KENNEDY ON RESTORING EQUAL PAY, CIVIL RIGHTS FOR ALL
The Lilly Ledbetter Fair Pay Act will ensure that the bipartisan equal pay laws enacted by overwhelming majorities in Congress do what they are supposed to do—protect workers against pay discrimination.
Until last May, companies shortchanging workers because of gender, age, race, national origin, religion, or disability could be held accountable as long as the discrimination continued, no matter when the discrimination began. Unfortunately, in a 5-4 decision last May, the Supreme Court misconstrued the Civil Rights Act of 1964 and the clear intent of Congress. Under the Ledbetter decision, the time limit for filing a pay discrimination claim begins to run when an employer decides to discriminate – not whenever workers receive a discriminatory paycheck. So if an employer’s discrimination action goes undetected initially, its illegal behavior can continue, and workers have no way to hold their employer accountable. It’s like a get out of jail free card. No one should have a free pass to violate our civil rights laws.
The pending bill will restore the fair and reasonable rule that applied until last May. By enacting this legislation, we will restore the long-standing rule that the clock begins to run for filing a pay discrimination claim each time a worker receives a discriminatory paycheck – not the day the employer first decides to discriminate.
That was the rule applied by the vast majority of states and by the Equal Employment Opportunity Commission under both Republican and Democratic administrations until the Supreme Court’s ruling in the Ledbetter case last May.
Some who oppose this legislation have tried to create confusion about what the bill does. I’ve heard some claim that it will open the floodgates to new litigation. That couldn’t be further from the truth. In fact, the non-partisan Congressional Budget Office reviewed the bill, and had this to say:
“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 there will be no flood of new lawsuits if we pass this law, but there will be a fair rule for workers.
There will be no surprises with this legislation. It simply restores the law as it existed before the Supreme Court ruling. Employers, workers, and the courts know exactly what to expect and how to apply the rule.
Some have also claimed that this proposal will force employers to pay damages on old, stale claims for events that occurred decades ago. That’s not true. Title VII of the Civil Rights Act of 1964 clearly states that employees can receive backpay for no more than two years before the date on which they filed a charge of discrimination. Our bill reaffirms that this time limit will stay in place. Employers will have no more liability in the future than they had before the Ledbetter decision.
There could be no clearer explanation for why this bill is necessary than the story of Ms. Ledbetter herself. She is a working mother with two children, and she had served for almost two decades as one of just a handful of women supervisors at the Goodyear Tire & Rubber Company’s plant in Gadsen, Alabama. It was not an easy job. She worked twelve hour shifts, and her workday often stretched much longer. As she told our Senate Committee, she often had to pitch in when other supervisors were away, and her workday sometimes stretched to 18 hours or even longer.
She did it for her family, so that she and her husband could afford to send their children to college, and to retire in dignity. She did it despite blatant mistreatment by her bosses, who resented having to work with a woman in a traditionally male job.
After almost two decades of this work, Ms. Ledbetter finally realized that she had been the victim of pay discrimination. The difference in pay was not small. It turned out that even the lowest paid male supervisors were earning 20% more than she was earning for exactly the same job, even though they had far less experience and seniority than she did. The pay difference was magnified even further, because she was also shortchanged on bonuses, retirement benefits, and overtime pay, which were all tied to her basic salary.
The jury in Alabama that heard her case understood the basic injustice, and holds her employer accountable in its verdict. There was no question whatever that Goodyear had discriminated against her. But a narrow majority of the Supreme Court denied any relief at all for Ms. Ledbetter because she had not challenged the discrimination within 180 days after Goodyear first began the discrimination against her.
That result opened an enormous loophole in our equal pay laws. The result in Ledbetter creates an obvious injustice, and Congress cannot allow it to stand.
The discrimination she suffered for so long was shameful. We can’t undo what happened to her, or change the outcome of her case. But we must not add insult to injury by failing to pass this bill to prevent such flagrant discrimination in the future.
