Paycheck Fairness Act

Floor Speech

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Mr. SMITH of New Jersey. Madam Speaker, I have strongly supported the Paycheck Fairness Act and have done so for over two decades.

When the legislation finally got a vote in the House in 2008, I voted ``yes'' I voted ``yes'' again in 2009 and 2019. I have cosponsored the Paycheck Fairness Act since 2015.

In January, I again enthusiastically cosponsored H.R. 7--the Paycheck Fairness Act.

In late March, however, H.R. 7 was radically altered during markup in the Education and Labor Committee with a new definition of ``sex'' that according to serious legal analysis will compel employers to subsidize abortion on demand.

Because I respect the inherent dignity and value of unborn baby girls and boys who will be put at grave risk of death by dismemberment abortion and chemical poisoning if H.R 7 is enacted in its current form, I will vote ``no'' today.

In a letter dated April 14, the United States Conference of Catholic Bishops said: ``H.R. 7 would amend the Fair Labor Standards Act (FLSA). The FLSA, among other things, prohibits unequal wages between men and women performing equal work. 29 U.S.C. Sec. 206(d)(l). Wages include all forms of remuneration, including ``frinqe benefits'' such as ``medical, hospital, [and] accident . . . insurance,'' ``life insurance,'' ``retirement benefits,'' and ``leave.'' 29 C.F.R. 1620.10, 1620.11.

``Strengthening federal law to ensure equal compensation for equal work as between men and women is a laudable legislative goal, and we heartily endorse that goal . . . Unfortunately, H.R. 7 has moved in a different direction . . . We believe that if the bill were to pass, the Fair Labor Standards Act could be construed to require employers, including even religious organizations, to cover and pay for abortions . . . we urge members to oppose the redefinition of sex in H.R. 7 and instead revert to the version of the bill that passed the House in the 116th Congress.''

The National Right to Life Committee opposed the redefinition of ``sex'' and opposes the bill. They said in a letter: ``H.R. 7 makes definitional changes to sex to include pregnancy, childbirth, or a related medical condition. It is well established that abortion will be regarded as a ``related medical condition.'' See 29C.F.R.pt.1604 App.(1986) and Doe v. CARS Protection Plus, lnc., 527F.3d 358 (3dCir.2008).

``Historically, when Congress has addressed discrimination based on sex, rules of construction have been added to prevent requiring funding of abortion. Since there is no rule of construction that would make this legislation abortion-neutral, it is likely that H.R. 7 could be used to sue employers for a lack of elective abortion coverage.''

In like manner, the Susan B. Anthony List opposes the bill noting that H.R. 7 amends the Fair Labor Standards Act of 1938 by adding ``pregnancy childbirth, or a related medical condition'' to the definition of ``sex,'' which courts have interpreted broadly to include abortion.''

Other pro-life organizations urged a ``no'' vote including March for Life Action.

Madam Speaker, underscoring my commitment to the legislation without the redefinition of the term ``sex'', yesterday I introduced H.R 2490-- the Paycheck Fairness Act with the identical H.R. 7 language from January.

H.R. 2490 is needed to ensure that the noble goals embedded in the landmark law, the Equal Pay Act of 1963, are achieved.

Among its provisions H.R. 2490:

Prohibits employers from seeking the salary history of prospective employees. By banning reliance on salary history in determining future pay, the bill ensures that prior pay discrimination doesn't follow workers from job to job.

Bans retaliation against workers who discuss their wages.

Improves research on the gender pay gap. The bill instructs DOL to conduct studies and review available research and data to provide information on how to identify, correct, and eliminate illegal wage disparities.

Requires the collection of wage data from federal contractors and directs the Equal Employment Opportunity Commission (EEOC) to conduct a survey of available wage information and create a system of wage data in order to help the Department of Labor uncover wage discrimination.

Provides a small business exception. The Equal Pay Act and the Fair Labor Standards Act have an exemption for small businesses that generate less than $500,000 in annual revenues a year, and the Paycheck Fairness Act would keep that exemption intact.

Supports small businesses with technical assistance.

Provides assistance to all businesses to help them with their equal pay practices, recognize excellence in pay practices by businesses, and empower workers by creating a negotiation skills training program.

I include in the Record the following letters of opposition. United States Conference of Catholic Bishops, Washington, DC, April 14, 2021.

Dear Representative: We write to raise pro-life and other concerns about the Paycheck Fairness Act, H.R. 7.

