United States: House Holds Hearing On Paycheck Fairness Act

Seyfarth Synopsis: On Wednesday, February 13, Seyfarth Shaw’s Camille A. Olson testified at a joint hearing of the House Subcommittee on Civil Rights and Human Services and the Subcommittee on Workforce Protections on the Paycheck Fairness Act  (H.R. 7).  That bill, in summary, would radically amend the Equal Pay Act to virtually eliminate the ability of an employer to explain pay differences between employees based on job-related factors that are not specifically enumerated in the Equal Pay Act; prohibit an employer from seeking or relying on an applicant’s pay when extending a job offer; impose unlimited punitive and compensatory damages and expand class action rules to the benefit of the trial bar; and make numerous other changes to existing law.  In addition to highlighting significant concerns with H.R. 7, Camille also discussed certain opportunities to enhance the current protections against wage discrimination.

What Would H.R.7 “The Paycheck Fairness Act” Do?

Although couched in seemingly technical language, H.R. 7 would:  make sweeping changes to the Equal Pay Act making it extremely difficult for an employer to defend itself even when legitimate job-related factors explain differences in pay; impose unlimited punitive and compensatory damages and expand class action rules to the benefit of the plaintiffs’ trial bar; and impose numerous other changes.  There are a number of significant concerns with the H.R. 7, including:

  • Defacto Eliminates the “factor other than sex” Defense.  Under the EPA, an employer must explain any pay difference is job-related.  If the employer cannot do so, the plaintiff prevails.  No showing of discriminatory intent is required under the EPA.  H.R. 7 requires an employer prove that (1) it paid more because of a business necessity, (2) the proven business necessity explains 100% of any pay difference, and (3) the business necessity was not derived from a sex-based differential in compensation.  Even if an employer meets this high burden, H.R. 7 provides that the employer will have liability if an “alternative employment practice” would have served the same purpose without producing a wage difference. 
  • Prohibits Employers From Seeking Or Relying on Current or Prior Pay.  Under H.R. 7, employers cannot seek and must ignore an applicant’s current pay when making an offer.  Seyfarth highlighted that current pay often provides valuable information regarding a candidate’s actual experience, performance or expertise, and that the EEOC has described justifiable reasons for considering an applicant’s prior salary.  H.R. 7 essentially keeps both sides in the dark about the expectations that each party has with regard to the pay for the job at issue.
  • Expands Available Damages and Class Actions Under the EPA.  While concurrently gutting the existing ability of employers to defend legitimate reasons for pay differences, H.R. 7 creates another layer of damages that allow for unlimited compensatory and punitive damages.  These damages far exceed the available remedies under Title 7 which require intentional discrimination for both compensatory and punitive capped damages and are in addition to the significant penalties that already exist in the EPA.  In addition, the changes to the class action methodology would significantly expand the class size because the  potential class members would be required to opt-out of the class as opposed to opting-in to the class under current law.  
  • Definition Of “Establishment.” The Equal Pay Act requires equal pay for men and women who perform equal work in the same establishment. The proposed law would cover pay disparities between employees working not only in the same physical location, but also between employees working in the same “county or similar subdivision of a State.” 
  • New Data Collection Obligations. H.R. 7 would mandate an EEOC-driven data collection process that would require employers to submit compensation data and other employment-related data (including hiring, termination, and promotion data) by gender, race/ethnicity and national origin.  H.R. 7 also requires that the data must be “disaggregated” (an undefined term).
  • Changes to OFCCP Practice. H.R. 7 also proposes to direct the OFCCP to change its methodology regarding the identification of compensation discrimination.  The statute would reinstate the pay grade methodology, and would eliminate the requirement that the OFCCP prove discrimination by the use of multiple regression analyses, among other changes.  In addition, H.R. 7 creates a new mandatory reporting requirement for government contractors.

While highlighting these concerns in her testimony, Ms. Olson also highlighted that employers have a deep commitment to ensuring that their compensation systems effectively attract, motivate, reward and retain employees while complying with applicable laws. Ms. Olson also identified certain opportunities to improve the Equal Pay Act.  For example, (1) adding language to the EPA that expressly states that pay differences between workers performing the same work must be based on job-related reasons, (2) providing employees with an express protection within the EPA against retaliation for engaging in discussions and gathering information regarding compensation for the purpose of determining whether an unlawful wage disparity exists, and (3) providing employers with incentives to engage in voluntary self-critical compensation analyses that encourage self-evaluation to eliminate unjustified pay discrepancies without the need for litigation.  

H.R. 7 is based on the false premise that broad wage differences between men and women in equal jobs are necessarily due to wage discrimination by employers, and, taken as a whole, H.R. 7 is unworkable as a practical and legal matter in today’s workplaces.

Seyfarth was invited to provide substantive analysis and expertise regarding the implications of H.R. 7 on an employer’s pay practices as well as its impact on current litigation and class procedures under the Equal Pay Act.  The other hearing witnesses provided support for H.R. 7’s existing language without reservation. 

Numerous Seyfarth Shaw attorneys provided significant analytical contributions to the testimony presented, including Annette Tyman, Richard B. Lapp, Lawrence Z. Lorber, and Randel K. Johnson.  For further information, contact Annette Tyman, Pay Equity Group Co-Chair;  Randy Johnson, Government Relations and Policy Group Chair; or Camille Olson, Complex Discrimination Practice Group Chair. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions