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Veterans' Benefits Enhancement Act--Motion To Proceed--Continued

Floor Speech

Location: Washington, DC




Mr. KENNEDY. Mr. President, I thank our majority leader and our leadership for scheduling a vote on what is known as the Ledbetter legislation tomorrow. We expect that we will have that vote tomorrow evening sometime. I think it is important that the membership understand that we will. It is appropriate today that we have a number of our colleagues speak about the importance of this legislation because today is Equal Pay Day. It has been designated Equal Pay Day. It has been Equal Pay Day for a number of years.

What do we mean by Equal Pay Day? We mean equal pay for equal work. That has been a goal of this country going back actually to 1963, when we passed the Equal Pay Act. At that time, the disparity between men and women for doing the same job was 60 cents to the dollar that the men were getting. We have seen that figure close over time, now to 77 cents, but still there is a disparity. As long as we have had a disparity, it has been and is wrong.

As a country, we have tried to remove forms of discrimination, bigotry, and prejudice that have existed in our society, and the bigotry and prejudice that exist in terms of pay has been there for some time. Since 1963, the Congress has taken action not only on pay for women but in terms of other groups as well. It has made progress in making sure that African Americans are not going to feel a disparity. We did that in 1964 with Title 7 of the Civil Rights Act under President Johnson. Look at the Senate vote, the ultimate vote, 73 to 27. Republicans and Democrats alike said--the Civil Rights Act was primarily focused on public accommodations provisions but also had another very important provision--we will not permit a disparity and discrimination on the basis of race, national origin, gender, or religion in terms of pay. African Americans and other workers were going to be able to get equal pay.

Then, we have the age discrimination. We said, under President Johnson, if individuals are going to be able to do the job, and they happen to be older but yet they have the competency and the skills and they are going to be able to do an equal job, we are going to make sure they are not going to be discriminated against. We have said women will not be discriminated against, minorities will not be discriminated against, and people will not be discriminated against by age.

In 1973, we said: Well, what about those who have some disability? We
said we are not going to discriminate against those people either. Maybe they have a mental or a physical disability, but if they are able to do the job, and they are qualified to do the job, they ought to get paid for doing the job. That is what we said. We saw that vote was a voice vote, under President Nixon, supported by the administration.

Then, we had later provisions: the Americans with Disabilities Act, which was enacted to provide greater kinds of protections for the disabled; additional civil rights protections; and others; the Civil Rights Restoration Act. So the sum total, since 1963, has been a constant drumbeat, a constant march, a constant statement by the Congress and by the administrations by, as we have seen, Democrats and Republicans alike, that said: When it comes to equal pay, it is going to be equal pay for women and for men, it is going to be equal pay for people with disabilities, older workers, African-American workers, Hispanic workers, and others. This chart shows the various groups that, under the EEOC'd laws, have found out they have been discriminated against.

This chart shows, as of a year ago, in 2007, the EEOC had received more than 7,000 pay discrimination claims. Here it is for disability cases--as I mentioned earlier, we passed the Americans with Disabilities Act--and for national origin cases--we have protections for that group, those people who come from different kinds of ethnic backgrounds--for age, race, and gender discrimination as well.

We see that with regard to race, there have been 2,300 claims; with regard to gender, there have been some 2,400 claims. There are the cases for those with disabilities and the national origin cases. These are cases that were brought because we passed laws over the period of 40 years that said: If you are going to work, and work hard, in the United States of America, and you are going to do effectively the same job as someone else, you should be paid the same. We have not solved all the problems of comparability in this legislation. That is another issue which is enormously important and one we should address, and I hope we will address, in this Congress because it is extremely important. All we are trying to do is deal with the pieces of legislation that I have mentioned and restore a remedy. We can have a right and, as all of us understand, a right is not worth very much if we do not have a remedy. That is what this legislation is all about: to give a remedy to victims of pay discrimination, like Lilly Ledbetter. The remedy is that when workers are given unfair pay for doing effectively comparable work, that they are entitled as a matter of right and a matter of law to fair compensation.

