[Senate Hearing 110-802] [From the U.S. Government Publishing Office] S. Hrg. 110-802 BARRIERS TO JUSTICE: EXAMINING EQUAL PAY FOR EQUAL WORK ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS SECOND SESSION __________ SEPTEMBER 23, 2008 __________ Serial No. J-110-120 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 48-537 PDF WASHINGTON : 2009 ---------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma Bruce A. Cohen, Chief Counsel and Staff Director Stephanie A. Middleton, Republican Staff Director Nicholas A. Rossi, Republican Chief Counsel C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois....................................................... 5 Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement.................................. 56 Feinstein, Hon. Dianne, a U.S. Senator from the State of California..................................................... 4 prepared statement........................................... 59 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1 prepared statement........................................... 63 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 3 WITNESSES Ledbetter, Lilly, retired Goodyear Tire Employee, Jacksonville, Alabama........................................................ 6 Lorber, Lawrence Z., Partner, Proskauer Rose LLP, Washington, D.C............................................................ 8 Mehri, Cyrus, Partner, Mehri & Skalet, PLLC, Washington D.C...... 10 QUESTIONS AND ANSWERS Responses of Lilly Ledbetter to questions submitted by Senators Leahy and Specter.............................................. 20 Responses of Lawrence Z. Lorber to questions submitted by Senator Specter........................................................ 24 Responses of Cyrus Mehri to questions submitted by Senators Specter and Leahy.............................................. 33 SUBMISSIONS FOR THE RECORD American Civil Liberties Union, Caroline Fredrickson, Director, Washington, DC, statement...................................... 50 Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of New York, statement............................................ 54 Hulteen, Noreen, former Assistant Manager of Pacific Telephone and Telegraph, statement....................................... 61 Ledbetter, Lilly, retired Goodyear Tire Employee, Jacksonville, Alabama, statement............................................. 65 Lorber, Lawrence Z., Partner, Proskauer Rose LLP, Washington, D.C., statement................................................ 68 Mehri, Cyrus, Partner, Mehri & Skalet, PLLC, Washington D.C., statement (Exhibit 2, 3, and 4, is being retained in the Committee files.).............................................. 87 BARRIERS TO JUSTICE: EXAMINING EQUAL PAY FOR EQUAL WORK ---------- TUESDAY, SEPTEMBER 23, 2008 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 10:04 a.m., in room SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Feinstein, Durbin, Cardin, and Specter. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Good morning. I want to thank everybody for being here, and, Ms. Ledbetter, Mr. Lorber, and Mr. Mehri, thank you all for being here this morning. Seeing Senator Specter here and Senator Durbin, the Assistant Majority Leader, and Senator Feinstein, who is coming in slowly after a broken ankle, we had offered this hearing room to Senator Dodd, the Chairman of the Banking Committee because they also have a matter of some significance on today. But I think they have taken the large Dirksen room. I am told that this place actually was not large enough for the overflow there. I have tried as Chairman to have a series of hearings showing how court decisions which we just read about in the papers, but how they affect Americans' everyday lives. Today, in addition to the Supreme Court, we are going to examine the importance of the Federal courts of appeal, since the Supreme Court only hears about 75 cases a year, and the courts of appeal, of course, hear thousands of them. You would think especially now that equal pay for equal work would be a given in this country. Whatever work you do, no matter who is doing it, man or woman, they should be paid the same for the same kind of work. But the reality is still far from the basic principle. My friend Jill Biden reminded us all recently that American women still earn only 77 cents for every dollar earned by a male counterpart, and that decreases to 62 cents on the dollar for African American women and down to 53 cents on the dollar for Hispanic American women. Mrs. Biden is right to say that equal pay is not just a women's issue; it is a family issue. So I am pleased to welcome to today's hearing a brave woman who is a champion for equal pay. I had a chance to have a long chat with Lilly Ledbetter earlier this morning. She embodies the classic American story. Let me just tell you about that. She was a working mother in a Goodyear tire plant. After decades of flawless service, she learned through an anonymous note that her employer had been discriminating against her for years. She was repeatedly deprived of equal pay for equal work. That affected her family, and, of course, the discrimination for all those years on her pay affects today her retirement pay. A jury of her peers found that Lilly Ledbetter had been deprived of over $200,000 in pay. They ordered the corporation to pay her additional damages for their blatant misconduct. Incredibly, the United States Supreme Court overturned stepped in--remember, they only take 75 cases a year, but, boy, they wanted to step in on this one, and they overturned that