H.R. 7 would amend the Fair Labor Standards Act. The FLSA, among other things, prohibits unequal wages between men and women performing equal work. 29 U.S.C. Sec. 206(d)(l). Wages include all forms of remuneration, including ``fringe benefits'' such as ``medical, hospital, [and] accident . . . insurance,'' ``life insurance,'' ``retirement benefits,'' and ``leave.'' 29 C.F.R. Sec. Sec. 1620.10, 1620.11.

Strengthening federal law to ensure equal compensation for equal work as between men and women is a laudable legislative goal, and we heartily endorse that goal. See Economic Justice for All, no. 167 (1986), (``Particular attention is needed to achieve pay equity between men and women''); Compendium of the Social Doctrine of the Church, no. 295 (2004) (``An urgent need to recognize effectively the rights of women in the workplace is seen especially under the aspects of pay, insurance and social security.''); Pope Francis, Audience with Delegates from the Confederation of Trade Unions in Italy (June 28, 2017) (``And what I am about to say may seem obvious, but in the world of work women are still in second class. You might say, `No, but there is that businesswoman, that other one . . .'; yes, but if women earn less, are more easily exploited . . . do something.''). Indeed, Congress could do more in this area.

Unfortunately, H.R. 7 has moved in a different direction. On March 24, the House Committee on Education and Labor marked up the bill to redefine the term .. ``sex'' to include such items as ``sex stereotypes,'' ``pregnancy, child birth, or a related medical condition,'' ``sexual orientation.'' ``gender identity,'' and ``sex characteristics. including intersex traits.''

H.R. 7's redefinition of sex in the FLSA is seriously problematic. We believe that if the bill were to pass, the FLSA could be construed to require employers, including even religious organizations, to (a) cover and pay for abortions, contraceptives, and gender transition procedures in their health plans (b) treat same-sex civil marriages as equivalent to traditional marriages in the provision of spousal benefits, and (c) facilitate abortions and gender transition procedures by providing paid leave for that purpose as part of existing paid leave programs. In this way, the bill would require many religious organizations to be involved in and to approve things they sincerely believe are wrong.

Some may argue that Title VII already imposes all or some of these requirements. That argument--in addition to rendering the redefinition of ``sex'' in this bill seemingly redundant in whole or in part--overlooks the fact that Title VII has religious exemptions and abortion-neutral language that are not found in the FLSA. The Supreme Court has put off to another day the resolution of the question of exactly how the sex discrimination provisions of Title VII intersect with the religious convictions of employers. Bostock v. Clayton County. 140 S. Ct. 1731, 1753-54 (2020). H.R. 7 would raise a similar question but in a different statutory setting, one in which the critical religious exemptions and abortion-neutral language of Title VII are entirely missing.

For these reasons, we urge members to oppose the redefinition of sex in H.R. 7 and instead revert to the version of the bill that passed the House in the 116th Congress. Sincerely. His Eminence Timothy Cardinal Dolan,

Archbishop of New York, Chairman, Committee for Religious Liberty. Most Reverend Paul S. Coakley,

Archbishop of Oklahoma City, Chairman, Committee on Domestic Justice And Human Development. Most Reverend Joseph F. Naumann,

Archbishop of Kansas City in Kansas, Chairman, Committee on Pro-Life Activities. Most Rev. David A. Konderla,

Bishop of Tulsa, Chairman, Subcommittee for the Promotion, and Defense of Marriage. ____ National Right to Life Committee, Inc., Alexandria, VA, April 13, 2021. Re In Opposition to the Paycheck Fairness Act (H.R. 7).

Dear Representative: This week, the House will consider the Paycheck Fairness Act (H.R. 7). While the legislation is meant to address potential discrimination regarding the gender pay gap, the legislation was amended to contain language that could be construed to require employers to cover elective abortion in their healthcare benefits.

Because of this change, National Right to Life urges you to oppose the bill and reserves the right to include a House roll call on this measure in our scorecard of key pro-life votes of the 117th Congress.

H.R. 7 states that it constitutes discrimination to provide disparate wages based on sex, and the legislation creates more opportunities to seek remedies for those challenging compensation. The Equal Employment Opportunity Commission (EEOC) has defined equal pay under the Fair Labor Standards Act and the Equal Pay Act of 1963 to include all forms of compensation, including healthcare benefits.

