[Congressional Record Volume 154, Number 65 (Wednesday, April 23, 2008)]
[Senate]
[Pages S3273-S3287]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
LILLY LEDBETTER FAIR PAY ACT OF 2007--MOTION TO PROCEED--Resumed
The ACTING PRESIDENT pro tempore. Under the previous order, the time
until 6 p.m. is equally divided and controlled between the two leaders
or their designees. Each side will have a full 30 minutes.
The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I yield myself such time as I might use.
Mr. President, our Nation was founded on the basic principle of
fairness, justice, and equality. Over the years, a continuing march of
progress has brought these shared ideals to ever more Americans. The
``Whites only'' signs that were a stain on America are a thing of the
past. We have opened the door of opportunity to African Americans,
Latinos, Asians, and Native Americans. Glass ceilings that limited the
opportunities of women and persons with disabilities are shattered. We
have improved protections for persons of faith who suffer
discrimination and intolerance because of their beliefs. Opportunities
for older workers are greater now than perhaps at any previous time in
our history. The march of progress represents America at its best. It
has brought us ever closer to the ideal of Dr. Martin Luther King that
Americans will one day be measured not by the color of their skin,
their gender, their national origin, their race, their religion, or
their disability, but by the content of their character.
The Senate has been an important part of the progress in guaranteeing
fairness and opportunity. We passed strong bipartisan laws to protect
basic civil rights, and we must not turn back the clock again. Time and
again, the Senate has gone on record in favor of fairness and against
discrimination, and we have done so by overwhelming majorities. We will
have an opportunity in a few moments to do so again.
[[Page S3274]]
This chart shows the record of the Senate in ensuring pay equity for
those whose skin is a different color, on the basis of age, disability,
gender, religion, or national origin. Here it is: The Equal Pay Act was
passed on a voice vote. An overwhelming majority in the Senate,
Democrats and Republicans, said equal pay, equal work should be the law
of the land. It was passed in 1963.
The Civil Rights Act of 1964, title VII, equal pay for equal work,
passed 73 to 27.
Age discrimination that says you will not discriminate on the basis
of age passed the Senate under President Johnson by a voice vote.
The Rehabilitation Act of 1973 provided the same kind of protections
for disabled individuals, individuals who have some disability but are
otherwise qualified to do work. You cannot discriminate against them.
That was passed on a voice vote under President Nixon. And this was
repeated in the Civil Rights Restoration Act of 1988, the Americans
with Disabilities Act of 1990, and the Civil Rights Act of 1991.
Look at the Presidents: Kennedy, Johnson, Johnson, Nixon, Reagan,
Bush, Bush. And now in the Senate our Republican friends want to say:
Oh, no, we are going to permit discrimination against women because
they did not have adequate notice that the discrimination was taking
place because the employer did not give them that notice when they gave
them a paycheck that was unequal to their male counterparts. That was a
5-to-4 decision.
We have an opportunity to go back on the right track that Republican
and Democratic Presidents and Congress led us down. Let's restore the
fairness, the equity, the decency, and the humanity this Senate of the
United States has gone on record with regard to equal pay for women,
disabled, and the elderly in our society. Let's do that. We have a
chance to do so in just 45 minutes.
I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator from Georgia.
Mr. ISAKSON. Mr. President, I ask that I be recognized for up to 10
minutes.
The ACTING PRESIDENT pro tempore. The Senator from Georgia is
recognized.
Mr. ISAKSON. Mr. President, the distinguished Senator from
Massachusetts makes an eloquent and passionate statement, but everyone
within the sound of my voice needs to understand something. This debate
today is not about allowing, favoring, or supporting discrimination. It
is about preserving the Civil Rights Act to which the distinguished
Senator just referred, because the Civil Rights Act stated clearly that
if a complaint was filed, it needed to be filed within 180 days of the
act of discrimination, or as, as current EEOC practice allows, 180 days
from the date which a reasonable person should have known.
Let's make sure everyone understands all this. Since 1964, 44 years
ago, that has been the provision in the statute. No one is trying to
keep that from happening.
Secondly, everybody needs to understand this: It is very important to
people, regardless of whether they are a woman, a man, a Methodist,
African American, Latino, whatever, if they are discriminated against,
we need to make sure there is timely evidence so the handling of these
claims can be completed thoroughly and completely.
The Ledbetter Fair Pay Act changes the civil rights law provisions
from 180 days from the time a discriminatory act was made or a
reasonable person should have known they had been discriminated against
to 180 days from any ``economic effect.'' This means that someone can
work for a company for 30 years, go on retirement and pension, get a
pension check, declare the 180 days just started, and file a complaint
from 30 years ago.
We are about having integrity in the system so we have timely
complaints, we have timely evidence, and the parties who are there can
quickly be remedied.
I would like my staff to put up a chart because I would like to
review the history of the Ledbetter case.
In 1982, Mrs. Ledbetter filed a complaint for sexual harassment
against her supervisor. That complaint was settled between her and the
company, Goodyear, in a timely fashion, and she was satisfied.
In 1992, Mrs. Ledbetter, under testimony, testified that she became
aware she was being paid less than her peers, but she filed no
complaint.
In 1993, she did not file a complaint.
In 1994, she did not file a complaint.
In 1995, Mrs. Ledbetter said:
I told him at that time that I knew definitely that they
were all making a thousand at least more per month than I was
and that I would like to get in line.
But she did not file a complaint.
In 1996, she did not file a complaint.
In 1997, she did not file a complaint.
And then on July 21, 1998, a complaint was filed, shortly after her
supervisor died. That is the reason for the statute of limitations on
the complaint to begin with--to ensure you have contemporary and timely
information and the parties who might have committed the act of
discrimination are alive and can be held accountable.
No less than Justice John Paul Stevens, the first time this
particular provision of statute of limitations was taken to the Court,
in a 7-to-2 decision in 1977 said the following:
A discrimination act which has not made the basis for a
time charge is merely an unfortunate event in history which
has no present legal consequence.
Some will argue--and I am sure Senator Kennedy will--about hidden, or
concealed, discrimination, whereby a person might not become aware they
are being victimized. Essentially, you can rope-a-dope someone and fool
them. Current EEOC practice clearly states that it is 180 days from the
time a reasonable person should have known or would have known they
were discriminated against.
It is very important for us to understand that we have a case, the
Ledbetter case, where the individual testified under oath in deposition
that she was aware she was being underpaid and did not file. We also
have a person in 1982, a decade before the alleged act, who did file a
case for sex discrimination. So it was not ignorance of the system,
ignorance of the law, or ignorance of the court; it was violation of
the time provided.
Just to make sure the record is clear, in a deposition of Mrs.
Ledbetter on July 18, 2000:
Question: So you had this conversation with Mike Tucker
about the 1995 evaluation. You told him then that you wanted
to try to get your pay more in line with your peers?
Mrs. Ledbetter: That is correct.
Question: How did you know that your peers were earning
more?
Mrs. Ledbetter: Different people I worked for along the way
had always told me my pay was extremely low.
Again in a deposition later on:
Question: And so you knew in 1992 that you were paid less
than your peers.
Mrs. Ledbetter: Yes, sir.
Mr. President, I abhor discrimination. I share the reverence of the
quote of Martin Luther King, a citizen of my home State, quoted by
Senator Kennedy, that we all yearn for the day that a man will be
judged by the content of his character and not the color of his skin.
We respect that today. That is why the Civil Rights Act we discuss
today was passed. That is why, when they passed the Civil Rights Act,
Congress put in a standard of 180 days from the date of discrimination
to ensure the evidence was there, the supervisors were there. That way
an aggrieved person could take action to remedy quickly this situation
could. The Lilly Ledbetter Fair Pay Act changes that to a distant time
in the future when people could have passed away, records could have
been destroyed, and the ability to prove the allegation would be
impossible.
I submit, in an environment in 2008 in the United States of America
where equity, nondiscrimination, and freedom are available to all
Americans, that it is this timeliness is important so that anybody who
is injured and anybody who is aggrieved gets a swift and just action in
the courts of the United States of America.
I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I will take 30 seconds.
We are attempting to restore the law prior to the Supreme Court
decision. That is all we are trying to do. The law before the Supreme
Court's decision is that when the paycheck reflects discrimination the
time to file starts.
Here is a chart. All light green and dark green. That was the law of
the
[[Page S3275]]
land. That was the law of the land, Mr. President. That is what our
bill does. Let's not confuse the facts. We want to go back to what the
law of the land was--that and only that.
Mr. President, I yield 3 minutes to the Senator from New York.
The ACTING PRESIDENT pro tempore. The Senator from New York.
Mr. SCHUMER. Mr. President, I thank Senator Kennedy for his brilliant
leadership on this and so many other issues.
First, I have to say that I sat and listened to my good friend from
Georgia, and I noted that Lilly Ledbetter is in the gallery, and I was
just thinking of having her listen to all of this talk, a lot of it
sort of legalese and parsing hairs. Just think of who she is--a hard-
working woman from Gadsden, AL, a supervisor in a tire plant working
just as hard as the men alongside her and every day and every week and
every year not getting paid the same as they simply because she was a
woman. It was not because she did a worse job, not because of any other
reason. She has had to listen first to the Supreme Court and then to
some of my colleagues parse hairs, and it is just not fair, it is not
right, and it is un-American.
Now, let me say this: As a male, this is something that is very
difficult for men to understand, and yet women, whether they make
$20,000 or $70,000 or $200,000, they know it and live with it every
single day. It is not a surprise that Ruth Bader Ginsburg was so upset
at this decision--a mean decision, a decision that makes people dislike
the law--that she read her entire dissent from the bench, a highly
unusual practice on the U.S. Supreme Court.
Equal pay for equal work is as American as it comes. Equal pay for
equal work is as American as apple pie. And to have a bunch of lawyers,
whether they are Senators or Supreme Court Justices, parse hairs and
deny simple, plain justice is as un-American as can be as well.
So I hope this body will rise to the occasion. This is not a decision
where you need a Harvard law degree to understand how backward it is.
All you have to do is know who Mrs. Ledbetter is and who the millions
of other American women are who are put in the same position as she is,
and you know the cry for justice, justice, justice should ring from
these Halls.
So I hope we in this body, again, will rise to the occasion. I hope
this body will do right by Mrs. Ledbetter in her long struggle to right
this wrong, and to the millions of American women, our wives, our
daughters, our friends, our relatives, and the many others we all do
not know who are working hard, by the sweat of their brow, trying to
support their family, trying to move up the ladder of decency and honor
and success so that they, too, when they work, will be treated like
their male counterpart.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Georgia.
Mr. ISAKSON. Mr. President, I yield myself 30 seconds.
The distinguished Senator from Massachusetts referred to restoring
the law to pre-2002. The Supreme Court, in 1977, through John Paul
Stevens' majority opinion, 7 to 2; 1980 and 1986, in all three of those
rulings they upheld the 180-day provision of the Civil Rights Act of
the United States of America. That was the law prior to Ledbetter, and
that is what the court reaffirmed in Ledbetter.
Mr. President, I yield up to 10 minutes to the distinguished Senator
from Wyoming, Mr. Enzi.
The ACTING PRESIDENT pro tempore. The Senator from Wyoming.
Mr. ENZI. I thank the Senator from Georgia.
Mr. President, I rise today to voice my strong opposition to both the
substance of H.R. 2831, the so-called Ledbetter Fair Pay Act, as well
as the process--or more accurately, the lack of process--that has
brought this matter to the Senate floor today.
Welcome to ``gotcha politics 2008.'' When we really are intending to
pass a bill, particularly with our Health, Education, Labor and Pension
Committee, this is not the way we do it. We sit down, we talk about the
principle, we list the mechanisms for solving that principle, and we
work together to come up with a solution. That is not the case on this
one. There has been a lack of any meaningful legislative process
regarding this bill.