jury verdict. They created a bizarre interpretation of our civil rights laws, and they ignored the realities of the American workplace. Her employer, Goodyear Tire, will never be held accountable for its illegal activities. The Court's ruling sends a signal to other corporations that they can discriminate with impunity, so long as they keep their illegal activities hidden long enough. That is not the way it should be in America. The current Supreme Court seems increasingly willing to overturn juries who heard the factual evidence and decided the case. In employment discrimination cases, statistics show that the Federal courts of appeal are 5 times more likely to overturn an employee's favorable trial verdict against her employer than they are to overturn a verdict in favor of the corporation. That is a startling disparity for those of us who expect the employees and the employers to be treated fairly by the judges sitting on our appellate courts. Set to be argued before the Supreme Court this fall are several more cases affecting women whose very livelihoods hang in the balance. In addition to cases involving domestic violence protections and Title IX, they will consider cases that involve: whether retired employees should be penalized for leave they took related to their pregnancies; whether a children's musician, who plays the guitar, who had her arm amputated has any right to recover against the drug company that negligently caused her injury that caused her to lose an arm; and whether an employee asked to participate in an internal sexual harassment investigation could be fired simply because she reported sexual harassment in her workplace. Now, when corporations discriminate against women paycheck after paycheck, it should not be tolerated. The civil rights protections enacted by Congress must be made real by enforcement. And one of the basic civil rights should be equal pay for equal work. Our courts are an essential mechanism to enforce the civil rights laws that Congress has passed--laws that protect women, the elderly, minorities, and the disabled. The rulings are reduced to hollow words on a page if judges issue rulings like the one rendered by the Supreme Court in Lilly Ledbetter's case. A few months ago when the Senate tried to correct the Supreme Court's unjust decision in the Ledbetter case, we fell just a few votes short of breaking through the Republican filibuster of that legislation. And a senior Republican Senator who was not present for the vote, and who thus effectively supported the filibuster, claimed that the real problem is not discrimination, but just all those women need more training. I mean, this is outrageous in this day and age. You should hear what my wife and my daughter say about something like this. And for those of us who know that women are more educated and better trained than ever before, it is a surprising perspective. Despite their training women still receive only 77 cents for every dollar that men make for the exact same work. So I hope that today's hearing will be a chance to recognize the realities of the American workplace, the importance of fairness, and the indispensable role that our Federal courts play in making sure that all Americans receive equal pay for equal work. As the economy continues to worsen, many Americans are struggling to put food on the table, gas in their cars, and money in their retirement funds. And it is sad that recent decisions handed down by the Supreme Court and Federal appellate courts have contributed to the financial struggles of so many women and their families. I remind these judges they all get paid the same, and they get lifetime pay. They ought to look at the realities of the people in the workplace. [The prepared statement of Senator Leahy, appears as a submission for the record.] Senator Specter. STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Specter. Thank you, Mr. Chairman. I join you in welcoming our witnesses here today. I believe that the legislation which would have given Ms. Lilly Ledbetter a cause of action without being precluded by the statute of limitations, that legislation is sound and ought to be enacted. And I say that because every time Ms. Ledbetter received a check which was of a lesser amount than people in similar situations, she was discriminated against. And it seems to me that the logic of the situation favored the four dissenters in her case. Each time she was paid, she was paid less than a man in a comparable situation. I think that a construction ought to be employed which gives the maximum realistic protection to women in the workplace. We all know the problems that women have and the glass ceiling and the difficulties which are involved so that where there is discrimination, there ought not to be a technicality on statute of limitations, especially such a short statute of limitations as 6 months to preclude a recovery. The issue is a hard one, obviously, but my view is that that would be the appropriate way to administer this important area of law. I regret that I am not going to be able to stay to hear the witnesses. This is supposedly the last week in our session, and it is a very tumultuous week with very, very heavy engagements on the economic crisis, which I am working on this morning. And we are trying to wrap up a lot of business in the Judiciary Committee, and it is one of the burdens of chairmanship that the Chairman has to stay. I would welcome that burden, but it is not mine, at least for the moment. But staff will be here, and we will be reviewing the testimony and following this important issue very closely. [The