On July 24, 2008, following an afternoon markup session, the House Committee on Education and Labor passed an amended version of the Paycheck Fairness Act (H.R. 1338) out of committee by a vote of 26 to 17, thus advancing the bill to the House floor. In an attempt to address ongoing pay disparities by gender, the Paycheck Fairness Act would eliminate the caps on punitive and compensatory damages in actions brought under the Equal Pay Act, and would make it more difficult for employers to establish the “bona-fide factor” affirmative defense. Under the Paycheck Fairness Act, the “bona-fide factor” 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.

The Committee passed the amendment proposed by Committee Chairman Miller (D-CA), which was a substitute version of the legislation. Miller’s amended version is similar to the original, but addresses some employer concerns by clarifying that employees would only be deemed to work in the same “establishment” for purposes of proving a pay disparity if the employees “work for the same employer at workplaces located in the same county or similar political subdivision of a State.” The amended bill also clarifies that the provision protecting employees from employer retaliation would not apply to employees with access to wage information by virtue of their job duties who disclose other employees’ wages, unless the disclosure is in response to a complaint or charge or in furtherance of an investigation. Where the original legislation appropriated “such sums as may be necessary,” the version passed by the committee would authorize a $15 million appropriation.

Several proposed amendments failed to pass, including two amendments by Rep. Price (R-GA), which would have made implementation of the Act contingent upon a 90-day study by the Department of Labor on whether the bill would hinder recruitment and hiring, and limited reasonable attorney’s fees under the act to $2,000 per hour. Several proposed amendments were ruled non-germane by Chairman Miller. These included an amendment proposed by Rep. McMorris Rodgers (R-WA) mirroring her proposed Family-Friendly Workplace Act (H.R. 6025), and an amendment proposed by Rep. McKeon (R-CA) requiring a study on how rising energy costs exacerbate the impact of wage disparities for American families.