Earlier in this session, the Supreme Court upheld a Circuit Court
decision regarding the limitations period for filing claims under the
discrimination statutes I have noted. In my view, this decision was
unquestionably correct and completely consistent with the intent of
those statutes. However, even for those who might ultimately disagree
with that view, there can be no debate Congress's subsequent action was
a slapdash response and a transparent attempt to score political points
at the expense of responsible legislating.
No sooner was the ink dry on the decision from the Supreme Court,
than this legislation was introduced in the House. It was rushed
through committee without change and rammed through the House on an
essentially party-line vote just 5 days later. The bill was debated
under a rule that allowed only 1 hour of debate and no amendments. Does
that seem a little familiar? Yesterday, we heard a diatribe on the
Senate floor about how Republicans are holding up everything and
insisting on these motions to proceed being brought up. Then, after
cloture was approved 94 to 0 on a veterans bill, we weren't allowed to
vote on it again anytime that day, and we didn't even go into session
until 5 o'clock tonight. That was to keep any discussion or any votes
from happening and to limit any debate on this issue.
That is not the way the Senate is supposed to operate, but it is the
way we are operating on this bill, just as they did in the House--not
going through the normal process of making sure that concerns were
being solved. That is the only way anything ever makes it through this
body. A look at the House vote reveals this was not the result of any
groundswell of unanimity in that body. The margin was razor thin. The
bill was then sent to the Senate, where by regular order it is supposed
to come before the appropriate committee for debate and amendments, but
that hasn't happened. This body has consistently and rightfully taken
pride in the care and thorough negotiation of its deliberative process.
Now, despite the deceptive name, this legislation doesn't restore
anything. Quite to the contrary, it completely destroys a vital
provision of title VII of the Civil Rights Act that was intentionally
included by the drafters of that legislation. Employment discrimination
based on race, sex, age, national origin, religion, or disability is
intolerable, and the drafters wanted to ensure any claims of sex
discrimination could be promptly addressed.
Beyond this consideration, the drafters of those laws also recognized
two practical realities: First, in the employment context, unaddressed
claims of discrimination are particularly corrosive. Federal
discrimination policy must ensure that bias is rooted out and remedied
as quickly as possible. And, second, it is virtually impossible to
discover the truth with respect to such claims based on events in the
distant past. With the passage of time, memories fade, critical
witnesses become unavailable for one reason or another, and records,
documents, and other physical evidence are destroyed or otherwise not
available. Under this bill, that claim can go until the time of
retirement and then be claimed back to the time of whenever this
supposed discrimination was, where the witnesses aren't available. But,
most importantly, the accounting records aren't available anymore. How
can you go back and figure that amount without the records?
It is for these reasons that all statutes granting the right to take
legal action contain a limitation period for commencing such actions.
These general considerations of discrimination in the workplace led the
drafters of title VII to intentionally establish a relatively short
period with respect to such claims. They selected a period of 180 days
from the discriminatory act, a period that, depending upon the State
where the claim arises, could extend to 300 days.
This bill doesn't restore this well-reasoned and plainly intended
limitation period and policy; it would eliminate it in virtually all
employment discrimination cases. Under this bill, an individual could
file a timely charge of discrimination based on an event or act that
occurred years, even decades before.
[[Page S3276]]
We are told, however, that such a change is necessary because
employees may not know they are being discriminated against, or that
employers will hide the fact from employees in order to prevent the
timely filing of a claim. These appear on their face to be appealing
arguments; however, they ignore and they misrepresent the actual state
of the law. The law already provides remedies in these instances. The
limitations period for filing employment discrimination claims is not
nearly as inflexible as the proponents of this bill would lead people
to believe.
What about individuals who simply don't know the facts that would
lead a reasonable person to conclude they have been discriminated
against? Would they be barred from bringing a claim with the Equal
Employment Opportunity Commission? If an employee doesn't know the
facts, wouldn't their employer just get a free pass on discrimination?
The EEOC has addressed this directly. Here is what the EEOC's own
compliance manual says:
Sometimes a charging party will be unaware of a possible
EEO claim at the time of the alleged violation. Under such
circumstances, the filing period should be tolled until the
individual has, or should have, enough information to support
a reasonable suspicion of discrimination.
Under the well-recognized doctrine of a continuing violation, all
that the law requires is that there be a single act of discrimination
within the applicable filing period, and the other context is properly
swept into the charge from the reasonable time of knowing it.
Now, this flawed legislation also hides another vast expansion of
workplace discrimination laws that must not go unmentioned. Since 1968,
the law has been that the individual who is discriminated against is
the person with the standing to file a lawsuit. But under this bill,
any individual affected by application of a discriminatory compensation
decision or other practice has standing to sue. So now it isn't just at
retirement or death when the person can bring this up, it is other
family members or other dependents who can bring it up, long after the
last paycheck.
Practitioners we have consulted agree that this incredibly broad
language would easily cover dependents, such as spouses and children
benefiting from pension payments and family health care coverage. It
could also be construed by courts to extend liability long after
pension payments are completed, if the money is invested in an annuity,
for example. This is a huge expansion that we have never talked about
in committee.
And, before I close, I want to mention my greatest concern in dealing
with the legislation. If we were really concerned about helping the
greatest number of workers, we wouldn't be focused on changing the law
to help improve their chances of a successful lawsuit. Instead, we
would be extending a helping hand and providing a source for them to
obtain the training they need to keep their current jobs and work
toward better ones--the flexibility to move.
Such a change would come if we were able to convince the majority to
finish the job we started on the Workforce Investment Act. It is 5
years overdue for reauthorization, and we passed it through the Senate
twice, but we have never been able to have a conference committee. This
legislation would mean 900,000 people a year could have better job
training. So our inability to get this bill signed into law is a shame.
Again, I say this has not gone through the proper process here in the
Senate and it was rushed through the House. I guess some think it is
always easy to be able to catch a little publicity based on some
articles in the paper and try to push something along, but if you
actually want to pass a bill it doesn't work. It has to go through a
normal process to pass the Senate, and that is what I am sure will
happen on this bill.
I yield the floor.
Mr. KENNEDY. Mr. President, I yield 5 minutes to the Senator from
Maryland.
The ACTING PRESIDENT pro tempore. The Senator from Maryland.
Ms. MIKULSKI. Mr. President, I take this opportunity to thank the
Senator from Massachusetts, Mr. Kennedy, for his leadership on this
issue and for the way his staff worked with the women in the Senate to
overcome what we thought was a flagrant abuse of power.
In May of last year, the Supreme Court issued a decision called the
Ledbetter case that was basically sexist and biased. It didn't reflect
the spirit of the civil rights law on discrimination. It didn't reflect
the reality of the workplace or the reality of women's lives. The
Supreme Court overturned the opinions that had been given by the
appellate court, by precedent, by history, and so on.
What did the Supreme Court say? That it was OK to discriminate,
unless you knew 180 days from the time you were discriminated against
and brought an action or brought this to the attention of your
employer. Well, it just doesn't work that way. Anyone who knows the
reality of the workplace knows that you don't know if you are being
discriminated against.
What is the reality of the workplace? You can talk about sex at the
water cooler, you can talk about religion by your computer, you can
talk politics in the lunchroom, but if you open your mouth about your
pay and whether you have gotten a raise, you are in trouble. If a woman
begins to go and ask: Hey, George, what do you get paid, mum's the
word.
If, then, Bill gets a raise, the guys are sitting around at the ball
game downing a few beers and they say: Hey, George, you have done a
great job, we are going to give you a promotion, how do you know about
this? The only way you know about it is over time.
What we are doing in this legislation, led by Senator Kennedy--we
have a bipartisan bill--is to right the Supreme Court decision. We are
doing this at the urging of Justice Ginsburg. The Supreme Court
decision was so bad that Ruth Bader Ginsburg, the only woman on the
Supreme Court, took the unusual step of reading her dissent from the
bench, and she said:
In our view the Court does not comprehend or is indifferent
to the insidious way in which women can be victims of pay
discrimination.
She said this needed to be fixed by Congress, and Congress has a
remedy we are voting on today.
I was appalled to read that not only was the Supreme Court decision
bad, but now the President has issued a veto threat. He said this bill
is going to ``impede justice.'' That is baloney. This bill doesn't
impede justice, it restores justice. It reinstates a fair rule for both
workers and employers. He said it is going to mess up the process. This
bill does not slow down the process, it gives people a way of getting
into the process if you can't bring a claim in more than 6 months after
you have been hired.
President Bush also says he wants to veto this because this bill
would eliminate the statute of limitation in wage discrimination cases.
That is not true. This bill does not change the 180-day time limit. It
only changes when the clock starts to run. The bill restarts the clock
with each time you get a paycheck that discriminates, so each time you
get a paycheck that discriminates, the 180-day clock starts to run
again. This is critical. How many people, as I said, know the salary of
their coworkers? If you are hired at an equal rate with your male
counterpart but he gets a raise in a few months and you don't, what
should you do?
This is what Lilly Ledbetter found. She was a faithful employee at
the Goodyear Company, Over time and with great risk she had to fight in
her workplace, she had to fight in her courtroom.
The ACTING PRESIDENT pro tempore. The Senator has used 5 minutes.
Ms. MIKULSKI. Now it is time to fight for Lilly Ledbetter and the 150
million women in her position. The CBS poll on women says the No. 1
issue they face is equal pay for equal or comparable work. If in fact
this is not a problem, why does every woman in every poll make this a
No. 1 issue?
I ask that we make it a No. 1 issue in the Senate. We are now on a
vote, as we faced with Anita Hill. I have a terrible feeling that
tonight the Senate will not get it, but the women will get it and we
are going to start a revolution as Abigail Adams asked us to do.
Mr. KENNEDY. I yield 2 minutes to the Senator from Washington.
Ms. CANTWELL. Mr. President, I am surprised that my colleagues say
this is all about publicity. How can it be about publicity when, in
reality, women make less than men in their everyday jobs? Last week in
Pittsburg I
[[Page S3277]]
attended an equal pay forum and found young children carrying handmade
signs about justice: Gussie, a young girl, said, ``I will work for
justice;'' Sofia, another young girl, said, ``I will work for
justice;'' Leo, who wanted to join in with these young ladies, said,
``I will work for change and for justice.'' The children planned to
walk around and collect 23 cents on street corners, begging for an
amount of change that represents the difference between what men and
women get paid.
This young generation of Americans wants to know that they are going
to grow up in a world where they are going to get equal pay for equal
work.
Women, on average, make 77 cents per every dollar their male
counterparts make and stand to lose $250,000 dollars in income over
their lifetime. We are talking about real dollars. The pay gap follows
women into retirement. A single woman in retirement, making less pay in
her career, could receive $8,000 dollars less in retirement income
annually than a man--this is an issue of justice.
I appreciate that the Senator from Massachusetts has led the charge
on this. I want to remind my colleagues that we had a similar Supreme
Court decision on identity theft, which passed by a 9-0 vote, that
limited a victim's ability to recover when it is held that the statute
of limitations begins at the time of the initial violation, rather than
when the victim discovers the injury. It was the same issue. You did
not know that your identity had been stolen, but the courts maintained
a very narrow definition of how long you had to recover. What did we
do? We acted. Congress extended the statute of limitations to two years
after the individual knew their identity had been stolen or 5 years
after the violation. That is what Congress did. We corrected that. That
is what we need to do to give equal justice to women so they can have
equal pay.
The ACTING PRESIDENT pro tempore. The Senator has used 2 minutes.
Mr. KENNEDY. Mr. President, I yield myself 2 minutes.
If I could have the attention of the Senator from Maryland, can the
Senator explain to me why there would be reluctance in this body to
vote for equal pay for equal work? We voted on this now more than five
times in a 40-year period, to knock down the prejudice and
discrimination to women, to minorities, to the disabled, and to the
elderly. Under the Supreme Court decision, that discrimination can take
place in the United States of America today. This legislation can halt
it. Can the Senator possibly think about why we should hesitate in
taking the action to restore the law to what it was prior to the
Supreme Court decision?
Ms. MIKULSKI. First, I believe in this matter the Senate would be out
of touch with the American people. The American people want fairness,
they want justice, and they believe women should be paid equal pay for
equal or comparable work.
