[Congressional Record Volume 166, Number 164 (Tuesday, September 22, 2020)]
[Senate]
[Pages S5775-S5780]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                REMEMBERING JUSTICE RUTH BADER GINSBURG

  Ms. CANTWELL. Madam President, I join my colleagues tonight to come 
here and honor the life of Justice Ruth Bader Ginsburg. As many people 
have said tonight already, what an unbelievable hero she was--a 
trailblazer, a deep thinker. And there are the things she did on the 
Court to do so many important things for the rights of Americans.
  When I first met her in 2001, I had just come to Washington, DC, in 
my first year here in the U.S. Senate, and I just happened to go to a 
play at the Shakespeare Theatre, here near the Capitol, and had seats 
right next to her in the theater. I had probably already heard about 
her and knew of her, of course. That was of great significance even in 
2001. But during the play, I noticed, just as I do in a dark situation, 
oftentimes falling asleep a little bit, and I thought, wow, I don't 
know, this woman is so petite and so tiny. And I had heard that she had 
been sick. I literally sat there in the dark concerned for her future.
  What a lesson about Ruth Bader Ginsburg, because that was 2001. And 
in 2020, she was going strong. This is not a woman to ever, ever, ever 
underestimate. She took her tools and applied them for the betterment 
of American women and American society overall. People across the 
United States of America are reeling from her passing because they want 
to know who is going to stand up for their rights now that she is gone.
  There is something about that diminutive figure with so much might 
and wisdom that succeeded on that groove of a Court with all those men 
and had the courage and the tenacity to read her dissent in the Lilly 
Ledbetter legislation from the bench--the unusual move of saying: I 
might not have the decision I want today, but, by God, you are going to 
listen to what is wrong with gender inequality in America, and we are 
going to get on a path to fix it.
  When I think about that unbelievable moment that in her quiet, soft 
voice set the stage that we heard our colleague Senator Warren talk 
about tonight, it is pretty amazing. That is why we need to have women 
in these places. We need to have them so you have the voice of 
diversity there to tell you what it is like. And I guarantee you--when 
she said that statement, ``I don't ask anything from my brother other 
than to get your foot off my neck,'' I guarantee you, she knew what 
that was like, and that is why she says it with such conviction.
  That is what she represented. That is what she represented as an icon 
to so many people, and now they are mourning. I have had 2,000 calls in 
just a few days to our office about her passing.
  One constituent, Lynn from Shelton, WA, said: I am old enough to have 
grown up experiencing the subtle and not so subtle discrimination aimed 
at girls and women that have limited our self-expression, our 
participation in sports, in politics, college accessibility and 
workplace, and even in my family life and reproduction. She continues: 
It has been slow progress for each of us to achieve increased equality. 
And so we have so much to thank Ruth Bader Ginsburg for. I am deeply 
saddened and frightened--frightened by her passing. As you know, our 
democracies, freedom, integrity and the rule of law are threatened and 
are even at greater risk.
  Eileen, from Issaquah, wrote: Justice Ginsburg fought so valiantly 
for our rights as women. As women, we provide so much for the 
Washington economy.
  I agree with her. Women provide a lot for our economy in the State of 
Washington.
  She continues: I am a business owner myself, and I am terrified that 
gender protections are in grave danger. Ensuring civil liberties is not 
just the moral

[[Page S5776]]

thing to do, but it makes sound economic policy as well. Allowing more 
people more opportunities does not take away from those with power, but 
it grows our economy as a State and as a country and allows all of us 
to be more prosperous together. That includes reproductive rights, 
which is the keystone to allowing women full economic opportunity as 
men.
  I have to say that letter basically sums it all up. That is what the 
fight with Lilly Ledbetter was. I thank Lilly Ledbetter. I thank Lilly 
Ledbetter for having the courage to file that case and stand up to that 
discrimination and basically fight a long process that people still 
don't understand. We do not have pay equity in America yet. We still 
are not making the same amount as men.
  Ruth Ginsburg made a decision that set the course for the Lilly 
Ledbetter law, which basically says that instead of saying our time to 
file a case for discrimination runs out after a year when we don't even 
know we have been discriminated against, we should have a longer period 
of time to file that case. All we are going to get is our day in court.
  I thank both Lilly Ledbetter and Justice Ginsburg for that because 
they were women standing up in an incredible environment, with men 
surrounding them, and speaking truth to power about what needed to 
happen, as my constituent says here, for full economic opportunities 
for all people.
  I can't tell you how many men I have heard say: I want equal pay for 
women. I want equal pay for women because I want my wife to make a 
decent salary. I want her to bring home as much as she can bring home. 
I don't want her discriminated against.
  Yet when Justice Ginsburg set us up for the Lilly Ledbetter 
legislation and we came here to the Senate floor, I heard the most 
unbelievable speeches here on the Senate floor. Colleagues of ours 
basically said things like: Well, if you would just be as qualified as 
a man, we will pay you as much as a man.
  The disconnect still exists. The pay inequity still exists. But the 
course of action has been set by Justice Ginsburg, and we just have to 
pick up the torch and carry this to the finish line because it is good 
for our economy. It is good for our society. It is good for women to 
have the type of participation that--when you are paid equally to a 
man, you can continue to contribute in society.
  Already, 2,000 people have written to me. It is unbelievable what she 
has done to touch the hearts of Americans.
  A father from Bellingham wrote: Mostly, I mourn for the future of my 
4-year-old daughter. The prospects of women losing their right to 
choose and an erosion of gender equality is frightening.
  Another constituent, Katie, wrote: Even though the air this morning 
looks relatively clear again in Seattle--a little reference to all our 
fire and smoke--our future is foggier than ever. While I mourn the 
death of Justice Ginsburg, I cannot help but feel tremendous anxiety 
about the future of existing laws in effect that protect all people's 
rights, from legal abortions to access to healthcare, to laws that 
protect our votes and our freedom of speech and laws that Justice 
Ginsburg protected.
  That is really what is going on here in America. This movement about 
RBG is saying: You stood up to protect us, and now you are gone, and 
what is going to happen?
  I definitely pause in this for a little comment about our Senate 
schedule. I don't get it. We can sit here and argue back and forth 
about what people said when and how and all of that. What I don't 
understand is this: It takes time to review the record of someone for a 
lifetime appointment to the Supreme Court in which these important 
issues to working families and whether they have as much power and as 
much clout and as much standing as a corporation in America--people 
want to know where they stand.
  Somehow, people are already talking about schedules. I don't 
understand. How can you decide what the schedule is when you haven't 
even heard the name of a person? How do you move forward with a 
schedule when you don't even know--maybe this person is going to end up 
being Harriet Miers. Maybe you are going to look at their record and 
say: It is Harriet Miers, and I don't want to move forward because I 
looked at her record, and I decided maybe this is not the jurist I want 
at this point in time.
  All I am saying is, I don't understand how somebody can set a course 
of action in a schedule when you don't even know who the person is, 
what the process is going to be, or the length of time. You are setting 
a horrible precedent. You are saying to people that it doesn't even 
matter what the name is; you already have a schedule. It doesn't matter 
how long it is going to take to review.
  It is very hard here to not have frustration when my citizens have 
fought so hard for these rights, and Justice Ginsburg's passing has 
upset them so much that they need to hear from us about how a fair and 
deliberative process--the last wishes of Justice Ginsburg--is going to 
be honored.
  I would like to add in the Record the full dissent that was read from 
the bench from Justice Ginsburg in the Lilly Ledbetter case
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Supreme Court of the United States, Lilly M. Ledbetter, Petitioner v. 
                The Goodyear Tire & Rubber Company, Inc.


