Equal Pay for Equal Work

Floor Speech

EQUAL PAY FOR EQUAL WORK -- (Senate - April 21, 2008)

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 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 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.

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