[Congressional Record (Bound Edition), Volume 156 (2010), Part 12]
[Senate]
[Pages 17690-17692]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           PAYCHECK FAIRNESS

  Ms. MIKULSKI. Mr. President, I rise to speak on paycheck fairness, a 
bill on which we will be voting on cloture. The paycheck fairness bill 
picks up where the famous Lilly Ledbetter bill left off. I was so proud 
to lead the fight on the Senate floor 2 years ago, under a new Congress 
and a new President, to ensure that we righted the wrong of a Supreme 
Court decision, where Lilly Ledbetter, on behalf of American women 
everywhere, would be assured that she could get equal pay for equal or 
comparable work. The Congress responded well and that legislation is 
now the law of the land.
  The paycheck fairness bill picks up where Ledbetter left off, because 
Ledbetter left the courthouse door open to sue for discrimination. 
Paycheck fairness makes it more difficult to discriminate in the first 
place; it increases penalties for discrimination; prohibits employer 
retaliation for sharing pay information; it closes the loophole that 
allows for a broad defense in equal pay cases.
  Let me go through this one by one. It improves remedies where 
discrimination has occurred. Current law now says that women can only 
sue for back pay and fixed damages. The paycheck fairness bill would 
allow women to get additional compensatory damage, which makes up for 
the injury or harm suffered based on discrimination. Ledbetter had no 
provisions regarding that. Also, so crucial is that it prohibits 
employer retaliation--and, wow, does this go on in the workplace.
  Under current law, employers can sue or actually punish employees for 
sharing salary statements and information with coworkers. This is 
usually the way employees find out that they are being discriminated 
against. In the famous Supreme Court hearing, some of our Supreme Court 
Justices, who bragged that they don't know what a BlackBerry is, gave 
women the raspberries when they said women should know they are being 
discriminated against, but you cannot even talk at the water cooler, or 
down in the office gym, and say: I get paid this; what are you getting 
paid for the same job?
  What paycheck fairness will now do is prohibit employers from taking 
action against employees who simply share information about what they 
are getting paid. This was not included in the Ledbetter Act. It 
clarifies that any factor other than a sex offense--right now, an 
employer can assert a defense that the pay differential is based on a 
factor other than sex. Courts can interpret this broadly, and a number 
of factors are limited. What the paycheck fairness bill does is tighten 
that loophole by requiring that the differential is truly caused by 
something other than sex or gender or is related to job performance 
that is necessary for the business. Ledbetter did not address that 
loophole. By the way, I know that the specter of small business is 
always raised, but I say to my colleagues that small businesses with 
revenue of less than $500,000 are exempt from the Equal Pay Act. That 
means that paycheck fairness maintains that exemption. That is how it 
takes Ledbetter one step farther. It gives women the tools to begin to 
know what they are being paid--or people of ethnic minorities, et 
cetera.
  Why is this important? First, it is fundamental fairness. You ought 
to be paid equal pay for equal or comparable work. It is fundamentally 
fair. If the same people are doing the job with the same skills and 
background, they ought to get the same pay. It affects a family's 
paycheck; it affects their pension; it affects their whole way of life. 
Right now, equal pay is actually critical to economic recovery. It is 
one of the ways that we can make sure the family checkbook is increased 
based on merit.
  Some people say: Oh, well, why do you need another bill, Senator 
Barb? Women already have enough tools to fight discrimination. Well, we 
haven't fixed everything. And here, I think this bill is simple and 
achievable with the small business exemption that will do that.
  When the Equal Pay Act was passed in 1963, women earned merely 59 
cents on every dollar earned by men. We have made progress. In 47 
years, we have now come up to 77 cents for every dollar that men make. 
It only took us 43 years to get an 18-cent increase. Well, I think 
times are changing. Women are now more in the workplace, and women are 
now often the sole or primary source of income. Creating a wage gap is 
not the way to improve the health of a family or the health of our 
community.
  I could go through a lot of statistics about what that means, but I 
simply want to say to my colleagues that with many Americans already 
earning less, we need to make sure that the family budget is based on 
people being able to get paid for what they do and to make work worth 
it and make wage compensation fair.
  I think the facts speak for themselves as to why this bill is 
necessary. I think the bill itself is a very specific, achievable, 
narrowly drawn bill, and I urge my colleagues to vote for cloture.
  Mr. DODD. Mr. President, I rise today to speak on the Paycheck 
Fairness Act, a critically important bill to guarantee women equal pay 
for equal work. I am proud to lead the effort in the Senate to pass 
this legislation, which my dear friend and colleague Rosa DeLauro has 
already shepherded through the House of Representatives.
  I am pleased that the Senate is finally considering this commonsense 
legislation and am grateful to the majority leader for his strong 
support and his recognition of how important this bill is to American 
families.
  Americans must be assured of equity in the workplace. Unfortunately, 
the fundamental principle of equal pay for equal work has yet to be 
realized in this country. In my view, it is high time that Congress 
step in to remedy this injustice.
  Despite passage of the Equal Pay Act over 40 years ago, which was 
intended to ensure that women are paid the same as their male 
counterparts, a large wage gap still persists. Women are paid, on 
average, just 77 cents for every dollar earned by a man. To put it 
another way, the pay gap means that the average woman is paid more than 
$10,000 less per year than she deserves. The gap is even larger in the 
African American and Hispanic communities, with black women earning 70 
cents and Hispanic women earning merely 67 cents for every dollar a man 
earns. In my view, it is an outrage that in the year 2010 we are still 
not treating women as equals in the workplace.
  Even a college education doesn't suffice to correct this inequality. 
In my home State of Connecticut, the median wage for a woman with a 
bachelor's degree is $55,000--which puts her on par