  on writ of certiorari to the united states court of appeals for the 
                     eleventh circuit--May 29, 2007

       Justice Ginsburg, with whom Justice Stevens, Justice 
     Souter, and Justice Breyer join, dissenting.
       Lilly Ledbetter was a supervisor at Goodyear Tire and 
     Rubber's plant in Gadsden, Alabama, from 1979 until her 
     retirement in 1998. For most of those years, she worked as an 
     area manager, a position largely occupied by men. Initially, 
     Ledbetter's salary was in line with the salaries of men 
     performing substantially similar work. Over time, however, 
     her pay slipped in comparison to the pay of male area 
     managers with equal or less seniority. By the end of 1997, 
     Ledbetter was the only woman working as an area manager and 
     the pay discrepancy between Ledbetter and her 15 male 
     counterparts was stark: Ledbetter was paid $3,727 per month; 
     the lowest paid male area manager received $4,286 per month, 
     the highest paid, $5,236. See 421 F. 3d 1169, 1174 (CAl 1 
     2005); Brief for Petitioner 4.
       Ledbetter launched charges of discrimination before the 
     Equal Employment Opportunity Commission (EEOC) in March 1998. 
     Her formal administrative complaint specified that, in 
     violation of Title VII, Goodyear paid her a discriminatorily 
     low salary because of her sex. See 42 U.S.C. Sec. 2000e-
     2(a)(1) (rendering it unlawful for an employer ``to 
     discriminate against any individual with respect to [her] 
     compensation . . . because of such individual's . . . sex''). 
     That charge was eventually tried to a jury, which found it 
     ``more likely than not that [Goodyear] paid [Ledbetter] a[n] 
     unequal salary because of her sex.'' App. 102. In accord with 
     the jury's liability determination, the District Court 
     entered judgment for Ledbetter for backpay and damages, plus 
     counsel fees and costs.
       The Court of Appeals for the Eleventh Circuit reversed. 
     Relying on Goodyear's system of annual merit-based raises, 
     the court held that Ledbetter's claim, in relevant part, was 
     time barred. 421 F. 3d, at 1171, 1182-1183. Title VII 
     provides that a charge of discrimination ``shall be filed 
     within [180] days after the alleged unlawful employment 
     practice occurred.'' 42 U.S.C. Sec. 2000e-5(e)(1). Ledbetter 
     charged, and proved at trial, that within the 180-day period, 
     her pay was substantially less than the pay of men doing the 
     same work. Further, she introduced evidence sufficient to 
     establish that discrimination against female managers at the 
     Gadsden plant, not performance inadequacies on her part, 
     accounted for the pay differential. See, e.g., App. 36-47, 
     51-68, 82-87, 90-98, 112-113. That evidence was unavailing, 
     the Eleventh Circuit held, and the Court today agrees, 
     because it was incumbent on Ledbetter to file charges year-
     by-year, each time Goodyear failed to increase her salary 
     commensurate with the salaries of male peers. Any annual pay 
     decision not contested immediately (within 180 days), the 
     Court affirms, becomes grandfathered, a fait accompli beyond 
     the province of Title VII ever to repair.
       The Court's insistence on immediate contest overlooks 
     common characteristics of pay discrimination. Pay disparities 
     often occur, as they did in Ledbetter's case, 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. Employers 
     may keep under wraps the pay differentials maintained among 
     supervisors, no less the reasons for those differentials. 
     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.
       Pay disparities are thus significantly different from 
     adverse actions ``such as termination, failure to promote, . 
     . . or refusal to hire,'' all involving fully communicated 
     discrete acts, ``easy to identify'' as discriminatory. See 
     National Railroad Passenger Corporation v. Morgan, 536 U.S. 
     101, 114 (2002). It

[[Page S5777]]

