[Congressional Record (Bound Edition), Volume 154 (2008), Part 5]
[Senate]
[Pages 6455-6458]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        FAIR PAY RESTORATION ACT

  Ms. MIKULSKI. Mr. President, thank you very much. I too wish to speak 
as in morning business.
  All over America today, people are celebrating Earth Day. But we, the 
women of the Senate, have another day we are commemorating, it is 
called Pay Equity Day. That means women should get paid equal pay for 
equal or comparable work.
  You are going see the women of the Senate dressed in red today. We 
are going to be on the Senate floor, we are going to be in our 
committees, and we are going to be doing our job. But we wear the color 
red with solidarity for women all over who say: We are red in the face 
because of the way women have been treated in terms of our pay.
  Right now, in the year 2008, women still make less money per hour 
than men for the same or comparable job. If that was not hard enough 
about the business practices, we actually have a Supreme Court that 
agreed with discrimination.
  So today we come to the floor with legislation that has been 
developed, on a bipartisan basis, to reverse a Supreme Court decision 
called the Ledbetter decision.
  You have to hear this. Last May, the Supreme Court made an outrageous 
decision that said women cannot get equal pay for equal work if they do 
not do it within the first 180 days that a discrimination occurs. The 
decision was sexist, it was biased, and it did not understand the 
reality of women's lives or the reality of the workplace.
  Their decision was a step backward for women, and it hit women right 
in the pocketbook. It violates the American concept of fairness and 
justice and equal treatment under the law.
  Let me tell you about Lilly Ledbetter, who brought the case to the 
Supreme Court. I met her in the HELP Committee--the Health, Education, 
Labor Committee--when we were listening to the testimony about it. I 
listened to her story. This is a woman now who is beyond middle-age, 
who has worked 19 years for the Goodyear Corporation.
  Systematically, she was underpaid from the day she walked in that 
door. Not only did she get less pay for the work that she did, but she 
did not get comparable raises when the men got theirs.

[[Page 6456]]

  What does that mean? Not only did she have less earnings in her work, 
though she worked as hard, received excellent ratings, and was 
promoted, but it also now will show up in her pension; she will get 
less Social Security and she will get less pension. So remember, when 
discrimination begins, it is compounded over a lifetime.
  Now, Lilly Ledbetter is a real American. She fought the system on her 
own time and with great risk. She fought the discrimination and took it 
to the Equal Opportunity Commission, took it to the courts, and then 
took it all the way up to the Supreme Court. Along the way, she had to 
raise her own money to do this, while the big corporate interests at 
Goodyear had fat-cat, billable-hours lawyers against her.
  She faced sexual harassment in the workplace because she dared to 
speak up and speak out. Well, Lilly Ledbetter would not give up. If she 
was the only case in America, it would be wrong, but this is a 
persistent pattern in the workplace. And also it has now been approved 
by the Supreme Court.
  The Supreme Court said: Someone cannot sue their employer over 
unequal pay if that person does not file suit within 180 days after the 
pay was established.
  Once again, the Supreme Court does not get it. How many women know 
the salary of their coworkers, especially in the first 6 months on the 
job? The reality of the workplace is that often people are forbidden to 
talk about their salaries. What if you were hired at an equal rate with 
your male counterpart, but he gets a raise every few months and you do 
not? The Supreme Court decision was outrageous. It was so bad that 
Justice Ruth Bader Ginsburg, God bless her, God bless Justice Ruth, she 
stood up and actually spoke from the bench to read her dissenting 
opinion.
  That is unprecedented. Usually, they file it and let it go into the 
history books. But Justice Ginsburg wanted to put the world and this 
Congress on notice that we better act. Justice Ginsburg said in her 
dissenting opinion:

       In our view, the court does not comprehend or is 
     indifferent to the insidious way in which women can be 
     victims of pay discrimination.