[[Page 17691]]

with a man who only has a high school diploma. This wage gap means 
that, cumulatively, a working woman will be shortchanged by $400,000 to 
$2 million over her lifetime in lost wages, pensions, and Social 
Security benefits.
  Now, some will argue that the wage gap is a product of the choices 
women make, such as what they study in college, what field they pursue 
careers in, and whether to take time off to raise their children. But 
study after study has corrected for every possible variable, and still 
has found that only part of the wage gap can be explained by measurable 
factors. The rest of the gap is a result of discrimination in the 
workplace. One study compared men and women who had pursued the same 
majors, attended equally good schools, and were entering the same 
industry, and found that women are already paid less than these 
identically qualified men just one year out of college.
  This is not just a matter of fairness but of economic necessity. 
Every dollar that women are shortchanged means a dollar less spent in 
her community, to take care of her family. The problem is particularly 
acute during the current economic recession, in which women are 
increasingly the primary or sole breadwinners for their families. Since 
the recession began, approximately 70 percent of jobs lost were jobs 
that had been held by men. In the typical married-couple family, this 
translates into forcing the family to survive on just 42 percent of its 
former income. This means families have less money to spend on 
everything--groceries, going out to eat, new school clothes, home and 
car repairs--all of which means less money going into our local 
economies. Paying women fairly is not just the right thing to do, it is 
also an immediate economic boost.
  The Paycheck Fairness Act would finally give women tools strong 
enough to end wage discrimination. It provides a long-overdue update to 
the Equal Pay Act, which has not been amended since it was signed into 
law by President Kennedy in 1963. I would add to my colleagues who may 
be undecided on whether to support the upcoming cloture vote--it has 
been forty-seven years since the Equal Pay Act was enacted. If we fail 
to pass this critically important legislation now, there may not be 
another opportunity to do so for a decade or more.
  The Paycheck Fairness Act improves on the Equal Pay Act by toughening 
penalties for pay discrimination. It puts gender-based discrimination 
on equal footing with discrimination based on race or ethnicity by 
allowing women to sue for compensatory and punitive damages. It closes 
a significant loophole in the Equal Pay Act that for too long has 
allowed to justify unequal pay without a legitimate business need. It 
prohibits employers from punishing whistleblowers. Furthermore, it will 
require better data collection by the Department of Labor and Equal 
Opportunity Commission and set up training programs to help women learn 
more effective salary negotiation skills.
  To continue our economic recovery, I believe that we must not only 
work to create jobs. We must also ensure that those jobs are good jobs. 
Making sure that all workers are confident that they are being treated 
and compensated fairly is critical to that goal.
  This bill will ensure that workers are paid what they deserve and 
will provide them with security and fairness in the workplace. I urge 
my colleagues to support this effort.
  Mr. CARDIN. Mr. President, I rise today in support of the Paycheck 
Fairness Act.
  Progress for women in this country has not come easily or come 
quickly. There was a time when women were not allowed to vote or own 
property. In fact, our country once considered women to be the property 
of their fathers or husbands.
  Over the years, women have fought gender barriers and broken down 
stereotypes, making great strides toward equity. Unfortunately, 
inequities still exist. While women have successfully broken through 
glass ceilings on careers across the employment spectrum, pay 
discrimination still remains.
  Today, women make up half of the total workforce and nearly 4 in 10 
mothers are the primary breadwinners of their household. Nearly two-
thirds of mothers bring home at least a quarter of the household 
earnings. In these hard economic times, when women's wages put food on 
the table, keep the lights on and put gas in the car, pay inequities 
should not be tolerated.
  In 1963, Congress passed the Equal Pay Act in an effort to end pay 
discrimination. Despite the good faith effort of this legislation, 
legal loopholes exist that have weakened the intent and goal of the 
law. The Paycheck Fairness Act updates and strengthens the core 
principles in the Equal Pay Act. It will close loopholes in the 
original legislation; level the playing field for employers, so the 
employers paying fair wages are not disadvantaged; and will shine a 
light on pay discrimination occurring throughout our country.
  According to the Census Bureau, although women between the ages of 25 
and 29 possess a higher percentage of bachelor degrees than men in the 
same age group, women consistently earn less than men at every level of 
education attainment. In 2009, women working full time, year around 
were paid 77 cents for every dollar paid to men on average. This gap is 
worse for minorities. African-American women were paid 62 cents and 
Latino women are paid only 53 cents for every dollar a man makes.
  In fact, women earn less on the dollar than men as their level of 
education increases. A study completed by the American Association of 
University Women found that female graduates working full time earn 
only 80 percent as much as their male graduates. The study then looked 
ten years after graduation to find women fall further behind, earning 
only 69 percent as much as men. Overall women are paid less than their 
male counterparts during their entire career.
  Opponents of this legislation argue that there is no real gender pay 
gap and if there is one it's due to women's choices. Specifically, 
opponents assert that women earn less because they are more likely to 
choose part-time work to accommodate a growing family. This is 
incorrect. Many studies demonstrate that the wage gap is real. 
According to a recent GAO study, so-called life choices do not explain 
the persistent wage gap. Additionally, GAO found that even when all 
relevant career and family attributes are taken into account, there is 
still a significant unexplained gap in men's and women's earnings.
  Additionally, opponents of the legislation assert that the Paycheck 
Fairness Act will create increased litigation. This, too, is just 
wrong. The Equal Pay Act is not a strict liability statute and it sets 
a very high burden for an employee to bring a claim. That burden will 
not change with the passage of the Paycheck Fairness Act. The 
legislation will now require that the ``factor other than sex'' defense 
available to employers is a bona fide, job related factor that must be 
articulated. This language mirrors other civil rights legislation 
prohibiting discrimination.
  Finally, opponents assert that this legislation will hurt businesses 
and reduce job growth during these hard economic times. This is yet 
another incorrect assertion. In fact, this legislation will help ensure 
that women are paid fairly for equivalent work. In a nationwide survey 
of registered voters, 84 percent of voters said they supported ``a new 
law that would provide women with more tools to get fair pay in the 
workplace.'' There is an overwhelming level of support for fair pay 
across the political spectrum.
  The goal of the Paycheck Fairness Act is simple: close the loopholes 
that exist in current law to ensure that men and women are paid fairly 
and accurately in the workplace. No longer will an employer be able to 
pay women and men different wages if they are doing the same or 
equivalent jobs. No longer will an employer be allowed to retaliate 
against employees for discussing their wages with other employees. No 
longer will we allow pay discrimination to be tolerated.
  As an original cosponsor of this bill, I urge my colleagues to 
support this bill and join our colleagues in the House by passing the 
Paycheck Fairness Act.

