[Congressional Record (Bound Edition), Volume 154 (2008), Part 5]
[Senate]
[Pages 6420-6422]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        EQUAL PAY FOR EQUAL WORK

  Mr. KENNEDY. Mr. President, I welcome the opportunity to address the 
Senate on a matter of fundamental fairness to millions of our fellow 
citizens: to women, working women in our society, and to do it at a 
time when we know those who are working are hard pressed in the 
economy. We are all familiar with the anxiety among working families--
working fathers and working mothers. Today I will address what 
underlies the efforts in which many of us are involved in what we call 
the Ledbetter case.
  It is legislation to override a 5-to-4 Supreme Court decision named 
after Lilly Ledbetter, an extraordinary woman who had worked for a tire 
company for a number of years and had been discriminated against in her 
pay and had received judgments to make up for the damages she had 
experienced over a period of years. The Supreme Court then undermined 
the previous courts and effectively left her without any remedy at all, 
in effect saying unscrupulous employers could discriminate against an 
employee, and if they do not get caught within 100 days, they are free 
and clear and they can continue to discriminate against that 
individual.
  That is not only against women, which is the Ledbetter case, but it 
is also true if they had done the same with regard to African Americans 
or Latino Americans or if they discriminated against the disabled or if 
they discriminated on the basis of religion or national origin--all of 
those cases with a simple 5-to-4 decision, the rights of those workers, 
people who are working, working hard, are virtually out the window.
  I wish to take a few minutes to review what this Senate has done with 
regard to what we will call the equal pay issue over a period of time. 
It is an extraordinary record. It is a record of progress and fairness.
  It will be amazing to me when my friends and colleagues on the other 
side rise to oppose this simple act of fairness and equity this 
situation demands. For over 40 years, this Senate has gone on record 
time and again saying that we will not discriminate against our fellow 
citizens on the basis of pay. Nonetheless, the Supreme Court has 
reached a different conclusion, and we will have the opportunity on 
Wednesday to change that conclusion

[[Page 6421]]