I also believe, though, there is opposition to the bill because
people make profits off of discrimination. If you pay women less, you
make more.
Also I believe when they talk about when the law was passed--the
workplace has changed. There are now more women in the workplace than
there were when the original laws were passed. But as the Senator from
Washington State said, my gosh, this adds up to real money. You know,
20 cents an hour that we make less than the guy next to us--unless we
are in the Senate; we do have equal pay here--this, over a lifetime,
adds up to over a quarter of a million or a million dollars. When we
look at its impact on Social Security, it is tremendous. Then if we
look at its impact on a 401(k), if you have one, it adds up.
I believe discrimination is profitable, but I think it is time that
justice is done.
Mr. KENNEDY. I yield myself 1 minute.
If I can ask the Senator from Washington, in this downturn in our
economy we find that women have less savings, they are participating
less in pension plans, they are subject to more foreclosures in
housing. At a time when women are under more pressure, can the Senator
possibly explain why there should be reluctance in this body to restore
fairness?
Ms. CANTWELL. It is quite simple to correct this issue today. We are
asking that more women be a part of the math and science and
engineering workforce, be part of the information technology age. But
if they cannot ask how much their male counterparts are making and find
out later that they are only making 77 cents per every dollar their
male counterparts make, that is not fair.
We could correct that by now by not only allowing people to come
forward at the first instance of unequal pay--but every instance.
It is critical that we address this simple correction. This body has
corrected other Supreme Court decisions on these same statute of
limitations issues. This is the least we can do.
I see my colleague from New York has come to the floor. We ought to
get this bill passed and get on to her legislation that is even more
robust--to make sure that employers are treating women fairly and
giving them information. This is basic. We should pass it and make sure
we send this to the President's desk.
The ACTING PRESIDENT pro tempore. The time of the Senator has
expired. Who yields time?
The Senator from Georgia is recognized.
Mr. ISAKSON. Mr. President, I owe the distinguished Senator from
Massachusetts an answer to the rhetorical questions he has asked.
Everybody within the sound of my voice should understand we are not
debating whether anybody in here believes in discrimination. We have
voted over and over in this body for 44 years. We have the Equal Pay
Act, as the Senator had on his chart there. That passed the Senate on
voice vote. That is not the issue. The issue in this case is the
tolling provisions of the 1967 Civil Rights Act, Title VII, which dealt
with discrimination in wages based on race, religion, sex, or national
origin. I will debate what tolling period is appropriate, but I am not
going to stand here and allow this to be described as a debate over one
side being for discrimination and another being against it. We are for
the timely reporting of claimants and the ability of people to be
remedied expeditiously if they have been discriminated against.
How much time is left on our side?
The ACTING PRESIDENT pro tempore. There is 13 minutes.
Mr. ISAKSON. I yield the distinguished Senator from Utah, Senator
Hatch, 11 minutes.
The ACTING PRESIDENT pro tempore. The Senator from Utah is
recognized.
Mr. HATCH. Mr. President, I rise today in opposition to the bill that
would overturn the Supreme Court's ruling in Ledbetter v. Goodyear
Tire. At the outset, let me be perfectly clear about the basis for my
opposition to the so-called Fair Pay Restoration Act. I know of no one
on either side of the aisle in this Senate who condones any form of
unlawful employment discrimination, including pay discrimination.
Indeed, all forms of unlawful employment discrimination under Title
VII of the 1964 Civil Rights Act, including pay discrimination, should
be confronted promptly, efficiently, fairly and forthrightly,
consistent with the enforcement scheme provided for by the Congress
which enacted that law.
Yet, once again we open debate on another of the magnificently
misnamed and misleading bills--the so-called Fair Pay Act which its
proponents claim will ``restore'' the intent of Congress in enacting
the 1964 Civil Rights Act.
In fact, this bill does not restore anything, certainly not the
rights of individuals under the Civil Rights Act and clearly not the
statute of limitations set by Congress for the timely filing of
unlawful employment discrimination charges, including pay
discrimination charges, with the U.S. Equal Employment Opportunity
Commission, the EEOC, or similar State agencies.
In fact, Congress fully intended the charge-filing period to be 180
days, or 300 days where there are similar State agencies, so as to
encourage prompt, effective investigation, conciliation, and resolution
of pay discrimination charges and charges of other forms of unlawful
employment discrimination.
It was for that reason that Congress carefully chose and designed the
current enforcement scheme, which has been consistently upheld by the
Supreme Court for over 40 years.
Over that time, Congress and the courts have wisely and consistently
encouraged cooperation and voluntary
[[Page S3278]]
compliance, in the first instance, by the parties themselves and with
the timely assistance of the EEOC or similar State agencies, as the
preferred method for addressing alleged unlawful employment
discrimination.
Where voluntary compliance and conciliation are unsuccessful, title
VII provides for vigorous enforcement by the private parties and the
EEOC through litigation.
In other words, voluntary compliance and conciliation first,
litigation thereafter whenever necessary.
So, in fact, the so-called Fair Pay Act does not restore the intent
of Congress or the original statute of limitations for the filing of
pay discrimination charges, and neither does it restore lost rights
under the 1964 Civil Rights Act.
In fact, this bill dramatically expands the charge filing beyond all
recognition and expectations of the Congress which passed the 1964
Civil Rights Act. If this bill were to become law there would be no
statute of limitations, no time limit for the filing of alleged pay
discrimination charges. Not 180 days, not 300 days, not years or even
decades, as in the Ledbetter case, or even after the employee has long
since retired and is receiving pension checks.
This bill not only expands the statute of limitations for filing
charges of alleged unlawful pay discrimination, it also expands the
class of individuals who can file such charges. And, beyond reversing
the Supreme Court's Ledbetter decision, which was an intentional
discrimination case, this bill expands the time for filing the type of
unintentional, disparate impact, or adverse impact, charges involving
pay practices which are facially neutral but could have some type of
unintended consequences adverse to women or other protected groups.
As to the expansion of charge filing under the 1964 Civil Rights Act
to individuals outside the protected groups, the so-called Fair Pay Act
would eliminate the existing requirement that to have standing there
must be an employer-employee or employer-applicant relationship. This
bill expands the standing to sue requirements to include individuals
affected by application of a discriminatory compensation decision or
other practice. This language would appear to include spouse and other
relatives, as well as anyone else affected indirectly.
I am not imagining this. In fact, when questioned about whether such
a radical expansion of the law's standing requirements was intended by
the bill's proponents, they responded that it was their intention to do
so.
Thus, under this bill, not only could employees and retirees file
charges of pay discrimination at any time, years or decades after the
current statute of limitations, but so too could anyone affected by
alleged pay discrimination file charges, presumably even after the
employee is dead since the relatives or others were affected.
Let's also be candid about the type of pay discrimination alleged.
The Ledbetter case involved only claims of intentional discrimination
or disparate treatment of individuals in a protected group. This bill
would apply also to unintentional discrimination--so-called disparate
impact, or adverse impact, discrimination. Those are cases where the
pay practices are neural and non-discriminatory on their face, but
through statistical analysis such pay practices may have an unintended,
attenuated disparate impact on a protected group, such as women.
Indeed, the challenged pay practices may not have been intentionally
discriminatory treatment, or even have had a disparate impact at the
time of their enactment, but sometime later a social scientist or
statistician may assert that the pay practices subsequently may have
had an adverse impact on one group or another.
Thus, in fact this bill goes well beyond simply reversing the Supreme
Court's decision in Ledbetter as its proponents claim.
I am also convinced that the so-called Fair Pay Act which we are
debating today would turn the system of enforcement established by
Congress in 1964 on its head in a way that is most unfair.
At the heart of title VII and every other employment
nondiscrimination statute--indeed, at the heart of every civil law
enacted in this country--there is a statute of limitations within which
claims and charges must be brought. Actions brought outside those
statutory time periods are time barred.
The Supreme Court has consistently held in a long line of well-
settled and well-recognized case law that under title VII the statutory
period for filing a charge begins to run when the alleged
discriminatory decision is made and communicated, not when the
complaining party feels the consequences of that decision.
Proponents of this act are, in essence, permitting an open-ended
period for filing charges of pay discrimination with every paycheck and
every decision that contributed to current pay, or even with receipt of
pension or other retirement checks. The so-called Fair Pay Act would
result in a litigation ``gotcha'' strategy, or a ``litigation first and
ask questions later'' enforcement scheme which is directly contrary to
congressional intent in enacting title VII.
The current statutory charge-filing period for allegations of
employment discrimination, including pay discrimination, did not
suddenly pop up under the current Supreme Court's Ledbetter decision.
In fact, the Supreme Court has long upheld that the current statute
of limitations for filing charges under title VII. In an often quoted
passage from the 1974 Supreme Court decision American Pipe v. Utah, the
title VII statutory limitation on the filing of charges beyond the 180-
or 300-day period ``promote(s) justice by preventing surprises through
the revival of claims that have been allowed to slumber until evidence
has been lost, memories have faded, and witnesses have disappeared.''
In its 1979 decision in United States v. Kubrick, the Supreme Court
said that the charge-filing period under title VII is ``balanced'' and
``fair'' to both employers and employees.
The current 180- or 300-day charge filing period allows the employer
and the EEOC (1) to investigate the pay discrimination charge: (2) to
seek compromise, conciliation, settlement and fair resolution of the
charge; and (3) to allow both parties to prepare for litigation, if
necessary, by gathering and preserving evidence for trial where
resolution is not possible outside of litigation.
Now let's look at how the current system would change under the so-
called Fair Pay Act.
The plaintiff's charges of pay discrimination could be brought years,
decades, or even after the plaintiff's retirement from the company, or
as I have stated earlier, by charges filed by relatives or other
affected parties even after the employee's death. The employer's
ability to defend its actions or decisions will have dissipated.
Managers and decision-makers may no longer be available. Business units
may have been reorganized, dissolved, or sold, and operations may have
changed or been eliminated. Relevant documents and records which are
not required to be preserved by law might have been disposed of, or are
otherwise unavailable. In effect, as the Supreme Court stated in
defending the current charge-filing period under title VII, unless an
employer receives prompt notice of allegations of employment
discrimination it will have no ``opportunity to gather and preserve the
evidence with which to sustain (itself). . . .''
I am convinced that the only beneficiaries of the so-called Fair Pay
Act--the only ones who will see an increase in pay--are the trial
lawyers.
So, if the so-called Fair Pay Act:
(1) does not restore lost rights under the 1964 Civil Rights Act and
other employment non-discrimination statutes it amends, but greatly
expands them;
(2) does not restore the statute of limitations under title VII but
eliminates any statute of limitations creating open-ended, unlimited
liability;
(3) does not further the intent of Congress in title VII of the 1964
Civil Rights Act to encourage prompt investigation, conciliation and
resolution of unlawful discriminatory pay practices; and
(4) does not result in increased pay except for the plaintiff's trial
lawyers who will gain an unfair advantage when the employer's witnesses
are unavailable, memories have faded, records are long gone, and the
jury trial becomes a ``he said, she said'' based solely on the word of
a corporation against that of an individual plaintiff;
[[Page S3279]]
Then what does the bill do?
I believe this bill undermines one of the bedrock principles of all
Judeo-Christian jurisprudence--the statute of limitations. Frankly, I
may be mistaken, but I know of no other civil statute that allows an
unlimited, open-ended time for filing an action. Criminal statutes, of
course, may be open-ended in bringing indictments for such felony
crimes as murder, but even criminal misdemeanors generally have a
statutory period within which prosecutions must be brought.
For all these reasons, I suggest that this largely political vote on
this misnamed and misunderstood bill is one that is designed to place
opponents of the bill in a false light of being unsympathetic to
victims of pay discrimination. That is simply untrue.
I urge a ``no'' vote on cloture on the motion to proceed to this
bill.
