On March 11, the Senate Committee on Health Education Labor and Pensions (”HELP”) convened a hearing on the problem of gender pay inequity entitled, “A Fair Share for All: Pay Equity in the New American Workplace.”In his opening remarks, Senator Tom Harkin (D-Iowa), Chairman of the Committee, noted that despite passage of the Equal Pay Act in 1963 women today make only 77 cents for every dollar a man makes. Sen. Harkin characterized pay inequity as “not just a women’s issue, but a family issue” and expressed strong support for the Paycheck Fairness Act introduced by Senators Christopher Dodd (D-Connecticut) and Barbara Mikulski (D-Maryland), which was passed overwhelming by the House in January. Harkin said the legislation would provide the same pay for equivalent jobs, require employers to disclose pay scales and job descriptions, and give women more information to enable to negotiate better deals for themselves.

Ranking Member Michael Enzi (R-Wyoming) expressed his concern that the Paycheck Fairness Act would subject employers to more litigation, particular large class actions. He also criticized the bill for adding more “burdensome government reporting requirements,” and argued that improved job training nationwide and an improved economy would resolve many pay inequity issues. Sen. Dodd rejected criticism about the possibility for increased litigation and argued that the legislation would simply ensure women get the pay that they deserve.

The first witness at the hearing was the Honorable Rosa DeLauro, U.S. Representative for Connecticut’s 3rd District. She stated that the Paycheck Fairness Act would “close numerous longstanding loopholes in the Equal Pay Act” and stiffen “penalties for employers who discriminate based on gender.” Rep. DeLauro noted that the legislation would strengthen remedies to include punitive and compensatory damages, remedies already afforded to victims of race-based discrimination under the law. In response to the prediction that the legislation would result of in torrent of class actions lawsuits, Rep. Delauro argued that employers would successfully adjust to the new legislation and avoid any increased litigation effect, just as employers did in response to the passage of race-based discrimination laws.

The next witness was Stuart Ishimaru, Acting Chairman of the Equal Employment Opportunity Commission (”EEOC”). In addition to reiterating many of the facts showing that the gender wage gap persists, Ishimaru noted that caregiver discrimination is a part of the problem. Ishimaru explained that women are more than twice as likely to work part time, often because they need to provide care for kids and other family members, and that part time work pays less and is less likely to come with benefits. Ishimaru stated, “gender-based wage discrimination is especially untenable now, in this economy, as most families have come to rely on the incomes brought in by working women to make ends meet.” Ishimaru continued that EEOC’s “work would undoubtedly be strengthened by the passage of the Paycheck Fairness Act” and that the legislation would “provide essential tools” such as improved wage data “towards realizing the promise of equal pay.”

Heather Boushey, Senior Economist at the Center for American Progress, also testified before the panel stressing that women lose an average of $434,000 over a lifetime due to the gender wage gap. Boushey stated that the “largest chunk of the gender pay gap is due to combined effect of the segregation of men and women into different industries and occupations.” Boushey argued that the “data provisions of the Paycheck Fairness Act will allow employees to access the information they need to understand if their pay is at the market rate.”

The remaining witnesses were Deborah L. Brake, Professor of Law at the University of Pittsburgh, Deborah L. Frett , Chief Executive Officer of the Business and Professional Women’s Foundation, and Jane McFetridge, a partner at Jackson Lewis, LLP.

On Sunday, December 13, 2009, the Senate approved the $446.8 billion fiscal year 2010 consolidated appropriations bill (H.R. 3288), on a 57-35 vote. The omnibus bill consolidates six of the seven remaining fiscal year 2010 appropriations bills: the Commerce, Justice, Science, and Related Agencies Appropriations Act (H.R. 2847); the Departments of Labor, Health and Human Services, Education and Related Agencies Appropriations Act (H.R. 3293); the Financial Services and General Government Appropriations Act (H.R. 3170); the Military Construction and Veterans Affairs Appropriations Act (H.R. 3082); the Department of State, Foreign Operations, and Related Programs Appropriations Act (H.R. 3081); and the Transportation, Housing and Urban Development and Related Agencies Appropriations Act (H.R. 3288). 