prepared statement of Senator Specter appears as a submission for the record.] Chairman Leahy. When Senator Specter says that it is a somewhat tumultuous week, I chuckled because that is sort of a New England understatement. It is a wild week, and I appreciate him taking the time to come. If Senator Durbin has no objection, Senator Feinstein is the only woman on the Judiciary Committee panel, and she serves with distinction here and also is one of our crossover members on the Intelligence Committee. Senator Feinstein, did you have anything you would like to add? STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. Thank you very much, Mr. Chairman. I would. I would like to say thank you, Ms. Ledbetter, thank you for doing what you are doing. Those of us who have looked at the history of our Nation know that women have had to fight for virtually everything they have received. In the early days of our Nation, women could not inherit property, women could not get a higher education; and, of course, until 1920, women could not vote in this country. The discrimination in the workplace still exists. I was of the generation that went out into the workforce in the mid-1950s and found that women need not apply, that it really did not matter how much graduate work you had for a given job. The belief was that a woman really could not do the job and do the job well. And there still is a legacy, I think, in our country of that problem. Lower paychecks are not the only problem. In a recession, it has been shown that women actually suffer disproportionately under almost any economic measure. As a matter of fact, as of April of this year, women were losing jobs faster than men; women's wages were falling more rapidly than men's; women were disproportionately at risk for foreclosure and 32 percent more likely to receive subprime mortgages than men; women had fewer savings than men; and non-married women had a net worth 48 percent lower than non-married men. Once retired, women actually find themselves in greater jeopardy. On average, we live 7 years longer than men, but we receive significantly fewer retirement benefits. Among women above retirement age, some do not receive any benefits at all because they have spent their working years inside the home caring for their children. Women who did work outside the home were often paid significantly less than their male counterparts. Their pension checks, of course, reflect that fact, and they are lower than those of their male colleagues. The problem is compounded even further, I believe, by bad company practices that leave women with no benefits at all for some periods during their careers. Before Congress passed the Pregnancy Discrimination Act, many employers refused to recognize women's health issues as health issues. These companies denied women benefits for the weeks or even months that they were forced home due to pregnancy-related medical issues. So these problems really deserve our attention. Ms. Ledbetter, it is so important that you have done what you have done, because you cannot possibly know your check is lower until you know it. And if there is a statute of limitations that ends your rights before you have an opportunity to know that you were not paid equally or fairly or rightly, then you are sunk, so to speak. I think you have raised a critical issue in our country. We now have a two-person family workplace. Generally, to earn enough money, both people in a household have to work in this economy. So it is critically important that we change the rules of the workplace to be able to reflect that, and I think you have struck a blow. As you know, Senator Kennedy has a bill to reverse the Supreme Court's decision in your case. Many of us are cosponsors of that bill, and it might not pass this session, but I believe it will in the next session. So I just want to say thank you very much for what you have done. Be courageous and stand tall and hang tough. Thank you. Thank you, Mr. Chairman. [The prepared statement of Senator Feinstein appears as a submission for the record.] Chairman Leahy. Thank you. And, Senator Durbin, thank you for your courtesy in letting Senator Feinstein go first. I will yield to you. STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS Senator Durbin. Thank you to all the panel for being here. This Committee approves judges and even Supreme Court Justices, and people come before us and say, You know, I am just going to call the balls and the strikes, just call them as I see them. You know, we just take the law and apply it. You know, it is really pretty simple. And look what happened to you. One of the Supreme Court Justices--in fact, the Chief Justice, who said he was just going to call the balls and strikes, obviously decided who was going to win the ball game before the first pitch. And in this case, it was your employer, because the standard that they held you to was inconsistent with the law as it has been written and interpreted, and it is inconsistent with common sense. And you are going to tell us about that, as you have so many times, and I am glad you are doing it. You put a face on an issue, and you have also dramatized why elections are important. Presidents pick judges. Judges interpret laws. If a President picks a judge who comes to it with a certain prejudice, people like you lose. And that is what happened. That is a simple fact. And all these folks who talk about strict construction and, man, we are going to stick by the law and just trust me, you know, we are going to call the balls and the strikes--well, unfortunately, you are out and they are still in. But we