     is only when the disparity becomes apparent and sizable, 
     e.g., through future raises calculated as a percentage of 
     current salaries, that an employee in Ledbetter's situation 
     is likely to comprehend her plight and, therefore, to 
     complain. Her initial readiness to give her employer the 
     benefit of the doubt should not preclude her from later 
     challenging the then current and continuing payment of a wage 
     depressed on account of her sex.
       On questions of time under Title VII, we have identified as 
     the critical inquiries: ``What constitutes an `unlawful 
     employment practice' and when has that practice `occurred'?'' 
     Id., at 110. Our precedent suggests, and lower courts have 
     overwhelmingly held, that the unlawful practice is the 
     current payment of salaries infected by gender-based (or 
     race-based) discrimination--a practice that occurs whenever a 
     paycheck delivers less to a woman than to a similarly 
     situated man. See Bazemore v. Friday, 478 U.S. 385, 395 
     (1986) (Brennan, J., joined by all other Members of the 
     Court, concurring in part).
     I.
       Title VII proscribes as an ``unlawful employment practice'' 
     discrimination ``against any individual with respect to his 
     compensation . . . because of such individual's race, color, 
     religion, sex, or national origin.'' 42 U.S.C. Sec. 2000e-
     2(a)(1). An individual seeking to challenge an employment 
     practice under this proscription must file a charge with the 
     EEOC within 180 days ``after the alleged unlawful employment 
     practice occurred.'' Sec. 2000e-5(e)(1). See ante, at 4; 
     supra, at 2, n. 1.
       Ledbetter's petition presents a question important to the 
     sound application of Title VII: What activity qualifies as an 
     unlawful employment practice in cases of discrimination with 
     respect to compensation. One answer identifies the pay-
     setting decision, and that decision alone, as the unlawful 
     practice. Under this view, each particular salary-setting 
     decision is discrete from prior and subsequent decisions, and 
     must be challenged within 180 days on pain of forfeiture. 
     Another response counts both the pay-setting decision and the 
     actual payment of a discriminatory wage as unlawful 
     practices. Under this approach, each payment of a wage or 
     salary infected by sex-based discrimination constitutes an 
     unlawful employment practice; prior decisions, outside the 
     180-day charge-filing period, are not themselves actionable, 
     but they are relevant in determining the lawfulness of 
     conduct within the period. The Court adopts the first view, 
     see ante, at 1, 4, 9, but the second is more faithful to 
     precedent, more in tune with the realities of the workplace, 
     and more respectful of Title VII' s remedial purpose.
     A
       In Bazemore, we unanimously held that an employer, the 
     North Carolina Agricultural Extension Service, committed an 
     unlawful employment practice each time it paid black 
     employees less than similarly situated white employees. 478 
     U.S., at 395 (opinion of Brennan, J.). Before 1965, the 
     Extension Service was divided into two branches: a white 
     branch and a ``Negro branch.'' Id., at 390. Employees in the 
     ``Negro branch'' were paid less than their white 
     counterparts. In response to the Civil Rights Act of 1964, 
     which included Title VII, the State merged the two branches 
     into a single organization, made adjustments to reduce the 
     salary disparity, and began giving annual raises based on 
     nondiscriminatory factors. Id., at 390-391, 394-395. 
     Nonetheless, ``some preexisting salary disparities continued 
     to linger on.'' Id., at 394 (internal quotation marks 
     omitted). We rejected the Court of Appeals' conclusion that 
     the plaintiffs could not prevail because the lingering 
     disparities were simply a continuing effect of a decision 
     lawfully made prior to the effective date of Title VII. See 
     Id., at 395-396. Rather, we reasoned, ``[e]ach week's 
     paycheck that delivers less to a black than to a similarly 
     situated white is a wrong actionable under Title VII.'' Id., 
     at 395. Paychecks perpetuating past discrimination, we thus 
     recognized, are actionable not simply because they are 
     ``related'' to a decision made outside the charge-filing 
     period, cf. ante, at 17, but because they discriminate anew 
     each time they issue, see Bazemore, 478 U.S., at 395-396, and 
     n. 6; Morgan, 536 U.S., at 111-112.
       Subsequently, in Morgan, we set apart, for purposes of 
     Title VII's timely filing requirement, unlawful employment 
     actions of two kinds: ``discrete acts'' that are ``easy to 
     identify'' as discriminatory, and acts that recur and are 
     cumulative in impact. See Id., at 110, 113-115. ``[A] 
     [d]iscrete ac[t] such as termination, failure to promote, 
     denial of transfer, or refusal to hire,'' Id., at 114, we 
     explained, `` `occur[s]' on the day that it `happen[s].' A 
     party, therefore, must file a charge within . . . 180 . . . 
     days of the date of the act or lose the ability to recover 
     for it.'' Id., at 110; see Id., at 113 (``[D]iscrete 
     discriminatory acts are not actionable if time barred, even 
     when they are related to acts alleged in timely filed 
     charges. Each discrete discriminatory act starts a new clock 
     for filing charges alleging that act.'').
       ``[D]ifferent in kind from discrete acts,'' we made clear, 
     are ``claims . . . based on the cumulative effect of 
     individual acts.'' Id., at 115. The Morgan decision placed 
     hostile work environment claims in that category. ``Their 
     very nature involves repeated conduct.'' Ibid. ``The unlawful 
     employment practice'' in hostile work environment claims, 
     ``cannot be said to occur on any particular day. It occurs 
     over a series of days or perhaps years and, in direct 
     contrast to discrete acts, a single act of harassment may not 
     be actionable on its own.'' Ibid. (internal quotation marks 
     omitted). The persistence of the discriminatory conduct both 
     indicates that management should have known of its existence 
     and produces a cognizable harm. Ibid. Because the very nature 
     of the hostile work environment claim involves repeated 
     conduct,
       ``[i]t does not matter, for purposes of the statute, that 
     some of the component acts of the hostile work environment 
     fall outside the statutory time period. Provided that an act 
     contributing to the claim occurs within the filing period, 
     the entire time period of the hostile environment may be 
     considered by a court for the purposes of determining 
     liability.'' Id., at 117.
       Consequently, although the unlawful conduct began in the 
     past, ``a charge may be filed at a later date and still 
     encompass the whole.'' Ibid.
       Pay disparities, of the kind Ledbetter experienced, have a 
     closer kinship to hostile work environment claims than to 
     charges of a single episode of discrimination. Ledbetter's 
     claim, resembling Morgan's, rested not on one particular 
     paycheck, but on ``the cumulative effect of individual 
     acts.'' See id., at 115. See also Brief for Petitioner 13, 
     15-17, and n. 9 (analogizing Ledbetter's claim to the 
     recurring and cumulative harm at issue in Morgan); Reply 
     Brief for Petitioner 13 (distinguishing pay discrimination 
     from ``easy to identify'' discrete acts (internal quotation 
     marks omitted)). She charged insidious discrimination 
     building up slowly but steadily. See Brief for Petitioner 5-
     8. Initially in line with the salaries of men performing 
     substantially the same work, Ledbetter's salary fell 15 to 40 
     percent behind her male counterparts only after successive 
     evaluations and percentage-based pay adjustments. See supra, 
     at 1-2. Over time, she alleged and proved, the repetition of 
     pay decisions undervaluing her work gave rise to the current 
     discrimination of which she complained. Though component acts 
     fell outside the charge-filing period, with each new 
     paycheck, Goodyear contributed incrementally to the 
     accumulating harm. See Morgan, 536 U.S., at 117; Bazemore, 
     478 U.S., at 395-396; cf. Hanover Shoe, Inc. v. United Shoe 
     Machinery Corp., 392 U.S. 481, n. 15 (1968).
     B
       The realities of the workplace reveal why the 
     discrimination with respect to compensation that Ledbetter 
     suffered does not fit within the category of singular 
     discrete acts ``easy to identify.'' A worker knows 
     immediately if she is denied a promotion or transfer, if she 
     is fired or refused employment. And promotions, transfers, 
     hirings, and firings are generally public events, known to 
     co-workers. When an employer makes a decision of such open 
     and definitive character, an employee can immediately seek 
     out an explanation and evaluate it for pretext. Compensation 
     disparities, in contrast, are often hidden from sight. It is 
     not unusual, decisions in point illustrate, for management to 
     decline to publish employee pay levels, or for employees to 
     keep private their own salaries. See, e.g., Goodwin v. 
     General Motors Corp., 275 F. 3d 1005, 1008-1009 (CA10 2002) 
     (plaintiff did not know what her colleagues earned until a 
     printout listing of salaries appeared on her desk, seven 
     years after her starting salary was set lower than her co-
     workers' salaries); McMillan v. Massachusetts Soc. for the 
     Prevention of Cruelty to Animals, 140 F. 3d 288, 296 (CA1 
     1998) (plaintiff worked for employer for years before 
     learning of salary disparity published in a newspaper). 
     Tellingly, as the record in this case bears out, Goodyear 
     kept salaries confidential; employees had only limited access 
     to information regarding their colleagues' earnings. App. 56-
     57, 89.
       The problem of concealed pay discrimination is particularly 
     acute where the disparity arises not because the female 
     employee is flatly denied a raise but because male 
     counterparts are given larger raises. Having received a pay 
     increase, the female employee is unlikely to discern at once 
     that she has experienced an adverse employment decision. She 
     may have little reason even to suspect discrimination until a 
     pattern develops incrementally and she ultimately becomes 
     aware of the disparity. Even if an employee suspects that the 
     reason for a comparatively low raise is not performance but 
     sex (or another protected ground), the amount involved may 
     seem too small, or the employer's intent too ambiguous, to 
     make the issue immediately actionable--or winnable.
       Further separating pay claims from the discrete employment 
     actions identified in Morgan, an employer gains from sex-
     based pay disparities in a way it does not from a 
     discriminatory denial of promotion, hiring, or transfer. When 
     a male employee is selected over a female for a higher level 
     position, someone still gets the promotion and is paid a 
     higher salary; the employer is not enriched. But when a woman 
     is paid less than a similarly situated man, the employer 
     reduces its costs each time the pay differential is 
     implemented. Furthermore, decisions on promotions, like 
     decisions installing seniority systems, often implicate the 
     interests of third-party employees in a way that pay 
     differentials do not. Cf. Teamsters v. United States, 431 
     U.S. 324, 352-353 (1977) (recognizing that seniority systems 
     involve ``vested . . . rights of employees'' and concluding 
     that Title VII was not intended to ``destroy or water down'' 
     those rights). Disparate pay, by contrast, can be remedied at 
     any time solely at the expense of the employer who acts in a 
     discriminatory fashion.

