Lilly Ledbetter Fair Pay Act of 2009--Resumed

Floor Speech

LILLY LEDBETTER FAIR PAY ACT OF 2009--Resumed -- (Senate - January 21, 2009)

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Ms. KLOBUCHAR. Madam President, I am proud to join with Senator Mikulski and so many others in calling for the Senate to take up and pass the Lilly Ledbetter Fair Pay Act and to do it as soon as possible.

Many here have told Lilly Ledbetter's story, so I am not going to go through it again. But I will tell you, sometimes when you get to know someone, as I have gotten to know Lilly Ledbetter as a person, it means more to you. It is like when someone is arguing against a change in the law, and they suddenly find it happens to their own wife or their own daughter, they start to feel a little differently about it. So that is why I believe it is very important to do this and to make this as simple as possible and as easy as possible in order to make sure there is not discrimination in the workplace, because it is a sad reality, that still, 88 years after the 19th amendment gave women equal voting power, and 45 years after the passage of the Equal Pay Act, it still takes women 16 months to earn what men can earn in 12 months.

I have been listening to some of the arguments made today. I was picturing what would happen if, in fact, that Supreme Court decision stayed in place, which basically said that you are supposed to somehow figure out you are being discriminated against. It says it doesn't matter if you knew or not. If it happens, you have to sue right away. I was thinking how that would work in reality, how you are supposed to find out and how Lilly Ledbetter was supposed to find out. It would be as if Senator Menendez and I worked in the same company and we were doing the same job and both doing it well and he was paid more than I was. How would you know that, if you are an employee at a workplace? Are you supposed to start snooping through their paychecks and opening them and trying to figure out how much he is paid? I don't think a normal person would do that.

Are you supposed to start getting to know the people who work around him to find out how much money he makes, see if he told anyone, start asking around about your fellow employee? This doesn't make sense in the real world workplace, and it certainly, as has been pointed out, is not consistent with 40 years of law in this area.

Today we have before us the Hutchison amendment. I appreciate the work of Senator Hutchison in so many areas, how the women of the Senate work on a bipartisan basis, but I believe in the end this amendment is wrong. What this amendment basically says is you are not going to be able to bring any kind of claim of discrimination, even a valid one, without having to go through a bunch of hoops and dot a bunch of I's and cross a bunch of T's that is very hard to do. Again, if you want to make sure this discrimination doesn't take place, make it a clear rule, make it a bright-line rule, as we do in so many other employment cases.

Under the Hutchison amendment, our workers are subject to that Supreme Court decision in Ledbetter, unless they can prove they had no reason to suspect that their employer was discriminating against them.

Again, I believe this is done for good motives, in the spirit of some kind of compromise. But, again, I try to look at the real world and think: How would you be able to prove this? Maybe things happen in the real world, maybe one of your work colleagues--if Senator Menendez and I were working in the same factory and maybe someone else, maybe you, the Presiding Officer, also worked there and maybe sometime at a coffee break you said: You know, I think he is making more money than you are, and it goes away and nobody talks about it. Would that be enough? Would that be enough to show a suspicion that you thought you were being discriminated against, that he was making more money?

What if he bought a new car, a nice new car. He is driving around in that nice car and people are starting to think: I wonder if he got a raise. Is that a suspicion that he is making more money? What if you just think he is making more money and you tell one person on the phone, but you don't know for sure?

When you start thinking this through, you realize why this standard, this ``reasonable suspicion'' standard, doesn't appear in our employment statutes. It is because it is simply unworkable as a standard, despite the good motivation to try to come up with some understanding, some kind of compromise. It doesn't make any sense. It is based on rumor.

I believe there are enough rumors around this place without starting to put them into law. A rumor starts somewhere. It changes someplace else. By the time it comes back to you, it is totally different, and I would rather not write rumors and suspicions into the law. I prefer a bright-line rule.

As has also been mentioned by some of my colleagues, we have not seen this unfair rush of litigation under the existing law. In fact, under this, if you have suspicions, it would force you to try to rush to file your claim. I think a good argument could be made--we don't know for sure, but a good argument could be made it would actually lead to more claims. This idea that it would force a worker, put the burden on the worker to spend time and money trying to meet this complicated standard that does not appear anywhere else in the law deprives employers and employees of a clear bright-line rule for determining the timeliness of claims.

I know from my work in the private sector for 13 years, people prefer bright-line rules. It makes it easier for everyone.

One of the arguments made is that somehow this would allow some raving employee, some mad employee to go back--they would simply hide their case so no one would know about it so they could keep getting backpay. This argument defies the actual rules. What are the actual rules? It says you can go back for only 2 years. Look what happened in the Lilly Ledbetter case. She went to her trial. The jury awarded her a big amount, but then it had to be reduced because the law acknowledged this, the argument made of the difficulty, and said you can only go back for 2 years. The law also has caps on damages for major employers. I think it is something like $300,000. There are caps. There are look-back rules that get to the argument that was made here. You can see it right in the Ledbetter case, if you do not believe me. The money was reduced because of those rules that are in place.

Why suddenly we would put in a standard that we do not have in the law today, when, in fact, we have that 2-year backpay rule to protect against exactly the arguments that were being made, and we have caps in place?

The Lilly Ledbetter Fair Pay Act is the only bill that gives employees the time to consider how they have been treated and try to work out solutions with their employers. That often happens. We encourage that. We would like that to happen. You don't want everyone running into court. It fulfills Congress's goals, creating incentives for employers to voluntarily correct any disparity in pay they find, and it ensures that employers do not benefit from continued discrimination. That is all it does. It is simple.

Let me tell you a little story from the State of Minnesota to end here, why I care about this so much. That is that my grandpa was a miner up in northern Minnesota. He worked hard his whole life. He never graduated from high school, saved money in a coffee can to send my dad to college. He worked hard in those mines. It was a rough-and-tumble world up in the mines of northern Minnesota.

In the mine next door to where my grandpa worked, there were a number of women--decades later, after my grandpa worked there--who started working in the mines. It was not an easy life. If anyone has seen the movie ``North Country,'' that was the basis of the movie. It happened in the mines. My relatives were right next door.

The women there were discriminated against. I am not sure of all the details. Maybe some of it was pay, but some of it was just discriminatory treatment. It went on and on. It was an example, if you have seen that movie, of how difficult it was for them to get the gumption to stand and finally file suit because they liked these guys. They were their coworkers. They worked with them. They wanted to fit in and they tried so hard. Eventually, they brought a lawsuit, but it took time for them to be able, in that hard, rough-and-tumble world of those iron ore mines, to bring that lawsuit.

They eventually did and they eventually won that suit at great personal sacrifice to them, as documented in that movie, ``North Country.''

Things changed as a result of that lawsuit at the mines. It was not a popular thing they did. It is not even popular right now. But things changed in those mines. When I ran for the Senate, the first endorsement I got was from the United Steelworkers. The guy who gave it to me was the guy who was the union steward, the same guy, Stan Daniels, at that mine at that time, that was the subject of the lawsuit.

I got elected the first woman Senator from Minnesota. The world changes. That is why this bill is so important, to maintain that right of workers. I know in my State there is lots of the discriminatory treatment going. The world changes as people realize and understand the law and employers are educated on the law, but we still need that safety valve in place. We still need those protections in place so workers can get paid fair pay for what they do.

Madam President, I yield the floor.

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