have got a chance to change it. Thank you. [The prepared statement of Senator Durbin appears as a submission for the record.] Chairman Leahy. Thank you very much. Our first witness, as we have already said, is going to be Lilly Ledbetter, who worked at a Goodyear tire plant in Alabama for more than 20 years. She became the first woman to be promoted to supervisor. Now, that was a plus for them. What she was not told, of course, was that she was being paid less than her male counterparts. And she turned to the courts for justice. The Supreme Court denied her claim. Today she is a tireless advocate for fair pay. Ms. Ledbetter, please go ahead, and hit that talk button and it is all yours. STATEMENT OF LILLY LEDBETTER, RETIRED GOODYEAR TIRE EMPLOYEE, JACKSONVILLE, ALABAMA Ms. Ledbetter. Thank you. My name is Lilly Ledbetter, and I appreciate this opportunity to testify. I am sorry to say that I am a living example of the fact that pay discrimination continues to be a pervasive problem in the workplace. In addition, my case illustrates the barriers that courts put in the way when workers try to vindicate their civil rights. I began working as a supervisor in the Goodyear tire plant in Gadsden, Alabama, in 1979. I worked for Goodyear for almost 20 years. I worked hard and was good at my job, but it was not easy. I was only one of a handful of women supervisors, and I faced obstacles and harassment that my male peers did not have to endure. Although I only found out about it later, I also was subjected to pay discrimination for virtually the entire time I worked at Goodyear. When I first started, the managers got the same pay, so I knew I was getting paid as much as the men. But then Goodyear switched to a pay system that was supposed to be based on performance where people doing the same jobs got paid differently. Like most employers, Goodyear knew all the facts. It knew who was making what. It made the decisions about how much to pay each manager, and it knew whether its pay system was based on performance or something else. But the workers didn't know. In fact, Goodyear prohibited us from discussing our salaries. I only started to get some hard evidence when someone left an anonymous note in my mailbox showing that three other male managers were getting paid between 15 percent and 40 percent more than I was. I thought about just moving on, but I just could not let Goodyear get away with their discrimination. So I filed a complaint with the EEOC and afterward went to court. It wasn't until I filed my case that I finally was able to learn what Goodyear had known for years: that it was paying me a lot less than all of the men doing the same work. Goodyear claimed that it was because I was a poor performer. That wasn't true, and the jury didn't believe it. They found that Goodyear had violated Title VII and awarded me the money I was owed. But Goodyear appealed the verdict, and the Eleventh Circuit Court of Appeals and then five Justices of the Supreme Court ruled that although I continued to be paid less than the men right up to the date I filed my charge, I had complained too late. According to these judges, any pay discrimination complaint must be filed within about 6 months of the first time a worker gets a discriminatory paycheck--no matter how long the discrimination continues, no matter how much damage it causes the worker, and no matter how much the employer knows that it is getting away with, and profiting from, its unlawful conduct. This ruling just does not make sense in the real world. At a lot of places, you could get fired for asking your coworkers how much money they were making, and it is the employers, not the employees, who know how much they are paying each worker and who have the chance to correct any disparities. The end result of the Court's ruling is that employers can pay workers less than they are entitled to for their entire careers and then pocket the difference. Equally disturbing, the higher courts rejected what had been the law in every part of the country. I am not a lawyer, but my counsel told me it was settled law that an employee could challenge each discriminatory paycheck she received. In fact, the law was so clear that the EEOC intervened on my side before the Eleventh Circuit. But the Supreme Court took a law that had been applied to protect people like me and created a loophole big enough for employers to drive a truck through. And my case is only the tip of the iceberg. Companies have gotten the Supreme Court's message loud and clear. They will not be punished for pay discrimination if they do it long enough and cover it up well enough. Women from all over the country have told me how they are paid less for doing the same job as their male colleagues. And now there is nothing they can do. And courts have applied the Supreme Court's ruling in my case to all different kinds of cases, not just pay discrimination cases. The Senate can restore the promise that the Supreme Court broke in my case by enacting the Lilly Ledbetter Fair Pay Act, a bill that simply restores the law to what it was before the Court's decision. The Senate can also restore the promise of the laws more broadly by insisting that judges understand the real world and are committed to upholding longstanding legal protections. My case is over. I will never receive the pay I deserve from Goodyear. But Congress has the power to ensure that what happened to me never happens to anyone else. I am honored to be here today, and thank you for the opportunity to testify before this Committee. I am very grateful from the bottom of my heart for this opportunity. Thank