SEYFARTH SHAW LLP
+
+ Ms. Olson. Thank you. Good morning subcommittee Members. As
+an employment attorney at Seyfarth Shaw, I work with companies
+nationwide to ensure they maintain legally compliant employment
+policies and practices. I've also litigated numerous cases
+alleging violations of Title XII, the ADA, the ADEA and the
+Equal Pay Act.
+ My written testimony contains my analysis of the four
+pieces of legislation under consideration. Today I will discuss
+a number of significant concerns with the Paycheck Fairness Act
+and POWADA. I will also discuss opportunities to strengthen the
+Equal Pay Act.
+ First, with respect to the Paycheck Fairness Act, I'd like
+to share three of those opportunities and concerns now. H.R. 7
+presume all employee pay rates result from employer
+discrimination and rewrites existing legal standards, remedies,
+and class action procedures contained in the Equal Pay Act.
+ First H.R. 7 effectively eliminates the factor other than
+sex defense. Under the Equal Pay Act, most courts currently
+require an employer to prove that any pay difference is
+business or job related. If the employer cannot do so, the
+Plaintiff prevails without any showing of discriminatory intent
+under the Equal Pay Act.
+ Under H.R. 7, an employer would also be required to prove
+with respect to every pay differential, not only that the
+reason was business or job related, but also that it paid
+differently because of a business necessity, that the business
+necessity explain 100 percent of any pay difference, and the
+business necessity was not derived from a sex-based
+differential in compensation.
+ Even if an employer meets these high burdens, it still
+loses. If years later a litigant identifies an alternative
+employment practice that would have serve the same purpose
+without a wage difference. But what if the alternative offered
+in litigation is when implemented less efficient, more costly,
+or an unproven alternative in a time sensitive project that
+needed immediate staffing.
+ Is the employer's proven business necessity now rejected?
+Under H.R. 7 the answer is yes. Similarly, H.R. 7 would require
+employers to ignore an employee's competitive job offer, or
+salary expectations unless it can prove that the higher
+competitive wage offer, or salary expectation is not the result
+of historical wage discrimination by prior or other employers.
+This by definition, is an impossible burden.
+ Second, H.R. 7 goes too far by prohibiting an employer from
+considering prior salary information volunteered by the
+applicant at the outset of the application process. The
+majority of courts of appeals recognize justifiable reasons for
+considering an applicant's prior salary as a factor other than
+sex.
+ Third, H.R. 7's expansion of available remedies and class
+action procedures under the Equal Pay Act is unwarranted. For
+example, H.R. 7's unlimited compensatory and punitive damages
+far exceed the available remedies under Title VII and are in
+addition to significant penalties that already exist under the
+Equal Pay Act.
+ Despite these Stated concerns, there are opportunities to
+improve the Equal Pay Act. For example, adding language that
+expressly States the pay differential between workers
+performing the same work must be based on business or job-
+related reasons. Providing employees with an express protection
+against retaliation from engaging in reasonable activities
+related to a good faith belief that an unlawful wage disparity
+may exist.
+ And providing employers with incentives to engage in
+voluntary self-critical jobs and compensation analysis. Moving
+on to one other bill before you today POWADA, I must note it is
+not legislation designed to strengthen the ADEA or the rights
+of older workers, notwithstanding its title.
+ Instead it attempts to import into the ADEA, the ADA, the
+Rehab Act, and Title VII for retaliation purposes the concept
+of mixed motive discrimination. But a mixed motive theory does
+not provide workers under any statute with any job-related
+monetary or injunctive relief. It is a run at the U.S. victory
+for a worker. It only provides for attorney's fees.
+ And for all the reasons discussed from my testimony, a
+mixed motive theory is inappropriate to apply to these statutes
+or for determining retaliation under Title VII. Subcommittee
+Members thank you for the opportunity to share my perspective
+with you today.
+ [The prepared Statement of Ms. Olson follows:]
+
+ Prepared statement of Camille Olson
+[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
+
+ Chairwoman Bonamici. Thank you for your testimony. And
+finally, we'll hear from Ms. Goss Graves. Ms. Goss Graves
+you're recognized for five minutes for your testimony.
+
+ STATEMENT OF FATIMA GOSS GRAVES, PRESIDENT AND CEO OF THE
+ NATIONAL WOMEN'S LAW CENTER
+
+ Ms. Goss Graves. Thank you Chair Bonamici, Chair Adams,
+Ranking Member Fulcher, Ranking Member Keller, and Chair Scott
+and Ranking Member Foxx, and all the Members of the committee
+for the opportunity to submit this testimony today on the
+Paycheck Fairness Act and the Pregnant Workers Fairness Act.
+ I'm Fatima Goss Graves, President and CEO at the National
+Women's Law Center. This hearing on workplace fairness really
+couldn't come at a more critical time. Women, and particularly
+women of color, have been bearing the brunt of the pandemic and
+economic recession, as essential workers who are risking their
+lives for minimum wage, and too low wages, as those who have
+disproportionately born the devastation of job losses and those
+who are shouldering the majority of responsibility of
+caregiving without necessary supports.
+ In many ways the last year has only heightened the
+importance of proactive efforts to address gender waste gaps
+and discrimination. Workers are more desperate to keep a
+paycheck at any cost. They are less willing to uncover and
+challenge discrimination and workplace abuses, and often face
+retaliation for doing so.
+ Again, the pandemic is also likely to deepen the challenges
+women already faced in hiring and promotion and advancement.
+And at the same time workers have fewer resources to formally
+challenge this discrimination. We know that there is a pay gap
+across occupations including front line workers. It amounts to
+about 10,000 per year with even higher losses for women of
+color.
+ That gap means that Latinos lose well over a million over
+their lifetime compared to white non-Hispanic men. COVID-19
+also has brought home the many ways pregnant workers are
+already left unprotected on the job. Pregnant workers are doing
+essential work, and frontline jobs like home health aides and
+nursing assistant jobs are physically demanding and come with
+even greater risk during COVID.
+ No one should have to choose between a paycheck and a
+healthy pregnancy. But without a clear Federal standard many
+pregnant workers will continue to be denied accommodations and
+pushed out of work. And we've already heard today the point
+that discrimination is already against the law. That's of
+course the case, and now for five plus decades.
+ But the truth is we know that the ways that our laws aren't
+working and allow discrimination to continue to persist. States
+have moved forward because Congress has not. We have thirty
+States and the District of Columbia have passed bills, or
+issued executive orders to explicitly grant pregnant employees,
+or certain categories of pregnant employees the right to
+reasonable accommodations at work.
+ On equal pay we've seen a similar movement. Since 2016
+we've had fourteen States plus several localities prohibit
+employers from relying on prior salary information to set new
+salaries. And new research shows that these laws are working to
+narrow gender and racial wage gaps and increase wages for women
+and black workers.
+ Multiple States have tightened legal loopholes that allowed
+employers to justify paying women less for equal work. In
+addition, pay discrimination because it's often cooped in
+secrecy and seldom obvious to the person directly affected.
+States and localities around the country are taking measures in
+recent years to bring paid practices into the light.
+ Nineteen States passed laws protecting employee's rights to
+talk about how much they make. Three States have passed laws
+requiring businesses to provide salary information to
+applicants during the hiring process, and States, including
+California and New Jersey have enacted pay date of recording
+requirements.
+ Globally we've seen movement too. In Europe we've seen
+legislation requiring analysis and reporting of compensation
+data, and public disclosure of wage gaps. And research shows
+the positive effects of these mandates on driving employer pay
+analysis and closing dates gap.
+ But it's not enough for States to pass laws, and it's not
+enough for global corporations to feel any direct pressure to
+address their U.S. pay practices because of other countries
+like the U.K. And it's also not enough for some employers to
+voluntarily take steps to close the wage gaps, although we have
+been heartened to see that happen.
+ This country deserves robust baseline protections in our
+Federal law that actually work. So the Paycheck Fairness Act is
+definitely part of this response. When it bars retaliation and
+gets workers who talk about pay and requires employers to
+report pay data, that's promoting both transparency and
+compliance.
+ When it prohibits employers from relying on salary history
+to set new pay, it prevents pay discrimination from following
+people from job to job. When it closed the loopholes in the
+law, it actually ensures that our pay discrimination laws work,
+and ensures women can receive the same robust remedies for sex-
+based pay discrimination.
+ We just believe we can't build back an economy that works
+for everyone without ensuring all women can work with the
+quality, safety, and dignity. Thank you for the opportunity to
+testimony, and my full written testimony is submitted for the
+record. I look forward to any questions.
+ [The prepared Statement of Ms. Goss Graves follows:]
+
+ Prepared statement of Fatima Goss Graves
+[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
+
+ Chairwoman Bonamici. Thank you for your testimony.
+ Under Committee Rule 9(a), we will now question witnesses
+under the five-minute rule. After the Chairs and Ranking
+Members, I will recognize Members of both subcommittees in the
+order of their seniority on the full committee.
+ Again, to make sure that the Members' five-minute rule is
+adhered to the staff will be keeping track of time and the
+timer will sound when the time has expired. Please be attentive
+to the time and wrap up when your time is over and then re-mute
+your microphone.
+ And as chair, I recognize myself for five minutes.
+ We have discussed how reasonable accommodations do not need
+to be, nor are they typically complicated or costly. But when
+pregnant workers do not have access to the accommodations they
+need, they are forced to choose between their financial
+security and their pregnancy, and the results can be
+devastating.
+ Ms. Bakst can you describe which pregnant workers are most
+negatively affected by the lack of a reasonable accommodation?
+ Ms. Bakst. Absolutely, thank you. So, the pregnant workers
+who are most negatively affected are women in low-age
+inflexible and physically demanding jobs, disproportionately
+black and Latino women who work in both the private and State
+employers.
+ Many low-income workers can't work from home. Millions
+remain in the work force with women of color disproportionately
+represented in frontline, often low-wage jobs such as fast
+food, retail, home health, and State police officers, where
+they continue to fact structural biases that prevent them from
+caring for themselves and their loved ones, and maintaining
+their economic security.
+ When a low-income pregnant worker loses her income, she
+doesn't have access to job protective leave, too often doesn't
+have access to fall back on, so she spirals into deeper
+economic trouble with lasting economic and health consequences.
+We've seen workers who've lost their health insurance, forcing
+them to delay or avoid critical pre or post-natal care.
+ Or leaving them with crippling medical bills. Others like
+Armanda struggling to feed their families, or others wind up
+homeless. Some prospects of promotion, advancement and
+retirement savings also disappear, especially as it becomes
+more difficult to re-enter the work force after becoming a
+mother, exacerbating their gender wage gap, and many mothers
+falling deeper into poverty.