Under this omnibus appropriations bill, the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission will all receive increased funding in FY 2010. The Department of Labor’s budget will increase $431 million from FY 2009, the National Labor Relations Board’s budget will increase $20.8 million from FY 2009, and the Equal Employment Opportunity Commission’s budget will increase $23 million from FY 2009. In total, under the bill the Department of Labor will receive $13.3 billion in discretionary funding, the National Labor Relations Board will received $283.4 million, and the Equal Employment Opportunity Commission will receive $367.3 million.  

If signed into law, the bill will also provide funding for the Justice Department’s Civil Rights Division ($145 million), the Federal Mediation and Conciliation Service ($46.7 million), the National Mediation Board ($13.5 million), the Occupational safety and Health Review Commission ($11.7 million), the Federal Mine Safety and Health Review Commission ($10.4 million), the U.S. Commission on Civil Rights ($9.4 million), and the National Council on Disability ($3.3 million).

As noted in the Senate Appropriations Committee summary, the bill would also present additional targeted funding for unemployment insurance program operations ($3.2 billion), dislocated worker employment and training ($1.4 billion), the Department of Labor’s “worker protection” agencies that regulate pensions, mine safety and health, occupational safety and health, wage and hour rules, and federal contractor compliance ($1.6 billion), and military veteran’s employment and training ($256 million).

The House previously approved the omnibus bill on December 10, 2009, on a 221-202 vote. The legislation now moves to the White House to be signed by the President. President Obama is expected to sign the bill.

Core Provisions: This legislation would extend for six months the maximum COBRA continuation coverage period for individuals who were involuntarily terminated between April 1, 2008 and December 31, 2009. The bill would also amend the American Reinvestment and Recovery Act of 2009 to extend the eligibility period and maximum assistance period for COBRA premium assistance under the Act. No extended COBRA benefits or extended COBRA premium assistance would extend beyond December 31, 2010.

Status: Rep. Sestak (D-PA) introduced H.R. 3930 on October 26, 2009, and it was referred to the Committees on Education and Labor; Energy and Commerce; and Ways and Means.

Core Provisions: New House and Senate bills would amend the Age Discrimination in Employment Act of 1967 (ADEA) to clarify the plaintiff’s burden of proof in lawsuits brought under the statute. Under the bills, a plaintiff can establish an unlawful employment practice by demonstrating by a preponderance of the evidence that age was a “motivating factor” for the adverse employment action, even if other factors also contributed to the decision. Alternatively, the plaintiff can establish by a preponderance of the evidence that the challenged action would not have occurred absent the employee’s age.

The bills were introduced in response to the Supreme Court’s June 18, 2009 decision in Gross v. FBL Fin. Servs. Inc., 129 S. Ct. 2343 (2009), in which the Court held a plaintiff bringing an ADEA disparate treatment claim must prove that age was the “but for” cause of the adverse employment action. The bills’ stated purpose is to ensure the standard for proving unlawful disparate treatment under the ADEA and other anti-discrimination and anti-retaliation laws mirrors the standard under Title VII of the Civil Rights Act of 1964, including amendments made by the Civil Rights Act of 1991.

Status: Rep. Miller (D-CA) and 16 co-sponsors introduced the House version of the bill (HR 3721) on October 6, 2009, and it was referred to the House Committees on the Judiciary and Education and Labor later that day. Similar legislation was introduced in the Senate by Sen. Harkin (D-IA) and 16 co-sponsors.

On October 6, 2009, the Senate passed an amendment (SA 2588) to the Department of Defense Appropriations Act of 20l0 (HR 3326) which will restrict the use of binding arbitration provisions by federal contractors.

The amendment affects federal defense contractors who currently use mandatory arbitration agreements of claims under Title VII or any tort claims “relating or arising out of” sexual assault or sexual harassment, including claims of assault and battery, intentional infliction of emotional distress, false imprisonment or negligent hiring, supervision, or retention.  The amendment prohibits allocating defense appropriations funds to any “existing or new” federal contract if the contractor or subcontractor “at any tier” requires employees or independent contractors to sign such mandatory arbitration agreements as a condition of employment.

