A Timely Bid In Support Of Equal Pay For Equal Work

By:  Senator Patrick Leahy

In Washington today, the United States Senate will consider an important step toward restoring a core principle in our society: that employers should provide equal pay for equal work.  Three years ago the Bush administration ignored the Equal Employment Opportunity Commission’s long-held interpretation of discrimination laws and court rulings across the country when it advocated a position that set back the progress made toward eliminating workplace discrimination.  Unfortunately, five justices of the Supreme Court adopted the Justice Department’s view in Ledbetter v. Goodyear Tire and thereby created a new obstacle for victims of pay discrimination.  The Supreme Court’s 2007 decision also opened the door for increased abuse by employers.

Last year Senate Republicans thwarted our efforts in the last Congress to restore the idea that all Americans should be compensated equally for equal work, and we were blocked from even considering our bill to fix that mistake.

Today the Senate will try again to garner the votes necessary to debate corrective legislation aimed at reversing the damage of the Supreme Court’s decision.  In that case, Lilly Ledbetter, a supervisor at Goodyear Tire and an employee for more than 20 years, discovered through an anonymous note that her employer had been paying her significantly less than male coworkers with the same position, title, and the same or less seniority.  Because she was unaware of the inequitable pay for years, she did not file a claim for protection under Title VII of the Civil Rights Act until she became aware of the disparity.  A jury found that Ms. Ledbetter was owed an estimated $225,000 in back pay.  The Supreme Court overturned her jury verdict in a narrow 5-4 decision, taking from her any chance of recovering those lost wages.  The corporation is even allowed to continue to discriminate against her through diminished retirement benefits. 

Congress passed Title VII of the Civil Rights Act to protect American workers against wage discrimination based on an individual’s race, color, religion, sex or national origin, but the Supreme Court’s Ledbetter decision upends both the spirit and clear intent of Title VII of the Civil Rights Act.  It also sends the message to employers that wage discrimination cannot be punished as long as it is kept under wraps.  At a time when one third of private sector employers have rules prohibiting employees from discussing their pay with each other, the Court’s decision ignores a reality of the workplace: that pay discrimination often is intentionally hidden. 

Victims of discrimination like Ms. Ledbetter shoulder the burden of proving discrimination.  That task is made even more difficult as time goes on.  The Lilly Ledbetter Fair Pay Act would not eliminate the existing statute of limitations, and it would not disturb employer protections built into existing law, such as limiting back pay in most cases to two years.  But our bill would reinstate the long-held interpretation of when the 180-day time limit to file such claims begins to run.  It would allow workers who are continuing to be shortchanged to challenge that ongoing discrimination.   

In the midst of an economic crisis, we should not make it easier for employers to deny workers fair pay.  Families who depend on hard-earned wages should not be penalized for the unknown -- and sometimes, intentionally hidden -- discriminatory actions of their employers.

Today I will chair a hearing to consider the historic nomination of Eric H. Holder Jr. to be the next Attorney General of the United States.  One of the Justice Department’s most essential roles is to protect the civil rights of all Americans and to enforce our discrimination laws.  Unfortunately, this week we received yet another report from the Justice Department’s Inspector General detailing how the Civil Rights Division has been politicized by the Bush administration.  It should come as no surprise that one of the many consequences of this politicization was legal positions like the Department’s ill-conceived advocacy in 2006 in the Ledbetter case.  The next attorney general must restore the Justice Department to its mission of representing America’s high ideals, rather than the narrow views of one political party.

As we look forward to the inauguration of President-elect Obama, today’s generations of Americans are standing on the brink of history.  Now is not the time to revert back to an era of inequality.  I hope the Senate will take the necessary step forward and overwhelmingly vote to consider this vital, bipartisan remedy.  The Lilly Ledbetter Fair Pay Act tackles a pocketbook problem that reaches into the livelihoods of Vermont families and honors the principles of fairness and opportunity that have made America stronger.  On the eve of an historic inauguration, this not only is a timely reminder of the American Dream; it is the right thing to do and the right time to do it.

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[Senator Patrick Leahy (D-Vt.) is the chairman of the Senate Judiciary Committee.  He is an original cosponsor of the Ledbetter Fair Pay Act, and in September 2008 chaired a Judiciary Committee hearing which featured testimony from Ms. Ledbetter.]