you, each one of you, for being here. [The prepared statement of Ms. Ledbetter appears as a submission for the record.] Chairman Leahy. Thank you very much, Ms. Ledbetter, and I appreciated very much the opportunity to talk with you about this before the hearing. Lawrence Lorber is a partner in the Washington, D.C., office of Proskauer Rose LLP. He is an employment law practitioner. He counsels and represents employers in connection with all aspects of labor and employment law. He was formerly Deputy Assistant Secretary of Labor and Director of the Office of Federal Contract Compliance Programs during President Ford's administration. Good to have you here, sir. Please go ahead. STATEMENT OF LAWRENCE Z. LORBER, PARTNER, PROSKAUER ROSE LLP, WASHINGTON, D.C. Mr. Lorber. Good morning, Chairman Leahy, members of the Committee. I am pleased to be here. As the Chairman said, my name is Lawrence Lorber, and I am a partner in the law firm of Proskauer Rose here in Washington. The laudable goal of equal pay for equal work that we are discussing today is one that I am personally familiar with. Prior to entering private law practice, I served as the Director of the Office of Federal Contract Compliance Programs and a Deputy Assistant Secretary in the Department of Labor. The OFCCP enforces an Executive order which prohibits discrimination and requires affirmative action by Federal contractors, in addition to requiring affirmative action and prohibiting discrimination on the basis of disabled and veteran status. During my tenure at the OFCCP, policies asserting that agency's authority to retrieve back pay for employees were formulated and successfully litigated. In 1990 and 1991, I was counsel to the Business Roundtable for the discussions which led to the 1991 Civil Rights Act, which reversed, I believe, 11 Supreme Court decisions and resulted in a marked change in employment discrimination law. And most recently, I have served as the Chair of the U.S. Chamber of Commerce's EEO Committee and, as such, have been involved--it has been my privilege to be involved with the recently enacted Americans with Disabilities Amendments Act. I wish to discuss very briefly three points. First is the impact of H.R. 1338, the Paycheck Fairness Act, simply as an example of a purported response to a problem, which I believe neither responds to the problem nor creates an appropriate legal framework to address equal pay concerns. Second, I would like to briefly mention a series of Supreme Court decisions all of which have served to vastly expand the rights of employees, in particular expand and redefine the concept of retaliation under various employment laws which could deal with many problems, including perhaps some addressed by Ms. Ledbetter. And, third, I wish to briefly discuss the issue of class actions and what they do in reality to employment discrimination. The Paycheck Fairness Act. We have heard a lot about it. We are told that this will restore the law to the way it was before the Ledbetter decision. With all due respect, I do not believe that is the case. The Paycheck Fairness Act really changes the notion and the whole thrust of the Equal Pay Act, which is an Act which prohibits denial of equal pay for equal work without any necessity to prove intent by employers. That is a critical element and something that should not be cavalierly cast away. The Equal Pay Act finds its genesis not in 1963, but really back to the War Labor Board in the 1940s, when the issue was when women were entering the workplace and performing tasks not heretofore then performed by women they were required to receive equal pay. The War Labor Board established principles then which carry forward to 1963 and carry forward today that equal pay for equal work is the law and intent has nothing to do with that concept. So that we have a structure to deal with this issue, I think we may look to some legal issues involving litigation as to how you deal with it. But, nevertheless, that has been the law since 1963, predating Title VII, and it is the law today. In terms of the Paycheck Fairness Act, I just want to briefly talk about three elements of that. First, it would eliminate caps on punitive and compensatory damages. The Congress addressed that issue in 1991 when it passed the Civil Rights Act, established appropriate caps to respond to the individual harms that individuals who were found to have their rights violated and they could be recompensed for. Unlimited caps, unlimited damages does nothing to preserve that; rather, it does simply provide and create a legal lottery so the very few who get their case in court may get a windfall; the very many who have to wait in a long line do not receive anything. Second, the Paycheck Fairness Act would eliminate employer responses, defenses, to pay disparities--disparities which might be occasioned by geographic differences, job differences, or any of the other types of issues that we address. And it does bring back before us the concept of comparable work where we have Government agencies setting compensation and salaries, not based on the market, not based on the realities of the workplace, but based on statistical models which may have no meaning in the real world. Let me very briefly talk about judicial decisions. Senator Durbin spoke about it. Mr. Chairman, you spoke about it. The Supreme Court had a series of decisions in the last 2 years. Most critically, it rewrote the law of retaliation, established broad coverage for employees who assert their rights to have a cause of action, even if the underlying cases that they bring are found without