[Congressional Record Volume 154, Number 154 (Friday, September 26, 2008)]
[Senate]
[Pages S9630-S9632]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



  (At the request of Mr. Reid, the following statement was ordered to 
be printed in the Record.)

                      LILLY LEDBETTER FAIR PAY ACT

 Mr. KENNEDY. Mr. President, in addition to the many other 
vital matters the Congress has considered this year, the issue of pay 
equity remains of critical importance. The Lilly Ledbetter Fair Pay Act 
would restore a fair rule for filing claims of pay discrimination based 
on race, color, gender, national origin, religion, disability, or age. 
This measure, which passed the House last year, has broad public 
support, and I hope the Senate will pass it as soon as possible. I ask 
unanimous consent to include in the Record a series of letters of 
support for the bill which I have received from civil rights and 
workers' organizations.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                             Leadership Conference


                                              on Civil Rights,

                                    Washington DC, April 16, 2008.
       Dear Senator: On behalf of the Leadership Conference on 
     Civil Rights (LCCR), the nation's oldest, largest and most 
     diverse civil and human rights coalition, representing 
     persons of color, women, children, labor unions, individuals 
     with disabilities, older Americans, major religious groups, 
     gays and lesbians and civil liberties and human rights 
     groups, we urge you to co-sponsor and vote for the Fair Pay 
     Restoration Act (S. 1843) to correct the Supreme Court's 
     misinterpretation of Title VII regarding when a pay 
     discrimination claim is timely filed.
       S. 1843 whose companion measure, H.R. 2831, passed the 
     House of Representatives July 31, 2007, is necessary to 
     ensure that victims of workplace discrimination receive 
     effective remedies. Title VII requires individuals to file 
     complaints of pay discrimination within 180 days of ``the 
     alleged unlawful employment practice.'' In Ledbetter v. 
     Goodyear Tire & Rubber, decided on May 29, 2007, the Supreme 
     Court held that the 180-day statute of limitations should be 
     calculated from the day a pay decision is made, rather than 
     from when the employee is subject to that decision or injured 
     by it. The Court's decision in this case was a sharp 
     departure from precedent and would greatly limit the ability 
     of pay discrimination victims to vindicate their rights. 
     Moreover, it has implications beyond Title VII, including for 
     pay discrimination claims brought under the Age 
     Discrimination in Employment Act, the Americans with 
     Disabilities Act, and the Rehabilitation Act. Congress must 
     make clear that a pay discrimination claim accrues when a pay 
     decision is made, when employees are subject to that 
     decision, or at any time they are injured by it, including 
     each time they receive a paycheck that is reduced as a result 
     of the discrimination.
       As Justice Ginsburg pointed out in her dissent in 
     Ledbetter, Congress has stepped in on other occasions to 
     correct the Court's cramped interpretation of Title VII. The 
     Civil Rights Act of 1991 overturned several Supreme Court 
     decisions that eroded the power of Title VII. As Justice 
     Ginsburg sees it, ``[o]nce again, the ball is in Congress' 
     court.'' We agree and urge you to act expeditiously and 
     reaffirm that civil rights laws have effective remedies,
       Thank you for your time and attention to this important 
     matter. If you have any questions. please feel free to 
     contact Nancy Zirkin at (202) 263-2880 or 
     Z[email protected], or Paul Edenfield. LCCR Counsel, at 
     (202) 263-2852 or E[email protected].
           Sincerely,
     Wade Henderson,
       President & CEO.
     Nancy Zirkin,
       Executive Vice President.
                                  ____



                                  National Women's Law Center.

                                 Washington, DC, January 24, 2008.
       Dear Senator: On behalf of the Nationa1 Women's Law Center, 
     I am writing in support of S. 1843, the Fair Pay Restoration 
     Act. S. 1843 would reverse the Supreme Court's decision in 
     Ledbetter v. Goodyear Tire & Rubber Co. and help to ensure 
     that individuals subjected to unlawful compensation 
     discrimination are able to effectively assert their rights 
     under the federal anti-discrimination laws. The bill would 
     reinstate prior law to make clear that pay discrimination 
     claims accrue whenever a discriminatory pay decision or 
     practice is adopted, when a person becomes subject to the 
     decision or practice, or when a person is affected by the 
     decision or practice, including whenever s/he receives a 
     discriminatory paycheck. A companion bill, H.R. 2831, has 
     already been passed by the House of Representatives, and we 
     urge you to enact S. 1843 without delay.
       The Supreme Court's Ledbetter decision severely limits 
     workers' ability to vindicate their rights by requiring that 
     all charges of pay discrimination be filed within 180 days of 
     the employer's originally discriminatory decision. The 
     Court's decision upends prior precedent and is fundamentally 
     unfair to those subject to pay discrimination. Under

