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Washington Labor & Employment Wire » Civil Rights

Employment Non-Discrimination Act (H.R. 1397)

Core Provisions:  On April 6, 2011, Rep. Barney Frank (D-MA) reintroduced the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination on the basis of an individual’s actual or perceived sexual orientation or gender identity in decisions regarding hiring, firing, compensation, and other 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.  In addition, the Act would make it an unlawful employment practice for an employer to discriminate based on actual or perceived sexual orientation or gender identity of a person with whom the employee associates, and prohibits retaliation against employees for exercising their rights under the Act.  The Act would apply to employers with 15 or more employees, but there is an exemption for religious employers and armed forces.

Rep. Frank introduced similar legislation in the 110th Congress, which failed to pass in the Senate, and in the 111th Congress, which failed to make it out of committee. 

Status: Rep. Frank reintroduced the bill with 117 co-sponsors on April 6, 2011.  It was referred to the House committees on Education and Workforce, Administration, Oversight and Government Reform, and the Judiciary on the same day. 


Senate Fails to Invoke Cloture on Paycheck Fairness Act

On November 17, 2010, the Senate was unable to carry the requisite 60 votes needed to invoke cloture to overcome a Republican filibuster and proceed to a vote on the Paycheck Fairness Act, S. 3772,  with a final vote of 58 yeas and 41 nays.

The Paycheck Fairness Act, previously introduced in the Senate by Senator Clinton (D-NY) as S. 766 and subsequently reintroduced by Senator Harry Reid (D-NV) on September 13, 2010, would amend the portion of the Fair Labor Standards Act (”FLSA”) known as the “Equal Pay Act.”

The Paycheck Fairness Act would amend the portion of the Fair Labor Standards Act (”FLSA”) known as the “Equal Pay Act” that prohibits differentials in pay between employees of the opposite sex unless those differentials “are based on any other factor other than sex.” Among other things, the bill would require that any pay differential be based only on certain “bona fide factors,” such as education, training or experience, which must also be consistent with “business necessity.” In addition, the bill provides for compensatory damages, and, in certain circumstances, punitive damages for Equal Pay Act claims, provides for opt-out class actions for Equal Pay Act suits under the FLSA, as opposed to opt-in class actions, and requires that the EEOC collect pay information data from employers relating to employees’ sex, race and national origin.  


Senate Scheduled to Vote on Paycheck Fairness Act

On November 17, 2010, the Senate is scheduled to hold a cloture vote on the Paycheck Fairness Act, S. 3772. The Paycheck Fairness Act would amend the portion of the Fair Labor Standards Act (”FLSA”) known as the “Equal Pay Act” that prohibits differentials in pay between employees of the opposite sex unless those differentials “are based on any other factor other than sex.”

The bill amends this language to require that any pay differential be based only on certain “bona fide factors” such as education, training or experience. Such bona fide factors must also be consistent with “business necessity.” In addition, the bill provides for compensatory damages, and, in certain circumstances, punitive damages for Equal Pay Act claims.  The bill also provides for opt-out class actions for Equal Pay Act suits under the FLSA, as opposed to opt-in class actions, and requires that the EEOC collect pay information data from employers relating to employees’ sex, race and national origin.  

The Paycheck Fairness Act was previously introduced in the Senate by Senator Clinton (D-NY) as S. 766. However, no action was taken on the bill. The bill was subsequently reintroduced by Senator Harry Reid (D-NV) on September 13, 2010.  The Paycheck Fairness Act was introducted in the House as H.R. 12, and passed the House by a vote of 256 to 163 on January 9, 2009, the same day that the House passed the Lily Ledbetter Fair Pay Act.  The President has previously indicated his support for the bill. 


Senate HELP Committee Holds Hearing on Pay Equity

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.


Senate Approves FY 2010 Consolidated Appropriations Bill (H.R. 3288)


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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.


Extended COBRA Continuation Protection Act of 2009 (H.R. 3930)

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.


Protecting Older Workers Against Discrimination Act


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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.


Senate Passes Anti-arbitration Amendment for Federal Contractors


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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). 


Employment Non-Discrimination Act of 2009 (H.R. 2981)

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.


Breastfeeding Promotion Act of 2009 (H.R. 2819)

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.