Mrs. HUTCHISON. Mr. President, I have always supported efforts to
ensure fair pay and fair process. I would support a longer statute of
limitation for gender discrimination in the workplace, but the bill
before us eliminates any statute of limitation. A reasonable statute
might be 1 or 2 years after the discovery of the inequity. The purpose
of statutes of limitation is to ensure that witnesses are available and
defendants have records to defend themselves fairly. That is the reason
that statutes of limitation are an integral part of our legal system.
Mr. TESTER. Mr. President, I rise today to offer my support for
protecting American workers from willful pay discrimination. To show my
support, I will support cloture on the Lilly Ledbetter Fair Pay Act of
2007, H.R. 2831. I appreciate Chairman Kennedy and the bipartisan
coalition he has built around this legislation to ensure equal pay for
equal work.
Every employee deserves to earn the same pay for doing the same work.
Our country was founded on the principle that all men and women are
created equal.
Our workers should be paid equally for doing the same job.
As President Kennedy stated when he signed the original Equal Pay Act
in 1963, protecting American workers against pay discrimination is
``basic to democracy''. We owe our workers the same protection today
that President Kennedy did in the 1960s.
Despite our obligation to this issue, our work is far from complete.
Forty-five years after he signed that historic piece of bipartisan
legislation, American women still only make 77 cents for every dollar a
man makes for doing the same work. African-American workers make 18
percent less than white workers for doing the same work and Latinos
make 28 percent less for doing the same work. Unfortunately for all of
us, American Indians make even less for doing the same work.
Congress cannot ignore this kind of discrimination. We have a duty to
support this bill and speak out against pay discrimination.
This bill will merely restore the law to what it was before the
Supreme Court's decision in Ledbetter. This bill merely states that a
pay discrimination claim accrues when a pay decision is made, when an
employee is subject to that decision, or at any time they are injured
by it.
Lilly Ledbetter had worked at Goodyear for 19 years when she
discovered she was being paid significantly less than her male
counterparts for doing the exact same work. A jury agreed and awarded
her $223,776 in back pay, and over $3 million in punitive damages. The
United States Supreme Court however, interpreted the law to take away
her jury award, saying that the 180-day filing limit had begun way back
when her very first paycheck showed lesser pay, nearly 18 years
earlier. So because too much time had elapsed the Court said, her claim
was invalid. Despite Goodyear's willful wage discrimination, the Court
offered her no protection. In fact, it reversed the protection the jury
awarded her.
We are here today to undo this wrongheaded decision and clarify this
law to make it fair to American workers.
Opponents will argue that this bill will lead to a flood of
litigation, benefiting nobody but trial attorneys. They forget,
however, that this bill merely returns the law to how the vast majority
of States, including the great State of Montana, interpreted it before
the Ledbetter decision. This bill will only change the way courts
interpret the law in 7 States.
Opponents will also argue that this bill will punish businesses for
acts of discrimination in some cases, decades ago, before management
and corporate culture changed. The argument is hollow, however, because
the bill contains a provision to limit claims filed to a 2-year
maximum. In the spirit of negotiation, proponents had to limit
potential awards. Take Lilly Ledbetter's case, for example. If this law
would have been in effect for her, 16 out of the 18 years that she
suffered pay discrimination would still go unpunished.
This bill is not perfect. We still have a long ways to go to protect
American workers from pay discrimination. But this bill is a step in
the right direction and the time is now. The House of Representatives
passed this important bill last July, and It is time for this body to
do the same. President Kennedy was absolutely right to support the
Equal Pay Act in 1963. Forty-five years later, this bill will ensure
that we turn the clock forward, not backward, on pay discrimination.
I hope my colleagues will join me in supporting this important
legislation.
Mr. AKAKA. Mr. President, yesterday was Equal Pay Day in America. It
is befitting that it was on a Tuesday because Tuesday is the day on
which women's wages catch up to men's wages from the previous week. It
is most unfortunate that women continue to be discriminated against by
employers, in particular those who routinely pay lower wages for jobs
that are dominated by women.
However, today my colleagues in the Senate will have an opportunity
to begin the process to restore the intent of Congress as it relates to
the fundamental fairness to millions of workers. We will have a chance
to override a decision by the Supreme Court last June, in the case of
Ledbetter v. Goodyear Tire & Rubber Company. In this case, the Court,
in a 5-to-4 ruling, reversed a longstanding interpretation, used by
nine Federal circuits and the Equal Employment Opportunity Commission,
EEOC, under which the statute of limitations for pay discrimination
begins to run each time an employee receives a paycheck or other form
of compensation. Instead, the Court ruled that the 180-day statute of
limitations on filing a discrimination claim with the EEOC begins to
run when the original discriminatory decision is made and conveyed to
the employee, regardless of whether the pay discrimination continues
beyond the 180-day period. This is an unfair and unjust ruling. For
employees who are prohibited from having access to data reflecting the
wages of other employees, it is impossible for them to ascertain
whether they have been a victim of wage discrimination--let alone, to
know from the original time of the discriminatory act. In many cases,
employees may not know until years later that they have been
discriminated against on the basis of pay.
I urge my colleagues to support cloture on the motion to proceed to
this important legislation, and to support enactment of this bill. The
Lilly Ledbetter Fair Pay Act of 2007 will restore the interpretation
that the statute of limitations begins to run each time an employee
receives a paycheck or other form of compensation reflecting the
discrimination, otherwise known as the ``paycheck accrual'' rule. It
would ensure that employees who can prove pay discrimination based on
race, color, religion, sex, national origin, age, or disability will
not be forever barred from seeking redress because they did not learn
that they were victims of pay discrimination within 6 months after the
discrimination first occurred.
Although women still only earn 77 cents for every $1 earned by men,
we should not be moving backwards. It is simple, this legislation will
restore an employee's right to seek restitution against wage
discrimination at the time the employee discovers it. In addition, it
is important to note that this legislation is not just about gender pay
discrimination. In 2007, EEOC received more than 7,000 pay
discrimination charges. While some are on the basis of gender, others
are on the basis of race, disability, national origin, and age.
Mr. President, I urge my colleagues to do what is right and support
cloture and passage of the Lilly Ledbetter Fair Pay Act.
[[Page S3280]]
Mr. BINGAMAN. Mr. President, I rise today in support of the Fair Pay
Restoration Act, which is currently before the Senate.
On May 29, 2007, the Supreme Court handed down a decision in the case
of Ledbetter v. Goodyear Tire & Rubber Co., Inc. After her retirement
from Goodyear in 1998, Lilly Ledbetter filed a sex discrimination case
against her employer. Ms. Ledbetter claimed that she had been paid
significantly less than her male counterparts during her work as one of
the few female supervisors at Goodyear. Unfortunately, due to a company
policy that prohibited employees from discussing their pay, Ms.
Ledbetter couldn't confirm the discrimination until she received an
anonymous note that detailed the salaries of three of the male
managers. This note confirmed that Ms. Ledbetter had been paid 20
+percent to 40 percent less than the male managers throughout her
employment with Goodyear. A jury found that this pay discrepancy was
based, at least in part, on sex discrimination.
Ms. Ledbetter is an example of an employee who has done all that is
expected of her. By all reports, she performed her job admirably, the
same work being performed by her male counterparts. She raised concerns
about her pay level and eventually brought suit against her employer.
Through this process came the Supreme Court decision which limits an
employee's right to collect backpay to 180 days after the issuance of a
discriminatory paycheck. This is true even if the employee was unaware
of the discrimination or, as in the case of Ms. Ledbetter, was unable
to discover proof of such discrimination through the deliberate efforts
of her employer.
The Fair Pay Restoration Act is a return to the rational, reasonable
approach that had been applied by Federal circuit courts in most
States, including my home State of New Mexico, prior to the Ledbetter
decision. Under the previous rule, an employee could bring a claim
within 180 days of the last discriminatory paycheck. This bill would
also implement a limitation on backpay claims to 2 years, providing
businesses a protection against claims that are allowed to accumulate
over years and encouraging employees to act with all due diligence in
pursuing discrimination claims. The Congressional Budget Office has
determined that the Fair Pay Act is unlikely to increase the number of
claims brought in discrimination cases.
We must work to ensure that the courts remain a source of redress for
employees many of whom are fighting much larger and better financed
employers. Employees should not face unreasonable obstacles in their
efforts to pursue a discrimination claim and to seek appropriate
remedies. By placing an undue burden on employees to quickly prove
discrimination, the Ledbetter decision has negatively altered the use
of the courts as a remedy for discriminatory conduct by employers.
Employers who are more successful at hampering their employees' efforts
to prove discrimination and delay are now afforded more protection than
those employers who treat their employees justly under the law. The
Fair Pay Restoration Act seeks to restore this equity and to ensure
that employees and employers have full and equal access to the courts.
Mr. FEINGOLD. Mr. President, I am a cosponsor of the Fair Pay
Restoration Act, legislation that protects American workers from pay
discrimination, and I am glad the Senate is debating it.
This bill is designed to overrule an incorrect court decision that
cut off one woman's efforts to seek recourse for pay discrimination she
experienced at the hands of her employer. As one of the few female
supervisors at her company's plant, Lilly Ledbetter was paid
substantially less than male employees in the same position who
performed the same duties. This information about unequal pay was kept
confidential. It was only after Ms. Ledbetter received an anonymous
note revealing the higher salaries of other managers who were male that
Ms. Ledbetter recognized that she was being paid less because she was a
woman. Ms. Ledbetter's case went to trial and a jury awarded her full
damages and back pay.
Last year, in a sharply divided opinion, the Supreme Court ruled that
Ms. Ledbetter had filed her lawsuit too long after her employer
originally decided to give her unequal pay. Under title VII of the
Civil Rights Act of 1964, an individual must file a complaint of wage
discrimination within 180 days of the alleged unlawful employment
practice. Before the Ledbetter decision, each time an employee received
a new paycheck, the 180-day clock was restarted because every paycheck
was considered a new unlawful practice.
The Supreme Court changed this longstanding rule. It held that an
employee must file a complaint within 180 days from when the original
pay decision was made. Ms. Ledbetter found out about the decision to
pay her less than her male colleagues well after 180 days from when the
company had made the decision. Under the Supreme Court's decision, Ms.
Ledbetter was just too late to get back what she had worked for. It did
not matter that she only discovered that she was being paid less than
her male counterparts many years after the inequality in pay had begun.
And it did not matter that there was no way for her to find out she was
being paid less until someone told her that was the case.
Mr. President, to put it simply, the Supreme Court got it wrong. It
ignored the position of the Equal Employment Opportunity Commission and
the decisions of the vast majority of lower courts that the issuance of
each new paycheck constitutes a new act of discrimination. It ignored
the fact that Congress had not sought to change this longstanding
interpretation of the law.
The decision also ignores the workplace reality for millions of
American workers just like Ms. Ledbetter. Workers often have no idea
when they are not being compensated fairly because their companies do
not disclose their employee's salaries. Because of the secrecy
surrounding salaries, pay discrimination is one of the most difficult
forms of discrimination to identify. Unlike a decision not to promote
or hire, discrimination on the basis of pay can remain hidden for
years. The Supreme Court's decision leaves victims of pay
discrimination who do not learn about the discrimination within 6
months of its occurrence with no ability to seek justice. In the wake
of this decision, employers can discriminate against employees by
unfairly paying them less than what they are due, and as long as the
employee does not learn about the discrimination and file a complaint
within 6 months, the employer gets off scot free.
The financial impact of a late filing is felt for years, even into
retirement. Even a small disparity in pay can add up to thousands of
dollars over multiple years. This is because other forms of
compensation such as raises, overtime payments, retirement benefits,
and even Social Security payments are calculated according to an
employee's base pay. Thus, the Supreme Court's decision harms American
workers even after their careers are over.
The Fair Pay Restoration Act reestablishes a reasonable timeframe for
filing pay discrimination claims. It returns us to where we were before
the Court's decision, with the time limit for filing pay discrimination
claims beginning when a new paycheck is received, rather than when an
employer first decides to discriminate. Under this legislation, as long
as workers file their claims within 180 days of a discriminatory
paycheck, their complaints will be considered.
This bill also maintains the current limits on the amount employers
owe once they have been found to have committed a discriminatory act.
