Lilly Ledbetter Fair Pay Act Of 2009 - Resumed

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Mr. DURBIN. Let me thank the Senator from the Commonwealth of Pennsylvania for his gracious acknowledgment of my opportunity to speak on this legislation. I look forward to working with him. I hope we can get this passed.

Let me tell you what the issue is. Fundamentally, it is just basic. In the case of Lilly Ledbetter, here is what it is coming down to: Should women be paid the same for work as men? That is it. That is the basic question.

Lilly Ledbetter was a lady who worked at the Goodyear Tire plant in Gadsden, AL. You do not expect to find a lot of women working in a plant like that, do you? She went on to the managerial part of the plant, which meant she was on her way up in the managerial ranks. She worked there for years, 19 years, and at the end of the 19 years when she was near retirement, somebody said: Lilly, did you realize all of these years you were working there that men who had the same job you did were being paid more than you?

She said: That is not right. That can't be true.

She checked it out, and it was true. All those years she had the same job classification, the same job responsibilities, and she was paid less.

She said: It is not fair. I think I ought to receive compensation because the company basically discriminated against me just because I am a woman. She takes her case and files it. In most cases, it is a pretty simple situation. What was the job; what did it pay. Did you pay women less than you paid men? These are basic fact questions. Then it made it all the way across the street to the U.S. Supreme Court. Then nine Justices sat down to take a look at the Ledbetter case. The Chief Justice of the Supreme Court, John Roberts, and Sam Alito, a recent appointee by the Bush administration to the Supreme Court said: We are sorry, Ms. Ledbetter. You cannot recover for this discrimination.

She said: Why?

They said: Well, you should have discovered this and reported it the first time you got a discriminatory paycheck. The first time you were paid
less than a man who had the same job, you had 180 days from that point. When that different paycheck was given, you had to file your claim.

Of course, common sense and life experience would tell you that most people at work don't know what their fellow employee is being paid. Lilly Ledbetter didn't know. She didn't know for 19 years that the men working right next to her were being paid more than she. But the Supreme Court said: Sorry, Lilly Ledbetter. Darn shame, but you should have filed this claim years ago. The fact that you are still being paid a discriminatory wage doesn't work because you had 180 days from the first time they sent a different paycheck to a man than a woman to file your claim, and you didn't do it. You are out of court. Thanks for dropping by. End of case.

I look back at these Supreme Court Justices' answers when they appeared before the Senate Judiciary Committee. I particularly remember Chief Justice Roberts because he was the most impressive witness I had ever seen. He sat there for days and answered every question without a note in front of him. He is a brilliant man. He made a point of saying: I feel like a Supreme Court Justice is an umpire. I'll call balls and strikes there. I am not supposed to make up new rules for the ball game. I'll watch the pitches coming in, and I'll call balls and strikes.

This is a foul ball. This decision by that Supreme Court ignores the reality of the workplace today. I asked Senator Mikulski, who is leading our effort, what is the basic discrimination between men and women in pay today? She said it is about 78 cents for the woman and a dollar for the man. As a father of daughters and sons, I think my daughters should be treated as fairly as my son. If they do the same work, they ought to get the same pay. What Senator Mikulski says in her basic bill, the Lilly Ledbetter Fair Pay Act, is we are not going to allow the Supreme Court decision to stand. It makes no sense. If the company is continuing to discriminate against you in its paycheck, that is good enough. You ought to be able to go to court, not the fact that the discrimination started 10 years ago, 12 years ago, and you didn't know about it.

Basically, in the law, we have this matter called the statute of limitations. It says you get a day in court but only for a window of time for most things. If you don't go to court in that window, you don't get to go. You are finished. But we make an exception in most cases for what is known as fraud and concealment. If the person guilty of the wrongdoing has concealed what they are doing and you don't know it, you can't say the time is running. It doesn't run in that circumstance because there is concealment. In this case, there is clearly a situation where you don't know what your fellow employee is being paid.

Senator Hutchison of Texas comes with an amendment. I am sure it is a well-intentioned amendment, and I am sure she is not going to defend pay discrimination. I am sure she doesn't stand for that; none of us do. But she adds a provision, and I wish to make sure I have the language right because it is important we take it into consideration. She says her amendment would only permit a victim to bring a discrimination claim if she ``did not have, and should not have been expected to have, enough information to support a reasonable suspicion of such discrimination.'' On its face it sounds: What is wrong with that? What is wrong with that is now Lilly Ledbetter and people such as she have a new burden of proof. They have to prove to the court they had no reason to suspect their employer was discriminating against them. It becomes subjective. It becomes difficult. It adds another hurdle. Why would we assert this hurdle? If anything happened yesterday in Washington, DC, it was an announcement of change in this town and in this Nation. With the election of Barack Obama as President, many of us believe we are going to start standing up for folks who haven't had a fighting chance for a long time. People who are being discriminated against in the workplace, folks such as Lilly Ledbetter, who spent a lifetime getting less pay than the man right next to her, are going to have their day in court, a chance to be treated fairly. That is what this bill says. That is why Senator Mikulski's leadership is so important.

We are saying to the Supreme Court, wake up to reality. You don't know what the person next to you is being paid. They don't publish it on a bulletin board. Maybe they do for public employees such as us, and that is right. But in the private sector, that doesn't happen. That is what this is all about. That is what the battle is all about.

Senator Hutchison comes here and says: Here is another thing Lilly Ledbetter should have had to prove; in her words, Lilly Ledbetter would have been required to prove that she should not have been expected to have enough information to support a reasonable suspicion.

I think it goes too far. We ought to look at the obvious. If a person is a victim of discrimination, once they have discovered those facts and assert those in court, they should have compensation. Employers ought to be given notice nationwide that we want people to be treated fairly, Black, White, and Brown, men and women, young and old, when it comes to job responsibilities. If you do the work, you get the pay. If you get discriminated against because your employer is secretly giving somebody more for the same job, you will have your day in court.

I think it is pretty American, the way I understand it. It gets down to the basics of what this country is all about.

I salute Senator Mikulski for her leadership and urge my colleagues to oppose the Hutchison amendment and to pass the underlying bill.

Now I will quote a newspaper from Chicago which occasionally endorses me but not very often, the Chicago Tribune, no hotbed of liberalism. When they read the Ledbetter decision from the Supreme Court, they said:

The majority's sterile reading of statute ignores the realities on the ground. A woman who is fired on the basis of sex knows she has been fired. But a woman who suffers pay discrimination may not discover it until years later, because employers often keep pay scales confidential. The consequences of the ruling will be to let a lot of discrimination go unpunished.

Those who vote against the Ledbetter bill or vote for the Hutchison amendment will allow a lot of discrimination in America to go unpunished. President-elect Obama has said that passing this bill as one of the earliest items in his new administration is part of an effort to update the social contract in this country to reflect the realities working women face each day.

I urge my colleagues to help update the social contract with this new administration and this new day in Washington. Let us, after we have cleaned up the mall and all the folks have gone home, not forget why we had that election, made that decision as a nation, and why America is watching us to see if our actions will be consistent with our promises.

I yield the floor.

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