It is interesting, in the dissent in the Ledbetter case, the dissent asks for congressional action. We are giving congressional action. That is why I am going to be interested in the arguments of those who are opposed to it. Here a Justice of the Supreme Court invites the Congress to take the action. We are taking the action. What we are effectively doing is restoring the law to what it was prior to the Supreme Court decision--nothing more than that.

I will review what exactly this law does here. What this legislation, the Ledbetter legislation, does, is it reverses the Supreme Court's unfair Ledbetter decision. It holds employers accountable for ongoing discrimination. As we pointed out, the Supreme Court held that Lilly Ledbetter should have known she was being discriminated against by her employer on pay, even though the employer controlled the books, controlled all the documents and was not sharing that information with the employees. Nonetheless, the Supreme Court said: Well, she should have found out in any event. If she did not, it is tough luck on her. Tough luck on you. Tough luck on you. Imagine, the Supreme Court of the United States, after all of the legislation and all of the congressional intent in the last 40 years, saying: Tough on you.

So the employer holds it in a safe, and Lilly Ledbetter cannot find it. Tough on her. Doesn't have a remedy. Too bad. Go ahead and continue to discriminate. In the United States of America, after what we have gone through in terms of civil rights--the battle to knock down the walls of discrimination over the period of these last 40 years? Tough on you.

Is that what we have come to? Is that what the Supreme Court is saying to a hard-working mother who has worked hard, tried to provide for her children, has demonstrated and won award after award for good performance? Tough on you. You could not find it in that sacred safe of the employer. Too bad. You lost your remedies. Too bad.

That is what this is all about. What we are doing is restoring congressional intent.

So what this legislation does not do: It does not encourage workers to delay the filing of claims. It does not eliminate the statute of limitations in the pay cases. It does not increase the litigation. We have the CBO's analysis. I have referred to it. It does not create new grounds for filing lawsuits. We answered all of these arguments. This is what it does not do. We have given the answers. They are not just my answers, they are the answers of the CBO's independent review.

What we are basically doing, and the reason why we are doing it, is to effectively restore the law to what it was previously. As this chart indicates: the lighter green being what the law was previously--that is what we are returning it to--the darker green being what the law was as interpreted by the EEOC, and the orange were the dissenting states. So this is going back to the previous rule.

This would be right to do at any time, but it is particularly important now. The reason it is particularly important now is because of the kind of economic conditions we are facing in this country at this time, where families are being squeezed. Working families are being squeezed. The middle class is being squeezed. In that squeeze, no one is getting squeezed harder than the women in our society, particularly working women. Their participation pension and retirement plans is falling. Look at what has happened to women's participation in pensions over the last 6 or 7 years. It has dropped, I think, close to 10 percent. We are finding out that their rates of unemployment are increasing faster than the unemployment figures in terms of men. Their savings are down. Women's savings are down. So they have a greater difficulty in dealing with the economic reversals we are facing at the present time. They have more home foreclosures because their savings have been down. So they are under an incredible squeeze.

This chart is an example of how adult women are seeing a sharper rise in their unemployment rate. Their rate is going up 21 percent as compared to 15 percent for men. On earnings, women's earnings are falling faster than men's. So their earnings are going down faster. We are finding out that their unemployment is going up faster and their earnings are going down faster.

If you take what happens to different women within the general group, look at women's net worth. Unmarried women have $13,000 less in net savings than unmarried men. Here it is, the difference, as shown on this chart. So in this time of recession and economic stress, these issues become much more acute. This is the right answer at any time, but it is particularly something that can be done now that can make a difference to these working women--something that can be done now: restore a right. That is what this is basically all about.

As I mentioned, this is targeted on women, but the application is across the board. It affects other groups in our society. It affects African Americans and Hispanics, and they have been hard hit by the economic downturn. If pay is discriminatory against African Americans and Hispanics--and we saw the pie chart, which shows it is, with thousands of claims every single year--they are going to be denied the remedy. This legislation applies to women. It applies to minorities. It applies to people discriminated against because of their religion. It applies to the disabled. It applies to older workers. Otherwise, they are going to get shortchanged. They are facing the economic realities in a much harsher way now.