Current law limits backpay awards to 2 years before the worker filed a
job discrimination claim. This bill retains this 2-year limit, and
therefore does not make employers pay for salary inequalities that
occurred many years ago. Workers thus have no reason to delay filing a
claim. Doing so would only make proving their cases harder, especially
because the burden of proof is on the employee, not the employer.
Opponents say that this bill will burden employers by requiring them
to defend themselves in costly litigation. This is simply not the case.
Most employers want to do right by their employees, and most employers
pay their employees fair and equal wages. This legislation will only
affect those employers who underpay and discriminate against their
workers, hoping that employees, like Ms. Ledbetter, won't find out in
time. The Congressional Budget
[[Page S3281]]
Office has also reported that restoring the law to where it was before
the Ledbetter decision will not significantly affect the number of
filings made with the EEOC, nor will it significantly increase the
costs to the Commission or to the Federal courts.
Yesterday, individuals from across the country observed Equal Pay
Day, a day which reminds us as a nation that a woman is still paid 77
cents for every dollar earned by a man. This disparity is all too real.
Ending it will require commitment, and we can show that commitment by
passing this bill. The last thing American women need is a Supreme
Court decision that prevents them from seeking compensation from
employers who have engaged in outright discrimination.
In addition to passing the Fair Pay Restoration Act, Congress needs
to do more to ensure all of America's citizens receive equal pay for
equal work. Wage discrimination costs families thousands of dollars
each year. This is hard-earned money that working women and men simply
cannot afford to lose. We should pass the Fair Pay Act introduced by
Senator Tom Harkin and the Paycheck Fairness Act introduced by Senator
Hillary Rodham Clinton. Senator Harkin's legislation would amend the
Fair Labor Standards Act to prohibit wage discrimination on account of
sex, race, or national origin. Senator Clinton's legislation would
strengthen penalties for employers who violate the Equal Pay Act and
require the Department of Labor to provide training to employers to
help eliminate pay disparities. I can think of no better way to
commemorate Equal Pay Day than to pass these three pieces of
legislation now.
Wage discrimination is not just a women's issue. Individuals and
organizations from every part of our country, of different political
beliefs and racial backgrounds, men and women, older Americans,
religious groups, and individuals with disabilities have come out in
support of the Fair Pay Restoration Act. These supporters understand
that this legislation not only assists female workers who are trying to
fight discrimination based on their sex. Because the Ledbetter decision
established a general rule for all title VII employment discrimination
claims, they know that this legislation is needed to restore the
ability of employees across the Nation to redress discrimination based
on factors such as race, national origin, age, religion, and
disability.
Congress has repeatedly passed landmark bipartisan legislation to
eliminate discrimination in the workplace. These laws include the Equal
Pay Act of 1963, title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967, the Americans with
Disabilities Act of 1990, and the Civil Rights Act of 1991. Indeed, we
have made great progress in securing equal pay rights, but we must
continue to defend these rights. Justice Ginsburg, in her sharply
worded dissent in the Ledbetter decision, called on Congress to do
something to rectify the inequity that the Supreme Court's decision
left to our country. The Fair Pay Restoration Act is our answer to
Justice Ginsburg's call.
Lilly Ledbetter turned 70 years old this month. For almost two
decades, Ms. Ledbetter worked hard for a company that discriminated
against her by not paying her what it was legally required to pay. The
Supreme Court, in its decision last year, ended Ms. Ledbetter's long
quest for justice. She can no longer recover what was rightfully hers.
Since the Ledbetter decision, other workers have already had their
cases dismissed. These unjust outcomes will continue to mount until
Congress acts. Each case is a new injustice, and it is an avoidable
injustice because Congress can take steps right now to reverse the
Supreme Court's erroneous decision.
Passing the Fair Pay Restoration Act is an essential step in the
right direction--a step toward the day when the basic right of American
workers to equal pay for equal work will be realized. I urge my
colleagues to stand up for the rights of women and all American workers
by voting for this vital legislation.
Mr. BROWN. Mr. President, our country has lost 230,000 jobs in just
the first 3 months of this year. The unemployment rate has gone up to
5.1 percent. In Ohio, unemployment hovers around 6 percent.
Women are also disproportionately at risk in the current foreclosure
crisis, since women are 32 percent more likely than men to have
subprime mortgages. Existing pay disparities for women exacerbate the
economic strain on women and on households run by women, since women
earn only 77 cents for every dollar earned by men. Women have
significantly fewer savings to fall back on in a time of economic
hardship. Nonmarried women have a net worth 48 percent lower than
nonmarried men, and women are less likely than men to participate in
employer-sponsored retirement savings programs.
These facts make this bill--the Lilly Ledbetter Fair Pay Restoration
Act--all the more timely. Lilly Ledbetter was one of just a handful of
female supervisors in the Goodyear tire plant in Gadsden, AL. For
years, she endured insults from her male bosses because she was a woman
in a traditionally male job. She worked 12-hour shifts--which often
stretched to 18 hours or more when another supervisor was absent. But
she did not know she was being paid less than men until later in her
career. She had no way of knowing how much her coworkers made.
Late in her career with the company, Lilly got an anonymous note in
her mailbox informing her that Goodyear paid her male counterparts 20
to 40 percent more than she earned for doing the same job. She then
filed a complaint with the Equal Employment Opportunity Commission. She
also filed a lawsuit. In court, a jury found that Goodyear
discriminated against Lilly Ledbetter. The jury awarded Ms. Ledbetter
full damages, but the Supreme Court said she was entitled to nothing
because she was too late in filing her claim.
The Court's Ledbetter decision reversed decades of precedent in the
courts of appeals. It also overturned the policy of the EEOC under both
Democratic and Republican administrations. The Bush EEOC was on the
side of Lilly Ledbetter until the Solicitor General took over for the
Bush administration. The Ledbetter decision leaves workers powerless to
hold their employers accountable for their unlawful, unjust conduct.
Employers who can hide discrimination from their workers for just 180
days get free rein to continue to discriminate.
The Fair Pay Act, of which I am a proud cosponsor, will allow workers
to file a pay discrimination claim within 180 days of a discriminatory
paycheck. It only makes sense that as long as the discrimination
continues, a worker's ability to challenge it should continue also.
This legislation would simply restore the law to what it was in almost
every State in the country the day before the Ledbetter decision. We
know it is workable and fair--it was the law of the land for decades.
Now, some in this Chamber will say this will result in more
litigation. That is wrong. The Fair Pay Act restores the law to what it
was before the Supreme Court decision. In fact, the Congressional
Budget Office says the bill will not establish a new cause of action
for claims of pay discrimination. Restore the Fair Pay Act. I urge my
colleagues to support this bill.
Mr. LAUTENBERG. Mr. President, I want to express my strong support
for the Lilly Ledbetter Fair Pay Act of 2007. I want to thank Senator
Kennedy for his leadership on this issue and on so many civil rights
issues throughout his Senate career.
Earlier this week, we observed Equal Pay Day. Equal Pay Day is the
day up until which a woman had to work past the end of 2007 to make as
much money as a man made in 2007 alone. That means that a woman has to
work almost 16 months to make what a man makes in 12.
Every day in this country, women get up and go to work, just like
men. Women--who make up nearly 50 percent of the American workforce--
put in 8, 10, 12 or more hours every day. And just like men, women go
home each night to families that rely on the money they earn. In the
millions of households led by single mothers, these women's paychecks
are the only source of income.
But there is one day that looks very different for men and women--
payday.
A woman makes only 77 cents for every dollar that a man makes. These
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inequalities cut across educational divides. In my State of New Jersey,
a college-educated woman makes only 72 cents for every dollar a
college-educated man makes.
This wage gap costs working families $200 billion in income every
year. And the strain on working families is only getting worse in
today's struggling economy, which is hitting women especially hard. In
2007, women's wages fell 3 percent, while men's wages fell one-half of
1 percent. Unemployment for women also rose faster than for men during
the past year.
Yet last year, the Supreme Court reached a decision that made it even
harder for women.
After spending almost 20 years working long hours as a supervisor at
a Goodyear plant in Alabama, Lilly Ledbetter discovered that she was
making 20 percent less than the lowest paid male supervisor.
A jury awarded her back pay and damages, but the Supreme Court said
that she filed her lawsuit against her employer too late. The Supreme
Court said that she could not sue her employer more than 180 days after
the discrimination first began.
That simply does not make sense. Every time a worker receives a
discriminatory paycheck, the employer is discriminating against the
worker. So every paycheck should start a new clock for challenging that
discrimination.
That was the rule in all but four States up until the day that
Ledbetter was decided. I am proud to say it was the rule in New Jersey.
And it should be the rule again.
It is important to recognize that, although Ledbetter involved gender
discrimination, its implications are much more far-reaching. The
Ledbetter decision will have the same effect on cases brought for
discrimination based on race, national origin, religion, disability,
and age. In all of these cases, victims of pay discrimination will be
without recourse as long as their employers can get away with it for
180 days.
The Lilly Ledbetter Fair Pay Act would simply restore the pre-
Ledbetter rule that every paycheck is an act of ongoing discrimination.
It would not create any new right or remedy.
I am proud to be a cosponsor of the Senate version of this bill, and
I support it wholeheartedly. I hope that my colleagues will join me in
voting for this important civil rights law. It is the right thing to do
for America's working families.
Mr. SANDERS. Mr. President, yesterday was Equal Pay Day. Equal Pay
Day is the day that marks the extra months into the next year that a
woman needs to work in order to receive pay equal to what a man would
make for the equivalent job in only 12 months. Yes, Mr. President, as
astonishing as it is, in the year 2008, it takes nearly 4 extra months
for a woman to bring home the same amount of money as her male
counterpart. According to the U.S. Census Bureau and Bureau of Labor
Statistics, women earn, on average, only 77 cents for every dollar
earned by men in comparable jobs. What a truly unthinkable, and frankly
disgraceful, circumstance--one that we must do everything within our
power to change.
And today we can take a small but very significant step to make sure
that Americans have the legal opportunity to challenge pay
discrimination by supporting the Lilly Ledbetter Fair Pay Act. Before I
begin, let me thank Senator Kennedy for his efforts to ensure that we
don't just stand by doing nothing, following an ill-advised Supreme
Court ruling that takes us a step back in time by making it
extraordinarily difficult for victims of pay discrimination to sue
their employers.
This Congress must not stand by while the Court forces an
unreasonable reading of the law. Through this decision, it tosses aside
its own precedent and weakens protection provided by the Civil Rights
Act to rule in favor of an employer that had underpaid a female
employee for years. That is why I call on all of my colleagues, on a
bipartisan basis, to stand together today to send a clear signal that
pay discrimination is unacceptable and will not be tolerated by voting
to move forward to debate the Lilly Ledbetter Fair Pay Act.
This legislation overturns the Court's decision in Ledbetter v.
Goodyear Tire. The Court held employees who are subjected to pay
discrimination must bring a complaint within 6 months of the
discriminatory compensation decision, meaning the day the employer
decides to pay her less, and that each paycheck that is lower because
of such discrimination does not restart the clock. Under this decision
it doesn't matter if the discrimination is still ongoing today or if
the worker initially had no way of knowing that others were being paid
more for the same work just because of age, race, gender or disability.
Most inexplicably, the majority insisted it did not matter that
Goodyear was still paying her far less than her male counterparts when
she filed her complaint. Mr. President, if you asked anyone on the
street, they would tell you that this decision simply defies common
sense. In fact, it is so clearly contrary to Americans' sense of right
and wrong that everyone should be outraged.
Lilly Ledbetter, a loyal employee for 19 years, discovered she was
being paid significantly less than the men in her same job. At first,
her salary was in line with that of her male colleagues, but over time
she got smaller raises creating a significant pay gap. How was she to
know that this discrimination was happening? Hardworking Americans do
not have the time to sit around talking about their salaries. It is
clearly not her fault she didn't discover this inequity sooner.
