Monday, April 21, 2008
The Fair Pay Act
Statement by Senator Tom Harkin
Mr. President, tomorrow is Fair Pay Day, the day that symbolizes how far into the year a woman must work, on average, to earn as much as a man earned during the previous year.
It is unbelievable to me that, more than four decades after passage of the Equal Pay Act and the Civil Rights Act, women are still making only 77 cents, on average, for every dollar a man makes. In my State of Iowa, the wage gap is even worse. The Iowa Workforce Development agency found that, across all industries, women in Iowa make less than 62 percent of what men make.
Mr. President, discrimination takes many forms. Sometimes discrimination is brazen and in-you-face, like with Jim Crow and apartheid. And sometimes discrimination is silent and insidious. This is exactly what is happening, today, in workplaces across America.
Millions of female-dominated jobs – social workers, teachers, child-care workers, nurses, and so many more – are equivalent to male-dominate jobs. But they pay dramatically less.
The Census Bureau has compiled data on hundreds of job categories – hundreds! But it found only five job categories where women typically earn as much as men.
Defenders of this status quo offer all manner of bogus explanations as to why women make less. How many times have I heard the fairy tale that women work for fulfillment while men work to support their families? This ignores the great majority of single women who work to support themselves, and married women whose paycheck is all that allows their family to make ends meet. It ignores the harsh reality that so many women face in the workplace, where they have to work twice as hard to be taken seriously, or, say, get pushed into being a cashier when they had applied for a better-paying sales job. These pervasive acts of discrimination deny women fair pay; and they also deny women basic dignity.
Let me cite just one example of the discrimination I am talking about. Last year, in a hearing of the Committee on Health, Education, Labor, and Pensions, we heard remarkable testimony from Dr. Philip Cohen of the University of North Carolina. Dr. Cohen compared nurses’ aides, who are overwhelmingly women, and truck drivers, who are overwhelmingly men. In both groups, the average age is 43. Both require "medium" amounts of strength. Nurses’ aides, on average have more education and training. But nurses’ aides make less than 60 percent of what truck drivers make.
Now, given that this discrimination is so obvious and pervasive, you would expect that women would have no trouble obtaining simple justice through the court system. But in a major decision, last June, in the case of Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court actually took us backward. In a 5-4 ruling, the Court made it extremely difficult for women to go to court to pursue claims of pay discrimination – even in cases where the discrimination is flagrant.
A jury acknowledged that Lilly Ledbetter, a former supervisor at Goodyear, had been paid $6,000 less than her lowest-paid male counterpart. But the Supreme Court rejected her discrimination claim. The Court held that women workers must file a discrimination claim within 180 days of their pay being set, even if they were not aware at the time that their pay was significantly lower than their male counterparts’.
Well, Mr. President, as Justice Ginsburg said in a forceful dissent, this is totally out of touch with the real world of the workplace. In the real world, pay scales are often kept secret, and employees are in the dark about their co-workers’ salaries. Lacking such information, it is difficult to determine when pay discrimination begins.
Furthermore, vast discrepancies are often a function of time. If your original pay is a little bit lower than your colleagues’ pay, and then over 20 years you get a smaller raise every year, you end up with a giant gap. But if you can only sue for the most recent pay determination, this misses 20 years of discrimination. As a result, in Ms. Ledbetter’s case, she is going to get a dramatically smaller pension for the rest of her life based on that lower pay level.
So what the Ledbetter decision means is that, once the 180-day window for bringing a lawsuit has passed, the discrimination gets grandfathered-in. This creates a free harbor for employers who have paid female workers less than men over a long period of time. Basically, it gives the worst offenders a free pass to continue their gender discrimination.
By the way, several employers have complained to me that if we peg the 180 day limit to any discriminatory paycheck, they’ll just keep accruing liability. Well, I tell them they can stop the clock anytime they want. Just go through the books one day and make sure all the women are being paid fairly. On that day, you stop sending everyone discriminatory paychecks. On that day, everyone gets a fair deal.
Mr. President, Ledbetter was a bad decision. I have joined with Senator Kennedy and others to reverse the damage done by that decision. Our bill would establish that the "unlawful employment practice" under the Civil Rights Act is the payment of a discriminatory salary, not the original setting of the pay level.
This is a good start, but it’s not enough. It’s not good enough to go back to the way the law worked last year, because last year women were still making only 77 cents on the dollar as compared to men. And that is intolerable. Moreover, if pay scales are still kept secret – if there is not transparency – how can women know if they are being discriminated against?
That’s why we need to pass my Fair Pay Act, which I have introduced in every Congress going back to 1996. In addition to requiring that employers provide equal pay for equivalent jobs, my bill also requires disclosure of pay scales and rates for all job categories at a given company. This will give women the information they need to identify discriminatory pay practices – and this could reduce the need for costly litigation in the first place.
I asked Lilly Ledbetter: If she had had this kind of information, could she have negotiated for better pay and could she have avoided litigation. She answered "yes." Well, there are countless more Lilly Ledbetters out there who are paid less than their male coworkers but will never know about it unless we get them this information.
My Fair Pay Act amends the Fair Labor Standards Act of 1938 to prohibit discrimination in the payment of wages on the basis of sex, race or national origin. Most importantly, it requires each individual employer to provide equal pay for jobs that are comparable in skill, effort, responsibility and working conditions.
Twenty States have "fair pay" laws and policies in place for their employees, including my State of Iowa. I would point out that Iowa had a Republican legislature and Governor back in 1985 when this bill was passed into law, so ending wage discrimination against women should not be a partisan issue.
Some say we don’t need any more laws; market forces will take care of the wage gap. But, experience shows that there are some injustices that market forces cannot rectify. That is why we passed the Equal Pay Act, the Civil Rights Acts, the Family Medical Leave Act, and the Americans with Disabilities Act.
Mr. President, I’d like to close with the story of a woman from my state named Angie. She was employed as a field office manager at a temp firm. The employees, there, were not allowed to talk about pay with their coworkers. Only inadvertently did she discover that a male office manager at a similar branch, who had less education and experience, was earning more than she was. In this case, the story ended happily. She cited this information in negotiations with her employer, and she was able to get a raise. But the experience left her feeling bewildered and betrayed. And this ultimately led her to quit her job.
There is a two-fold lesson in this story. The first lesson is that, if we give women information about what their male colleagues are getting, they can negotiate a better deal for themselves in the workplace. The second lesson is that pay discrimination is a harsh reality in the workplace, and it is not only unfair, it is also demeaning and demoralizing.
Individual women should not have to do battle in order to win equal pay. We need more inclusive national laws to make equal pay for equal work a basic standard – and a legal right -- in the American workplace.
