[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.]
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