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     C
       In light of the significant differences between pay 
     disparities and discrete employment decisions of the type 
     identified in Morgan, the cases on which the Court relies 
     hold no sway. See ante, at 5-10 (discussing United Air Lines. 
     Inc. v. Evans, 431 U.S. 553 (1977), Delaware State College v. 
     Ricks, 449 U.S. 250 (1980), and Lorance v. AT&T Technologies, 
     Inc., 490 U.S. 900 (1989)). Evans and Ricks both involved a 
     single, immediately identifiable act of discrimination: in 
     Evans, a constructive discharge, 431 U.S., at 554; in Ricks, 
     a denial of tenure, 449 U.S., at 252. In each case, the 
     employee filed charges well after the discrete discriminatory 
     act occurred: When United Airlines forced Evans to resign 
     because of its policy barring married female flight 
     attendants, she filed no charge; only four years later, when 
     Evans was rehired, did she allege that the airline's former 
     no-marriage rule was unlawful and therefore should not 
     operate to deny her seniority credit for her prior service. 
     See Evans, 431 U.S., at 554-557. Similarly, when Delaware 
     State College denied Ricks tenure, he did not object until 
     his terminal contract came to an end, one year later. Ricks, 
     449 U.S., at 253-254, 257-258. No repetitive, cumulative 
     discriminatory employment practice was at issue in either 
     case. See Evans, 431 U.S., at 557-558; Ricks, 449 U.S., at 
     258.
       Lorance is also inapposite, for, in this Court's view, it 
     too involved a one-time discrete act: the adoption of a new 
     seniority system that ``had its genesis in sex 
     discrimination.'' See 490 U.S., at 902, 905 (internal 
     quotation marks omitted). The Court's extensive reliance on 
     Lorance, ante, at 7-9, 14, 17-18, moreover, is perplexing for 
     that decision is no longer effective: In the 1991 Civil 
     Rights Act, Congress superseded Lorance's holding. 112, 105 
     Stat. 1079 (codified as amended at 42 U.S.C. Sec. 2000e-
     5(e)(2)). Repudiating our judgment that a facially neutral 
     seniority system adopted with discriminatory intent must be 
     challenged immediately, Congress provided:
       ``For purposes of this section, an unlawful employment 
     practice occurs . . . when the seniority system is adopted, 
     when an individual becomes subject to the seniority system, 
     or when a person aggrieved is injured by the application of 
     the seniority system or provision of the system.'' Ibid.
       Congress thus agreed with the dissenters in Lorance that 
     ``the harsh reality of [that] decision,'' was ``glaringly at 
     odds with the purposes of Title VII.'' 490 U.S., at 914 
     (opinion of Marshall, J.). See also Sec. 3, 105 Stat. 1071 
     (1991 Civil Rights Act was designed ``to respond to recent 
     decisions of the Supreme Court by expanding the scope of 
     relevant civil rights statutes in order to provide adequate 
     protection to victims of discrimination'').
       True, Sec. 112 of the 1991 Civil Rights Act directly 
     addressed only seniority systems. See ante, at 8, and n. 2. 
     But Congress made clear (1) its view that this Court had 
     unduly contracted the scope of protection afforded by Title 
     VII and other civil rights statutes, and (2) its aim to 
     generalize the ruling in Bazemore. As the Senate Report 
     accompanying the proposed Civil Rights Act of 1990, the 
     precursor to the 1991 Act, explained:
       ``Where, as was alleged in Lorance, an employer adopts a 
     rule or decision with an unlawful discriminatory motive, each 
     application of that rule or decision is a new violation of 
     the law. In Bazemore . . . , for example, . . . the Supreme 
     Court properly held that each application of th[e] racially 
     motivated salary structure, i.e., each new paycheck, 
     constituted a distinct violation of Title VII. Section 
     7(a)(2) generalizes the result correctly reached in 
     Bazemore.'' Civil Rights Act of 1990, S. Rep. No. 101-315, p. 
     54 (1990).
       See also 137 Cong. Rec. 29046, 29047 (1991) (Sponsors' 
     Interpretative Memorandum) (``This legislation should be 
     interpreted as disapproving the extension of [Lorance] to 
     contexts outside of seniority systems.''), But cf. ante, at 
     18 (relying on Lorance to conclude that ``when an employer 
     issues paychecks pursuant to a system that is facially 
     nondiscriminatory and neutrally applied'' a new Title VII 
     violation does not occur (internal quotation marks omitted)).
       Until today, in the more than 15 years since Congress 
     amended Title VII, the Court had not once relied upon 
     Lorance. It is mistaken to do so now. Just as Congress' 
     ``goals in enacting Title VII . . . never included conferring 
     absolute immunity on discriminatorily adopted seniority 
     systems that survive their first [180] days,'' 490 U.S., at 
     914 (Marshall, J., dissenting), Congress never intended to 
     immunize forever discriminatory pay differentials 
     unchallenged within 180 days of their adoption. This 
     assessment gains weight when one comprehends that even a 
     relatively minor pay disparity will expand exponentially over 
     an employee's working life if raises are set as a percentage 
     of prior pay.
       A clue to congressional intent can be found in Title VII's 
     backpay provision. The statute expressly provides that 
     backpay may be awarded for a period of up to two years before 
     the discrimination charge is filed. 42 U.S.C. Sec. 2000e-
     5(g)(l) (``Back pay liability shall not accrue from a date 
     more than two years prior to the filing of a charge with the 
     Commission.''). This prescription indicates that Congress 
     contemplated challenges to pay discrimination commencing 
     before, but continuing into, the 180-day filing period. See 
     Morgan, 536 U.S., at 119 (``If Congress intended to limit 
     liability to conduct occurring in the period within which the 
     party must file the charge, it seems unlikely that Congress 