[[Page 17692]]


  Mr. DURBIN. Mr. President, it is nearing 2 years since we passed the 
Lilly Ledbetter Fair Pay Act protecting the principle of equal pay for 
equal work by allowing workers to pursue pay discrimination cases 
beyond the arbitrary window established by the Supreme Court. 
Unfortunately, while the Lilly Ledbetter Act was an important step in 
eliminating pay discrimination, a sizable pay gap remains between 
working men and women.
  The numbers are astounding. Nearly 50 years after the passage of the 
Equal Pay Act, a recent GAO report shows that managers who are women 
make 81 cents to every dollar of their male counterparts. According to 
the U.S. Census Bureau report, the gap grows even larger--77 cents to 
every dollar--when looking at the entire working population.
  In Illinois, for a median income household, that is a difference of 
$11,000 each year. This is a significant difference in compensation. 
Imagine, for a family where the woman is the primary or only wage-
earner how much difference $11,000 a year could make.
  The Paycheck Fairness Act would help narrow this pay gap by amending 
the Equal Pay Act to reduce discrimination in the workplace. It would 
bar retaliation against workers for disclosing wages, so that workers 
can identify pay discrimination when it happens.
  The bill would clarify what constitutes valid justification for pay 
differentials so that employers know what factors are lawful 
considerations. The law would clarify that gender difference alone is 
not adequate pay differential must be based on legitimate, job-related 
requirements. It would create incentives for good behavior by providing 
technical assistance and employer recognition awards.
  Finally, the legislation would amend the Equal Pay Act to ensure that 
women facing discrimination have access to the same wage discrimination 
remedies as are available for racial or ethnic wage discrimination.
  These commonsense solutions can help narrow the wage gap. Women 
cannot afford, quite literally, to wait for this legislation any 
longer. We cannot ignore that the gender wage gap is unacceptably large 
and shrinking much too slowly. We owe working women of America and 
their families--more. I look forward to casting my vote to proceed to 
the Paycheck Fairness Act and urge my colleague to join me.
  Mr. President, I yield the floor.

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