In closing, it is disturbing that the Court chose to gut a key part
of the Civil Rights Act that has protected hardworking Americans from
pay discrimination for the past 40 years. It is our duty to send a
message to employers that this type of discrimination is unacceptable.
Fortunately, Congress can amend the law to undo this damaging decision.
And, it should do so without delay.
Mr. REED. Mr. President, I strongly support passage of H.R. 2831, the
Lilly Ledbetter Fair Pay Act. We must continue to ensure that workers
are protected from pay discrimination and treated fairly in the
workplace.
As an original cosponsor of the Senate companion of this legislation,
I am pleased that this bipartisan bill seeks to address and correct the
Supreme Court's Ledbetter decision from last spring that required
employees to file a pay discrimination claim within 180 days of when
their employer initially decided to discriminate, even if the
discrimination continues after the 180-day period. The Ledbetter
decision overturned longstanding precedent in courts of appeals across
the country and the policy of the Equal Employment Opportunity
Commission under both Democratic and Republican administrations.
H.R. 2831 returns the law to the pre-Ledbetter precedent and would
make clear that each discriminatory paycheck, not just the first pay-
setting decision, will restart the 180-day period. This allows workers
to demonstrate and detect a pattern or cumulative series of employer
decisions or acts showing ongoing pay discrimination. As Justice
Ginsburg noted in her Ledbetter dissent, such a law is ``more in tune
with the realities of the workplace.'' The Supreme Court majority
failed to recognize these realties, including that pay disparities
typically occur incrementally and develop slowly over time, and they
are not easily identifiable and are often kept hidden by employers.
Many employees generally do not have knowledge of their fellow
coworkers' salaries or how decisions on pay are made.
Yesterday was Equal Pay Day, an opportunity to recognize the progress
we have made as a nation on ensuring fairness, justice, and equality in
the workplace. But there are barriers still to be overcome to close the
pay gap and make certain that an individual's gender, race, and age are
not an impediment to their economic and employment growth. The Lilly
Ledbetter Fair Pay Act is one step forward in the direction of ensuring
this growth and I urge my colleagues to support it.
Mr. KERRY. Mr. President, Lilly Ledbetter was the only female manager
working alongside 15 men at a Goodyear tire plant in Gadsden, AL. One
day, she learned that, for no good reason, she had been receiving
hundreds of dollars less per month than her male colleagues--even those
with far less seniority.
Unfortunately, the wrongs done to Lilly Ledbetter are familiar to far
too
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many women who work every bit as hard as men do but take home a smaller
paycheck.
We must continue to fight to guarantee equal pay for women everywhere
and justice for those women who are discriminated against.
It is disgraceful that women still make just 77 cents for every
dollar earned by men. In fact, yesterday marked Equal Pay Day--the
symbolic day on which a woman's average pay catches up to a man's
average earnings from the previous year. Think of all the hours of work
done since January 1--those are hours that women have worked just to
bring home the same amount of money as a man. It is equivalent to
months of working with no pay--something I am sure the bosses doling
out unequal paychecks wouldn't stand.
Unequal pay for women is an injustice whose poison works on multiple
levels. Women aren't just paid less for doing the same work--they are
also given a none-too-subtle message that their thoughts and efforts
are less valued just because of their gender.
I have two wonderful daughters, Alex and Vanessa. Alex is a filmmaker
and Vanessa is a doctor. If it weren't for the women who came and
marched before them, they wouldn't have had the access to high school
and college sports that made such a difference in their development.
But that cause isn't yet complete. The progress isn't yet perfected. We
are fighting today so that they are never told that a man deserves a
penny more for doing the same hard work they have done.
In the face of injustice, Lilly Ledbetter and many women like her
have had the courage to stand up to sexist bosses, demand her legal
right to equal pay for equal work, and say ``enough is enough.'' The
trial was difficult, but Lilly stood strong--and the jury awarded her a
large legal settlement.
Then Lilly's case ran head-on into a group of men--and one woman--
above whose heads she could not appeal: the U.S. Supreme Court. The
Court's 5-to-4 ruling went against common sense and most people's sense
of basic fairness. They ruled that the Equal Rights Act of 1964
requires an employee to file a discrimination claim within 180 days of
a boss's decision to discriminate--rather than 180 days from the last
discriminatory paycheck. Amazingly, Lilly Ledbetter didn't just lose
her settlement and her standing to seek justice--she also lost future
retirement benefits which will now be awarded according to decades of
discriminatory pay.
The ruling goes against common sense and the practical realities of
the workplace. It goes against our basic sense of fairness. People
often don't know what their colleagues are being paid and thus don't
find out for some time that they are being discriminated against. Many
never find out at all that they have been discriminated against for a
lifetime—and many who do choose to stay quiet rather than rock
the boat, confront their bosses, or be perceived as angry when they
have every right to be.
As Justice Ruth Bader Ginsburg wrote, ``In our view, the court does
not comprehend, or is indifferent to, the insidious way in which women
can be victims of pay discrimination.'' The Court's only woman took the
rare and defiant step of delivering her eloquent dissent out loud.
Five male Justices denied justice to thousands of women who could now
be denied legal standing in similar cases, not because these women
hadn't been discriminated against but because too much time had passed
between the moment when their bosses started discriminating against
them and the moment they either found out about it or took action to
stop it. In effect, it rewards bosses for stringing out their deceit.
One of these five male Justices was Samuel Alito--against whose hasty
confirmation I waged a lonely filibuster battle for which I was widely
criticized back in 2006. Back then, I worried and warned that Alito
would create a 5-to-4 majority to deny hard-working Americans their day
in court. Which is exactly what happened to Lilly Ledbetter. I don't
regret my filibuster one bit--it was an important statement drawing a
line in the sand against this administration's radical judicial
nominees. I just wish we could have won that fight.
Would Sandra Day O'Connor, the woman Alito replaced, have voted this
way? I strongly suspect not. And so, with Sam Alito's decisive vote,
our judicial branch struck a major blow against justice, against fair
treatment for all, and against women's rights. The good news is that
Congress still makes the laws--and we have the opportunity to make
clear the intent of our fair pay laws and ensure that female victims of
pay discrimination have their day in court.
The Lilly Ledbetter Fair Pay Act clarifies what the Court ought to
have known--that the laws against pay discrimination apply to every
paycheck a worker receives--not to the moment a boss begins
discriminating. A person only gets 180 days to file a discrimination
claim--and the clock should be reset to zero every time a
discriminatory paycheck goes out. We should make it easier for
discrimination to be rooted out not harder.
Businesses have nothing to fear from this bill--unless they are
acting disgracefully, in which case they should be afraid--they should
be very afraid. But employers will not be asked to make up for salary
difference from decades ago--current law, rightly or wrongly, limits
backpay awards to 2 years before the worker filed a job discrimination
claim. This bill wouldn't change that limit.
We should and must do whatever we can to chip away at discrepancies
that still exist in pay between men and women. When the Equal Pay Act
of 1963 passed, women were making 59 cents a dollar. Forty five years
later, that number is 77 cents. In other words, women are narrowing the
gap by less than half a penny a year. We must do better.
If I am lucky enough to have them, I don't want my future
granddaughters and great-granddaughters to wait another 45 years for
equal wages.
In so many ways, discriminatory pay contributes to our worst
shortcomings as a society. It discriminates against children in
poverty--who are far more likely than other children to be raised by
single mothers. It also discriminates against women of color--who are
more likely to live in households without a male income-earner.
Each paycheck and each discriminatory raise compounds injustice upon
injustice. Unfortunately, the pay gap runs across industries and
education levels. This isn't something that fixes itself at higher
levels of income. Comparing men and women with comparable education,
work title, and experience, over the course of their lives, women with
a high school diploma earn $700,000 less. Women with a college diploma
earn $1.2 million less. And women with advanced degrees earn $2 million
less over time.
To our enduring shame, it was once true that American slaves were
treated as three-fifths of a human being. But it remains true today
that women are paid as just three-quarters of a man.
We can't unravel or erase hateful attitudes toward women in a single
day or with a single vote. But we have a bill before us today that will
restore women's right to seek equal justice under the law. We should
pass the Lilly Ledbetter Fair Pay Act today and do all that we can to
live according to the truth that, while self-evident to Thomas
Jefferson, remains elusive to employers everywhere: that all of us are
created equal.
Mr. BIDEN. Mr. President, America has come a long way in addressing
discrimination in the workplace since the days my ancestors faced ``No
Irish Need Apply'' signs. Yet discrimination today still exists. Even
now, women still earn on average 77 cents for every dollar a man earns
performing the same work. This is not fair. And with a record 70.2
million women in the workforce, this wage discrimination hurts American
families across the country.
Since passage of title VII of the Civil Rights Act of 1964, working
women have been able to challenge discriminatory pay. Most appellate
courts, including the Third Circuit that incorporates Delaware, and the
Equal Employment Opportunity Commission operated under a rule that
gives workers a reasonable time limit to file complaints and receive a
fair hearing in our country's courtrooms.
Last year, the Supreme Court in Ledbetter v. Goodyear Tire and Rubber
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Co., ignored the basic reality of how--and indeed, when--workers
discover that they have been the victim of paycheck discrimination. The
Court ruled that employees must sue within 180 days of the employer's
pay decision. That Supreme Court's ruling, in the words of Justice
Ginsberg, is at best a ``cramped interpretation'' of title VII and at
worst reverses the hard-won gains women have made in the workplace.
As a practical matter, employees often do not know what their peers
earn, the amount of annual raises, or how wages are determined. Given
the typical confidentiality rules covering pay issues, the Supreme
Court's ruling means that women will in many instances be shut out from
recovering what they are owed after years of unfair pay. This
interpretation makes title VII of the Civil Rights Act an empty
promise.
The Supreme Court's decision will hurt Americans from all walks of
life. It perpetuates inequality by allowing workers to receive lower
pay because of their age, gender, religion, ethnicity, or disability.
It threatens to stop and reverse the steady progress we have made
toward job equality by letting employers off the hook for prolonged
discrimination. The House took the first step toward correcting this
injustice when it passed the Lilly Ledbetter Fair Pay Act of 2007. The
Senate now has the opportunity, and an obligation, to do the same. I am
a cosponsor and strong supporter of this bill, which would simply
clarify and restore the rule the country operated under before the
Supreme Court's decision. That rule was strong and simple--each
separate paycheck based on a previous discriminatory decision is itself
an unlawful employment practice.
Mr. President, this Fair Pay Restoration Act isn't a radical change
of direction. It is really nothing new. We know the consequences of the
act because for years American businesses and their workers operated
under the standards it restores. It will not open the floodgates for
litigation or force employers to fork out exorbitant sums of money--it
will just restore the rules of the game before the Court changed them.
It gives Americans who are doing the same job as someone else--but for
lower pay--access to courts and equality.
In today's economy, coping with a recession and a housing crisis,
American workers need our help. The basic social compact that built our
economy, that created our middle class, that provided opportunities for
millions--that compact is breaking down. This is one small step to
restore some fairness.
Mr. President, equal work should mean equal pay. I urge my colleagues
to join me and restore that principle.
Mr. LEAHY. Mr. President, the Supreme Court's recent decision in
Ledbetter v. Goodyear Tire struck a severe blow to the rights of
working women in our country. More than 40 years ago, Congress acted to
prevent discrimination in the workplace based on an employee's sex,
race, color, national origin or religion. The Ledbetter decision is yet
another example of the Supreme Court misinterpreting congressional
intent and denying justice to a victim of discrimination.
For nearly two decades, Lilly Ledbetter, a supervisor at Goodyear
Tire, was paid significantly less than her male counterparts.
Nonetheless, a thin majority of Justices on the Supreme Court found
that she was ineligible for title VII protection against discriminatory
pay because she did not file her claim within 180 days of Goodyear's
repeatedly discriminatory pay decisions.
