Congressional Record Statement of U.S. Senator Russ Feingold Fair Pay Restoration Act April 23, 2008 Mr. President, I am a co-sponsor of the Fair Pay Restoration Act, legislation that protects American workers from pay discrimination, and I glad the Senate is debating it. This bill is designed to overrule an incorrect court decision that cut off one woman’s efforts to seek recourse for pay discrimination she experienced at the hands of her employer. As one of the few female supervisors at her company’s plant, Lilly Ledbetter was paid substantially less than male employees in the same position who performed the same duties. This information about unequal pay was kept confidential. It was only after Ms. Ledbetter received an anonymous note revealing the higher salaries of other managers who were male that Ms. Ledbetter recognized that she was being paid less because she was a woman. Ms. Ledbetter’s case went to trial and a jury awarded her full damages and back pay. Last year, in a sharply divided opinion, the Supreme Court ruled that Ms. Ledbetter had filed her lawsuit too long after her employer originally decided to give her unequal pay. Under Title VII of the Civil Rights Act of 1964, an individual must file a complaint of wage discrimination within 180 days of the alleged unlawful employment practice. Before the Ledbetter decision, each time an employee received a new paycheck, the 180-day clock was restarted because every paycheck was considered a new unlawful practice. The Supreme Court changed this long-standing rule. It held that an employee must file a complaint within 180 days from when the original pay decision was made. Ms. Ledbetter found out about the decision to pay her less than her male colleagues well after 180 days from when the company had made the decision. Under the Supreme Court’s decision, Ms. Ledbetter was just too late to get back what she had worked for. It did not matter that she only discovered that she was being paid less than her male counterparts many years after the inequality in pay had begun. And it did not matter that there was no way for her to find out she was being paid less until someone told her that was the case. Mr. President, to put it simply, the Supreme Court got it wrong. It ignored the position of the Equal Employment Opportunity Commission and the decisions of the vast majority of lower courts that the issuance of each new paycheck constitutes a new act of discrimination. It ignored the fact that Congress had not sought to change this long standing interpretation of the law. The decision also ignores the workplace reality for millions of American workers just like Ms. Ledbetter. Workers often have no idea when they are not being compensated fairly because their companies do not disclose their employee’s salaries. Because of the secrecy surrounding salaries, pay discrimination is one of the most difficult forms of discrimination to identify. Unlike a decision not to promote or hire, discrimination on the basis of pay can remain hidden for years. The Supreme Court’s decision leaves victims of pay discrimination who do not learn about the discrimination within six months of its occurrence with no ability to seek justice. In the wake of this decision, employers can discriminate against employees by unfairly paying them less than what they are due, and as long as the employee does not learn about the discrimination and file a complaint within six months, the employer gets off scot free. The financial impact of a late filing is felt for years, even into retirement. Even a small disparity in pay can add up to thousands of dollars over multiple years. This is because other forms of compensation such as raises, overtime payments, retirement benefits, and even Social Security payments are calculated according to an employee’s base pay. Thus, the Supreme Court’s decision harms American workers even after their careers are over. The Fair Pay Restoration Act re-establishes a reasonable timeframe for filing pay discrimination claims. It returns us to where we were before the Court’s decision, with the time limit for filing pay discrimination claims beginning when a new paycheck is received, rather than when an employer first decides to discriminate. Under this legislation, as long as workers file their claims within 180 days of a discriminatory paycheck, their complaints will be considered. This bill also maintains the current limits on the amount employers owe once they have been found to have committed a discriminatory act. Current law limits back pay awards to two years before the worker filed a job discrimination claim. This bill retains this two-year limit, and therefore does not make employers pay for salary inequalities that occurred many years ago. Workers thus have no reason to delay filing a claim. Doing so would only make proving their cases harder, especially because the burden of proof is on the employee, not the employer. Opponents say that this bill will burden employers by requiring them to defend themselves in costly litigation. This is simply not the case. Most employers want to do right by their employees and most employers pay their employees fair and equal wages. This legislation will only affect those employers who underpay and discriminate against their workers, hoping that employees, like Ms. Ledbetter, won’t find out in time. The Congressional Budget Office has also reported that restoring the law to where it was before the Ledbetter decision will not significantly affect the number of filings made with the EEOC, nor will it significantly increase the costs to the Commission or to the federal courts. Yesterday, individuals from across the country observed Equal Pay Day, a day which reminds us as a nation that a woman is still paid 77 cents for every dollar earned by a man. This disparity is all too real. Ending it will require commitment, and we can show that commitment by passing this bill. The last thing American women need is a Supreme Court decision that prevents them from seeking compensation from employers who have engaged in outright discrimination. In addition to passing the Fair Pay Restoration Act, Congress needs to do more to ensure all of America’s citizens receive equal pay for equal work. Wage discrimination costs families thousands of dollars each year. This is hard-earned money that working women and men simply cannot afford to lose. We should pass the Fair Pay Act introduced by Senator Tom Harkin and the Paycheck Fairness Act introduced by Senator Hillary Rodham Clinton. Senator Harkin’s legislation would amend the Fair Labor Standards Act to prohibit wage discrimination on account of sex, race, or national origin. Senator Clinton’s legislation would strengthen penalties for employers who violate the Equal Pay Act and require the Department of Labor to provide training to employers to help eliminate pay disparities. I can think of no better way to commemorate Equal Pay Day then to pass these three pieces of legislation now. Mr. President, wage discrimination is not just a women’s issue. Individuals and organizations from every part of our country, of different political beliefs and racial backgrounds, men and women, older Americans, religious groups and individuals with disabilities, have come out in support of the Fair Pay Restoration Act. These supporters understand that this legislation not only assists female workers who are trying to fight discrimination based on their sex. Because the Ledbetter decision established a general rule for all Title VII employment discrimination claims, they know that this legislation is needed to restore the ability of employees across the nation to redress discrimination based on factors such as race, national origin, age, religion, and disability. Congress has repeatedly passed landmark bipartisan legislation to eliminate discrimination in the workplace. These laws include the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, and the Civil Rights Act of 1991. Indeed, we have made great progress in securing equal pay rights, but we must continue to defend these rights. Justice Ginsburg, in her sharply worded dissent in the Ledbetter decision, called on Congress to do something to rectify the inequity that the Supreme Court’s decision left to our country. The Fair Pay Restoration Act is our answer to Justice Ginsburg’s call. Lilly Ledbetter turned 70 years old this month. For almost two decades, Ms. Ledbetter worked hard for a company that discriminated against her by not paying her what it was legally required to pay. The Supreme Court, in its decision last year, ended Ms. Ledbetter’s long quest for justice. She can no longer recover what was rightfully hers. Since the Ledbetter decision, other workers have already had their cases dismissed. These unjust outcomes will continue to mount until Congress acts. Each case is a new injustice, and it’s an avoidable injustice because Congress can take steps right now to reverse the Supreme Court’s erroneous decision. Passing the Fair Pay Restoration Act is an essential step in the right direction—a step toward the day when the basic right of American workers to equal pay for equal work will be realized. I urge my colleagues to stand up for the rights of women and all American workers by voting for this vital legislation.