+ Preserving pregnant workers economic security is especially
+important at a time when the COVID-19 pandemic has
+disproportionately again for women of color and low-wage jobs,
+with many experts suggesting that it could take years to undo
+the economic damage.
+ And many will have experienced long-term hits to their
+careers, earnings, and retirement security. While the PWFA was
+needed before the pandemic, it has taken on a new urgency as a
+critical measure to keep women health and attached to the work
+force.
+ Chairwoman Bonamici. Thank you Ms. Bakst. I know you
+mentioned a bit in your oral testimony, but can you briefly
+talk about what kind of health complications can arise when
+pregnant workers don't have a reasonable accommodation? And I
+do want to allow time for another question, so if you could be
+brief thanks.
+ Ms. Bakst. Sure. Look, pregnancy accommodations are a
+crucial tool to address our Nation's maternal and infant health
+crisis right. Just I'll never forget a pregnant cashier who
+fainted and collapsed on the retail floor due to dehydration
+because her employer wouldn't let her carry a water bottle.
+ A former client, Tasha Morell in Tennessee, was forced to
+continue heavy lifting while pregnant and working in a factory
+and wound up miscarrying. And just this past year one court
+held that a pregnant worker with complications including
+preeclampsia, was unprotected, and not entitled to
+accommodations because she didn't have a disability.
+ This is absurd. These accommodations are low-cost, often
+with low or no cost, but with high impact having to prevent
+miscarriage, pre-term birth, low birth weight, preeclampsia,
+birth defects, and the racial disparities and maternal health
+outcomes are truly just staggering.
+ Chairwoman Bonamici. Thank you very much. And I'm going to
+have to move on, and I know that my home State of Oregon has
+passed at the State level, similar legislation, which was
+broadly supported, including by the business community because
+it's given them certainty about what they need to do to
+accommodate pregnant workers.
+ So, my home State of Oregon has one of the most rapidly
+aging populations in the country, and I've heard from workers
+particularly in the technology industry who have been dismissed
+or denied employment because of their age.
+ But investigations by the U.S. Equal Employment Opportunity
+Commission often take years to complete, and age discrimination
+is as we heard in the testimony often very challenging to
+prove. So, Ms. McCann, can you explain how the change in the
+standard of proof in the 2009 Gross decision, and I note that
+Mr. Jack Gross was with us when we had a hearing on this in the
+last Congress.
+ How has that adversely affected age discrimination in
+employment claims? And are ADEA claims more difficult to prove
+after the Gross decision, and if so, how? And there's not a lot
+of time left if you could be brief.
+ Ms. McCann. Sure. So, I think there's three ways that it's
+negatively impacted age claims. One as I said, it sends a
+message to the courts that age discrimination is not as wrong,
+and that translates into bad decisions. In the mixed motive
+framework, once the age discrimination Plaintiff is able to
+prove that there age did motivate the employer's actions, they
+cannot prevail unless they are also able to prove that another
+factor did not influence the adverse decision, which is an
+almost impossible task for the older worker.
+ Chairwoman Bonamici. And Ms. McCann, I'm sorry but I have
+to set a good example and cut myself off because I'm out of
+time, but I look forward to continuing the conversation. I'm
+sure you will get other questions.
+ Ms. McCann. Understood OK.
+ Chairwoman Bonamici. And I now recognize Ranking Member
+Fulcher for the purpose of questioning the witnesses for five
+minutes.
+ Mr. Fulcher. Thank you, Madam Chair. I've got a question
+for Ms. Olson if I may. I just want to touch on what I think
+could be a significant real-world application here. So, Ms.
+Olson thank you for your testimony.
+ When Congress considers a piece of legislation, I believe
+we should be absolutely clear about how the legislation would
+affect the American people, and when it comes to protecting
+Older Workers Against Discrimination Act, my experience tells
+me that most workers filing lawsuits, even if successful, will
+not likely recover any damages, but their attorneys will be
+awarded costs and fees. Is that your sense with this?
+ Ms. Olson. Thank you for your question. And the answer is
+yes. It's not just my sense, and it's not just the majority. No
+worker under a mixed motive theory, whether it's brought under
+Title VII, the Age Discrimination Employment Act, or any other
+act, receives any monetary remedy.
+ That is why you don't see many of the mixed motives cases
+that are brought, so to amend the Age Discrimination Employment
+Act, or any of the other acts that are at issue here with the
+language from POWADA, is going to do nothing to help workers.
+ That's true today. That's true today under Title VII in
+terms of mixed motive that's available for certain types of
+causes of action, and that would be true tomorrow with respect
+to older workers. And if I just might note. If you look after
+the Gross decision in 2009, 10 years after it, the average
+percentage of EEOC charges that are age case, age charges, 21
+percent.
+ The ten years prior to Gross it was 22 percent, virtually
+the same. Since Gross I have counted at least twenty-two
+different Court of Appeals decisions that have granted summary
+judgment under the Gross standard for Plaintiff, or reverse
+summary judgment for Defendant, saying the ultimate question of
+whether the Plaintiff's termination was a result of age must go
+to a jury.
+ So, I don't see the need, and I don't see the benefits.
+Most importantly, under POWADA, for a mixed motive theory in
+either the Age Act, or any other statute that's considered
+under POWADA.
+ Mr. Fulcher. Ms. Olson thank you for that. You mentioned
+mixed motive claims, and so my next question is kind of two
+stage, but it brings that in. In 2013 the Supreme Court ruled
+that mixed motive claims are not allowed in Title VII
+retaliation cases.
+ And retaliation cases are especially ill-suited to include
+mixed motive claims. So from a policy perspective could you
+explain if and why the court's 2013 decision was sensible, and
+also this is the second part of the question, based on your
+experience as a litigator, what concerns would you have in
+allowing mixed motive claims in these retaliation cases?
+ Ms. Olson. Thanks for your question. The concern I have is
+limitless, never-ending litigation that's going to go beyond
+summary judgment but will not result in an award for anybody in
+terms of a worker alleging retaliation.
+ In terms of why it's not suited, why mixed motive isn't
+suited for retaliation claims, it's because the mixed motive
+says if a person--if retaliation, or an element of retaliation,
+such as the engaging in a protected activity is 1 percent, it's
+in the room. It's in the air. It's relevant.
+ It was close in time the protected activity that was
+engaged in. That becomes part of a potential motive for a jury
+to determine, even if everybody agrees that the reason the
+employer took the action was not for retaliatory basis. Even
+so, even if everyone agrees that the reason was a good reason,
+it was not retaliation, the fact that the prima facia case in a
+retaliation claim includes the fact that the Plaintiff engaged
+in a protected activity, sometime close in time, that leads you
+to a potential jury verdict, and a potential result that again
+is not going to benefit the worker because they get no monetary
+damages.
+ They get no employment injunctive relief for themselves,
+even if their lawyers win that case.
+ Mr. Fulcher. OK Ms. Olson, just thank you for that. I could
+do about 10 more questions but thank you for your answers. I've
+run out of my time. You were very clear on this, and I greatly
+appreciate your testimony. Madam Chair I yield back.
+ Chairwoman Bonamici. Thank you, Ranking Member Fulcher. I
+next recognize Chair Adams for five minutes for your questions.
+ Chairwoman Adams. Thank you, Madam, Chair, and thank you to
+all the witnesses for your testimony. Ms. Goss Graves, the
+Paycheck Fairness Act clarifies that if an employer justifies
+pay disparity based on a factor other than sex, such defense
+must be based on a bona fide job related factor, such as
+education, training or experience that is consistent with
+business necessity.
+ So, can you give us examples of how this business defense
+has historically been applied in ways that perpetuate gender-
+based waves of discrimination?
+ Ms. Goss Graves. Sure. The first thing I just want to
+remind everyone is that there are already defenses embedded in
+the Equal Pay Act that go beyond the factor of sex. So, we're
+not talking about thinks like experience or education, or
+different specific skills. Those are listed out specifically.
+ What we're talking about is the factor other than sex, and
+there what we have seen is some employers pointing to vague
+notions of the market, or the ability to negotiate more, even
+though there's all of this research that shows that women are
+often penalized when they negotiate. They are considered to be
+too mean or bossy when they engage in behavior that's
+considered typically male behavior.
+ Or sometimes, people just point to the fact that men make
+more in the market. And so, what the factor other than sex
+defense would do is tighten the number of reasons and
+justifications for people paying people who were basically
+doing the same thing, different salaries.
+ Chairwoman Adams. So, Ms. Olson claims that H.R. 7 pushes
+the EPA to heights that would essentially obliterate the other
+factor, other than sex affirmative defense, out of the statute.
+Is this the case?
+ Ms. Goss Graves. It certainly does not, but it does
+actually require a legitimate business justification, and
+require that it be tested. It's not enough for an employer to
+just say here's a business justification. It's important for
+that justification to be tested so that you don't have someone
+doing something that basically is a proxy for sex
+discrimination.
+ Otherwise, the factor other than sex, would continue to be
+such a large loophole it swallows the whole requirement that
+you pay people equal wages for doing equal jobs.
+ Chairwoman Adams. Thank you. Ms. Bakst I've heard some
+concerning reports of workers who are currently eligible for
+breastfeeding protections being denied accommodations during
+the pandemic. Why are workplace accommodations for nursing
+mothers to pump breastmilk even more important now during the
+pandemic as workplaces reopen?
+ Ms. Bakst. Sorry about that.
+ Chairwoman Adams. Oh, that's all right, go ahead.
+ Ms. Bakst. That's right. And at A Better Balance we've also
+heard concerning reports as well where the pandemic seems to be
+used as an excuse by some employers to dodge their legal
+responsibilities to breastfeeding employees, even when
+providing breaktime and space is no harder than it was before.
+ It is essential that employers follow the law, and provide
+breaktime and space to their breastfeeding employees during the
+pandemic because hundreds of thousands of women have left the
+work force as a result of caregiving responsibilities and
+pregnancy discrimination, providing support for new mothers is
+critical to helping women get back into the workplace.
+ The pandemic has laid bare the systemic barriers that
+prevent women from staying in the workplace and thriving.
+Breaktime and space are part of a broader range of solutions.
+We need to support mothers so they can work and care for their
+families without risking their economic security.
+ Chairwoman Adams. Thank you, ma'am. Madam Chair I yield
+back.
+ Chairwoman Bonamici. Thank you, Chair Adams. I next
+recognize Ranking Member Keller for five minutes for your
+questions.