  She encouraged the Congress to fix it, and we will fix it. We will. 
Unfortunately, wage discrimination exists. Woman now earn 77 percent 
for every dollar our male counterpart makes. Women of color even get 
paid less. African-American women get paid 68 cents for every dollar a 
White man makes. That is almost a 40-percent difference.
  The Supreme Court decision will make it almost impossible for women 
workers to close this wage gap and to get the remedy they deserve, and 
what they should get, under our doctrine of fairness, is equal pay for 
equal or comparable work.
  From the bench, Justice Ginsburg did call on the Congress for action. 
She said, ``Correct the mistake.''
  Well, when Justice Ruth speaks, and by the way, do we not miss our 
Justice Sandra Day O'Connor? Justice Alito wrote the primary assenting 
opinion. They told us the Court made a mistake and the Congress could 
fix it. Well, fix it we will. We will be soon voting on the legislative 
process in the bill itself to right this wrong. We will be voting on 
legislation that will correct this mistake.
  This legislation was authored by our great Galahad in the Senate, 
Senator Kennedy. He did it in consultation with we, the women in the 
Senate: Senator Clinton, myself, Senator Snowe, women on both sides of 
the aisle. He reached out to us. We reached out to the best legal 
thinking.
  This bill will amend title VII of the Civil Rights Act of 1964. This 
bill will amend the Civil Rights Act of 1964, so the statute of 
limitations for an employee to file a wage discrimination suit runs 
from the date of the actual payment of the discriminatory wage, not 
from the hiring. So every time you get a paycheck, it will be an act of 
discrimination, which will reset the clock so you can file your case.
  That means employees can sue employers based on each discriminating 
paycheck, and it does not limit the time a worker can get the remedy 
she deserves. This bill is about fairness, justice, and respect. Is it 
not time, is it not time? When we think about Lilly Ledbetter and all 
those wonderful women similar to her, a woman who worked for 19 years, 
she was not exactly sure when the disparity developed, she could not 
quite get to all that.
  A jury found they had discriminated against her. They awarded her 
$400,000 in backpay. The Supreme Court took it away from her. Well, 
today, we are going to give it back to her. We are going to make sure 
she and her guts and her grit, in standing up for herself, has stood up 
for all women.
  We who are the women of the Senate stand up as well, I believe also 
with the very good men who work with us. Men of quality never fear 
women who seek equality. We are doing that today. We believe in this 
country all people are created equal. We need to make sure it is in the 
Federal law books and in your personal checkbook.
  All people are created equal in the Federal lawbook and in your 
personal checkbook. People should be judged by their skills, their 
competence, and by the job they do. Once you get that job because of 
your skills and talent, you should get equal pay for equal or 
comparable work.
  Lilly Ledbetter was an honest and hard-working person for 19 years. 
She is entitled to every cent she worked for. Because Lilly Ledbetter 
stood up, we rise with her. We are going to correct the Supreme Court 
decision. We are going to pass this reform legislation that is called 
the Fair Pay Restoration Act. We ask the Presiding Officer to join with 
us today. For all of us who wear red, this is going to be a great 
victory.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Tester). The Senator from Washington.
  Mrs. MURRAY. Mr. President, I come to join my colleague from 
Maryland, the distinguished Senator Mikulski, who has always fought for 
women's rights because she knows that is what will make our country 
strong. I serve on the Health, Education, and Labor Committee with the 
Senator from Maryland. We saw Lilly Ledbetter come before our committee 
to speak about her experience in a factory where she was not given fair 
pay. Over time it went all the way to the Supreme Court, where she lost 
her right in her own lifetime to ever be compensated for the pay she 
lost because she wasn't treated fairly. She came before our committee, 
and she was such a woman of dignity and courage, not speaking for 
herself--anything we do on the floor won't help her personally--but 
speaking for all women who will come behind her for decades, to make 
sure they have the right to get equal pay when they are performing an 
equal job.
  I thank Senator Mikulski for her leadership and urge our colleagues 
tomorrow to vote with us so we can go to the Lilly Ledbetter Fair Pay 
Act and once and for all assure that our daughters and future 
generations will have access to equal pay.
  This Senate has a very proud history of working across the aisle to 
pass civil rights laws. Those historic laws ensure that all people have 
equal rights, regardless of race, religion, gender, or national origin. 
I am proud that they ensure that my daughter now has the right to work 
in the same jobs and achieve the same success as my son. But even 
though women are doing the same jobs as men and working as hard every 
day, they still are not equal on one important day. That is payday. On 
payday, women will take home 77 cents for every dollar paid to their 
male coworkers. That pay gap is even wider for African-American and 
Latino women. African-American women earn 67 cents on the dollar and 
Latino women earn 56 cents for every dollar a white man makes. I know 
some people out there say: That can't be true. It is true.
  I rise on Equal Pay Day to recognize that we still have a lot of work 
to do to ensure fairness in society. Tomorrow is the day the Senate can 
go on record saying we in this country are going to stand behind the 
women and men and their children who rely on them to bring home a 
paycheck.
  The pay gap that exists is true regardless of skill or education. It 
is so