The amendment passed with 68 votes in favor and 30 against.  The amendment was submitted by Senator Franken (D-MN) on October 1, 2009, and is co-sponsored by Senator Landrieu (D-LA). 

Core Provisions: The Employment Non-Discrimination Act (ENDA) would make it illegal for an employer to discriminate with respect to an individual’s actual or perceived sexual orientation or gender identity. This discrimination would be prohibited in decisions regarding hiring, firing, compensation, and terms, conditions, or privileges of employment. Employers also could not adversely limit, segregate, or classify employees or applicants because of actual or perceived sexual orientation or gender identity. The Act would apply to employers with 15 or more employees, but there is an exemption for religious employers.

Rep. Frank (D-MA) introduced similar legislation in the 110th Congress, but the gender identity language was removed to facilitate passage. That bill passed the House on November 7, 2007 by a vote of 235-184, but did not make it out of the Senate. As a result of the removal of the gender identity language, Rep. Frank introduced a stand-alone bill prohibiting employment discrimination on the basis of an individual’s actual or perceived gender identity, but that bill did not make it out of committee.

Status: H.R.2981 was introduced by Rep. Frank (D-MA) on June 19, 2009 and referred to the committees on Education and Labor; Administration; Oversight and Government Reform; and Judiciary.

Core Provisions: The bill would amend several federal statutes to provide additional protections for breastfeeding.  First, the bill would amend Title VII of the Civil Rights Act of 1964 to protect breastfeeding women from being discriminated against in the workplace.  The bill would explicitly provide that “breastfeeding and expressing breast milk in the workplace are protected conduct.” Second, the bill would establish certain tax credits for employer expenses incurred to promote or support workplace breastfeeding, while simultaneously modifying the Internal Revenue Code definition of “medical care” to provide individuals with tax deductions for breastfeeding equipment and consultation services. Third, the bill would direct the Secretary of Health and Human Services to establish performance standards for breast pumps and identify those pumps that are appropriate for use on a regular basis in places of employment.  Finally, the bill would amend the Fair Labor Standards Act to provide that employers with 50 or more employees must provide breastfeeding mothers with adequate break time and privacy for breastfeeding needs. 

Status: Rep. Carolyn Maloney (D-NY) introduced the bill on June 11, 2009, and it was referred to the House Committees on Education and Labor, Ways and Means, and Energy and Commerce that same day.

Core Provisions: As passed by the House on June 8, 2009, the bill would amend the Uniformed Services Employment and Reemployment Rights Act to extend its prohibition against discrimination and acts of reprisal against armed service members to include persons who receive treatment for illnesses, injuries, and disabilities incurred in or aggravated by service in the uniformed services. The amended statute would therefore prohibit employers from discriminating or making any adverse employment decision against a veteran on the basis of that employee or applicant’s receipt of treatment for an illness, injury, or disability determined by the Secretary of Veterans Affairs to have been incurred in or aggravated by uniformed service.

The bill as passed by the House would further establish certain rights of veterans absent from employment for a military service-connected disability. These employees would be: 1) entitled to be retained by the employer and 2) entitled to the seniority and other rights and benefits determined by seniority the veteran had on the date of the treatment for the disability, plus the additional seniority and rights and benefits the veteran would have attained had he or she remained continuously employed. In addition, these employees would be deemed to be on furlough or a leave of absence while receiving treatment for a military service-connected disability, and therefore would be entitled to other non-seniority rights and benefits generally provided by the employer to employees having similar seniority, status, and pay who are on furlough or a leave of absence.

Employees would not be entitled to such non-seniority rights and benefits if the employee provides written notice to the employer of having no intent to return to employment following medical treatment.  Further, employers would not be required to retain a covered veteran if: 1) circumstances have so changed to make retention impossible or unreasonable, 2) retention would pose an undue hardship on the employer, or 3) the employment in question is for a brief, nonrecurrent period and there is no reasonable expectation that it will continue indefinitely or for a significant period.