+ Mr. Keller. Thank you, Madam Chair. Ms. Olson I want to
+thank you and all the other witnesses for your testimony, but
+under H.R. 7 to defend against a claim of pay discrimination,
+an employer must show the pay differential is a business
+necessity, even after showing this, the employer defense does
+not apply if the Plaintiff can demonstrate an alternative
+business practice would not result in a pay differential.
+ Do you agree the business necessity requirement in H.R. 7
+is unworkable, and makes it nearly impossible for a business
+owner to defend against a pay discrimination claim?
+ Ms. Olson. Unequivocally, it does make it impossible. It is
+unworkable. And I really have to correct the record on the last
+couple of questions and answers. Business necessity is not
+currently part of the Equal Pay Act, and in addition experience
+and special skills are not enumerated factors in the Equal Pay
+Act, notwithstanding what's been said in this hearing.
+ The only factors that are enumerated are seniority, merit
+and productivity, and other factors similar to those other than
+sex.
+ Mr. Keller. Thank you. I appreciate that. Also, you State
+in your testimony Ms. Olson employers of all sizes need clear
+guidance and predictable outcomes when applying the law to
+their employment policies and practices. In your view, does
+H.R. 7 provide clear guidance and predictability?
+ Ms. Olson. It absolutely does not, and I would tell you
+that if you look at my testimony which is quite detailed, that
+I included 9 different examples on pages 9 through 14 of
+specific real-life cases where an employer could not show
+business necessity.
+ Ms. Graves just mentioned that the business is required to
+test. So, if a business determines that it is going to pay more
+for an applicant because of their years of experience, or their
+seniority at another employer, which they believe is relevant
+to the job, how is that tested?
+ Business necessity has never been part of the Equal Pay
+Act. Job related and business related has always been part of
+the factors other than sex, as all the Court of Appeals that
+I've cited in my testimony have noted, and that's how employers
+are in fact understanding the Equal Pay Act, and applying their
+pay practices.
+ What is business related? That employers know. What is a
+business necessity? It's not defined. It's nothing defined by
+any witness here. It's not defined by any court cases, and as I
+described in my testimony, does that mean the business can't
+live without it? How does an employer show when an applicant
+says, ``I won't become employed unless my pay is $1.00 more an
+hour because I've got five more years of experience, or I've
+got more education than someone.
+ Those are factors that fall under the factors other than
+sex affirmative defense. How does an employer show that to
+business necessity? And even if they can they lose if later on
+in litigation a litigant says what? You could have made up the
+difference by increasing everybody's pay.
+ What the Paycheck Fairness does in terms of business
+necessity and the other unworkable changes to the Equal Pay
+Act, is it disadvantages all workers who have higher
+qualifications, and seek, and employers believe justifiably,
+have qualifications that relate to their business and the job,
+and want to pay them for that.
+ Mr. Keller. Thank you. That answered actually the questions
+I had regarding experience and other business-related factors,
+education, productivity, job skills. But I have another
+question Ms. Olson. H.R. 7 provides for unlimited compensatory
+and punitive damages, and it also expands class action lawsuits
+for pay discrimination claims.
+ Will these provisions address pay discrimination in the
+workplace, or will they merely encourage costly litigation that
+will benefit trial lawyers?
+ Ms. Olson. There's no question that changing the class
+action procedure under the current Equal Pay Act from a
+collective action to a Rule 23 class action will slow recovery,
+will slow the course of litigation, will not allow the
+litigants to actually focus on--and the difference is currently
+under the Equal Pay Act, if a collective action is brought,
+which is a class action procedure, the court sends out a notice
+to all potential workers and says, do you want to be part of
+this?
+ And if so, just send back in a form. Anybody who sends back
+in a form then is part of it, and you focus on that group of
+individuals to determine whether the case will be settled, or
+it will be litigated, but on real facts.
+ In a Rule 23 class action it is my day to day experience
+that employers spend hundreds of thousands of dollars, if not
+millions of dollars on class certification, procedural
+arguments that take years to be resolved before anyone ever
+gets the resolution.
+ And in terms of unlimited compensatory and punitive
+damages, remember the Equal Pay Act is a strict liability. You
+don't have to prove intentional discrimination. It already
+allows double damages. It allows Plaintiffs to go back 3 years
+of willful, as opposed to 300 days for a charge of
+discrimination under Title VII.
+ These damages are greater and different than any other
+damages we see in any discrimination law and are unnecessary
+under the Equal Pay Act.
+ Mr. Keller. Thank you. I appreciate that and I yield back.
+ Chairwoman Bonamici. Thank you, Ranking Member Keller. And
+next we have the Chairman of the Full Committee on Education
+Leader, Mr. Scott from Virginia you're recognized for five
+minutes for your questions.
+ Mr. Scott. Thank you. First, I'd like to ask Ms. Goss
+Graves, we've heard a lot of confusing things about the
+Paycheck Fairness Act. Can you tell me what the differences are
+in recovery now and what the differences in recovery and
+process would be if the bill would pass?
+ Ms. Goss Graves. Right now, under the Equal Pay Act you are
+allowed to get back pay for 2 years. And in particular types of
+conduct, sometimes that amount can be doubled. If you're
+talking about a low-wage worker, what that means effectively is
+that the amount that they can recover under the Equal Pay Act
+might not actually cover their actual costs from experiencing
+pay discrimination.
+ Under Title VII of the Civil Rights Act, damages have been
+capped, and not adjusted at any point in time in over three
+decades. And so, what that actually means is that if someone is
+bringing a pay discrimination claim, their damages are
+arbitrarily limited. They don't actually match what they have
+experienced.
+ Mr. Scott. And how does the Paycheck Fairness Act fix that?
+ Ms. Goss Graves. So, what the Paycheck Fairness Act would
+do is allow people to recover the full amount of their damages,
+the full amount that they are injured. And so, I just wanted to
+correct one thing. You know the use of the term unlimited
+doesn't actually apply.
+ The limit is actually your injury, so it is never
+unlimited.
+ Mr. Scott. And how is that compared to other forms of
+discrimination?
+ Ms. Goss Graves. Well one of the differences is that if you
+were bringing a race-based claim, there is an alternative
+outside of the Civil Rights Act by being able to bring a claim
+under Section 1981.
+ And so right now there's this weird conundrum where for
+sex-based pay discrimination claims you have this sort of
+limit, and you don't have a current similar vehicle similar to
+1981.
+ Mr. Scott. What's wrong with asking about salary history?
+ Ms. Goss Graves. So, here's the thing about salary history.
+The reason, it's less about asking, but it's really how you're
+going to use it right? The reason why employers want to ask
+about salary history is because they want to match salaries. If
+you were making $100,000.00 in your last job, you should make
+$100,000.00 in your next job.
+ But the truth of the matter is we know that women start off
+making less from the earliest points in their career. So,
+setting your new salary on the salary you might have made at
+the last job is a way to guarantee that you never get out of
+the cycle of making unfair pay.
+ Mr. Scott. And we've heard about the employer having to
+prove that once you've shows the difference in salary, the
+employer has to prove that there is a non-gender reason for the
+differential. It seems to me that an employee can't possibly
+know what's wrong with requiring the employer to show--after
+you show him the difference, the employer is the only one that
+knows why there's a difference.
+ Ms. Goss Graves. I mean basically all of the salary
+information lies in the hands really of the employer. The
+employer knows why they're paying people doing the same thing
+different wages. What we want to do is put the incentive so
+that the employer pays people correctly the first time.
+ That's what we're trying to incentivize here. And I just
+wanted to correct one thing, because I don't want to confuse
+the committee, and I'm happy to give a longer written response.
+And that is so currently under the Equal Pay Act you were
+right, it's seniority. I was using experience as a shorthand.
+ The Paycheck Fairness Act makes very clear as examples
+around education, experience, and skill. I have yet to hear the
+example that is not an example that you wouldn't want to test
+and probe further, for paying people doing the same thing
+different wages.
+ And these ideas from employers really do have to be tested
+in some way.
+ Mr. Scott. Thank you. Ms. McCann have you heard anything
+about the POWADA that you wanted to respond to?
+ Ms. McCann. Yes, thank you. I think Ms. Olson's testimony
+ignores three important facts. One, that Congress has
+determined that any amount of discrimination is too much. And
+that the goal of civil rights protections is not more
+litigation, it's less discrimination.
+ And although she makes a lot of the fact of in a mixed
+motive case the victim does not receive back pay or
+reinstatement, she ignores the fact that the injunctive relief
+and declaratory relief that is available to a successful mixed
+motive Plaintiff goes a long way in deterring future
+violations.
+ And that there are two goals to every civil rights statute.
+One is compensation, but the other is deterring future
+violations. And what POWADA recognizes is that no age
+discrimination, no amount of discrimination should be
+tolerated. Thank you for the opportunity.
+ Mr. Scott. Thank you. Yield back.
+ Chairwoman Bonamici. Thank you, Mr. Chairman. Next, we're
+going to recognize Mr. Thompson from Pennsylvania for five
+minutes for your questions.
+ Mr. Thompson. Chairwoman, thank you very much. Thank you,
+Ms. Olson, for being here today to you know discuss these
+issues. I would say it would have been nice to see a more
+balance of witnesses. Just for the record I agree with Ranking
+Member Keller on that. If we're going to pursue bipartisan
+solutions, we need to have everybody at the table, so.
+ But thank you Ms. Olson for being here today to discuss
+these important issues. As you know two Federal laws currently
+prohibit discrimination wages, and the terms and conditions of
+employment based on sex. Thus, equal pay for equal work is
+already required by Federal law.
+ Now I was reading your testimony, you mentioned how much
+time and effort businesses put in to determining workers
+various pay levels which they must do to recruit and retain
+high quality workers. All said, that's the responsibility, the
+duty of the employer.
+ So, my first question in your experience does it help a
+business succeed and thrive to pay a worker more or less
+depending on their gender?
+ Ms. Olson. It hurts everyone. And that's why employers in
+my experience, not only don't do that, the vast majority don't,
+but they take, they have a deep commitment to ensuring that all
+workers are paid appropriately with respect to jobs and
+business related factors that relate to the work that they are
+doing.
+ There's absolutely no benefit. What are some of the
+deterrents to doing it besides litigation? Motivating your
+employees, ensuring that you have retention of your workers,
+and ensuring that the morale of workers who work together in
+teams more than they ever did, whether it's virtually or side
+by side, are able to do so productively, and in a way that
+fosters usually a joint or team effort.
+ So, there's absolutely no motivation to doing so, and there
+would be no reason to do so.
+ Mr. Thompson. So, you really touched on with your response
+also identifying the importance of offering appropriate
+compensation to all employees right, to be able to have that as
+much as qualified and trained, but reliable work force.