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deeply engrained in society that many jobs dominated by women pay less 
than jobs dominated by men, even when the work they do is almost 
exactly the same. In my State of Washington, a woman with a college 
degree earns about $20,000 less than a man with the same education. 
According to a study by the American Association of University Women, 
the difference in pay starts as soon as that woman enters the 
workforce. That study found that within a year after graduating from 
college, a woman will already earn less than her male classmates in 
nearly every major. So that is a problem when one starts out. It is 
also a lifelong problem, because by the end of her career, a female 
worker will have lost an average of $250,000 in earnings.
  It is just as important to make it clear that the pay gap is a 
problem for everyone. This disparity hurts millions of families. In 
almost 10 million households, mothers are the only breadwinners, and in 
many cases those women are also supporting parents and extended family 
members. In far too many of those households women have to struggle to 
pay for rent or heat or food or gas, especially today as prices are 
rising. Think of how much better off families would be if a woman were 
paid a wage equal to men, especially as the economic downturn grows 
worse and expenses rise.
  If women and men made an equal wage, single working women would have 
17 percent more income each and every year. Ensuring they earn a fair 
paycheck could cut the poverty rate in half. Wage disparity follows 
those women into retirement. Women today are twice as likely to live in 
poverty over the age of 65. Women are more dependent upon Social 
Security for a greater percentage of their retirement income. All of us 
are staring down the looming Social Security crisis. Think how much 
better off we would be if women could save a little more for retirement 
and contribute more to Social Security.
  My colleagues and I should not have to be here talking about this 
today. I should not have to come to the floor in the year 2008 to make 
a case for equal pay. Not only is it a no-brainer, but fairness and 
equality are fundamental American values. We are not asking for special 
treatment. We are here because, despite all the work done to ensure 
equal rights, women haven't achieved equality. We are here because we 
run the risk that pay discrimination laws are growing weaker, not 
stronger, if we don't act.
  As Senator Mikulski discussed, the Supreme Court last May took a big 
step backward with its decision on Ledbetter v. Goodyear. That decision 
went against Congress's intent and 40 years of EEOC practice. It made 
it almost impossible for workers who suffer pay discrimination to now 
seek justice.
  Today on Equal Pay Day, we urge our colleagues to support legislation 
that would reverse that decision and ensure workers have a fair shot at 
fighting discrimination. The Ledbetter decision requires many workers 
to file a claim within 180 days after their employer discriminates 
against them, but it does not recognize that in many cases workers 
don't even know they have been discriminated against for years. It may 
take them much longer than 180 days to gather the proof. Frankly, for 
women in the workplace to be aggressive in finding out how much other 
people get paid in order to even file a case is very difficult. This 
sounds an awful lot like the Supreme Court is asking our workers to be 
mindreaders. That is unfair. It is not what Congress intended when we 
created that law in the first place.
  The Ledbetter Fair Pay Act will allow workers to file a claim within 
180 days of any discriminatory paycheck. It gives workers the ability 
to discover the facts and to challenge ongoing discrimination. Although 
the Ledbetter case involved gender discrimination, the decision applies 
to all kinds of discrimination, including religion, race, age, 
disability, and national origin.
  Our Nation was founded on the principle that all of its citizens are 
created equal. We think they ought to be equal on payday as well. As a 
mother and grandmother, I want my children to live in a country where 
my daughter can earn as much as my son. Now is the time to ensure that 
that can be true by strengthening our pay discrimination laws. Now is 
the time to ensure the Senate's history of civil rights cannot be 
eroded.
  Tomorrow is an important day for women and men. I urge my colleagues 
to vote with us to consider the Fair Pay Act.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mrs. McCASKILL. Mr. President, I also rise to talk about Lilly 
Ledbetter and some practical realities regarding this issue. I had the 
honor of representing a number of people on discrimination cases during 
the time I practiced law in Kansas City. I represented people on age 
discrimination, race discrimination, and gender discrimination. I am 
familiar with the law before Ledbetter. The thing about this decision 
that is hardest for me is how unpractical it is. When I was a single 
mom with three small kids in a job with a lot of responsibility and 
long hours, I had to be very practical in the way I lived my life. 
Working women across this country are very practical people. They have 
to prioritize. They make multitasking a way of life.
  I look at this decision from a practical standpoint. Here is what 
sticks in my craw. They are acting as if when you get a paycheck, 
immediately some switch is turned on in your head that says: My 
paycheck is discriminatory.
  There is no way women in the workplace can look at their paycheck and 
immediately determine they have been discriminated against. They don't 
know what everybody else is making. If you are going to say that 
someone only has 180 days to file a complaint on discrimination from 
the date the decision is made to make that complaint, what you are 
saying is that everybody in the workplace, whether they are an elderly 
person, whether they are a minority, whether they are a woman, they are 
going to have to turn into a detective every time they get a paycheck. 
They are going to have to run around and interview their colleagues as 
to how much money they are making to make sure their paycheck is fair. 
That is dumb. That is just dumb.
  First, you are not even supposed to talk about your paycheck in the 
workplace. In many places of employment, the boss says it is against 
policy to discuss with other people what their salary is or what your 
pay is. So what we are saying to the women and to the older workforce 
and to members of minorities is: Now you have to figure out what is in 
the head of your employer. And by the way, you have 6 months.
  If I were an employer in America, I would say: Hey, talk about 
hurting productivity.
  Instead, doesn't it make sense that we should be able to show a 
pattern of discrimination that is reflected in a series of paychecks? 
Of course, it does. Who has the best knowledge as to whether someone is 
being discriminated against? I will guarantee you, it is not the person 
receiving the check. I think about the cases I represented and what 
kind of incredibly high bar it would have been for each one of those 
individuals to figure out in 180 days whether their paycheck was fair.
  It is funny how people around this place talk about activist judges. 
I have a feeling that when we debate this issue today and tomorrow, and 
as this vote occurs, we won't hear a word from the other side about 
activist judges. This was, in fact, a Supreme Court decision that 
radically changed the law as we knew it, as it has been practiced in 
this country, as it has, in fact, been embraced by this country. This 
Court, by the narrowest of margins, said 5 to 4 that they were going to 
upset all that law and make it very difficult for people in the 
workplace to have their day in the bright sunshine of justice.
  I am tempted to call it an activist judiciary. They are out of 
control. We have to do something about the judiciary. Instead, what we 
need to do is what we have always done in our history. We have to 
correct it. By the way, that decision spoke to us in terms of asking 
us, in the dissent, to take the steps necessary to put the law back 
where it was before that fateful day