     would have allowed recovery for two years of backpay.''). As 
     we recognized in Morgan, ``the fact that Congress expressly 
     limited the amount of recoverable damages elsewhere to a 
     particular time period [i.e., two years] indicates that the 
     [180-day] timely filing provision was not meant to serve as a 
     specific limitation . . . [on] the conduct that may be 
     considered.'' Ibid.
     D
       In tune with the realities of wage discrimination, the 
     Courts of Appeals have overwhelmingly judged as a present 
     violation the payment of wages infected by discrimination: 
     Each paycheck less than the amount payable had the employer 
     adhered to a nondiscriminatory compensation regime, courts 
     have held, constitutes a cognizable harm. See, e.g., Forsyth 
     v. Federation Employment and Guidance Serv., 409 F. 3d 565, 
     573 (CA2 2005) (``Any paycheck given within the [charge-
     filing] period . . . would be actionable, even if based on a 
     discriminatory pay scale set up outside of the statutory 
     period.''); Shea v. Rice, 409 F. 3d 448, 452--453 (CADC 2005) 
     (``[An] employer commit[s] a separate unlawful employment 
     practice each time he pa[ys] one employee less than another 
     for a discriminatory reason'' (citing Bazemore, 478 U.S., at 
     396)); Goodwin v. General Motors Corp., 275 F. 3d 1005, 1009-
     1010 (CA10 2002) (``[Bazemore] has taught a crucial 
     distinction with respect to discriminatory disparities in 
     pay, establishing that a discriminatory salary is not merely 
     a lingering effect of past discrimination instead it is 
     itself a continually recurring violation . . . . [E]ach race-
     based discriminatory salary payment constitutes a fresh 
     violation of Title VII.'' (footnote omitted)); Anderson v. 
     Zubieta, 180 F. 3d 329, 335 (CADC 1999) (``The Courts of 
     Appeals have repeatedly reached the . . . conclusion'' that 
     pay discrimination is ``actionable upon receipt of each 
     paycheck.''); accord Hildebrandt v. Illinois Dept. of Natural 
     Resources, 347 F. 3d 1014, 1025-1029 (CA7 2003); Cardenas v. 
     Massey, 269 F. 3d 251, 257 (CA3 2001); Ashley v. Boyle's 
     Famous Corned Beef Co., 66 F. 3d 164, 167-168 (CA8 1995) (en 
     banc); Brinkley-Obu v. Hughes Training, Inc., 36 F. 3d 336, 
     347-349 (CA4 1994); Gibbs v. Pierce County Law Enforcement 
     Support Agency, 785 F. 2d 1396, 1399-1400 (CA9 1986).
       Similarly in line with the real-world characteristics of 
     pay discrimination, the EEOC--the federal agency responsible 
     for enforcing Title VII, see, e.g., 42 U.S.C. 
     Sec. Sec. 2000e-5(f)--has interpreted the Act to permit 
     employees to challenge disparate pay each time it is 
     received. The EEOC's Compliance Manual provides that 
     ``repeated occurrences of the same discriminatory employment 
     action, such as discriminatory paychecks, can be challenged 
     as long as one discriminatory act occurred within the charge 
     filing period.'' 2 EEOC Compliance Manual Sec. 2-IV-C(1)(a), 
     p. 605:0024, and n. 183 (2006); cf. id., Sec. 10-III, p. 
     633:0002 (Title VII requires an employer to eliminate pay 
     disparities attributable to a discriminatory system, even if 
     that system has been discontinued).
       The EEOC has given effect to its interpretation in a series 
     of administrative decisions. See Albritton v. Potter, No. 
     01A44063, 2004 WL 2983682, *2 (EEOC Office of Fed. 
     Operations, Dec. 17, 2004) (although disparity arose and 
     employee became aware of the disparity outside the charge-
     filing period, claim was not time barred because ``[e]ach 
     paycheck that complainant receives which is less than that of 
     similarly situated employees outside of her protected classes 
     could support a claim under Title VII if discrimination is 
     found to be the reason for the pay discrepancy.'' (citing 
     Bazemore, 478 U.S., at 396)). See also Bynum-Doles v. Winter, 
     No. 01A53973, 2006 WL 2096290 (EEOC Office of Fed. 
     Operations, July 18, 2006); Ward v. Potter, No. 01A60047, 
     2006 WL 721992 (EEOC Office of Fed. Operations, Mar. 10, 
     2006). And in this very case, the EEOC urged the Eleventh 
     Circuit to recognize that Ledbetter's failure to challenge 
     any particular pay-setting decision when that decision was 
     made ``does not deprive her of the right to seek relief for 
     discriminatory paychecks she received in 1997 and 1998.'' 
     Brief of EEOC in Support of Petition for Rehearing and 
     Suggestion for Rehearing En Banc, in No. 03-15264-GG (CA11), 
     p. 14 (hereinafter EEOC Brief) (citing Morgan, 536 U.S., at 
     113).
     II
       The Court asserts that treating pay discrimination as a 
     discrete act, limited to each particular paysetting decision, 
     is necessary to ``protec[t] employers from the burden of 
     defending claims arising from employment decisions that are 
     long past.'' Ante, at 11 (quoting Ricks, 449 U.S., at 256-
     257). But the discrimination of which Ledbetter complained is 
     not long past. As she alleged, and as the jury found, 
     Goodyear continued to treat Ledbetter differently because of 
     sex each pay period, with mounting harm. Allowing employees 
     to challenge discrimination ``that extend[s] over long 
     periods of time,'' into the charge-filing period, we have 
     previously explained, ``does not leave employers 
     defenseless'' against unreasonable or prejudicial delay. 
     Morgan, 536 U.S., at 121. Employers disadvantaged by such 
     delay may raise various defenses. Id., at 122. Doctrines such 
     as ``waiver, estoppel, and equitable tolling'' ``allow us to 
     honor Title VII's remedial purpose without negating the 
     particular purpose of the filing requirement, to give prompt 
     notice to the employer.'' Id., at 121 (quoting Zipes v. Trans 
     World Airlines, Inc., 455 U.S. 385, 398 (1982)); see 536 
     U.S., at 121 (defense of laches may be invoked to block an 
     employee's suit ``if he unreasonably delays in filing 
     [charges] and as a result harms the defendant''); EEOC Brief 
     15 (``[I]f