+ Ms. Olson. Yes, it's absolutely correct Congressman.
+Without doing that you know this is a very mobile work force.
+People move from job to job more than they ever did in the
+history of the American workplace.
+ And today employers spend an enormous amount of effort to
+not just conduct pay audits, but to also review starting pay
+decisions and the impact of a hot job market on existing long-
+term employees, to make sure that there aren't inconsistencies
+that perhaps should be addressed.
+ Things that are differences in pay based on business or
+job-related factors, but nevertheless employers are saying I
+want to make sure that we've got this. They're also doing a lot
+on the information gap. A lot of the issue here relates to how
+do we capture, digitize, memorialize, pay decisions and factors
+to make sure they can be identified and explained?
+ The Paycheck Fairness Act goes far beyond that. What it is
+does is it says I want you to test every reason. I want you to
+tell me and prove that you had to pay that worker more for that
+extra experience. That you had to pay that worker more for that
+extra education, or for the seniority of another employer, or
+that you had to hire that employee because they told you they
+wouldn't take the job unless they were paid more than what you
+were offering.
+ And you've got to show the business necessity. You've got
+to not only show that, but you've got to show that you didn't
+have the ability to perhaps raise everybody's wages to that
+level. How does an employer do that and compete in the
+marketplace for workers?
+ It can't. You know, you heard some of the other witnesses
+today talk about employer need to test. How do you test when an
+applicant comes to you and says I understand you're offering,
+let's just say $50,000.00 a year for this position? But my
+qualifications are higher. I'm making more today, and I have
+this special expertise.
+ How does an employer test that that meets a business
+necessity standard to pay that worker more than somebody who is
+a current employee? What's going to happen? That worker is not
+going to get the extra pay offered to them, everyone is going
+to suffer.
+ Mr. Thompson. Thank you, Ms. Olson. You're really focused
+on I think what the motivation incentives for employers really
+to compensate their employees well and how important that is.
+So, thank you very much. Madam Chair I yield back.
+ Chairwoman Bonamici. Thank you, Mr. Thompson. Our next
+representative is Representative Hayes from Connecticut for
+five minutes for your questions.
+ Ms. Hayes. Thank you, Madam, Chair, and thank you for
+holding this very important hearing today. Madam Chair I'd like
+to submit a document from the Equal Rights Advocates in support
+of the Paycheck Fairness Act for the record.
+ Chairwoman Bonamici. Without objection.
+ Ms. Hayes. Thank you. My questions today really speak to
+the Pregnant Workers Fairness Act. I've spoken at other
+hearings before about my time in the classroom during my
+pregnancy where I needed unscheduled bathroom breaks, which
+seems like a reasonable accommodation, but when you are in a
+building and you need another teacher, or another faculty
+member to come and relieve you so that you can go to the
+bathroom it becomes an unnecessary hardship.
+ I've seen so many of my colleagues in the profession suffer
+with urinary tract infections, or long-term urinary retention
+problems, and other complications caused by what seems like
+just an accommodation that people can reasonably--that
+employers can reasonably make.
+ So, this is something that we all have to be intentional
+about, and make sure that we are working to promote those kinds
+of practices. Because when you're in a building with 1,400
+kids, it's not very easy to just walk out of your assigned
+post, or your classroom to use the bathroom.
+ My questions today are for Ms. Bakst. You know women across
+the country still face the impossible choice, risk your
+paycheck or your employment. You shouldn't have to take time
+off from work just because you need to be able to use the
+bathroom.
+ So, Ms. Bakst can you provide us with the economic
+consequences experienced by employees when they are denied a
+reasonable accommodation, or perhaps pushed out of a job
+prematurely because those accommodations cannot be met?
+ Ms. Bakst. Sorry yes, certainly. So you know it is, it's
+truly hard to believe that in 2021 that you know pregnant
+workers are routinely still being denied bathroom breaks and
+water bottles, and are forced to choose between maintaining a
+healthy pregnancy and earning a paycheck.
+ And what we've seen over and over and over again, the
+profound health and economic consequences of this decision. It
+seems so simple. Oh, it's just you know, this discreet period
+of time. It's not. It lasts, it spirals. We call--it snowballs
+into lasting devastating economic consequences for women.
+ It pushes too many women deeper into poverty because they
+are losing their paychecks in a moment that they, you know, so
+many women when they get pushed out, they say I tried to
+reapply for a job. Who is going to hire me?
+ Then, you know, they're a new mother and they've been
+detached from the work force and finding a job is incredibly,
+you know, they face heightened challenges. And so, these
+economic consequences force them to really risk their ability
+to support their families, put a you know, a roof over their
+head, put food on the table, have adequate supports that they
+need.
+ And all because they simply needed to maintain their health
+during their pregnancy. And this is--it's unacceptable, and as
+you said you know we've worked in almost 30 States. Similar
+laws are on the books in 30 States. It's been recognized as you
+know, a no-brainer essentially as this modest accommodation can
+go such a long way to help women stay healthy and attached to
+the work force.
+ Ms. Hayes. Thank you. I heard similar stories about that
+from women across my State. In one incident we had a
+firefighter who was placed on an unrequested, unpaid leave
+because of her pregnancy, despite her--she wanted to work. She
+tried to make every available, make suggestions, and try to
+work with the employer, and she was just denied and placed on
+an unrequested leave.
+ Also, in my district back in 2008, we had six low-wage
+black women who were working in a warehouse that suffered a
+miscarriage, despite asking for reasonable accommodations and
+providing the necessary, the required documentation from their
+medical provider.
+ So, these cases demonstrate for me that the current law is
+not sufficient to protect pregnant workers from harm. Ms. Bakst
+can you help us to understand why bringing a pregnancy related
+reasonable accommodation claim under the Americans With
+Disability Acts existing legal standard is insufficient for
+preventing pregnancy discrimination?
+ Ms. Bakst. Absolutely. Sorry. So absolutely. So, there are
+two main problems with the Americans Disability Act. This is an
+important law that guarantees reasonable accommodations for
+workers with disabilities. The problems here are first of all
+pregnancy is not recognized as a disability under the Americans
+With Disabilities Act.
+ So, for pregnant workers who are not disabled yet, right,
+who have a pregnancy with a health need to prevent
+complications, they're forced out. They have no luck. And the
+second is most pregnancy related complications are not
+recognized as ADA eligible accommodations.
+ Preeclampsia, high-risk----
+ Ms. Hayes. Ms. Bakst, I'm sorry. I want to continue but it
+looks like my time has run out, but you said something that
+from your words, from your mouth to God's ears, pregnancy is
+not a disability. With that Madam Chair I yield back.
+ Chairwoman Bonamici. Thank you representative. And if Ms.
+Bakst could submit the rest of the answer in writing unless
+somebody asks. Next, we're going to go to Representative
+Stefanik from New York. You're recognized for five minutes for
+your questions.
+ Ms. Stefanik. Thank you, chairwoman. Ms. Olson, you suggest
+providing employers incentives to engage in voluntary self-
+evaluations to proactively identify and address any pay
+disparities attributed to the sex of employees. How widespread
+are compensation self-evaluations, and are there reasons they
+are not more prevalent?
+ Ms. Olson. Thank you for your question. They are becoming
+more widespread. They are not prevalent Congresswoman Stefanik,
+and one of the deterrents that employers have to engaging in
+them is the uncertain status that self-critical analyses have
+under the law in terms of discoverability, and that's one of
+the problems, and that's one of the issues.
+ And so yes, more and more employers engage in these audits.
+These audits are usually ones that require that decisions that
+are important to assist in analyzing not just pay, but also the
+jobs and whether the jobs should be compared, and then
+identifying relevant factors.
+ Ms. Stefanik. So, let me ask you this. Let's look at a
+State that does have that at the State level. Massachusetts law
+encourages proactive self-evaluations by providing employers a
+safe harbor if they conduct good faith evaluations and take
+concrete steps to eliminate any pay disparities.
+ Do you believe that expanding this model will lead
+employers across the country to use self-evaluation and improve
+their compensation practices?
+ Ms. Olson. The answer is simple and straightforward yes. It
+definitely will, and I can speak from experience in working
+with employers those that do it and would have a lot more
+certainty, and would do it even more robustly if they had that
+certainty in terms of the audits, and that proactive reason--
+additional reason to do them.
+ And those that aren't doing them now or aren't doing them
+as frequently would do them more often. There's no question
+about that, because the benefit would be so clear, and the
+outlines of any risks they're not having a risk of doing the
+audit in terms of privilege would be right in front of them and
+they could weigh it clearly and move forward with the audit, so
+absolutely.
+ Ms. Stefanik. My next question is on strengthening the
+existing prohibition on sex-based discrimination. You made
+several recommendations to improve current law under the Equal
+Pay Act. One of those recommendations is to add a clear
+requirement that a pay differential must be business related
+which is consistent with the majority of U.S. Circuit Courts of
+Appeals have held.
+ How would this change strengthen the Equal Pay Act, and
+provide predictability and clarity for employers and workers?
+ Ms. Olson. It would strengthen the Equal Pay Act and
+provide clarity by being written into the statute. As I said in
+my testimony, the majority of Courts of Appeals, but not all,
+already attach that requirement to the statutory language
+factor other than sex.
+ This would make it universal. It would make it so that this
+would not be something that people were litigating over, and
+this would provide clear definition because a factor other than
+sex, that is job or business related, is something that is a
+standard that employers clearly can understand and use,
+business necessity isn't.
+ Ms. Stefanik. And then I want to ask about the wage history
+issue which is important. In your testimony you discuss various
+scenarios where H.R. 7's outright prohibition on considering a
+perspective employer's higher salary can actually function to
+disadvantage job applicants including women.
+ Do these same concerns exist if perspective employees are
+empowered to share their prior salary at any point during the
+hiring process and employers are permitted to act on this
+information when voluntarily provided?
+ Ms. Olson. So that's a great question. So, the answer is it
+depends if the Equal Pay Act is not amended to include business
+necessity, then an employer can act on a voluntarily shared job
+expectation or wage expectation without concern.
+ But if that were appropriate under the Equal Pay Act as
+amended, but the employer still had to show business necessity
+and that you know it was not just a business necessity, but it
+was also the least impactful in terms of the opposite sex, I'm
+not sure that job expectations of an applicant can ever be
+considered at any stage of the process as the Paycheck Fairness
+Act is written.
+ Without business necessity yes. It absolutely can be.
+ Ms. Stefanik. Thank you, Ms. Olson. My time is expired.
+Yield back.
+ Chairwoman Bonamici. Thank you. And I now recognize
+Representative Stevens from Michigan for five minutes for your
+questions.