[[Page S9631]]

     the Ledbetter rule, victims of pay discrimination have no 
     recourse against--and employers are immunized from liability 
     for--the discrimination once 180 days have passed from the 
     employer's initial decision, even when the discrimination 
     continues into the present. The Ledbetter decision thus 
     creates incentives for employers to conceal their 
     discriminatory conduct until the statutory period has passed. 
     As Justice Ginsburg noted in her dissent, after that time the 
     Ledbetter rule renders employers' discriminatory pay 
     decisions ``grandfathered, a fait accompli beyond the 
     province of Title VII ever to repair.''
       The decision also ignores fundamental workplace realities. 
     Pay information is often confidential, and few employees have 
     concrete information about the decisions underlying their own 
     compensation, let alone the compensation of their coworkers; 
     in fact, many employers explicitly forbid their employees 
     from discussing their wages. And unlike other forms of 
     discrimination, pay discrimination is not manifested as an 
     adverse action against the employee. As a result, an employee 
     may experience compensation discrimination for a long time 
     before he or she is aware of it. In addition, while employees 
     may be reluctant to challenge wage disparities that are small 
     at the outset, the disparities can expand exponentially over 
     the course of an employee's career, as raises, bonuses, and 
     retirement contributions are calculated as a percentage of 
     prior pay.
       The Fair Pay Restoration Act responds to each of these 
     problems in a modest and targeted way--and indeed is the only 
     legislative approach that will fully address the obstacles 
     created by the Ledbetter decision. The Act will promote 
     voluntary compliance with the anti-discrimination laws; 
     because each discriminatory paycheck, rather than simply the 
     original decision to discriminate, triggers a new claim 
     filing period, employers have a strong incentive to eliminate 
     any discriminatory pay practices. The Act will also ensure 
     that employers do not benefit financially from 
     discrimination; while under the Ledbetter decision, employers 
     whose compensation decisions are not challenged within 180 
     days get a windfall from continuing this discrimination, the 
     Act will hold employers accountable for ongoing 
     discrimination.
       The Act also responds to the ways in which pay 
     discrimination is manifested in the workplace, as well as to 
     its impact over time. And it allows employees to assess the 
     validity of their claims before challenging compensation 
     discrimination. Under the Ledbetter rule, employees who wait 
     to challenge suspected pay discrimination run the very real 
     risk of forfeiting their right to any relief whatsoever. 
     Ledbetter thus creates the incentive for employees who 
     suspect that they have been subject to pay discrimination to 
     immediately file a charge with the Equal Employment 
     Opportunity Commission. The Act will remove the incentive to 
     file preemptive charges and litigation--a result that serves 
     neither employees nor employers.
       Moreover, the Act will restore a clear and familiar way of 
     evaluating the timeliness of compensation discrimination 
     claims. Far from imposing a new or unfair rule on employers. 
     the Act simply reinstates the law that had been applied by 
     the EEOC and nine of the twelve federal courts of appeals 
     before the Ledbetter decision. Accordingly, most courts and 
     the EEOC, as well as most employers, are already familiar 
     with the rule. In addition, both employers and employees 
     benefit from the certainty created by the rule, which ensures 
     that both plaintiffs and defendants will be able readily to 
     determine the timeliness of claims.
       Finally, the Act will in no way lead employees to delay 
     challenges to pay discrimination. To the contrary, employees 
     will continue to have every incentive to challenge pay 
     discrimination as soon as possible. For one thing, the Act 
     leaves unaltered Title VII's two-year limitation on the 
     recovery of back pay. As a result, a plaintiff who delays 
     filing a pay discrimination claim will continue to sacrifice 
     the recovery of any pay s/he is owed for periods that predate 
     the two years preceding her charge.
       More than four decades after Congress outlawed wage 
     discrimination based on sex, women continue to be paid, on 
     average, only 77 cents for every dollar paid to men. This 
     persistent wage gap can be addressed only if women are armed 
     with the tools necessary to challenge sex discrimination 
     against them. And it is critical that Congress reaffirm that 
     civil rights laws have effective remedies, and that all those 
     subject to pay discrimination are entitled to challenge 
     continuing discrimination against them.
       We urge you to enact S. 1843, the Fair Pay Restoration Act, 
     without delay. Please feel free to contact Jocelyn Samuels, 
     Vice President for Education and Employment, with any 
     questions.
           Sincerely,
                                               Marcia Greenberger,
     Co-President.
                                  ____