The Supreme Court's ruling sent the message to employers that wage
discrimination cannot be punished as long as it is kept under wraps. At
a time when one third of private sector employers have rules
prohibiting employees from discussing their pay with each other, the
Court's decision ignores a reality of the workplace--pay discrimination
is often intentionally concealed. Ms. Ledbetter only found out that she
was earning as much as $15,000 less per year than a male coworker with
the same job and seniority when an anonymous letter appeared on her
desk weeks before her retirement. By the time she retired in 1997, Ms.
Ledbetter's monthly salary, despite receiving several performance based
awards, was almost $600 less than the lowest paid male manager and
$1,500 less than the highest paid male manager.
Congress passed title VII of the Civil Rights Act to protect
employees like Lilly Ledbetter from discrimination because of their
sex, race, color, national origin or religion--however the Supreme
Court's cramped interpretation guts the purpose and intent of the
bipartisan and historic effort to root out discrimination. Ms.
Ledbetter argued that her claim fell within the 180 day window provided
under title VII for filing claims because she suffered continuing
effects from her employer's discrimination. After filing a complaint
with the Equal Employment Opportunity Commission, a Federal jury found
that she was owed almost $225,000 in back pay. However, five Justices
of the Supreme Court overturned the jury's decision, holding that Ms.
Ledbetter was not protected under the law because she filed suit more
than 180 days after her employer's discriminatory act.
This Supreme Court decision contradicts both the spirit and clear
intent of title VII of the Civil Rights Act, which was created to
protect workers from discriminatory pay. The Court's 5-to-4 decision
undercuts enforcement against discrimination based on sex, race, color,
religion, and national origin. In Justice Ginsburg's dissent, she wrote
that the Court's decision ``is totally at odds with the robust
protection against workplace discrimination Congress intended Title VII
to secure.''
This October, my wife Marcelle and I will host Vermont's 12th annual
Women's Economic Opportunity Conference, a chance for women to come
together to learn new career skills. Thousands of women in my State
have used these skills to advance their careers. It is a shame that
despite such initiatives and years of hard work, women continue to
suffer pay discrimination. I commend the Vermont Legislature for
passing laws requiring equal pay for equal work and barring employers
from retaliating against employees for disclosing the amount of their
wages. Unfortunately, not all States offer these protections.
For all of the gains that women have made in the past century, there
remains a troubling constant--women continue to earn less than men--on
average, only 77 cents on the dollar. Discriminatory pay not only
affects women it affects their children, their families, and all of us
who believe in the words inscribed on the Vermont marble of the Supreme
Court building ``Equal Justice Under Law.''
The Lilly Ledbetter Fair Pay Act would correct the unfortunate and
cramped ruling of the Supreme Court which denied Ms. Ledbetter equal
justice. It would amend the Civil Rights Act of 1964 to clarify that an
unlawful employment practice occurs not only when that discriminatory
decision first goes into effect but each time an individual is affected
by it, such as each time compensation is paid.
The House of Representatives passed this bill in a bipartisan vote
last summer. It also has bipartisan support here in the Senate, but
unfortunately some Republicans have objected to even considering the
bill. I hope their filibuster can be broken so that we can clarify that
discrimination against hard-working men and women in their own
workplaces is not the American way. The law and our justice system
should protect working people when it happens. Our bill underscores
this vital American principle against efforts to devalue it.
Mr. DODD. Mr. President, I wish to speak about an issue of economic
fairness that affects the very dignity and the security of millions of
Americans: the right to equal pay for equal work. Before I begin, let
me thank the chairman of the HELP Committee for his leadership on this
important issue. The Fair Pay Restoration Act goes a long way toward
ensuring that right. In a perfect world, of course, we could take that
right for granted; we could take it for granted that the value of work
lies in a job well done, not in the race or gender of the person who is
doing it. But we don't live in that world. We know that, even now,
employers can cheat their employees out of equal pay, and equal work.
That is what happened to Lilly Ledbetter. For almost two decades,
from 1979 to 1998, she was a hardworking supervisor at a Goodyear tire
plant in Gadsden, AL. And it is telling
[[Page S3285]]
that she suffered from two types of discrimination at the same time. On
the one hand, there was sexual harassment, from the manager who said to
her face that women shouldn't work in a tire factory, to the supervisor
who tried to use performance evaluations to extort sex. And on the
other hand, there was pay discrimination: by the end of her career, as
the salaries of her male coworkers were raised higher and faster than
hers, she was making some $6,700 less per year than the lowest paid man
in the same position.
Now, the two kinds of discrimination faced by Ms. Ledbetter have a
good deal in common. Morally, they both amount to a kind of theft: the
theft of dignity in work and the theft of the wages she fairly earned.
Both send a clear message: that women don't belong in the workplace.
But there is a clear difference between sexual harassment and pay
discrimination. The former is blatant. The latter far too often stays
insidiously hidden.
In fact, Lilly Ledbetter didn't even know she was being paid unfairly
until long after the discrimination began, when an anonymous coworker
gave her proof. Otherwise, she might be in the dark to this very day.
And that is hardly surprising. How many of you know exactly how much
your coworkers make? What would happen if you asked? At some companies,
you could be fired.
Armed with proof of pay discrimination, Ms. Ledbetter asked the
courts for her fair share. And they agreed with her: she had been
discriminated against; she had been cheated; and she was entitled to
her back pay.
Regrettably, the Supreme Court ruled against her, and took it all
away. Yes, she had been discriminated against--but she had missed a
very important technicality. She only had 180 days--6 months--to file
her lawsuit. And the clock started running on the day Goodyear chose to
discriminate against her. Never mind that she had no idea she was even
the victim of pay discrimination until years later--figure it out in
180 days, or you are out of luck for a lifetime.
One can clearly see how this ruling harms so many Americans beyond
Ms. Ledbetter. In setting an extremely difficult, arbitrary, and unfair
hurdle, it stands in the way of many Americans fighting against
discrimination. It flatly contradicts standard practice of the Equal
Employment Opportunity Commission and flies in the face of years of
legal precedent and clear congressional intent. As Justice Ginsburg put
it in her strong dissent, the Court's Ledbetter ruling ignores the
facts of discrimination in the real world: ``Pay disparities often
occur in small increments; cause to suspect that discrimination is at
work develops only over time. Comparative pay information, moreover, is
often hidden from the employee's view . . . Small initial discrepancies
may not be seen as meet for a federal case, particularly when the
employee, trying to succeed in a nontraditional environment, is averse
to making waves.''
``The ball,'' Ginsburg concluded, ``is in Congress's court . . . The
legislature may act to correct this Court's parsimonious reading.''
That is precisely what we are here to do today. If the Fair Pay
Restoration Act passes, employees will have a fair time limit to sue
for pay discrimination. They will still have 180 days, but the clock
will start with each discriminatory paycheck, not with the original
decision to discriminate. After all, each unfair paycheck is in itself
a decision to discriminate--it is ongoing discrimination. And if this
legislation passes, employees like Ms. Ledbetter will no longer be
blocked from seeking redress, through no fault of their own, except a
failure to be more suspicious.
Mr. President, millions of Americans depend on the right to equal pay
for equal work: to earn a livelihood, to feed their families, and to
secure the dignity of their labor. We ought to make it easier for
Americans to exercise that right, not harder. We ought to get unfair
roadblocks, hurdles, and technicalities out of their way. We ought to
pass this bill.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. KENNEDY. I yield 4 minutes to the Senator from New York.
Mrs. CLINTON. Mr. President, I think it is important we go back to
the facts and remind ourselves in this Chamber about the person, the
real live woman, for whom this legislation is named, Lilly Ledbetter.
She was a supervisor at a Goodyear Tire and Rubber plant in Gadsden,
AL, from 1979 until her retirement in 1998. For most of those years,
she worked as an area manager, a position normally occupied by men.
Now, initially, Lilly Ledbetter's salary was in line with the
salaries of men performing substantially similar work. Over time,
however, her pay slipped in comparison. And it was slipping in
comparison with men who had equal or less seniority. By the end of
1997, Lilly Ledbetter was the only woman working as an area manager,
and the pay discrepancies between her and her 15 male counterparts were
stark.
She was paid $3,727 a month. The lowest paid male area manager
received $4,286 a month and the highest $5,236. In other words,
Goodyear paid her male counterparts 25 to 40 percent more than she
earned for doing the same job.
Now, when she discovered this, which she had not for years, because
it is somewhat difficult, if not impossible, to obtain information
about the salaries of your counterparts--and lots of times why would
you ask? You are doing the same job; you show up at the same time; you
have the same duties. Who would imagine that you would be paid less
than the younger man who came on the job a year or two before, or the
older man with whom you had worked for years?
So when she discovered that, she rightly sought to enforce her
rights, and a jury agreed, a jury of her peers, that she had suffered
discrimination on the basis of her gender.
And the district court awarded her $220,000 in backpay, and more than
$3 million in punitive damages. The court of appeals reversed that,
claiming she had not filed her charge of discrimination in a timely
manner. The Supreme Court agreed.
Now Lilly Ledbetter is retired from her job. Nothing we do today will
have any impact on her, but she has tirelessly campaigned across this
country for basic fairness. We thought we had ended discrimination in
the workplace against women when the Equal Pay Act was passed all those
years ago.
In fact, yesterday was the day we commemorated the passage of the
Equal Pay Act, but clearly we have not finished the business of
guaranteeing equality in the workplace; fair and equal pay to those who
do the same job. Nearly a century after women earned the right to vote,
women still make 77 cents to every man's dollar.
The affect of the recession we are in right now in many parts of our
country is affecting women worse than their male counterparts. This is
not about the women themselves, it is about their families. I came from
Indianapolis, where I was introduced at an event by a young single mom.
I meet young single moms all over America who work hard for themselves
and their children. So when they are discriminated against in the
workplace, they bring less home to take care of those children whom
they are responsible for. We can talk about what needs to be done, and
there are, I am sure, all kinds of legal reasons it does not make sense
to end discrimination; that it does not make sense finally to have our
laws enforced. But this is the law we had until the Supreme Court
changed it. Until the Supreme Court said: No, wait a minute, you are
supposed to actually know you are being discriminated against to
dispute the conditions in the workplace, and file whatever action, make
whatever complaint you can at that moment.
Well, Lilly Ledbetter acted as soon as she knew. She did not know
until that information was made available to her. I am hoping this
Chamber will stand up for fundamental fairness for women in the
workplace. I am hoping you will stand up and vote to make it clear that
women who get up every single day and go to work deserve to be paid
equally to their male counterparts.
That is all Lilly Ledbetter wanted. That is what we should deliver
today.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. KENNEDY. Mr. President, I believe there is 5 minutes 45 seconds
remaining?
The ACTING PRESIDENT pro tempore. There is 4 minutes 45 seconds
remaining.
Mr. KENNEDY. I yield 4 minutes to the assistant majority leader.
[[Page S3286]]
Mr. DURBIN. I thank Senator Kennedy, Senator Mikulski, and many
others for bringing this measure before the Senate.
You remember when we debated Supreme Court Justices, and do you
recall their testimony; you saw it on television. I can recall Justice
Roberts, the Chief Justice, he told us he was similar to an umpire in
baseball; all he did was call balls and strikes. He was not going to
write the law or change the law, he was going to apply the law to the
facts. Well, lo and behold, as soon as Justice Roberts and Justice
Alito, the new Justices on the Supreme Court, arrived, they took a
precedent, a law that had been followed for years by the Supreme Court
and turned it upside down.
Lilly Ledbetter, 19 years serving as a manager in this Goodyear Tire
facility in Gadsden, AL, was the only female manager in a group of 15;
all the rest were men. It was not until she was about to retire that
someone said to her: Incidentally, you are not being paid as much as
the men who are doing the same job.
She did not realize it. How would she? Employers do not go around
publishing how much they pay their employees in the newspaper, and they
certainly do not post it on the bulletin board. So she had no way of
knowing until the last minute. She filed a discrimination claim and
said: I did the work, I deserve the pay.
It went all the way up to the Supreme Court, to new Supreme Court
Chief Justice Roberts and Justice Alito. You know what they said? Your
problem, Lilly Ledbetter, is you should have discovered how much they
were paying the other employees at the time the initial discrimination
began. That is physically impossible. They held her to a standard she
could not live up to. They knew what they were doing. They were
throwing out her case of wage discrimination and thousands of others.