The House version of the bill also would permit any veteran absent from work due to treatment for a military service-connected disability to use any accrued vacation, annual, medical, or similar leave with pay to cover such time away from work, although an employer cannot require a veteran to do so.

Status: Rep. Doggett (D-TX) introduced the Wounded Veteran Job Security Act on January 13, 2009 and it was referred to the House Committee on Veterans’ Affairs. The bill was reported with amendments to the House Committee on Veterans’ Affairs and placed on the Union Calendar on May 19, 2009. The bill was passed by the House in a voice vote on June 8, 2009. The bill will now move to the Senate.

Core Provisions: As passed by the House on June 8, 2009, the bill would amend the Uniformed Services Employment and Reemployment Rights Act to extend its prohibition against discrimination and acts of reprisal against armed service members to include persons who receive treatment for illnesses, injuries, and disabilities incurred in or aggravated by service in the uniformed services. The amended statute would therefore prohibit employers from discriminating or making any adverse employment decision against a veteran on the basis of that employee or applicant’s receipt of treatment for an illness, injury, or disability determined by the Secretary of Veterans Affairs to have been incurred in or aggravated by uniformed service.

The bill as passed by the House would further establish certain rights of veterans absent from employment for a military service-connected disability. These employees would be: 1) entitled to be retained by the employer and 2) entitled to the seniority and other rights and benefits determined by seniority the veteran had on the date of the treatment for the disability, plus the additional seniority and rights and benefits the veteran would have attained had he or she remained continuously employed. In addition, these employees would be deemed to be on furlough or a leave of absence while receiving treatment for a military service-connected disability, and therefore would be entitled to other non-seniority rights and benefits generally provided by the employer to employees having similar seniority, status, and pay who are on furlough or a leave of absence.

Employees would not be entitled to such non-seniority rights and benefits if the employee provides written notice to the employer of having no intent to return to employment following medical treatment.  Further, employers would not be required to retain a covered veteran if: 1) circumstances have so changed to make retention impossible or unreasonable, 2) retention would pose an undue hardship on the employer, or 3) the employment in question is for a brief, nonrecurrent period and there is no reasonable expectation that it will continue indefinitely or for a significant period.

The House version of the bill also would permit any veteran absent from work due to treatment for a military service-connected disability to use any accrued vacation, annual, medical, or similar leave with pay to cover such time away from work, although an employer cannot require a veteran to do so.

Status: Rep. Doggett (D-TX) introduced the Wounded Veteran Job Security Act on January 13, 2009 and it was referred to the House Committee on Veterans’ Affairs. The bill was reported with amendments to the House Committee on Veterans’ Affairs and placed on the Union Calendar on May 19, 2009. The bill was passed by the House in a voice vote on June 8, 2009. The bill will now move to the Senate.

Core Provisions: The bill would amend the enforcement section of Title III of the Americans with Disabilities Act of 1990, by adding a procedure that allows covered entities the opportunity to correct an alleged violation prior to the initiation of a plaintiff’s lawsuit under the ADA or a related state statute. Title III covers places of public accommodation; commercial facilities; and private entities that offer certain examinations and courses related educational and occupational certification.

Under the proposed legislation, before filing a complaint in federal or state court alleging a violation of the ADA or a state law that conditions a violation of its provisions based on a violation of the ADA, a plaintiff would be required to provide the covered entity with written notice of the alleged violation and an opportunity to remedy the alleged violation. The written notice would need to (1) identify the facts that constitute the alleged violation, including the location of the alleged violation and the date on which the alleged violation occurred; and (2) contain a statement indicating that the plaintiff is barred from filing a complaint until the end of a 90-day remedial period. Covered entities would have 90 days to correct an alleged violation following receipt of the written notice. If a plaintiff ultimately files a complaint under the ADA or a related state statute, the complaint would be required to state that as of the date of the filing, the defendant had not corrected the alleged violation. The bill would permit a court to extend the 90-day remedial period one time by a period not to exceed 30 days if the defendant applies for an extension.

Status: On May 13, 2009, Rep. Duncan D. Hunter (R-CA) introduced H.R. 2397. The bill was referred to the House Committee on the Judiciary following its introduction.