+ Ms. Stevens. Thank you so much and thank you for this
+important hearing. There are about 4.2 million women between
+the ages of 19 and 25 who are covered as dependents on a
+parent's employer sponsored health plan. And my understanding
+is that insurance companies in the large group market and self-
+insured employer plans are currently exempt from Federal
+requirements that guarantee dependents have coverage of crucial
+health services such as labor, delivery, and maternity care.
+ Ms. Goss Graves.do you think you could explain this
+loophole, and how it relates to the intersection between the
+Affordable Care Act and the Pregnancy Discrimination Act?
+ Ms. Goss Graves. You know you are right that there is this
+terrible loophole. When a non-spouse dependent is denied
+maternity coverage on an employee's health plan, that has been
+held not to violate the Pregnancy Discrimination Act because as
+the theory goes it represents sex discrimination against the
+dependent, not against the employee.
+ And the Pregnancy Discrimination Act only protects
+employees from sex discrimination. It doesn't protect their
+dependents. And so you are correct that insurance companies,
+both in the large group market, and who are self-insured
+employer plans, are exempt from covering maternity care as an
+essential benefit, but they may be required to provide
+dependent maternity coverage under Section 1557 of the
+Affordable Care Act, which bans discrimination in healthcare
+programs and activities that receive Federal funds.
+ So that is for some piece, that might be through a range of
+legislation that have attempted to address this loophole on
+dependent coverage, and the gap is not acceptable for sure.
+ Ms. Stevens. Yes. And then let's also just give you an
+opportunity if you don't mind to respond to some of the claims
+that Ms. Olson has made regarding the Paycheck Fairness Act for
+you Ms. Goss Graves.
+ Ms. Goss Graves. Well I'd like to remind people that pay is
+one of those things where that is cloaked in a lot of secrecy.
+All of the information nearly is lying with the employer. And
+employees typically don't have a reason for knowing that they
+are making less at all, or certainly why they are making less.
+ And so, employers have all the information in addition to
+having the decisionmaking power. So, while I totally agree that
+the incentives should be that they want to pay people right the
+first time, and pay equally, there is lots of business case
+reasons for doing so. They just don't always do it.
+ And I wanted to get if I have a minute, to give a couple
+more examples of the types of things we see in fact, other than
+sex, that we are worried about. You know, you might have an
+employer arguing that they're paying someone more because they
+have potential, or because they see something in that man, or
+something else that is vague and not specific.
+ Those are the types of things that you really want to be
+sure are vetted and don't become just another proxy for sex.
+And there's a reason that the Paycheck Fairness Act lists very
+specifically things like education and experience because those
+are typical things that are totally fine to pay different wages
+for as long as they are actually themselves aren't sex-based
+reasons.
+ So, if you don't usually pay differently for experience,
+you shouldn't just because you're now in a certain situation
+dealing with a woman and you want to pay her. You know that's
+the only additional type of vetting that would be important.
+ Ms. Stevens. Great thank you. And Madam Chair I'd also like
+to enter to the record a letter from the Network Lobby for
+Catholic Social Justice in support of the Pregnant Workers
+Fairness Act.
+ Chairwoman Bonamici. Without objection.
+ Ms. Stevens. Thank you. And with one minute remaining, Ms.
+Bakst I just wanted to quickly ask you why pregnant workers
+have struggled to get accommodations under the ADA?
+ Ms. Bakst. Yes again, I mean it's just pregnancy is not a
+disability. And pregnancy related at the ADA was expanded in
+2008, the Americans With Disabilities Amendment Act, and there
+was a lot of you know, hope that more pregnant workers with
+complications would be covered under that law.
+ And you know many have been covered under that law, but too
+many have been left out because courts are saying your
+complications are not serious enough to warrant accommodations.
+ So, I mean crazy like hypos are core cases that women with
+severe bleeding you know, all sorts of health conditions, and
+courts are saying sorry you don't qualify for ADA coverage, and
+that's absurd.
+ Ms. Stevens. Thank you so much and I yield back. Thanks
+Madam Chair.
+ Chairwoman Bonamici. Thank you. I next recognize
+Representative from Iowa for five minutes for your questions.
+ Ms. Miller-Meeks. Thank you so much Madam Chairwoman. Thank
+you to all the panelists for being here. Ms. Olson my question
+is directed to you from my own personal experience. I'm
+currently a physician, but I've had you know numerous jobs as I
+paid myself through nursing school, my masters in education,
+collaborating that with the military.
+ I had two pregnancies, very healthy pregnancies thank
+goodness, which I did one during an internship, one during a
+residency, breastfed and pumped for both of those children up
+until about 18 months.
+ And so, in medicine there are differences in pay scale that
+has been brought up before between women and men, but when you
+look at the factors it's specialty hours and leave. And so, my
+question is there was a Harvard University Scholars published
+in 2018, a study on best bus and train operators working for
+the Massachusetts Bay Transportation Authority, and I think
+this was eluded to earlier.
+ All the employees in the study were covered by the same
+collective bargaining agreements, working under the same
+seniority system. The study found that this caused male
+operators, the wage difference excuse me, of 11 cents gap was
+found my male operators taking fewer unpaid hours and choosing
+to work more overtime.
+ And if briefly, if you can say in your experience working
+with issues related on compensation, are the Harvard studies'
+findings relevant to the debate on H.R. 7?
+ Ms. Olson. Thank you for your question. And what I would
+say to that is there's no question that certain job related
+factors that relate specifically to experience and expertise,
+and some of the other factors that were discussed today, are
+related to differences in pay, and that those are factors that
+are considered because they're job or business related.
+ Other facts that aren't job or business related are not
+currently allowed under the Equal Pay Act and would not be and
+should not be part of compensation systems and in my experience
+they are not.
+ Ms. Miller-Meeks. And how would H.R. 7 how would that
+impact like bonuses or recruitment bonuses, or you know,
+recruiting and hiring somebody from another company, you know,
+if these stipulations are in place and paying somebody a higher
+wage each time that you're looking at bringing an employee on,
+or giving a bonus, you have to look at all these other factors
+and wages.
+ Ms. Olson. The difficulty with H.R. 7 is it basically says
+look at the job they're hired to do. Pay everyone the same.
+Because if you differentiate based on hire or better
+qualifications or experience, or education, or something
+special about their background, or the fact that they tell you
+they will not come to your employment unless you pay them more
+than what you originally offered in your starting pay.
+ You're not going to be able to prove that that was a
+business necessity.
+ Ms. Miller-Meeks. Thank you so much.
+ Ms. Olson. And courts don't serve as super personnel
+department to second guess every employer's decision with
+respect to pay. So, if I'm an employer, what am I going to do?
+Am I going to give bonuses? Am I going to pay people
+differently? If I do so, I'm just going to let myself open to
+endless litigation at whose detriment? Those employees who
+actually have special skills, who actually have special
+expertise who bring something extra that is worth paying for.
+ Ms. Miller-Meeks. And to that end H.R. 7 directs the
+Department of Labor's Office of Federal Contract Compliance
+Programs to implement a survey of all non-construction Federal
+contractors to pay, collect pay data and other employment-
+related data, including hiring, termination and promotion data.
+ And given our previous question, should we also not have
+data on leave, unpaid or paid, family leave, hours worked
+overtime, loan repayment, length of service, seniority, and you
+can feel free to answer that. And if there's time Ms. Goss I
+would love to have your input also. And with that I'll yield my
+time after you have answered, thank you so much.
+ Ms. Olson. I would just say very quickly that the kind of
+data that's being requested goes far beyond any of the--under
+H.R. 7, goes far beyond the Equal Pay Act, and its specific
+goals. It also was Stated that employers don't currently
+collect promotion data. Data of national origin. And in terms
+of your question to be able to really understand what are
+making the differences in pay?
+ Are they legitimate business-related or job-related
+factors? You can't really get that in the kind of two-page form
+that the government is talking about implementing in H.R. 7. It
+would be useless. It would have no utility. And that's what the
+EEOC found when it collected the 2017 and 2018 EEO one
+component to data.
+ Chairwoman Bonamici. The time has expired, so I'm going to
+go next to Representative Leger Fernandez for five minutes for
+your questions.
+ Ms. Leger Fernandez. Thank you Chairs Bonamici and Adams
+and thank you to the witnesses for joining us today. You know
+we're here today to talk about fairness or perhaps we should
+say a lack of fairness. And you know it strikes me that the
+testimony provided for legislators would you know, lawmakers
+must hear, which is how has the existing law failed to achieve
+its goals, and how can we fix those gaps, right? That's our
+job.
+ And I must admit the examples provided by the witnesses are
+compelling. And the data is compelling. Women carried the brunt
+of job losses during the pandemic, losing a net 5.4 million
+jobs. And we need to make it easier for women to get back to
+work, including pregnant women.
+ I liked the point that was made earlier that States are
+moving in the right direction, including my State of New
+Mexico, which passed the Pregnant Woman Accommodation Act with
+bipartisan support last year but all women in every State must
+have similar protection.
+ So, Ms. Bakst, explain again how the Pregnant Workers
+Fairness Act will ensure that Latina women especially don't
+have to choose between their health and job security.
+ Ms. Bakst. Yes thank you for the question. And as I pointed
+out earlier you know this is still disproportionately impacts
+women of color, and Latina women especially right. And you know
+we heard earlier that the wage gap for Latina women is you know
+the most pronounced of any of the wage gaps that we have heard
+earlier.
+ And part of that I believe has to do with it's a multi,
+there are many reasons for the wage gap, but discrimination is
+part of that. And when pregnant women are pushed off the job
+because they have to be forced to choose between following
+doctor's orders and protecting their health, and risking their
+jobs, you know, they are going to suffer profound health, you
+know, and economic consequences.
+ Latino women are often the times of jobs that are
+congregated are often, put them in that position, right? These
+are jobs that are often less safe, you know, more physically
+demanding, and so the nature of those jobs require an
+affirmative accommodation protection to help them protect their
+paycheck and maintain their health.
+ Ms. Leger Fernandez. So, in some senses these are the
+essential workers that we're giving lots of thanks to these
+days, and what we're asking in this law is to give more than
+thanks, but actually respect and accommodation. Chair Bonamici
+I'd ask unanimous consent to submit two items into the record.
+The first is a letter from the National Partnership for Women
+and Families in support of all the bills before us. The second
+is testimony from Physicians for Reproductive Health in support
+of the Pregnant Workers Fairness Act.
+ Chairwoman Bonamici. Without objection.