Those Justices were not calling balls and strikes, they were making new
rules; and the rules were fundamentally unfair.
We have a chance today to straighten that out. I hope we have
bipartisan support for it. We should be against pay discrimination for
women, men, disabled, minorities. Every American deserves to be treated
fairly.
The Chicago Tribune, not always a paragon of liberal ideas, said this
about the Ledbetter decision by the Supreme Court:
The majority's sterile reading of the statute ignores the
realities on the ground. A woman who is fired on the basis of
sex knows she has been fired. But a woman who suffers pay
discrimination may not discover it until years later, because
employers often keep pay scales confidential. The
consequences of the ruling will be to let a lot of
discrimination go unpunished.
Those who vote against this effort to bring the bill to the floor
will allow a lot of discrimination to go unpunished in America.
We owe the workers of America, the women of America, all workers a
lot more. I encourage colleagues to support Senator Kennedy and the
motion to invoke cloture.
I reserve the remainder of my time.
Mr. ISAKSON. How much time remains on our side?
The PRESIDING OFFICER (Ms. Cantwell). There is 2 minutes 5 seconds.
Mr. ISAKSON. I yield myself the remainder of the time.
Madam President, with all due respect to the Senator from Illinois,
as was said earlier, in this case, in each and every year from 1992 to
1997, Ms. Ledbetter testified that she knew she was being discriminated
against but didn't file a claim.
Secondly, this is not about restoring the Civil Rights Act to its
state before Ledbetter was decided last year. This is about amending
title VII of the Civil Rights Act passed in 1964 in terms of its
statute of limitations.
The fact is that every one of us in this body is for precisely the
same thing: Discrimination against no one for race, sex, color, creed,
national origin; equal pay for everyone. As the distinguished Senator
from Massachusetts showed in his chart, we have over and over again
reaffirmed this. This is not about the issue of discrimination. This is
about the rule of law, the Civil Rights Act as it was passed in 1964
and amended in 1967, and its statute of limitations that has been
upheld by the Supreme Court--not once, not twice, not three times, but
four separate opinions in 1977, 1980, 1989, and 2002. Ledbetter simply
reaffirmed these cases.
If we have a problem, let's address it in committee. Let's fix it
after open debate. Let's not eviscerate the committee process and bring
a flawed bill to the floor of the Senate.
I urge my colleagues to vote against the motion to invoke cloture on
the motion to proceed and yield back the remainder of my time.
Mr. KENNEDY. Madam President, I yield the remainder of my time to the
Senator from Illinois.
The PRESIDING OFFICER. The Senator from Illinois is recognized for 1
minute 30 seconds.
Mr. OBAMA. Madam President, today too many women are still earning
less than men for doing the same work, making it harder not just for
those women but for the families they help support to make ends meet.
It is harder for single moms to climb out of poverty, harder for
elderly women to afford their retirement. That kind of pay
discrimination is wrong and has no place in the United States of
America.
This evening, we have a chance to do something about it. Passing this
bill is an important step in closing the pay gap, something I helped to
do in Illinois and something I have fought to do since I arrived in the
Senate. I have cosponsored legislation to ensure women receive equal
pay for equal work and to require employers to disclose their pay
scales for various kinds of jobs. It is this information which will
allow women to determine whether they are being discriminated against,
information they often lack now.
In addition to passing this bill, we need to strengthen enforcement
of existing laws. In the end, closing the pay gap is essential, but it
is not going to be enough to make sure that women and girls have an
equal shot at the American dream, which is why we are also going to
have to work on issues such as sick leave and prohibiting
discrimination against caregivers. If you work hard and do a good job,
you should be rewarded, no matter what you look like, where you come
from, or what gender you are. That is what this bill is about. That is
why I am supporting this legislation and urge my colleagues to do the
same.
I yield the floor.
The PRESIDING OFFICER. All time has expired under time reserved for
Senators Isakson and Kennedy.
The Republican leader.
Mr. McCONNELL. I yield myself leader time.
The PRESIDING OFFICER. The Senator has that right.
Mr. McCONNELL. Madam President, I remind my colleagues that if we
invoke cloture on this bill, we will actually be moving off the
veterans bill. Let me repeat that. A vote to proceed to the Ledbetter
bill is a vote to proceed away from the veterans bill. This is really
highly ironic because my side was taking a pounding Monday and Tuesday
for allegedly holding up, if you will, the veterans bill. Of course,
that was not the case. We have ended up, in order to accommodate the
schedules of those who are frequently not here--and understandably not
here because they are running for President--we had the Senate, in
effect, not in session until 5 o'clock this afternoon. While Americans
are waiting for Congress to do something about the economy, jobs, and
gas prices, our friends on the other side decided to close shop in
order to accommodate the uncertainties of the campaign trail. Finding
solutions for the concerns of all our constituents should be our top
priority, not just accommodating the travel schedules of two of our
Members.
The proper course of action is clear. We should vote to stay on the
veterans bill and finish our work on behalf of American veterans. The
best way to do that is to vote against cloture on the motion to proceed
to the matter before us.
I yield the floor.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Madam President, first of all, for all Members, we are
close to having agreement on the veterans bill when we get to it. Let
me just say initially, I really like my counterpart, the Republican
leader. But I have trouble understanding how he could stand on the
floor and say that when we have been trying to do legislation on the
veterans bill since last Thursday and
[[Page S3287]]
we have been prevented from doing that.
Understand, there is nothing we could do, unless by unanimous
consent, to change this vote. It occurs automatically an hour after we
come in. There is no secret. We have two Senators running for President
of the United States--three, as a matter of fact. I am only concerned
about two of them. Their schedules were very difficult recently. They
could be here at 6 o'clock. So I made the suggestion, which I thought
was reasonable--we haven't been able to legislate on the veterans bill
since last Thursday; how about doing it on Wednesday, until 5 o'clock.
That would be 6 hours more than we have done since last Thursday. There
was a refusal to allow us to do that. To have my friend, the Republican
leader, come here and say we haven't done anything today because we had
a vote scheduled at their convenience--he didn't use the names, but
Senators Clinton and Obama--that is absolutely without any foundation.
I have trouble understanding how my friend would have the gall to stand
on the floor and make the comment he did, but he did.
Now to the issue at hand, Lilly Ledbetter. Put your mind to this. We
have a woman who is working. She has worked for 20 years and worked
hard, very hard, and after 20 years she comes to the realization that
people are making a lot more money than she. They are men, and they are
doing the same work as she is. That is what this is all about. As a
foundation, understand that for a woman to make the same amount of
money as a man in our country--that is, how much a man makes in our
country for 1 year--for similar work, she must work not only that whole
year but an additional 113 days. In fact, women who work full time earn
about 77 cents for every dollar earned by a man who does the same work.
That is why yesterday, April 23, which was the 113th day of the year,
was Equal Pay Day, to illustrate how women are treated unfairly in the
workplace in America. I can think of no better way for us to honor
Equal Pay Day than to pass the Lilly Ledbetter Fair Pay Act.
She was a manager at a Goodyear factory in Gadsden, AL. She worked
there for 20 years. She was the only woman among 16 men at her same
management level. She was paid at various times 20 percent less than
some of her male colleagues doing the same work and as much as 40
percent less than other colleagues doing the same work. That included
fellow workers who had a lot less seniority than she had. They got paid
more because they were men.
At most jobsites, especially office work, salary is not a topic that
you discuss. It is private. It wasn't until Ledbetter had been with the
company for 20 years, as I have indicated, that Mrs. Ledbetter became
aware of the disparity in her paycheck, and only then because someone
anonymously tipped her off.
After she learned, after 20 years, that people were being paid more
money than she was for doing the same work, she became concerned, and
she did what we should do in a situation like that. She went to talk to
a lawyer. She had been cheated for 20 years. A jury that was called in
that court listened to what she had to say. They found she had been
discriminated against. Why? Because she was a woman. The jury awarded
her appropriate damages.
Her employer appealed all the way to the Supreme Court. No way are we
going to let this happen. They overturned the lower court's verdict,
claiming she was entitled to nothing because she waited too long. The
statute of limitations had run. The Supreme Court upheld that decision.
They upheld the reversal of the decision that she had gotten, the award
by the jury that she had gotten. The Supreme Court held that the 180-
day filing deadline for discrimination cases like hers should be
calculated from the day of Ms. Ledbetter's first discriminatory
paycheck. So using that faulty logic, this woman is only protected if,
after the first 6 months, she had filed a lawsuit. Well, she didn't
know. The ruling reversed the position that most courts had previously
held--contrary to what my good friend Senator Isakson said--that each
discriminatory paycheck represents a new case of discrimination and
therefore the 180-day filing period applies to each subsequent
paycheck.
The practical result of the Supreme Court decision is that women like
Lilly Ledbetter must sue for discrimination no later than 6 months
after their employment begins, 6 months after her first paycheck. The
Supreme Court's ruling puts unfair conditions on legitimate
discrimination claims, and it applies not only to millions of women in
the workforce but also to those discriminated against on the basis of
race, religion, age, or disability.
As Justice Ginsburg said--and rarely from the Supreme Court does one
of the Justices read their opinion; she did that--she noted in her
strong and compelling dissent that the Supreme Court's ruling is wrong
because it overlooks the realities of the workplace and the realities
of the world. Think about that. She had worked there 20 years. She had
been cheated for 20 years. They are telling her she should have filed
her lawsuit 19\1/2\ years ago.
Many employers explicitly or implicitly prohibit employees from
discussing their salary with coworkers. Could Ms. Ledbetter be expected
to have known the salaries of her male colleagues after just 6 months
on the job? Of course not. And even if a new employee is aware of a
discrepancy in pay, many choose not to make waves, preferring to hang
on to their job, preferring to quietly build job security. But over the
years, these initial discrepancies, which may start out small, will
often widen considerably--in her case, to as much as 40 percent when
compared to a man.
The Supreme Court's ruling ignores basic facts. As long as
discrimination continues, an employee's right to challenge
discrimination should continue as well. That is why the legislation now
before us is so important. We can talk about court cases and hearings
before the committee and doing things in regular order. Let's have some
regular order of fairness. That is what this legislation is all about.
This legislation would restore the previously accepted interpretation
of law: that each and every discriminatory paycheck constitutes a new
act of discrimination and that restarts the 180-day clock.
By supporting this motion to proceed and voting in favor of this
legislation, we have the opportunity to correct this important
injustice for millions of women and millions of others who work hard
but are unfairly deprived of compensation they deserve.
Some on the Republican side argue that this legislation would lead to
a flood of litigation. Obviously, we know the Republicans are not
excited about trial lawyers. We know their first attack to take care of
the housing crisis was to lower taxes and do something about
litigation. So it is no surprise they are concerned about litigation,
even though they are wrong.
That argument has no basis in fact. The Congressional Budget Office
has researched this issue and found no reason--no reason--to believe it
would increase the number of discrimination cases.
Furthermore, this legislation maintains the current law's 2-year
limit on back pay. Employers would not be liable for salary differences
that occurred in years past. In her case, Ledbetter could sue, but she
could only get 2 of the 20 years she had been cheated. That is what
this legislation does. How much fairer could it be?
The U.S. Supreme Court is the highest Court in our country. But in
this case, they simply got it wrong. I am sad to report, in my opinion,
many times they have done the same thing since Justices Roberts and
Alito have joined that Court.
Many of us have spoken against recent Supreme Court nominees for fear
they would not uphold our Nation's proud tradition of civil rights and
equal rights in law. This faulty judgment on the part of the Court, in
a 5-to-4 decision, lends credence to our concerns that we must support
judges with a reliable history of support for the values of equality
that we cherish.
There is no reason for the Fair Pay Act to be a partisan issue.
I urge my Republican colleagues to join us in sending a strong and
powerful message that in America, discrimination will never be
tolerated and justice will always be blind. But no matter the result
today, that message--and our commitment to those enduring values--will
continue.
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