                                          National Partnership for


                                             Women & Families,

                                   Washington, DC, April 17, 2008.
     Re Fair Pay Restoration Act, S. 1843.
       Dear Senator: On May 29, 2007, the Supreme Court issued a 
     decision in Ledbetter v. Goodyear Tire & Rubber Company 
     reversing a well-established legal standard and weakening 
     severely protections against pay discrimination that have 
     been critical for women in the workplace. We write to urge 
     you to support the Fair Pay Restoration Act, S. 1843, which 
     would correct this decision by restoring the timeliness 
     standard used to determine whether pay discrimination claims 
     have been filed in a timely manner. Without this legislation, 
     protections against pay discrimination are little more than 
     an empty promise and equal employment opportunity becomes an 
     unattainable ideal.


                               Background

       Lilly Ledbetter, the only woman supervisor in her division 
     at the Goodyear plant, sued Goodyear for sex-based pay 
     discrimination under Title VII of the Civil Rights Act of 
     1964 (Title VII) after learning that she was paid 
     substantially less--15 to 40 percent--than her male 
     colleagues. A jury awarded Ms. Ledbetter over $3.2 million, 
     which was later reduced to $360,000 ($300,000 in compensatory 
     and punitive damages and $60,000 in backpay) due to Title 
     VII's damages caps.
       A sharply divided Supreme Court ruled that Ms. Ledbetter's 
     claim was time-barred because she waited too long to file her 
     claim. Title VII requires employees to file within 180 days 
     of ``the alleged unlawfu1 employment practice.'' The Court 
     calculated the deadline from the day that Goodyear allegedly 
     made a discriminatory pay decision, rather than--as decades 
     of precedent recognized--from the day Ms. Ledbetter received 
     her last discriminatory paycheck. Because Ms. Ledbetter filed 
     her charge more than six months after the pay decision, the 
     Court concluded that her claim must fail, even though she 
     continued to make less money due to her sex for many years 
     after that decision and within 180 days of when she flied her 
     charge.


    Restoring the Timeliness Standard for Pay Discrimination Claims

       The Fair Pay Restoration Act (FPRA) would amend Title VII 
     to make clear that an unlawful employment practice occurs (1) 
     when a discriminatory compensation decision or other practice 
     is adopted, (2) when an individual becomes subject to a 
     discriminatory compensation decision or practice, or (3) when 
     an individual is affected by the application of a 
     discriminatory compensation decision or other practice, 
     including each time compensation is paid. This legislation 
     thus would reinstate the rule that had been in place for 
     decades--the paycheck accrual rule--which provides that the 
     180-day time limit for filing a charge of discrimination with 
     the EEOC begins to run anew after each discriminatory 
     paycheck is received.


                            A Step Backward

       The Ledbetter decision is a step backward for women and for 
     any employee alleging pay discrimination under Title VII. 
     Despite Title VII's guarantee of equal employment 
     opportunity, the Court's ruling would leave many victims of 
     pay discrimination without an effective remedy, even when 
     their rights have been violated. If allowed to stand 
     uncorrected, this decision authorizes employers to violate 
     Title VII's bar on pay discrimination with impunity as long 
     as they do not get caught within 180 days. Now employers will 
     have every reason to try to avoid liability simply by keeping 
     pay disparities hidden during the Title VII charge-filing 
     period.


 The Decision Disregards Workplace Realities and Discourages Informal 
                         Resolution of Disputes

       The Supreme Court's decision ignores the realities of the 
     workplace and the realities of pay discrimination. Because 
     pay information is often confidential, employees are rarely 
     able to uncover such discrimination and file claims quickly. 
     In addition, pay disparities can start small but grow in 
     significance as the impact of raises--often set as a 
     percentage of prior pay--accrues over time. Employees might 
     be reluctant to raise a pay discrimination claim at the 
     outset over a minor salary discrepancy, when they have 
     incomplete or insufficient information. Now they must assume 
     discrimination in every situation and file claims 
     preemptively--and potentially prematurely--to preserve any 
     ability to challenge discriminatory pay decisions.
       The Ledbetter decision, therefore, likely will have the 
     unintended consequence of encouraging an immediate 
     adversarial response to any questions regarding pay. 
     Employees who take the time to ask questions and gather 
     accurate information to determine whether they have a claim, 
     under Ledbetter, risk having their claims rejected as 
     untimely. Many claims that might otherwise be resolved 
     informally will be raised in a more adversarial setting and 
     create a greater potential for protracted litigation. As a 
     result, Ledbetter actually undermines one of Title VII's 
     primary goals--informal resolution of disputes.