H.R. 7 makes definitional changes to ``sex'' to include ``pregnancy, childbirth, or a related medical condition.'' It is well established that abortion will be regarded as a ``related medical condition.'' See 29 C.F.R. pt. 1604 App. (1986) and Doe v. CARS Protection Plus, Inc., 527 F.3d 358 (3d Cir. 2008).

Historically, when Congress has addressed discrimination based on sex, rules of construction have been added to prevent requiring funding of abortion. Since there is no rule of construction that would make this legislation abortion- neutral, it is likely that H.R. 7 could be used to sue employers for a lack of elective abortion coverage.

Under H.R. 7, a person could make a claim that an employer's failure to provide health coverage for abortion is discriminatory if an employer provides health coverage for male-specific items.

For the reasons above, National Right to Life opposes the current version of H.R. 7 and reserves the right to include a House roll call on this measure in our scorecard of key pro- life votes of the 117th Congress.

Should you have any questions, please contact us.

Thank you for your consideration of NRLC's position on this matter.

Respectfully submitted, Carol Tobias,

President. David N. O'Steen, Ph.D.,

Executive Director. Jennifer Popik, J.D.,

Legislative Director. ____ Susan B. Anthony List, April 13, 2021.

Dear Representative: I write to advise you that Susan B. Anthony List, on behalf of our more than 900,000 members, opposes H.R. 7, the Paycheck Fairness Act, which was amended at the last minute to add a definition of sex that could force employers to cover elective abortion through employee benefits under the guise of fairness.

H.R. 7 amends the Fair Labor Standards Act of 1938 by adding ``pregnancy, childbirth, or a related medical condition'' to the definition of ``sex,'' which courts have interpreted broadly to include abortion.

The abortion implications are buried in layers of court interpretations and regulations of the Equal Employment Opportunity Commission (EEOC). The Fair Labor Standards Act (FSLA) prohibits sex discrimination in the area of employee wages. And while the FSLA does not explicitly include benefits like health coverage in its definition of wages, the EEOC has interpreted wages to include benefits. The EEOC states that the Equal Pay Act, part of the FSLA, ``requires that men and women in the same workplace be given equal pay for equal work.'' The Department of Labor and the EEOC further stipulate that equal pay includes benefits, and the EEOC allows a person to go straight to court with claims this provision has been violated. There is nothing preventing a person from claiming sex discrimination if an employer provides health coverage for all of men's health services but does not pay for coverage for abortion services for women.

When the terms ``pregnancy, childbirth, or related medical condition'' were used in the Pregnancy Discrimination Act four decades ago, the terms were accompanied by language stating that employers could not be forced to cover abortion in health insurance benefits except to save the life of the mother. While H.R. 7 does not override that limited safeguard, it does fail to extend equivalent safeguards to address its much broader, more sweeping reach. Without abortion neutral language in H.R. 7, this legislation opens the door for employers to be sued for sex discrimination by simply refraining from funding abortion on demand in employee health plans.

Susan B. Anthony List opposes and will score against H.R. 7. Sincerely, Marjorie Dannenfelser, President. ____ March for Life Action, Washington, DC, April 14, 2021. House of Representatives, Washington DC.

Dear Representative: On behalf of March for Life Action and the millions of pro-life Americans who march to end abortion, I am writing to voice our opposition to H.R. 7, the Paycheck Fairness Act. While March for Life Action has no position on the original bill, inexplicably the bill language was changed this Congress to include troubling language that seems to have the singular purpose of promoting abortion.

The definition included in Section 2 includes ``pregnancy or related medical condition,'' which amends the Equal Pay Act portion of the Fair Labor Standards Act. This law states that it constitutes discrimination to provide different wages to individuals based on sex. The EEOC defines equal pay under the FLSA/Equal Pay Act to mean all forms of compensation, including benefits.

By stating that ``sex'' includes ``pregnancy or related medical condition,'' the bill establishes the expectation that women will be given ``equal benefits'' related to pregnancy and abortion. The legislation gives power to the Federal government to use its full force to attack health care providers, including businesses, which do not include full abortion coverage in their plans, and be subject to the enhanced penalties laid out in the bill.

Clearly this legislation is not about fairness, however it is pushing a radical abortion scheme that is opposed by most Americans. For these reasons, March for Life Action will score against H.R. 7 in our annual scorecard for the 117th Congress. Sincerely, Thomas McClusky, President, March for Life Action. ____

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