[Congressional Record (Bound Edition), Volume 154 (2008), Part 5]
[Senate]
[Pages 6419-6420]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             EQUAL PAY DAY

  Mr. HARKIN. Mr. President, tomorrow is Equal Pay Day. What is Equal 
Pay Day? That is the day that symbolizes how far into the year a woman 
must work from the previous year on average to earn as much as a man 
earned by December 31 of last year. It is unbelievable to me that more 
than four decades after passage of the Equal Pay Act and the Civil 
Rights Act, women are still making only 77 cents on the dollar to what 
a man makes. In Iowa, it is even worse. The Iowa Workforce Development 
Agency found that across all industries, women in my State make less 
than 62 percent of what men make.
  Discrimination takes many forms. Sometimes it is brazen and in your 
face, like Jim Crow and apartheid. Sometimes discrimination is silent 
and insidious. That is what is happening in workplaces across America 
today. Millions of female-dominated jobs--social workers, teachers, 
childcare workers, nurses, so many more--are equivalent to male-
dominated jobs, but they pay dramatically less. The Census Bureau has 
compiled data on hundreds of job categories, but it found only five job 
categories where women typically earn as much as a man. Defenders of 
this status quo offer all manner of bogus explanations on why women 
make less. How many times have you heard the fairy tale that women work 
for fulfillment and men work to support their families? Of course, this 
ignores the great majority of single women who work to support 
themselves and married women whose paycheck is all that allows their 
families to make ends meet, to put a little bit of money away for a 
rainy day or perhaps to send a child to college.
  It ignores the harsh reality that so many women face in the workplace 
where they have to work twice as hard to be taken seriously or, say, 
get pushed into being a cashier when they had applied for a better 
paying sales job. These pervasive acts of discrimination deny women 
fair pay and they also deny women basic dignity.
  Let me cite one example of the discrimination I am talking about. 
Last year in a hearing in our Health, Education, Labor, and Pensions 
Committee, we heard remarkable testimony from Dr. Philip Cohen of the 
University of North Carolina. Dr. Cohen compared nurses' aides, who are 
overwhelmingly women, and truck drivers who are overwhelmingly men. In 
both groups, the average age is 43. Both require ``medium'' amounts of 
strength. Nurses' aides on average have more education and training. 
But nurses' aides make less than 60 percent of what truck drivers make.
  Given that this discrimination is so obvious and pervasive, you would 
expect that women would have no trouble at all obtaining simple justice 
in our court system. But in a major decision last June, in the case of 
Ledbetter v. Goodyear Tire & Rubber Company, the Supreme Court actually 
took us backward. In a 5-to-4 ruling, the Court made it extremely 
difficult for women to go to court to pursue claims of pay 
discrimination, even in cases where the discrimination is flagrant.
  A jury acknowledged that Lilly Ledbetter, a former supervisor at 
Goodyear, had been paid $6,000 less than her lowest paid male 
counterpart. But the Supreme Court rejected her discrimination claim. 
Why? The Court held that women workers must file a discrimination claim 
within 180 days of their pay being set, even if they were not aware at 
the time that their pay was significantly lower than their male 
counterparts.
  Justice Ginsburg said, in a forceful dissent, this is totally out of 
touch with the real world of the workplace. In the real world, pay 
scales are often kept secret and employees are in the dark about their 
coworkers' salaries. Lacking such information, it is difficult to 
determine when pay discrimination begins. Furthermore, vast 
discrepancies are often a function of time. If your original pay was a 
little bit lower than your colleague's pay, and then over 20 years you 
get smaller raises every year, you end up with a huge gap after 20 
years. But if you can only sue for the most recent pay determination, 
this misses 20 years of discrimination. As a result, in Ms. Ledbetter's 
case, she is going to get a dramatically smaller pension for the rest 
of her life based upon that lower pay level.
  Ms. Ledbetter, who testified before our committee last year, is 
injured twice: Over 20 years of flagrant discrimination in the 
workplace and getting paid less, and now for the remainder of her life, 
as a retired person, she will get less pension because of that 
discrimination. Twice she is injured.
  What the Ledbetter decision means is that once the 180-day window for 
bringing a lawsuit is passed, the discrimination gets grandfathered in. 
This creates a free harbor for employers who have paid female workers 
less than men over a long period of time. Basically it gives the worst 
offenders a free pass to continue their gender discrimination.
  Ledbetter was a bad decision, but there is one thing we can do with 
Supreme Court decisions. We can pass legislation to fix them. So I have 
joined with Senator Kennedy and others to reverse the damage done by 
that decision. Our bill would establish that the ``unlawful employment 
practice'' under the Civil Rights Act is the payment of a 
discriminatory salary, not the original setting of the pay level.
  Well, this is a good start, but it is not enough. It is not good 
enough to go back to the way the law worked last year because women, as 
I said, are still making less than 77 cents on the dollar as compared 
to men. That is intolerable. Moreover, if pay scales are still kept 
secret, if there is not transparency, how can women know if they are 
being discriminated against?
  That is why we need to pass my Fair Pay Act, a bill which I have 
introduced in every Congress going back to 1996. I just keep 
introducing it every Congress. Here is what it does. It is very simple. 
In addition to requiring that employers provide equal pay for 
equivalent jobs, my bill would require disclosure of pay scales and 
rates for all job categories in a given company. Now, I did not say 
they had to disclose every single person's pay, I said pay scales for 
categories of jobs. Now, this would give women the information they 
need to identify discriminatory pay practices, and this could reduce 
the need for costly litigation in the first place.
  When Lilly Ledbetter testified before our committee last year, I 
asked her--I told her about the bill; I told her what kind of 
information it would provide--I asked her if she had that information, 
could she have, 20 years ago,

