Core Provisions: This Act would amend the Equal Pay Act, which prohibits sex-based wage discrimination, to permit a “bona fide factor” affirmative defense only if the employer demonstrates that the factor is job-related or furthers a legitimate business purpose. Making it more difficult for employers to establish affirmative defenses to Equal Pay Act claims, an affirmative defense would no longer be valid where the employee could demonstrate an alternative employment practice that served the same business purpose without producing wage differences. Further, the bona fide factor defense would require a showing by the employer that the bona fide factor was actually applied and used reasonably. The bill also would increase penalties against employers for Equal Pay Act violations by adding compensatory and punitive damage liability.

Status: S.766 was introduced in the Senate by Sen. Clinton (D-NY) on March 6, 2007 and referred to the HELP Committee. In the House, the Subcommittee on Workforce Protections held a hearing on H.R.1338 on July 11, 2007. An amended version was passed out of committee in the House on July 24 and then passed by a 247-178 margin by the House on July 31, 2008. On July 30, 2008, the White House issued a statement threatening to veto the legislation because it allowed unlimited damages.