+ Ms. Leger Fernandez. OK. So, for every dollar paid to white
+men, Latino women earn only 55 cents, and Native American women
+earn only 60 cents right. They have the latest of the equal pay
+days in the year. Ms. Goss Graves, in your testimony you
+pointed out that 60 percent of workers in the private sector
+nationally are either forbidden, or strongly discouraged from
+discussing their pay with their colleagues.
+ You were talking about this a bit earlier, but can you
+explain a little bit more why that is the case, and what, why
+Congress must act to protect workers from retaliation in
+discussing their pay with their coworkers.
+ Ms. Goss Graves. Well despite the fact that we have laws
+like the National Labors Relations Act, some employers just
+maintain policies that say that you can't talk about your wages
+to anyone, to your coworkers, and that you can't make inquiries
+even about wages.
+ And so, what that means is that employees are left in the
+dark. And it's a thing that I think isn't good for
+organizations, because I think you'll have some employees
+guessing about where they stand, assuming that they're being
+paid less because they are operating without any information.
+ So the Paycheck Fairness Act would prohibit these sorts of
+retaliatory bands where people are told, and sometimes made to
+sign documents that say you won't talk about your wages, and
+there will be a penalty if you do.
+ Ms. Leger Fernandez. So, the issue of full disclosure is
+good for everybody is what you're saying. I wanted to see if
+you wanted to take some time. We ran out of time to answer the
+question about data. We have a few seconds left.
+ Ms. Goss Graves. Sure. Thank you for that. Because that's
+you know, sunshine is a good disinfectant, and that's one of
+the reasons to provide that data. It will make our civil rights
+enforcement agencies stronger. It will enable them to identify
+trends, sectors that seem like outliers, and sometimes
+employers that seem like outliers.
+ But it also I think will be important for employers.
+Sometimes employers might think they were doing the right
+thing, but actually doing an analysis, taking a look allows
+them to make a correction, the sort of corrections that I think
+Ms. Olson says her clients want to make.
+ Ms. Leger Fernandez. Thank you. I yield back.
+ Chairwoman Bonamici. Thank you. I now recognize the Ranking
+Member of the full committee, Representative Foxx five minutes
+for your questions.
+ Ms. Foxx. Thank you, Madam, Chairwoman, and I thank the
+witnesses for their testimony on these important issues for
+workers around the country. Ms. Olson, from your experience
+studying the issue of compensation and advising clients, are
+employers diligent in fulfilling their legal responsibility not
+to pay different wages because of the sex of the employee?
+ And what steps do employers take to ensure they're not
+discriminating in this manner?
+ Ms. Olson. Thank you for your question. Here's how I would
+answer it. The vast majority of employers that I work with,
+that I know others are working with on these issues through
+both general groups where we talk and share best practices, are
+all working with employers who have a deep commitment to equal
+pay.
+ And that commitment comes not just from the law, but from
+wanting to do the right thing for their employees, which is
+also good for their business. And the kinds of things that
+they're doing, which is a consistent engrained sort of
+practices throughout their workplace include education and
+training and development of managers, tools to assist managers,
+in ensuring that whether they're interviewing a new employee,
+or a potential employee, or whether they're doing a performance
+review which is going to relate to a merit increase
+potentially.
+ Those decisions are focused on legitimate business-related
+reasons, not any other reasons that would not be relevant.
+They're also building new career frameworks within their
+compensation system. They're also reviewing their job
+descriptions against job requisitions, against also job
+requirements to make sure there's accuracy and validity in
+terms of what's being done.
+ They're also including different stages of a review on a
+regular basis, individual manager decisions as well as overall
+compensation decisions in any year to make sure that in fact
+there aren't inequities that aren't able to be explained by a
+business-related factor other than sex.
+ Ms. Foxx. Thank you very much. Your experience is the same
+as mine. Ms. Olson H.R. 7 directs the EEOC to collect this
+employee pay day on many levels, including hiring and
+termination, et cetera. A similar data collection was mandated
+by the Obama Administration, which the EEOC later discontinued.
+ Do you agree that requiring this additional reporting of
+the employee pay day to the Federal Government will create
+large compliance costs with doubtful utility in combating pay
+discrimination?
+ Ms. Olson. Thank you and the answer is I do. And I do based
+on the analysis that was done at the time of just the subset of
+the information that H.R. 7 would have employer collect. And
+just the subset of it. Just information on pay for example, the
+estimate was 700 million for employers to put in place for
+policies and practices, and changes to the HRIS system.
+ The EEOC itself says it had to invest over 5 million
+dollars in changing its own system to be able to accept the
+data, even after it was accepted in 2019, September 2019 for
+2017 and 2018, after review of the data the EEOC determined
+that it really had no benefit or utility.
+ So collecting data for data sake in a very high-level,
+without getting into specific job titles, and job functions to
+be able to compare jobs that are actually equal, or
+substantially similar, and then also identifying business-
+related factors without doing that analysis, the data is
+costly, but useless.
+ Ms. Foxx. There's a difference between data and
+information. In 2013 Ms. Olson, the Supreme Court in a national
+decision said that in retaliation cases, lessening the
+causation standard could contribute to the filing of frivolous
+claims which would siphon resources from efforts by employers,
+administrative agencies to ``combat workplace discrimination.''
+ Do you agree with the Supreme Court's comment on lessening
+the causation standard in retaliation cases? And if so, how
+does this relate to the Protecting Older Workers Against
+Discrimination Act?
+ Ms. Olson. The current standards that are present with
+respect to both retaliation under Title VII, as well as the Age
+Discrimination Employment Act, and I see my time is almost up,
+so if I could finish this sentence, is appropriate and has led,
+in my experience, to litigation that has been successful when
+it should be with respect to showing that employers used
+inappropriate factors in terms of their decisionmaking. I don't
+believe a change in the law is necessary or would be helpful to
+workers.
+ Ms. Foxx. Thank you very much. I can't see the time, but
+Madam Chair I'll assume that I'm out of time and yield back.
+ Chairwoman Bonamici. That is correct. I now recognize
+Representative Jones from New York for five minutes for your
+questions.
+ Mr. Jones. Thank you, Madam Chair, and thanks, also to
+Chair Adams for both of your leaderships. The issues raised
+here today impact far too many people in this country.
+According to a study by the Center for American Progress, women
+are the primary sole, or co-bread winners in 64 percent of
+families.
+ I was raised by a single mom who worked long hours for low
+pay to provide for our family, so wage and gender issues hit
+especially close to home for me. When I hear about the gender
+and racial pay gap, I think about the hard-working women who,
+like my own mother when I was growing up, have to provide for
+their families.
+ In my district, in Westchester and Rockland Counties where
+it is extremely expensive to live, and where low wages are
+therefore particularly burdensome on families, single mothers
+are the sole breadwinners in 13 percent of households. So, Ms.
+Goss Graves, some of my colleagues on the other side of the
+aisle insert that in seeking to correct the injustice of the
+gender wage gap, the Paycheck Fairness Act will actually harm
+business. Can you address this claim?
+ Ms. Goss Graves. I actually think that Ms. Olson made the
+case for why paying people fairly is actually a business good.
+It is a thing that will help you retain your talented
+employees. It is a thing that will help you ensure you have
+more diverse rooms.
+ But not every employer is there. So, we can't you know, I
+think Congress can't craft laws for the best-minded employer
+that is going to always make the right business decisions. It
+has to craft laws that ensure that the incentives are there for
+people to be paid fairly the first time.
+ A really tough thing to accomplish in the area of pay
+because it is so secret, and because all of the information
+lies with the employer, so we can't be in a situation where
+it's just sort of trust us, we got this, we have to be in a
+situation where there is information that our civil rights
+enforcement agencies have, and where employees can have
+conversations about their own pay, something has to give so
+that it can be detected when unfairness is happening.
+ Mr. Jones. In short there's no defensible reason to
+maintain the status quo. Data shows that black women typically
+make only 63 percent, excuse me, 63 cents. Latinos only 55
+cents, for every dollar paid to a white man. And it's clear to
+me that we need to strengthen the Equal Pay Act to ensure that
+women, and especially women of color are compensated fairly for
+their work.
+ Madam Chair, I ask unanimous consent to enter into the
+record a letter from the American Association of University
+Women urging support for the Paycheck Fairness Act.
+ Chairwoman Bonamici. Without objection.
+ Mr. Jones. There's no excuse for discrimination of any kind
+in the workplace. That includes age discrimination, which is
+one of the most common, and sadly most accepted forms of
+discrimination in the workplace. This too is personal for me.
+ My grandmother had to work well past the age of retirement
+just to pay for the high cost of prescription drugs, and
+medical procedures not fully covered by Medicare, which by the
+way is why we need Medicare for all.
+ One of the jobs my grandmother took was as a food service
+worker in the East Ramapo Central School District, a job she
+worked after my grandfather had died of cancer. I shudder to
+think what would have happened had her perspective employer
+determined she was simply too elderly to take the job.
+ I represent parts of Westchester and Rockland Counties.
+According to the 2020 census data in my district over 171,000
+of my constituents are seniors. And so, Ms. McCann when an
+individual brings a claim for multiple forms of employment
+discrimination such as gender, race and age, how do courts
+currently sort out the different standards of proofs and
+remedies in cases such as these?
+ And does the Protecting Older Workers Against
+Discrimination Act clarify and simply the adjudication of such
+claims?
+ Ms. McCann. Yes. Right now confusion reigns when someone
+brings a claim with multiple protective categories, so like an
+older woman like your grandmother, the courts have applied two
+causation standards.
+ And in fact some courts have gone so far to say they're not
+going to recognize intersectional claims because the very
+presence of the Title VII claim, the gender claim, means that
+age could not be a but for cause of the discrimination.
+ What POWADA would do would replace that confusion with
+uniformity because all of the statutes would have materially
+identical causations standard already, would now be subject to
+the same standard causation standard.
+ Mr. Jones. Thank you, Ms. McCann. Madam Chair I yield back.
+ Chairwoman Bonamici. Thank you. I now recognize
+Representative Good from Virginia for five minutes for your
+questions.
+ Mr. Good. Thank you Chairman and thank you to all of our
+witnesses. You know I think that the four of these acts combine
+together, and it is unfortunate we have to consider them
+together, versus separately, but the acts would better be
+called the Trial Lawyer Fairness Acts, or Protecting Trial
+Lawyer Acts.
+ These bills purport to correct problems that are largely
+not existent. They purport to fix issues that have been
+corrected by laws that have been placed for decades. These
+alleged discriminations that we're hearing about were
+eradicated largely before I entered the workplace some 30 plus
+years ago.
+ The fact is that most employers, virtually all employers,
+pay the same amount for the same work, for all people when
+considering factors such as experience, skills, performance,
+and other objective job-related criteria.
+ And that's true because it's simply required in a
+competitive marketplace, and to try to retain the most talented
+work force for the organization to be as successful as it can
+be, and frankly it is the law now.
+ These bills seem to flow from a lack of understanding by
+our majority on the true practices that exist at virtually all
+businesses, and perhaps that's from a lack of business
+experience. I spent nearly 20 years in the corporate world, and
+working through these issues, and applying these issues in a
+fair, non-discriminatory way because I wanted the business and
+my employees to be as successful as possible.
+ Or worse yet, this flows from a deliberate intent to be
+dishonest in representing the facts, or just an outright
+hostility toward businesses and employers in general. It's been
+reported that at the close of 2020, 8 million small businesses
+remain closed today because of the extreme government efforts
+to crush the economy through these ridiculous lockdowns,
+shutdowns, and restrictions on businesses.
+ The NFIB has reported, in my home State of Virginia, 25
+percent of businesses have closed. And according to Yelp they
+estimate that 60 percent of the businesses that have closed in
+2020 are unlikely rather, to reopen ever again. So, my question
+for Ms. Olson, do you think that these bills that are proposed
+before us today, do you think that these will help these
+businesses to reopen?
+ Ms. Olson. Thank you for your question. I appreciate it
+Representative Good. I don't believe that burdening employers
+with the unworkable, and unattainable requirements of the
+Paycheck Fairness Act will help workers in these businesses, or
+any businesses across America, and I strongly oppose it.
+ With respect----
+ Mr. Good. Excuse me, go ahead continue. No, you continue.
+ Ms. Olson. With respect to POWADA I've described in my
+written testimony at length, and in an abbreviated form given
+my five minutes, in my verbal testimony as well, how POWADA is
+not what it represents itself to be. It is not a worker
+friendly statute. It is a trial lawyer friendly statute.
+ Under mixed motive cases it is unquestioned that a worker
+will not receive any injunctive relief that will help itself,
+or any monetary relief as a result of a mixed motive case. With
+respect to issues that have covered in terms of the Pregnant
+Workers Fairness Act as well as the PUMP Act, I've included my
+commentary with respect to those in my written testimony, and I
+would say that there is unquestioned support for employers to
+provide reasonable accommodations for pregnant workers,
+including nursing mothers.
+ There are issues with respect to those various statutes or
+bills that I've described, that I know these committees have
+worked together before on, and to fix certain issues, and I am
+hopeful that that will continue after today in terms of
+ensuring that both pregnant workers and nursing mothers have
+the opportunity to be sure to have reasonable accommodations in
+the workplace.
+ Mr. Good. Thank you. When these businesses are unable to
+operate, to reopen, to successfully operate, that discriminates
+against all workers and that eliminates wages for all workers
+in the business's ability to provide for the workers who can
+provide for their families.
+ At a time of high unemployment, global economic
+uncertainty, tightening Federal regulations, do we think that
+will stimulate the economy, create jobs, or lead to more
+growth, adding more regulation, more burdensome regulations for
+employers?
+ Ms. Olson. It will not lead to more growth in either
+businesses or worker wages, and that's the problem with the
+Paycheck Fairness Act for example.
+ Mr. Good. Yes PFA, H.R. 7 that you're referring to, you
+know, it says it requires employers to show that pay
+differential for employees based on experience is a business
+necessity, and it's just really----
+ Chairwoman Bonamici. Representative your time has expired.
+ Mr. Good. It's incredible to hear the majority talk about
+business necessity with the way that they treated businesses--
+--
+ Chairwoman Bonamici. Representative your time has expired.
+ Mr. Good. ----in lockdowns and in this hearing today. Thank
+you.
+ Chairwoman Bonamici. I'm going to recognize Mr. Bowman from
+New York for five minutes for your questions.
+ Mr. Bowman. Thank you, Madam, Chair, and thank you to all
+the witnesses. Ms. Bakst, you discussed the impact that the
+PUMP Act could have for black mothers in particular. As you
+know that black mothers and pregnant women disproportionately
+remain in the work force and face less than accommodating
+workplace environments.
+ In your estimation how much of the black maternal health
+crisis might be attributed to the lack of these necessary
+accommodations in the workplace?
+ Ms. Bakst. Thank you for the question. You know providing
+accommodations for more specifically, time and space to pump
+breast milk, you know, is one important tool to help black
+women, black mothers, stay healthy and attach to the work
+force, along with the Pregnant Worker Fairness Act which I
+mentioned earlier some of the health impacts, and the
+pronounced impacts that we heard from COVID about the
+likelihood, the higher risk of complications pregnant workers
+face, disproportionately black and Latino women as a result of
+not getting, of developing COVID.
+ So, these accommodations in the workplace are critically,
+critically important, especially now, to help them maintain
+their health and hang on to their paychecks.
+ Mr. Bowman. Thank you for that. Ms. McCann, you have Stated
+that the EEOC must do more to fight ageism and that ADEA has
+become a second-class civil rights law. Is it the case that
+ADEA provides less protection than other civil rights laws?
+ Ms. McCann. Thank you for the question. Well that certainly
+was not Congress's intent when it enacted the ADA, and modeled
+its substantive prohibition, directly on Title VII. In fact,
+Title VII substantive prohibitions were lifted in hoc verba as
+the Supreme Court said from Title VII.
+ But what we've seen is over the last couple decades Supreme
+Court cases like Gross and others have whittled away at the
+ADEA's protections and have focused on any small differences
+between the ADA and Title VII to weaken the ADA's protection to
+narrow, to expand its affections and narrow its protection.
+ Mr. Bowman. Thank you very much. Ms. Graves, Ms. Olson
+suggests that incentivizing employers to conduct self-audits
+would be enough to address amoral and economically damaging pay
+inequities. Why is this approach insufficient in your opinion?
+ Ms. Goss Graves. Well you know so we've had equal pay laws
+for over five decades. It's not a new idea that you can't pay
+people unfair wages. What we are actually trying to do is
+ensure that people, ensure that our civil rights enforcement
+agencies have the sort of information that allow them to be
+effective.
+ So, it's an odd idea that you would have a safe harbor for
+an obligation that is over 50 years old, and the other real
+challenge is at the heart of our laws are the individuals who
+were being paid unfairly. So a safe harbor might allow an
+employer to do the right thing going forward, but for that
+individual who's not able to recover, that is a giant deal,
+especially when you're talking about women of color where the
+age gap is so large and so stark.
+ Mr. Bowman. Thank you very much. I yield back the rest of
+my time. Thank you.
+ Chairwoman Bonamici. Thank you very much. And for
+everyone's awareness we have next Mr. Fitzgerald and then Mr.
+Yarmuth, and then unless other Members return, we will do
+closing Statements. I now recognize Representative Fitzgerald
+for five minutes for your questions.
+ Mr. Fitzgerald. Thank you, Madam Chair. Just real briefly,
+I know a lot of the questions have already been asked, but the
+one that--the area that really stands out to me is I mean this
+bill will kill the Christmas bonus. And the Christmas bonus is
+something that's determined in many different ways based on the
+employer. Often times it's kind of a consensus compensation,
+that's based on how the company does throughout the entire
+year.
+ And it looks like H.R. 7 would simply stop that practice
+dead in its tracks. And I'm just wondering if Ms. Olson would
+like to comment on that aspect of this bill.
+ Ms. Olson. Yes. You're right, you know. Any employer is
+going to be concerned about making any differences in pay
+between employees based on objection and subjective business
+and job-related factors if H.R. 7 were the law.
+ Because once you do that, even if you could show it was a
+business necessity, which again I believe is an impossible
+burden, one that's undefined, one that employers are going to
+have to guess as to how to comply with. The employer would also
+have to show that they weren't able to give the highest amount
+of that Christmas bonus to all employees.
+ How is that not possible? And if an employer can't show
+that, that they wouldn't have gone bankrupt, what are they to
+do? It's going to eliminate the ability for employers to
+actually make differentiating payments to employees based on
+their individual contributions to the business, and that's not
+what the American economic system is about.
+ It's not about what job you have. It's about what job you
+have and what you bring to it.
+ Mr. Fitzgerald. Yes Madam Chair a lot of families really
+depend on that Christmas bonus, that end of the year bonus, and
+if this bill takes that off the shelf, I think it's--there's
+going to be a lot of people very upset. I yield back my time.
+Thank you.
+ Chairwoman Bonamici. Thank you representative. I now
+recognize Representative Yarmuth for five minutes for your
+questions. Thank you for your patience.
+ Mr. Yarmuth. Thank you, Madam Chair. Thanks to all the
+witnesses for your testimony, and my colleagues, for your
+questions. Ms. Bakst, Kentucky has accommodations similar to
+those in the Pregnant Workers Fairness Act, and in the last
+Congress GLI, which is our Greater Louisville Inc., which is
+our Chamber of Commerce, testified in favor of this bill.
+ Are you familiar with their testimony? And could you expand
+on, if you are, why they felt this was such an important step
+forward for mothers, perspective mothers?
+ Ms. Bakst. Sure. Yes. So, there were a few reasons I recall
+she laid out in her testimony. The first being employee
+retention, right, that this is a tool especially now you know
+to keep women healthy and attached to the work force.
+ Clarity in the law right, that you know we have Supreme
+Court standard, Young versus UPS that requires, as I said
+earlier, pregnant workers to jump through hoops to provide
+tremendous confusion for employers.
+ We came together you know with a U.S. Chamber in good
+faith, and this is why the Chamber termed, and other business
+groups are supportive of this bill, because it provides clarity
+in the law. And you know running a free legal help line, we
+help women in States with these laws, and we're able to avoid
+litigation and help them stay healthy and on the job.
+ And this is a preventative tool, and exactly how the law
+should work.
+ Mr. Yarmouth. All right thank. And I think in our case we
+are right on the Ohio River, right across from Indiana. I think
+you said about 30 States now have these accommodations. I don't
+think Indiana had those accommodations, so we had workers going
+back and forth trying to deal with different laws and
+accommodations which is not easy.
+ Ms. Bakst. Yes. And for multi-State employers operating in
+Kentucky and Indiana, you need a clear Federal law, right?
+That's why we need a clear Federal law from employers.
+ Mr. Yarmouth. And you know I think you know we talked so
+much about desirability of having bipartisanship that in the
+last Congress we had 100 Republicans who actually supported
+this legislation, so it seems that we have a golden opportunity
+to do something that is overwhelmingly bipartisan.
+ This community supports, the women's groups support, and I
+think it would be a very significant step forward. Ms. Goss
+Graves, I think your organization provided a lot of the data
+that we've been throwing around today on the disparity in wages
+between white men and black women, white women, Native women,
+and Latina women.