[[Page S5779]]

     Ledbetter unreasonably delayed challenging an earlier 
     decision, and that delay significantly impaired Goodyear's 
     ability to defend itself . . . Goodyear can raise a defense 
     of laches . . . .'').
       In a last-ditch argument, the Court asserts that this 
     dissent would allow a plaintiff to sue on a single decision 
     made 20 years ago ``even if the employee had full knowledge 
     of all the circumstances relating to the . . . decision at 
     the time it was made.'' Ante, at 20. It suffices to point out 
     that the defenses just noted would make such a suit 
     foolhardy. No sensible judge would tolerate such inexcusable 
     neglect. See Morgan, 536 U.S., at 121 (``In such cases, the 
     federal courts have the discretionary power . . . to locate a 
     just result in light of the circumstances peculiar to the 
     case.'' (internal quotation marks omitted)).
       Ledbetter, the Court observes, ante, at 21, n. 9, dropped 
     an alternative remedy she could have pursued: Had she 
     persisted in pressing her claim under the Equal Pay Act of 
     1963 (EPA), 29 U.S.C. Sec. 206(d), she would not have 
     encountered a time bar. See ante, at 21 (``If Ledbetter had 
     pursued her EPA claim, she would not face the Title VII 
     obstacles that she now confronts.''); cf. Corning Glass Works 
     v. Brennan, 417 U.S. 188, 208-210 (1974). Notably, the EPA 
     provides no relief when the pay discrimination charged is 
     based on race, religion, national origin, age, or disability. 
     Thus, in truncating the Title VII rule this Court announced 
     in Bazemore, the Court does not disarm female workers from 
     achieving redress for unequal pay, but it does impede racial 
     and other minorities from gaining similar relief.
       Furthermore, the difference between the EPA's prohibition 
     against paying unequal wages and Title VII's ban on 
     discrimination with regard to compensation is not as large as 
     the Court's opinion might suggest. See ante, at 21. The key 
     distinction is that Title VII requires a showing of intent. 
     In practical effect, ``if the trier of fact is in equipoise 
     about whether the wage differential is motivated by gender 
     discrimination,'' Title VII compels a verdict for the 
     employer, while the EPA compels a verdict for the plaintiff. 
     2 C. Sullivan, M. Zimmer, & R. White, Employment 
     Discrimination: Law and Practice Sec. 7.08[F][3], p. 532 (3d 
     ed. 2002). In this case, Ledbetter carried the burden of 
     persuading the jury that the pay disparity she suffered was 
     attributable to intentional sex discrimination. See supra, at 
     1-2; infra, this page and 18.