            Impact on Women's Wages and Closing the Wage Gap

       Although the Court paints the discrimination that Ms. 
     Ledbetter faced as long past, the pay discrimination that Ms. 
     Ledbetter and so many others have endured is current and very 
     real. Many women are all too painfully aware that there is 
     nothing ``long past'' about the consequences of 
     discriminatory pay practices--they have a present-day impact 
     as they accumulate and grow over time. A woman loses ground 
     every day she is paid less pursuant to a policy of 
     discrimination. Unfortunately, this decision effectively 
     disregards the real economic impact of pay discrimination. 
     Further, pay discrimination is responsible for a significant 
     portion of the wage gap experienced by women and people of 
     color. The Supreme Court's decision makes it even more 
     difficult for women workers and employees of color to close 
     the wage gap.

[[Page S9632]]

       The decision in this case is not merely about sex 
     discrimination. Rather, it has broader implications for all 
     pay discrimination claims under Title VII, which bars 
     discrimination in compensation not only on the basis of sex, 
     but also on the basis of race, color, religion, and national 
     origin, and other antidiscrimination laws, including the Age 
     Discrimination in Employment Act, the Americans with 
     Disabilities Act, and the Rehabilitation Act. Accordingly, 
     this bill amends the timeliness standard for pay 
     discrimination claims under those laws as well.


        Restoring the Law Imposes No Unfair Burden on Employers

       Prior to the decision in this case, the EEOC, the majority 
     of lower courts, and the Supreme Court each allowed pay 
     discrimination claims to proceed on the basis of the issuance 
     of a paycheck that paid an employee a discriminatory wage. 
     The Court's decision in Ledbetter marks a reversal in the 
     law. The proposed FPRA would restore the previous legal 
     standard without placing an unfair burden on employers.
       Although employers have suggested that a decision in favor 
     of Ms. Ledbetter would have left them defenseless against an 
     onslaught of pay discrimination suits going back many years, 
     this rhetoric strains credulity. There is no evidence that 
     employers were inundated with stale pay discrimination 
     lawsuits prior to Ledbetter, and there is no reason to 
     believe that a return to the state of the law pre/Ledhetter 
     would cause such a result now. Moreover, not only would undue 
     delay make it that much more difficult for a worker to prove 
     a claim of pay discrimination, but it also could provide an 
     employer with a defense--called laches--to chalIenge 
     unreasonably delayed claims.


                               Conclusion

       The Court's unduly restrictive interpretation of Title VII 
     effectively guts the law's protection against pay 
     discrimination, leaving many victims of pay discrimination 
     without a remedy. Legislation is necessary to insure that all 
     workers receive a fair, nondiscriminatory wage and the 
     opportunity to participate in the workforce on equal ground.
           Sincerely,
                                                    Debra L. Ness,
     President.
                                  ____



                            National Women's Political Caucus,

                                               September 23, 2008.
     Hon. Edward Kennedy,
     U.S. Senate,
     Washington, DC.
     Hon. Arlen Specter,
     U.S. Senate,
     Washington, DC.
       Dear Senator Kennedy and Senator Specter: Thank you for 
     your continued leadership on H.R. 2831, the Lilly Ledbetter 
     Fair Pay Act. I am writing on behalf of the National Women's 
     Political Caucus (NWPC) to endorse this important piece of 
     legislation and to support the analysis contained in a letter 
     sent to you by Sue Johnson, President of the Alaska Women's 
     Political Caucus, one of our state affiliates.
       The National Women's Political Caucus was founded in 1971 
     on the principle of achieving and protecting equal rights for 
     women, and this includes equal economic rights for women. One 
     fundamental tenet of our organization is fighting all forms 
     of discrimination, and this especially includes fighting pay 
     discrimination in the workplace. The Lilly Ledbetter Fair Pay 
     Act provides a way to ensure equal pay for equal work and to 
     equip women with a vital tool to combat pay discrimination. 
     With so many women heading up their households and being the 
     sole income earners, it is all the more important that their 
     work is fairly and equally compensated so that they may 
     provide for their families.
       The National Women's Political Caucus and I appreciate your 
     steadfast work on issues of fundamental importance to women, 
     and stand behind your efforts in the passage of H.R. 2831.
           Sincerely,
                                                      Lulu Flores,
     President.
                                  ____