+ And if I'm correctly assessing it, it showed that of the
+gaps, so when we're talking about 60 percent, 60 cents on a
+dollar for Latino women to white men, almost 40 percent of that
+gap was basically unattributable to all of the things that
+we've been talking about, and Ms. Olson has been talking about
+with experience and the differences in occupations and so
+forth.
+ My question is, and it's kind of off the wall, so I
+apologize for that. You may not have the data. But do you have
+any indication. We know that black women, Latina women, often
+are disproportionately in lower wage jobs in the hospitality
+industry and so forth. Do you have any idea about how much of
+the wage gap would be corrected, or closed by a $15.00 national
+minimum wage?
+ Ms. Goss Graves. You know I don't have that statistic
+offhand. What I can tell you though is we've done analyses of
+States that have higher minimum wages, including one fair wage,
+and have found that in those States the gap is smaller.
+ Mr. Yarmuth. I was hoping that would be your answer, and I
+think that as we move forward on discussing raising the minimum
+wage, that we take that into account, that this is one of the
+ways that we can help correct some of this wage gap that exists
+between men and women.
+ I have no further questions, so Madam Chair I yield back
+the balance of my time.
+ Chairwoman Bonamici. Thank you representative Yarmuth.
+Next, we have Representative Cawthorn. You're recognized for
+five minutes for your questions.
+ Mr. Cawthorn. Thank you, Madam Chair. It really does mean a
+lot. I appreciate everyone who is on this call. You know I
+think it is absolutely imperative that we as Americans, that
+our employers and our government treat everyone with honor,
+dignity, and respect, treat them all fair, and under the law.
+ But I was--let me ask a question of Ms. Olson. Under the
+Equal Pay Act, does a Plaintiff have to prove discriminatory
+intent in order for her to win her case? If not, does this make
+the Equal Pay Act claims easier to prove, and do you have any
+other followup thoughts on that?
+ Ms. Olson. You're right Representative. Under the Equal Pay
+Act, it is the only employment discrimination statute that does
+not require a showing of discriminatory intent. As a result,
+it's sometimes referred to as a strict liability statute. In
+addition, unlike the other statutes, under the Equal Pay Act
+the employer bears the burden, and not just production, but
+persuasion.
+ All the plaintiff has to show under the Equal Pay Act is
+that they're performing a job that is the same as somebody else
+and that they're paid differently. That's it. No other
+evidence. No other taint or suggestion of discrimination, just
+that they're paid differently, and then all the burden goes to
+the employer.
+ Mr. Cawthorn. Well Ms. Olson thank you very much for your
+answer. Let me do one followup question on that. So, in my
+district I know I have a lot of companies who will reward high
+performing workers you know, with end of the year bonuses or
+maybe other incentives.
+ Do you believe that H.R. 7 would endanger these kinds of
+payments and rewards? And if that is the case, you know, how do
+these employers work to retain these high-level employees and
+encourage them to work harder than their coworkers?
+ Ms. Olson. It absolutely would because any time an employer
+makes a payment to a worker, whether it's a bonus, it's an
+incentive, or it's an increase in pay, or some other benefit,
+that is due to let's just say to that particular individual's
+contributions that are extra, or that are better than another
+worker, and maybe it's because they're a better teammate.
+ Maybe because they showed leadership on a particular
+project. Those aren't quantifiable objective factors, and yet
+why would an employer risk all this litigation, and unkept
+punitive and compensatory damages and class actions to reward
+its employees for those good qualities that are exhibited in
+the workplace to help all workers and the business?
+ They risk litigation if they do that.
+ Mr. Cawthorn. Well you know that's something, especially
+you know, with knowing with the Equal Pay Act, they really
+don't have to prove discriminatory intent or some of the
+litigation they would be facing. I know the district scare a
+lot of the employees in my district, so Ms. Olson I genuinely
+appreciate your expertise and your time. Thank you for coming
+out to our committee and thank you for enlightening myself on
+some of these issues.
+ So, everyone thank you very much and Madam Chairman I yield
+back the remainder of my time.
+ Chairwoman Bonamici. Thank you and I see no other Members.
+So, we'll move on. I want to remind my colleagues that pursuant
+to committee practice, materials for submission to the hearing
+record must be submitted to the Committee Clerk within 14 days
+following the last day of the hearing, so by close of business
+on April 1 of 2021, preferably in Microsoft Word format.
+ The materials submitted must address the subject matter of
+the subject matter of the hearing. Only a Member of the
+subcommittee, or subcommittees, or an invited witness may
+submit materials for inclusion into the hearing record.
+Documents are limited to 50 pages each.
+ Documents longer than 50 pages will be incorporated into
+the record via an internet link that you must provide to the
+Committee Clerk within the required timeframe, but please
+recognize that in the future that link may not work.
+ Pursuant to House rules and regulations, items for the
+record should be submitted to the Clerk electronically by
+emailing submissions to [email protected].
+Member offices are encouraged to submit materials to the inbox
+before the hearing, or during the hearing at the time the
+Member makes the request.
+ Again, I want to thank all of our witnesses for their
+participation today. Members of the subcommittees may have some
+additional questions for you. We ask the witnesses to please
+respond to these questions in writing. The hearing record will
+be held open for 14 days to receive these responses, and I
+remind my colleagues that pursuant to committee practice,
+witness questions for the hearing must be submitted to the
+Majority Committee Staff or Committee Clerk within 7 days.
+ The questions submitted must address the subject matter of
+the hearing. So, I now want to recognize the distinguished
+Ranking Member of the Subcommittee on Workforce Protections,
+Mr. Keller for a closing Statement.
+ Mr. Fulcher. Madam Chair I think Mr. Keller has stepped
+out.
+ Chairwoman Bonamici. OK. I don't see Mr. Keller, so I will
+recognize the chair of the Subcommittee on Workforce
+Protection, Dr. Adams for the purpose of making a closing
+Statement.
+ Chairwoman Adams. Thank you, Madam Chair. I also want to
+give my thanks again to our witnesses for joining us today.
+Today's hearing confirmed that women across the country
+continue to face discrimination in the workplace on multiple
+fronts. Women, particularly women of color, still face
+persistent gender-based wage discrimination even after 12 years
+of the Better Fair Pay Act, and 58 years of the Equal Pay Act.
+ And far too many nursing workers still do not have basic
+protections to ensure that they can take the time at work to
+pump in clean, private spaces. This discrimination has serious
+consequences for our entire economy, particularly as women are
+disproportionately pushed out of the work force during the
+pandemic.
+ Simply put, we cannot continue to rob nearly half of our
+Nation's work force of the wages they deserve, force women to
+work far more just to be paid fairly and penalize nursing
+workers. Congress has a moral responsibility to pass the
+Paycheck Fairness Act and the PUMP for Nursing Mothers Act, in
+addition to the Pregnant Workers Fairness Act, and the
+Protecting Older Workers Against Discrimination Act.
+ We've got to take action to ensure that basic workplace
+fairness for women and nursing workers and take meaningful
+steps to finally end gender-based workplace discrimination once
+and for all. Madam Chair I yield back and thank you very much.
+ Chairwoman Bonamici. Thank you, Chair Adams. And I now
+recognize the distinguished Ranking Member of the Subcommittee
+on Civil Rights and Human Services Mr. Fulcher, for the purpose
+of making a closing Statement.
+ Mr. Fulcher. Thank you, Madam Chair, and to the witnesses
+for providing the testimony. I spent two years in the
+workplace, largely as someone who had a lot of employees, and
+so I always learn from these testimonies and I thank you for
+participating.
+ Just my brief takeaway. We've already got laws on the books
+that address discrimination in the workplace. Age
+Discrimination and Employment Act, Americans With Disabilities
+Act, The Rehabilitation Act, Civil Rights Act, and employment
+trends for older workers in America are up, both in terms of
+the employment rate and in terms of pay.
+ The winners here are the trial lawyers. And I know that my
+colleagues across the aisle really like the trial lawyers, and
+so do I. I like them too, just not quite enough to support
+legislation that otherwise is a solution in search of a
+problem. Madam Chair I yield.
+ Chairwoman Bonamici. Thank you very much Ranking Member
+Fulcher. And I, hold on just one moment. There's just one issue
+we're trying to clarify. Hold briefly please. All right. Thank
+you for your patience.
+ I would now recognize myself for the purpose of making a
+closing Statement.
+ I also want to thank our witnesses for being here, for your
+compelling testimony today. Our discussions confirm that we are
+still a long way from eradicating discrimination in the
+workplace, particularly for women and older Americans, and the
+testimony established that the laws we have on the books are
+not working.
+ I do want to note that I request unanimous consent to enter
+a letter into the record from a coalition of stakeholders in
+support of the Pregnant Workers Fairness Act without objection.
+And I also request unanimous consent to enter a letter into the
+record from the business community in support of the Pregnant
+Workers Fairness Act, also without objection.
+ I also would like to note that during the opening Statement
+Ranking Member Fulcher you noted that a concern about only
+having one witness. I know we were talking about four bills
+today. I would like to place onto the record that the minority
+did not actually ask for a second witness, and had they done
+that we would have certainly considered that request.
+ So today we heard about how pregnant workers across the
+country continue to be denied access to reasonable workplace
+accommodations, despite more than four decades of Federal law
+providing equal treatment on the job.
+ We also heard how older workers face unreasonable obstacles
+that prevent them from holding employers accountable for age
+discrimination. It is passed time for Congress to take action
+to make sure that all workers can earn a living without fear of
+discrimination.
+ Our discussion today made clear that we must swiftly pass
+the Protective Older Workers Against Discrimination Act to
+restore protections against age discrimination for older
+workers. Put us back to where we were. Restore those
+protections, so people who are discriminated against can get
+relief. And we must pass the Pregnant Workers Fairness Act, so
+pregnant workers do not have to choose between healthy
+pregnancies and their wages.
+ These bills, along with the Paycheck Fairness Act and the
+PUMP for Nursing Mothers Act should not be partisan. They
+affect women and people of all parties and all backgrounds.
+Each of us, but disproportionately women of color, and Latin
+women we know that.
+ Each of us should agree, now more than ever, we must take
+these bold steps to protect our Nation's most vulnerable
+workers, and make sure that all workers can succeed on the job.
+ There being no further business, and I've already noted the
+possibility of additional questions, without objection the
+hearing now stands adjourned. Thank you again.
+ [Additional submissions by Chairwoman Bonamici follow:]
+ [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
+
+ [Whereupon, at 12:40 p.m., the subcommittees were
+adjourned.]
+
+ [all]
+