     III

       To show how far the Court has strayed from interpretation 
     of Title VII with fidelity to the Act's core purpose, I 
     return to the evidence Ledbetter presented at trial. 
     Ledbetter proved to the jury the following: She was a member 
     of a protected class; she performed work substantially equal 
     to work of the dominant class (men); she was compensated less 
     for that work; and the disparity was attributable to gender-
     based discrimination. See supra, at 1-2.
       Specifically, Ledbetter's evidence demonstrated that her 
     current pay was discriminatorily low due to a long series of 
     decisions reflecting Goodyear's pervasive discrimination 
     against women managers in general and Ledbetter in 
     particular. Ledbetter's former supervisor, for example, 
     admitted to the jury that Ledbetter's pay, during a 
     particular one-year period, fell below Goodyear's minimum 
     threshold for her position. App. 93-97. Although Goodyear 
     claimed the pay disparity was due to poor performance, the 
     supervisor acknowledged that Ledbetter received a ``Top 
     Performance Award'' in 1996. Id., at 90-93. The jury also 
     heard testimony that another supervisor--who evaluated 
     Ledbetter in 1997 and whose evaluation led to her most recent 
     raise denial--was openly biased against women. Id., at 46, 
     77-82. And two women who had previously worked as managers at 
     the plant told the jury they had been subject to pervasive 
     discrimination and were paid less than their male 
     counterparts. One was paid less than the men she supervised. 
     Id., at 51-68. Ledbetter herself testified about the 
     discriminatory animus conveyed to her by plant officials. 
     Toward the end of her career, for instance, the plant manager 
     told Ledbetter that the ``plant did not need women, that 
     [women] didn't help it, [and] caused problems.'' Id., at 36. 
     After weighing all the evidence, the jury found for 
     Ledbetter, concluding that the pay disparity was due to 
     intentional discrimination.
       Yet, under the Court's decision, the discrimination 
     Ledbetter proved is not redressable under Title VII. Each and 
     every pay decision she did not immediately challenge wiped 
     the slate clean. Consideration may not be given to the 
     cumulative effect of a series of decisions that, together, 
     set her pay well below that of every male area manager. 
     Knowingly carrying past pay discrimination forward must be 
     treated as lawful conduct. Ledbetter may not be compensated 
     for the lower pay she was in fact receiving when she 
     complained to the EEOC. Nor, were she still employed by 
     Goodyear, could she gain, on the proof she presented at 
     trial, injunctive relief requiring, prospectively, her 
     receipt of the same compensation men receive for 
     substantially similar work. The Court's approbation of these 
     consequences is totally at odds with the robust protection 
     against workplace discrimination Congress intended Title VII 
     to secure. See, e.g., Teamsters v. United States, 431 U.S., 
     at 348 (``The primary purpose of Title VII was to assure 
     equality of employment opportunities and to eliminate . . . 
     discriminatory practices and devices. . . .'' (internal 
     quotation marks omitted)); Albemarle Paper Co. v. Moody, 422 
     U.S. 405, 418 (1975) (``It is . . . the purpose of Title VII 
     to make persons whole for injuries suffered on account of 
     unlawful employment discrimination.'').
       This is not the first time the Court has ordered a cramped 
     interpretation of Title VII, incompatible with the statute's 
     broad remedial purpose. See supra, at 10-12. See also Wards 
     Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (superseded 
     in part by the Civil Rights Act of 1991); Price Waterhouse v. 
     Hopkins, 490 U.S. 228 (1989) (plurality opinion) (same); 1 B. 
     Lindemann & P. Grossman, Employment Discrimination Law 2 (3d 
     ed. 1996) (``A spate of Court decisions in the late 1980s 
     drew congressional fire and resulted in demands for 
     legislative change[,]'' culminating in the 1991 Civil Rights 
     Act (footnote omitted)). Once again, the ball is in Congress' 
     court. As in 1991, the Legislature may act to correct this 
     Court's parsimonious reading of Title VII.
       * * *
       For the reasons stated, I would hold that Ledbetter's claim 
     is not time barred and would reverse the Eleventh Circuit's 
     judgment.
  Ms. CANTWELL. In that dissent, Justice Ginsburg said:

       The problem of concealed pay discrimination is particularly 
     acute where the disparity arises not because the female 
     employee is flatly denied a raise but because male 
     counterparts are given larger raises. Having received a pay 
     increase, the female employee is unlikely to discern at once 
     that she has experienced an adverse employment decision. She 
     may have little reason to suspect discrimination until a 
     pattern develops incrementally and she ultimately becomes 
     aware of the disparity.

  Again, I think of what bravery Justice Ginsburg showed in saying to 
our colleagues that this dissent was so important, to read it from the 
bench.
  Not everything in the legislative or legal process is easy. It takes 
bringing awareness to our colleagues, and clearly there is a lot of 
awareness that needs to continue to happen here. This is about working 
families and their desire to have healthcare coverage for preexisting 
conditions, protection of reproductive rights, hundreds of thousands of 
Dreamers wanting to know what the future looks like, and obviously 
LGBTQ rights and whether they are going to be set back.
  I think of the other time that I had a great interaction with Justice 
Ginsburg. When I also first got here, we had this dinner every year. 
The Senator from Hawaii will find this interesting. We in the Senate 
would be invited--Democrats and Republicans--to have dinner with the 
Supreme Court. It was a great night. We would go over to the Court, and 
we would have dinner.
  Actually, the Justices would open up their offices, and we could tour 
around. I thought it was really interesting. If you know anything about 
people, you can almost see how their mind works by the desk they keep. 
Some people keep a messy desk, but they know where every piece of paper 
is on the desk. Other people have a very neat desk.
  The whole thing--letting us into their Chambers, talking about the 
decorum of the Supreme Court, how they shook hands every day, how they 
all worked with each other to try to keep comity among the decisions 
when you are going to disagree every day--was very interesting.
  We usually had some entertainment. But it was kind of a moment where 
we all said: We are in this together, and we are going to keep moving 
forward.
  Several years later--I am not sure whose decision it was--I think 
maybe around--I am not sure what year they disbanded that. They 
decided: We are not doing that anymore.
  I asked: Why aren't we doing this?
  This is one of the greatest things we have done around here because 
Democrats and Republicans would get together with the members of the 
Court and other people relevant to our associations, and we would share 
a meal and talk and say that this was about civility and working 
together--obviously a very divided branch as it relates to the Senate 
and the judiciary.
  But nonetheless I so appreciated the fact that even though that was 
disbanded, Justice Ginsburg invited the women for dinner. She invited 
the women Senators to come over for dinner. I think we might have 
invited a few of our ex-colleagues. I think Olympia Snowe, the former 
Congresswoman from Maine, might have been there. So we invited some of 
our old colleagues. It might have been a dinner for a newly added 
Justice to the Court. Nonetheless, guess what we got with dinner. Great 
opera. Great opera. In fact, she had I think two singers there that 
evening and entertained us.