We have an opportunity to do something about it. The House of Representatives has done something about it. Tomorrow we can do something about it. Show me something, anything, any piece of legislation that can have a better, more positive impact in terms of the income of working women than this vote tomorrow. That is what it is about.

Finally, let me give you these figures to demonstrate what this meant to Lilly Ledbetter. This is a reflection of what was actually in the Court's decision. She was making $44,000 a year. She received $5,600 less than the lowest paid male coworker during her last year at Goodyear. The highest paid male coworker was getting $62,000. She had the qualifications and was doing the job the same as her colleague who got $62,000. The lowest paid male worker--whose skills were much less than Lilly Ledbetter's--was still getting paid more. You cannot get it any clearer than this chart about what the facts are. These are not facts I am making up. These are the facts accepted by the courts, not questioned by the Supreme Court. There it is.

The most powerful is listening to Lilly Ledbetter herself. She has testified. Anyone who is interested ought to read her testimony, and can read through the hearings in our committee about this. She explains it in great detail: how she first heard about it, and how she was treated, and what the Supreme Court decided. She has taken a double whammy because not only has she suffered, and will not recover her wages. We have a 2-year limitation on back pay--you can only recover in terms of the 2 years. Her retirement was based upon what she earned and so that has also been lost during this period of time. That was lost, will be lost, continues to be lost. Imagine that. Imagine the unfairness of that. We are not addressing that. We are not dealing with that. We should be, but we are not. That is basically and fundamentally wrong.

I mentioned earlier the CBO. The Congressional Budget Office agrees that the Fair Pay Restoration Act will not increase the litigation. The Fair Pay Restoration Act will not establish a new cause of action for claims in pay discrimination. CBO experts said the bill would not significantly affect the number of filings with the Equal Employment Opportunity Commission. What they are basically saying is, what this will do is it will have the law enforced and people will pay attention to it.

Many employers are, obviously, good employers, and are playing by the rules. But not all of them are. Those who are not playing by the rules should not be able to exploit people in the workplace on the basis of their gender, race, national origin, religion, disabilities or age.

Finally, we have seen--and I have shown this chart previously of the various groups that support this legislation. These are only some of the groups. I have included a more complete list in the Record. We have the groups representing the disabilities community, the American Association of People with Disabilities; elderly people, the AARP feels very strongly about the discrimination against the elderly; the NAACP, for the obvious reasons, not only because of discrimination on the basis of race, but all the forms of discrimination they continue to fight and oppose.

We have the auto workers, who see prejudice and discrimination and who are fighting for full rights and equality. We have the National Congress of Black Women and the Religious Action Center, because of the moral issues raised by this. And we have the U.S. Women's Chamber of Commerce.

We will have an opportunity to address this and speak more about it. I cannot think of an issue where it is more an issue of fundamental fairness. Americans try to understand some of the complex issues about which we deal here. They are not always easy to understand and to catch and find their way through. Probably one of the great mysteries is the ERISA law, which was put in by our old friend Jacob Javits. An amusing aspect of that was when Jacob Javits passed on to his eternal reward, he took all the knowledge about ERISA with him. All of us find complexities in trying to deal with that. It has important implications in terms of health and the job market.

This is simple. Everyone gets it. The American people understand it, because it is about fairness. If there is one issue Americans understand, it is fairness. They believe that when somebody works, they ought to be adequately paid. Americans don't believe one person ought to be paid a different rate for doing the same job as another person. They don't believe that because their skin is a different color, or because of gender, or because of disability, or because of sexual orientation they should be paid less. They don't believe it. If the person is qualified to do the job, and does the job, they ought to get equal pay. This Senate has gone on record time and time and time and time again over the last 40 years, by overwhelming votes, against pay discrimination. We have our chance tomorrow to restate that commitment. I hope the vote will be overwhelmingly in favor.

I yield the floor.

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