and restore the record of the Senate to what it has been over the last 
40 years.
  This chart shows the different laws that have been passed in Congress 
to establish equal pay for equal work. The Equal Pay Act under 
President Kennedy was done by a voice vote. It was pointed out at that 
time that women were getting 60 cents on the dollar. That was wrong. We 
ought to strive for equal pay for equal work. That legislation was 
passed at that time.
  We thought we had made progress on that legislative effort, but we 
had not made as much progress as we thought. So in 1964, the great 
Civil Rights Act, known because of the public accommodations 
provisions, included in title VII a provision that provided equal pay, 
nondiscrimination on the basis of race, religion, and national origin, 
signed by President Johnson. It passed 73 to 27.
  Then we had the Age Discrimination in Employment Act because there 
were many forms of discrimination in our country on the basis of 
people's age. We wanted to free ourselves of discriminating against the 
elderly in our country, those who contributed so much to our Nation, so 
we passed the Age Discrimination Act. There was much support for that 
effort. It was passed under the Johnson administration by voice vote.
  We had the Rehabilitation Act that dealt with the disabled. Make no 
mistake about it, under the current Supreme Court holding, if you have 
a disabled person who is able to perform a job as well as somebody who 
does not have that disability, if the employer discriminates against 
that individual, that individual will be covered by the existing 
Supreme Court decision, and we may very well see those individuals 
discriminated against because they are disabled, even though they are 
able to perform the work, and they are being denied a remedy.
  We debated those issues back with the Rehabilitation Act of 1973 and 
said we were not going to permit that.
  Then the Civil Rights Restoration Act of 1988 under President Reagan 
and the Americans with Disabilities Act restated those goals. Look at 
the votes: 92 to 6 and 93 to 5.
  All of this legislation, from early 1963 all the way to 1991, 
provided the kinds of protections that we are including in this 
legislation that will be before the Senate on Wednesday, called the 
Ledbetter legislation, named after Lilly Ledbetter who was 
discriminated against.
  Mr. President, I mentioned those pieces of legislation. Look at this 
chart. Pay discrimination hurts all kinds of American workers. In 2007, 
EEOC received more than 7,000 pay discrimination charges: on the basis 
of disability, 480 cases; on the basis of national origin, 760; on the 
basis of age discrimination, 978; on the basis of race, 2,352; and on 
the basis of gender, some 2,470.
  These were individuals who were working hard but finally found out 
they were being discriminated against--7,000 cases. So we can ask: What 
had been the law previously when we had those kinds of situations? This 
chart reflects what the law was. The paycheck accrual rule was the law 
of the land. That meant if people discriminated against those 
individuals and the individuals found out about it and brought a case, 
they were able to gain damages or they were able to get remedies by the 
EEOC. This was under Republican and Democratic administrations alike. 
That has been the law of the land, with the exception of three States. 
That was the law of the land. That is what we want to return to, and we 
will have the opportunity to return to it.
  Some will say if we return to it, it will mean a lot of burdensome 
bureaucracy and expenditures on the employers. Look what CBO says. CBO 
agrees that ``the Fair Pay Restoration Act would not establish a new 
cause of action for claims of pay discrimination. . . . CBO expects 
that the bill would not significantly affect the number of filings with 
the Equal Employment Opportunity Commission.''
  So this argument that it is going to make it much more cumbersome and 
much more troublesome and much more expensive is not true. What it will 
do is provide protections.
  What are we basically talking about with Lilly Ledbetter? She was a 
hard-working woman. Here is what Lilly Ledbetter received: $5,000 less 
than the lowest paid male coworker during her last year at Goodyear. 
That was $44,000. The lowest paid male was $51,000, and the highest 
paid male, who did virtually the same job, was paid $62,000. This is a 
year. She was doing exactly the same as this paid worker; the only 
difference was she was a woman.
  What did the courts say, even though she was awarded the damages? You 
didn't bring the case in the first 180 days. You didn't bring the case 
and, therefore, you don't have the case at all.
  How was Lilly Ledbetter supposed to know she had a case? The payroll 
was kept secret from all the workers. How was she supposed to know? How 
in the world was she supposed to know? She couldn't know; she didn't 
know. It took her years to find out that she was the subject of this 
kind of discrimination, and the Supreme Court says: We don't care; we 
don't mind if the employers are going to keep that payroll all locked 
up and keep it secret. Lilly Ledbetter should have known what was in 
that secret safe of that employer.
  Come on. Come on. That is a system of justice in the United States of 
America? They were able to get five votes for that theory over in the 
Supreme Court of the United States? It defies common sense, of 
reasonableness and equity for people in this country, and that is what 
we are striving for.
  This is all against an extraordinary background of what is happening 
to working women at the present time. Look at what is happening to 
working women now. For women who are employed now, their earnings are 
falling faster. Women who are working now are experiencing unemployment 
two or three times faster than men in our economy. Their earnings are 
going down faster than men in our economy. Incidents of foreclosure for 
women are a good deal higher than men in our economy, and they are, at 
the present time, still only earning, for the same job, 77 cents out of 
every dollar. So they are already facing an uphill battle in our 
economy, the difficult economy we are facing at the present time, and 
this Supreme Court decision is just going to make it all that more 
complicated and more difficult.
  This issue, as I said, is one of fundamental fairness.
  We have an extraordinary group supporting us in terms of the 
disability groups--the American Association of People with 
Disabilities; the elderly groups--the AARP, they know they can 
experience the same kinds of discrimination; Business and Professional 
Women; the NAACP--because of what this can mean in discriminating 
against minorities, Blacks; the auto workers, because we can see the 
discrimination that could be against other workers; the National 
Congress of Black Women; the Religious Action Center--there was an 
excellent letter they sent pointing out the moral issues raised about 
this; and then the U.S. Women's Chamber of Commerce--understanding this 
is plainly simply wrong. It is wrong in our society. It was wrong at 
any other time.
  This is an issue that cries out for a remedy. It should not take the 
Ledbetter legislation--which passed overwhelmingly. It passed with 
Republican support in the House of Representatives and strong 
Democratic support. We have a number of our Republican friends and 
colleagues who are a part of this effort. This is a very simple and 
fundamental issue: Are we going to permit discrimination against women 
in the workplace to continue? That is what it is.
  We have to understand, as a practical matter, employers are going to 
keep the payroll confidential and secret. They do that. They have done 
it and will do it in the future. What the Supreme Court says is that is 
too bad, too bad you don't know, but if you do not do it within 180 
days you will lose your rights. They can effectively discriminate 
against you for the rest of your life if you are working in that 
company. They can go ahead, completely freely, without any threat of 
any kind

[[Page 6422]]

of lawsuit, go ahead and discriminate for the rest of your life, if you 
are working there. Tell me what the common sense of that proposal is. 
Where is the justice on that issue? Where is it?
  We have addressed that issue and similar issues over a long period of 
time under a variety of Presidents, under Democratic Presidents and 
Republican Presidents--President Nixon, President Reagan, the two 
Presidents Bush. Look at the vote on these, 91 to 6, and 93 to 5, with 
virtually similar issues that are presented here.
  We should not have to spend the time other than having a rollcall on 
this issue, it is so compelling. We await eagerly those who support the 
current Supreme Court decision. We await them out here on the floor of 
the Senate. We awaited them last week to come out and tell us what 
their rationale is, what their excuse is, what their reasons are for 
denying fairness and equity in the workplace to millions of our fellow 
citizens who happen to be women. What is their right? What is their 
purpose? What is their justification--whether those individuals are 
disabled, whether they are elderly, whether they are being 
discriminated against on the basis of religion--we are going to 
continue to permit that here in the United States when we have the 
opportunity to overturn it? That is what is going to be before the 
Senate on Wednesday.
  It is simple; it is fundamental; it is basic. It is a defining issue 
of fairness in this country and we will have more to say about this 
tomorrow and on Wednesday as well.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Stabenow). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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