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last summer when the Supreme Court said to the people who have been 
discriminated against: We are going to make it really hard for you to 
hold your employer accountable.
  This is not a twilight zone of liability for companies. This is a 
situation where all the damages that someone can receive is just 2 
years, regardless of how long the discrimination has gone on. Mr. 
President, 180 days is a very short period of time in terms of filing a 
complaint--much shorter than any other statute of limitations that is 
out there for any wrong anyone suffers in our country.
  I think people need to remember how Lilly found out about this. The 
jury found in her favor. The EEOC found in her favor. The law was in 
her favor--until the Supreme Court overturned it.
  How did she find out she was being discriminated against? She had 
been there all these years. She had started out on an even keel with 
the colleagues who were men. Someone slipped her an anonymous note. 
There is not a tote board somewhere she could have checked. Someone 
slipped her an anonymous note in the workplace and said: Hey, do you 
realize what is happening to you? You need to start asking some 
questions about what is happening to your pay.
  This is not just about women. This is also about the older workforce. 
By the way, with the economy the way it is right now, under this 
administration, people are having to work longer. People who used to 
think they could retire at 62--forget about that--they are working into 
their late sixties, into their seventies. In fact, we have many Members 
in this body who are working hard every day who are well beyond their 
early seventies who are contributing on a daily basis to this place. 
Should those people be discriminated against because they are older? 
Should they have to figure out in 180 days that a younger colleague is 
making a bigger paycheck?
  What about the minorities in this country? This is not just about 
women. This is about discrimination. We need to send a very clear 
signal to the rest of the country that we understand we have to fix 
this and we have to fix it quickly.
  This is not a bunch of whining over something that is not important. 
That 22 cents in Missouri that a woman makes less than a man is 
important. It is important to pay for the gas. It is important to pay 
for the daycare. It is important in order to make the bills come out 
even.
  In Missouri, the figure is that women earn 78 cents for every $1 
earned by men. The median annual income for a man with a college degree 
in Missouri, from the years 2004 to 2006, was $59,000. For a woman with 
the same amount of education, it was $46,000. The American Association 
of University Women did that study in the State of Missouri.
  We need to unite behind this legislation. This is not going to be 
onerous for employers out there. It is fair. It is just fair. It is 
what we pledge allegiance to every day in this room: equal justice for 
all. Let's make sure we fix this. Let's make sure we move and pass this 
bill and send it to the President. I will tell you what, if this 
President has the nerve to veto this bill, I know a lot of women in 
America who are going to wake up and get busy before November.
  Thank you, Mr. President.
  I suggest the absence of a quorum.
  Mr. DURBIN. Mr. President, I would like to be recognized, if I could. 
I ask to speak in morning business.
  The PRESIDING OFFICER. Will the Senator withhold the suggestion?
  Mrs. McCASKILL. Yes.
  The PRESIDING OFFICER. The Senator from Illinois.

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