[[Page 6420]]

negotiated for better pay and avoided litigation? She answered: Of 
course.
  Well, there are countless more Lilly Ledbetters out there who are 
paid less than their male coworkers, but they will never know about it 
unless we get them this information.
  My Fair Pay Act amends the Fair Labor Standards Act of 1938 to 
prohibit discrimination in the payment of wages on the basis of sex, 
race, or national origin. Most importantly, it requires each individual 
employer to provide equal pay for jobs that are comparable in skill, 
effort, responsibility, and working conditions--skill, effort, 
responsibility, and working conditions.
  Now, you might say: Haven't we already passed the Equal Pay Act? Yes, 
but the Equal Pay Act only says you have to be paid the same if you are 
doing exactly the same job. Well, what about if you are doing a job 
like a nurse's aide, in which you require medium strength, in which you 
require training, and you compare it to what a truckdriver does? Why 
should a truckdriver get 60 percent more than someone who is taking 
care of you when you are ill or your mother or your grandmother or 
grandparents in assisted living or in a nursing home or in hospice care 
or a number of other things where nurses' aides are vitally important?
  You might say: Well, has this ever been done? The fact is, 20 
States--20 State governments--right now have fair pay laws and policies 
in place for their employees, including my State of Iowa. I point out 
that Iowa had a Republican legislature and Republican Governor in 1985 
when this bill was passed into law. So ending wage discrimination 
against women should not be a partisan issue.
  I am just saying let's take what 20 State governments have done and 
let's extend it to the private sector. Well, some would say we do not 
need any more laws; market forces will take care of the wage gap. Well, 
maybe so, but we all know from basic economics 101 that for a free 
market to work there has to be not only a number of players where they 
have equivalent purchasing power--not an employer-employee situation--
secondly, what else is most important for a market to work? 
Transparency, knowledge, knowing what the game is, openness. But when 
pay scales are kept secret and you do not know what they are, how can 
market forces ever, ever close this wage gap?
  Experience also shows there are some injustices market forces cannot 
rectify. That is why we passed the Equal Pay Act, the Civil Rights 
Acts, the Family Medical Leave Act, and here, in 1990, the Americans 
with Disabilities Act. Market forces did not break down the barriers of 
discrimination against people with disabilities in our country. But 
that is what we did with the Americans with Disabilities Act. We broke 
the barriers down and let people with disabilities not only get 
educated, not only travel--go out to restaurants and things--but also 
get jobs in which we can look not at their disabilities but at their 
abilities.
  Mr. President, I would like to close with a story of a woman from my 
State named Angie. She was employed as a field office manager at a temp 
firm. The employees there were not allowed to talk about pay with their 
coworkers. Only inadvertently did she discover that a male office 
manager at a similar branch, who had less education and less 
experience, was earning more than she was. In this case, the story did 
end happily. She cited this information in negotiations with her 
employer, and she was able to get a raise.
  But I think there is a twofold lesson in this story. The first lesson 
is that if we give women information about what their male colleagues 
are getting, they can negotiate a better deal for themselves in the 
workplace. The second lesson is that pay discrimination is a harsh 
reality in the workplace. It is not only unfair, but it is demeaning, 
it is demoralizing, and it is pervasive--pervasive--throughout our 
society. Individual women should not have to do battle in order to win 
equal pay. We need more inclusive national laws to make equal pay for 
equal work--equal pay for equivalent work--a basic standard and a legal 
right in the American workplace.
  So it is time, after all these years, to pass the Fair Pay Act. Do 
not confuse it with the Paycheck Protection Act. I am also a cosponsor 
of the Paycheck Protection Act. That legislation will improve the 
enforcement of the laws we already have on the books. But we already 
know those laws are not sufficient, as the Ledbetter case shows us. So 
in order to really open the marketplace for women to earn what they 
should be earning and to make the equivalent of what their male 
counterparts are making, we need to pass the Fair Pay Act.
  Tomorrow, when we recognize Equal Pay Day--just think about it: Equal 
Pay Day tomorrow, April 22. So it took women all the way from January, 
February, March, and April, on average, to earn as much as a man did by 
December 31 of last year. That is just grossly unfair. It is also time 
to start paying women equivalent pay to what their male counterparts 
are making, when their job requires the same skill, effort, 
responsibility, and working conditions.
  When you take all those factors into account, there is no reason why 
we should not pass the Fair Pay Act. Let's do for the private sector 
what 20 States have already done in their governments. With that, maybe 
we will start getting some justice in the workplace for American women.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Whitehouse). Without objection, it is so 
ordered.

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