[[Page S5780]]

  It is that kind of spirit of people working together and showing 
that. I think that was probably what her relationship was with Antonin 
Scalia. It was probably, yes, we are not always going to agree, but we 
are going to work together, and we are going to figure out how to make 
the best of this situation and move forward.
  I remember that. Even though this thing had been disbanded, she still 
took the time--at least with the women--to say: Do you know what? We 
can all still work together.
  Whoever said the statement ``Good things come in small packages'' had 
it down when it came to Justice Ginsburg because in that very small 
package came a lot of wisdom that got applied to the rights 
particularly of women in the United States of America with a calm but 
forceful voice that has moved this ball down the road. It is up to all 
of us to continue her legacy and get equal pay for equal work and 
continue to protect these rights that are well established in the 
United States of America.
  My thoughts and prayers are with the Ginsburg family.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Hoeven). The Senator from Hawaii.
  Mr. SCHATZ. Mr. President, we know that on Saturday the President is 
likely to announce his nominee for the Supreme Court, and we don't know 
who that is going to be, but we do know a couple of things. We know, 
according to the chairman of the Judiciary Committee, that they already 
have the votes.
  What an extraordinary thing to already know how you are going to vote 
on a nominee who has not yet been nominated. What an extraordinary 
thing to turn ``advise and consent'' into ``agreeing in advance.'' What 
an extraordinary thing.
  There is another thing that we know about this nominee. No matter who 
it is, we know that this person is going to come from a list provided 
by the Federalist Society, an organization that has worked for decades 
to remake the Federal judiciary in its image. It has a long history of 
advancing a certain agenda of seeking to roll back progress on civil 
rights, diminish environmental protections, and eliminate a woman's 
right to choose. It is an organization that believes in the power of 
executive authority and advances a particular, unique, novel theory 
called the unitary executive, which is something that Alan Dershowitz 
proffered on the Senate floor during the impeachment trial.
  It essentially says that the executive branch is the President and 
that extensions of the President's authority can only go so far because 
the President is a whole branch of government unto himself or herself. 
The Federalist Society also fights for the corporations and the rich 
individual donors who quietly fund their work.
  As Amanda Hollis-Brusky says, who studies this organization from a 
nonpartisan academic perspective as a professor at Pomona College: 
``The idea of the Federalist Society was to train, credential, and 
socialize a generation of alternative elites.''
  That is how we know that any nominee they put forth will have views 
so far out of the mainstream and far to the right of even the existing 
Supreme Court. So it is not a rhetorical flourish, and it is not a 
partisan statement to say that Trump's nominee will not be committed to 
ensuring our most basic and fundamental rights: the right to privacy, 
reproductive rights, the right to vote, the right to marry who you 
love, and even equal justice under the law.
  Perhaps what is most worrisome is that the President has made clear 
that whomever he nominates to the Supreme Court will be in favor of 
striking down the Affordable Care Act. With the Court's hearing yet 
another challenge to the ACA on November 10, it is not an exaggeration 
to say that the law will likely be gutted. It is a real risk.
  Let's be clear about what this means. The whole architecture of our 
healthcare system could be destroyed during the worst public health 
crisis in a century. This will, of course, disproportionately impact 
our most vulnerable communities--communities of color, low-income, 
indigenous, Alaska Native, and Native Hawaiian communities. We are 
talking about repealing Medicaid expansion--the policy that allows 
people under the age of 26 to stay on their parents' health insurance--
and, most importantly, protections for preexisting conditions.
  Let's be clear about this, too: If you have gotten COVID, you now 
have a preexisting condition. So, if you have gotten COVID because of 
President Trump's inaction and then if his nominee is confirmed to the 
Supreme Court, your insurance company will be permitted to kick you off 
of your healthcare plan or at least to increase your rate so high that 
you will not be able to afford coverage.
  Ripping away healthcare from at least 20 million Americans and 
denying coverage to people with preexisting conditions is a crazy and 
horrific thing to do in normal times, but it is particularly cruel 
during a pandemic that has already claimed the lives of more than 
200,000 Americans, especially because, despite the recent promises and 
despite the endless promises from both the President and members of the 
Republican Party, they have no alternative healthcare plan. We cannot 
and must not impose this catastrophe on the American people.
  In moments when our country feels torn apart, the traditional role of 
the Senate is supposed to be to calm tensions and solve our problems, 
but instead of dealing with the tough issues, the majority leader and 
the Republican Party are going to inflict procedural violence on the 
legislative branch with many Republicans pre-announcing their support 
for the nominee without even knowing who she or he may be.
  ``President Trump will nominate a well-qualified justice and we will 
uphold our Constitution and protect our freedoms''--the Senator from 
Montana.
  ``I will support President Trump in any effort to move forward 
regarding the recent vacancy''--the chairman of the Committee on the 
Judiciary.
  ``It is critical that the Senate takes up and confirms that successor 
before election day''--the junior Senator from Texas.
  What makes this coordinated effort to stack the Supreme Court even 
worse is that we heard the majority leader say specifically that he 
felt no sense of urgency to move on COVID relief. He felt no sense of 
urgency to move on COVID relief. I believe this was in May. I think it 
was in May when the House passed the Heroes Act. The House passes a 
bill, and the Republicans say it is too much. The majority leader 
decides: Do you know what? We are the cooling saucer. We are the upper 
Chamber. We are just going to chill out here during this pandemic and 
see how things play out economically and in terms of public health.
  Well, things have played out pretty badly economically and in terms 
of public health; yet there has been no sense of urgency, no deal, no 
negotiation. Forget a deal for a second. There has not even been a 
serious attempt to negotiate between the parties or between the 
branches of government--nothing.
  Yet, when a Supreme Court vacancy happens--when Justice Ginsburg 
tragically passes--there is a tremendous sense of clarity, a tremendous 
sense of alacrity, a determination to fill that seat so that, on 
November 10, they can take your healthcare away. That is the sense of 
urgency that the majority leader feels in the middle of a pandemic, and 
it is a shame.
  I yield the floor
  (At the request of Mr. McConnell, the following statement was ordered 
to be printed in the Record.)

                          ____________________