                               Alaska Women's Political Caucus

                                Anchorage, AK, September 23, 2008.
     Hon. Edward Kennedy
     U.S. Senate, Washington, DC.
     Hon. Arlen Specter
     U.S. Senate, Washington, DC.
       Dear Senator Kennedy and Senator Specter: On behalf of the 
     Alaska Women's Political Caucus (AWPC). I write to thank you 
     for your continued leadership on H.R. 2831, the Lilly 
     Ledbetter Fair Pay Act. The AWPC is an affiliate of the 
     National Women's Political Caucus (NWPC), a bipartisan 
     multicultural organization dedicated to increasing women's 
     participation in the political field and creating a political 
     power base designed to achieve equality for all women. NWPC 
     and its hundreds of state and local chapters support women 
     candidates across the country without regard to political 
     affiliation through recruiting, training, and financial 
     donations. AWPC focuses on wining equality for women and 
     supporting candidates who support AWPC's goals. Of the upmost 
     importance to breaking the glass ceiling restricting women, 
     is making certain that women can assert their right to remain 
     free from pay discrimination at work.


       H.R. 2831 Is the Right Solution for Alaska's Working Women

       Alaska is part of the Ninth Circuit, which for years (along 
     with a majority of the other federal circuits), recognized 
     the ``paycheck accrual rule'' in employment discrimination 
     cases. Under Title VII of the Civil Rights Act of 1964, an 
     employee has 180 days a discrimination act to file a claim. 
     Before the Ledbetter v. Goodyear decision, if an employee in 
     Alaska brought a federal claim for pay discrimination, the 
     courts recognized that each new paycheck started a new clock 
     because each paycheck was a separate discriminatory act. This 
     meant that our workers in Alaska were able to bring a timely 
     claim as long as they could show that they had received a 
     paycheck lessened by discrimination in the required time 
     period. This had been the law in Alaska's federal courts for 
     years: See Gibbs v. Pierce County Law Enforcement Support 
     Agency, 785 F.2d 1396 1399 (9th Cir. 1986) (``The policy of 
     paying lower wages . . . on each payday constitutes a 
     `continuing violation'.'') (internal quotation omitted).
       Unfortunately, in May 2007, in Lebetter v. Goodyear, the 
     Supreme Court overturned this common-sense practice that 
     plaintiffs and employers in Alaska had come to rely upon. 
     Now, if an employee does not know about the discrimination 
     within just a few months of the employer's illegal behavior 
     there is nothing that can be done--she can't have her day in 
     court or ever get her hard-earned wages back.
       Certainly, in tough economic times, workers should be able 
     to earn and keep their fair wages. The Lilly Ledbetter Fair 
     Pay Act, H.R. 2831, would reinstate this common-sense 
     paycheck accrual rule. H.R. 2831 merely clarifies that pay 
     discrimination is not a one-time occurrence starting and 
     ending with a pay decision, but that each paycheck lessened 
     due to discrimination represents a continuing violation by 
     the employer. It is a very modest bill and is the right 
     answer for Alaska's working women.


Senator Hutchison's Ledbetter ``Alternative'' Is Not the Right Approach

       The clear, measured approach taken in H.R. 2831 is the only 
     way Congress can reverse the effects of the Ledbetter 
     decision. A newly-introduced bill from Senator Hutchison (R-
     TX), S. 3209, purports to offer a solution for victims of pay 
     discrimination. But, in reality, Ms. Hutchison's legislation 
     would fail to correct the injustice created by the Ledbetter 
     decision, would create new, confusing, and unnecessary 
     hurdles for those facing discrimination, and would flood the 
     courts with premature claims and unnecessary litigation.
       The approach of S. 3209 fails to recognize the basic 
     principle that as long as discrimination in the workplace 
     continues, so too should employees' ability to challenge it. 
     It is the wrong approach for working women, who depend on 
     every rightfully-earned dollar. Every time an employer issues 
     a discriminatory paycheck, that employer violates the law, 
     and victims of that discrimination should be afforded a 
     remedy.
       Moreover S. 3209 would create new legal hurdles for 
     employees by requiring employees to show they filed their 
     claims within 180 days of when they had--or should have had--
     enough information to suspect they'd been subjected to 
     discrimination. This ``should have'' known standard would 
     encourage employees to prematurely file discrimination claims 
     based on mere speculation or office rumors of wrongdoing just 
     to preserve their rights within the 180-day time frame. This 
     novel standard is not just bad for employees, but also for 
     employers who would be burdened with unnecessary litigation 
     and increased costs. Far from creating a new legal standard, 
     in contrast, H.R. 2831 would merely restore the law prior to 
     the Ledbetter holding and fairly protect employees' day in 
     court.
       The AWPC commends you for helping to help make equal pay 
     for equal work a reality by supporting H.R. 2831 as the best 
     solution for the problems created by the Ledbetter decision.
           Sincerely,

                                               Sue C. Johnson,

                                         President, Alaska Women's
     Political Caucus.

                          ____________________