Ms. Ledbetter realizes that this bill won’t benefit her. But she’s said this “I hope that . . . Congress won’t let this happen to anyone else. I would feel that this long fight was worthwhile if, at least at the end of it, I knew that I played a part in getting the law fixed so that it can provide real protection to real people in the real world.”
That’s what our civil rights laws are all about – real solutions to the real problem of real discrimination. We can’t afford to let the law move backward on this issue. On all aspects of civil rights, there has been a march of progress over many years, and the great civil rights acts of the past half century have brought this nation closer to its ideal of fairness and justice for all. It makes no sense to allow the Supreme Court or anyone else to reverse that march of progress. This issue is too important to the American people.
Over the years, the Senate has gone on record time and time again in favor of fairness and against discrimination. The original Equal Pay Act was signed by President Kennedy in 1963 to protect women from pay discrimination, and support for it was so strong that the bill passed the Senate by a voice vote.
The landmark Civil Rights Act of 1964 is renowned for its ban on racial discrimination on public accommodations, but it also gave Americans other important protections, including the specific ability to hold employers accountable for pay discrimination. After a long and passionate debate, the Senate passed the bill by a vote of 73 to 27.
We went on record again in 1967 when we passed the Age Discrimination in Employment Act, to protect older workers from job discrimination. That bill passed by a voice vote, representing the overwhelming bipartisan consensus of the Senate on the issue.
The consensus in favor of banning discrimination based on disability in federally funded programs and activities was so strong that the Rehabilitation Act of 1973 passed the Senate by voice vote.
In 1990, the Senate passed the Americans with Disabilities Act, to open a new world of opportunities for persons with disabilities. It passed the Senate by a vote of 91 to 6, and was signed into law by the first President Bush.
A year later, we passed the Civil Rights Act of 1991, by the overwhelming margin of 93 to 5, and it too was signed into law by the first President Bush.
Every one of those bills included provisions against pay discrimination, and every one of them passed the Senate with broad bipartisan support. The bill we are considering now also has support on both sides of the aisle, and both Republican and Democratic cosponsors of the 1991 Civil Rights Act are among the original sponsors on the bill.
The American people understand this issue. They understand what it means for someone like Lilly Ledbetter to work hard and play by the rules, and then be denied fair pay because of a misguided court decision. We need to show the American people that we understand this issue, too, especially in these harsh economic times.
What possible reason can someone have for voting against a narrow change to restore basic civil rights? What’s the rationale? Opponents have said it will cause new litigation, or that workers will delay, or that we should fix the problem some other way. None of those arguments makes sense, but still the opposition persists.
Some in the business community dislike this bill. They’ve been handed a free pass in many cases of pay discrimination, and they don’t want to give it up. But we can’t bow to a segment of the business community that puts profit above fairness.
There are also businesses that support the bill, and so does the U.S. Women’s Chamber of Commerce. The vast majority of companies play by the rules and treat their workers fairly, and they should support this legislation.
In a letter to the Capital Hill newsletter “The Hill” earlier this year, Dr. Dorothy Height, the Chairwoman of the Leadership Conference on Civil Rights, and Margot Dorfman, the CEO of the U.S. Women’s Chamber of Commerce, emphasized Martin Luther King’s words that “Time is neutral. It can be used either destructively or constructively.” They said “Dr. King might not have been surprised to learn that, forty years after his death, the major battle about the nation’s civil rights laws was being fought over the issue of time,” and they asked us to use time constructively by passing this bill.
I urge my colleagues to support cloture on this bill, so that we can pass it now. We must not fail to act. Dr. King spoke of the great danger of inaction when he said that we will come to repent “not merely . . . the hateful words and actions of . . . bad people but . . . the appalling silence of . . . good people.” In the words of Dr. King’s immortal Letter from a Birmingham Jail: “The time is always right to do right.” Now is the time to correct this injustice of the Supreme Court’s decision in the Ledbetter case and restore the vitality of our laws against pay discrimination.