merit. The White case and other cases that I briefly discuss in my testimony point out the fact that the Court understands the importance of our employment laws and understands the importance of retaliation to prevent violations and to enhance the enforcement of those laws. We do know that the Supreme Court in the Meacham case vastly expanded the reach of the Age Discrimination in Employment Act. So we do not have a Court that is unwilling to face the law as it finds it, but we do have a Court that tells the Congress, ``Rewrite the law if you want it, but we cannot make the law.'' And that to me is the teaching of this Court because this has been a Court which has countless times enhanced the rights, at least as it interpreted the laws that were written, enhanced the rights of employees. But it does not make the law. And we go back to cases such as Ricks v. Delaware, go back a long time ago where the Supreme Court said you have to bring the case when the case arises. Let me just briefly sum up by saying that employment law, perhaps unlike other law, tends to be individualized. We look to the actions of managers-- Chairman Leahy. And we will go into that on our questions. I must say I somewhat disagree on whether they interpret the law instead of making the law. We can cite a whole lot of cases where I feel this Court has made the law in areas that had been considered for years to be settled law. [The prepared statement of Mr. Lorber appears as a submission for the record.] Chairman Leahy. Our next witness is Cyrus Mehri, a founding partner in the law firm Mehri & Skalet. Mr. Mehri served as class counsel in the two largest race discrimination class actions in history: Roberts v. Texaco, Inc. and Ingram v. The Coca-Cola Company. He is a frequent guest on radio and television, a guest columnist for Diversity, Inc. Mr. Mehri, please go ahead. STATEMENT OF CYRUS MEHRI, PARTNER, MEHRI & SKALET, PLLC, WASHINGTON, D.C. Mr. Mehri. Chairman Leahy, thank you for the opportunity to be here today alongside a genuine American heroine, Lilly Ledbetter. Her case illustrates a profound problem in the Federal courts and one that has been documented by a seminal new Cornell Law study, as well as some case studies I put in my testimony. First, the Cornell study, which is in a Harvard law journal. There are two key takeaways I would like the Committee to walk away with: First, the U.S. appellate courts are hostile to American workers. They treat employee cases very differently than other cases. When employers win at trial, they show deference to the fact finder and they reverse them 8 percent of the time. But when employees win at trial, they reverse them a stunning 41 percent of the time, and these are employees like Ms. Ledbetter who had their cases vetted by counsel, who overcame motion practice before going to trial, and convinced the fact finder that they were discriminated against, and yet the appellate courts reached down and reversed those trial victories. This has a chilling effect, a debilitating impact on civil rights litigants, and the data in this study shows a 37-percent drop in Federal employment discrimination cases in our court system. But Ms. Ledbetter is not alone. There are many other devastating stories of American workers. One, I would like to tell you the story of Mr. Anthony Ash and Mr. John Hithon, African American workers at a Tyson's plant in Alabama. The citizens who served on that jury heard evidence that these two employees had greater experience, had longer tenure, and were loyal employees of the company, and yet they were passed over for promotions. They also heard evidence of racial animus where the decisionmaker, their supervisor, would repeatedly call them ``Boy'' in the workplace, to the point that Mr. Ash's spouse came in and said, ``My husband is a man, not a boy.'' They heard that evidence. They found discrimination. And yet the appellate court, the Eleventh Circuit, found that as a matter of law--a matter of law--that the use of ``Boy'' in the workplace is not evidence of discrimination. They created a whole new legal standard that for promotion cases the evidence has to jump off the page and slap you in the face, a standard that no law school in America teaches. Now let me tell you the story of Susan Septimus who worked in the general counsel's office of the University of Houston. The Texas citizens serving on that jury heard evidence of a hostile work environment. They heard that she was forced to file a grievance with the university, but as soon as she did that, her supervisor retaliated against her by giving her a low performance rating, and then even wrote a memo to the file outlining the plan of retaliation. The university hired an independent counsel who found evidence of retaliation and hostile work environment, and the jury, hearing all that evidence, found that they had retaliated against Susan Septimus. But, once again, the employer has an easy recourse. They can go to the court of appeals, and there the court of appeals reversed this trial outcome. They created a whole new legal standard that makes it impossible, essentially, for an employee to show evidence of retaliation. So Ms. Ledbetter is not alone. There are literally hundreds of stories like this around the country that are imperiling our Federal judiciary from being a level playing field for American workers. Fortunately, I believe there is a path to turn this around, and that is to cast a completely new prism--create a new prism in the judicial nomination process, to cast a much wider net of who the potential nominees are than we currently do. Right now we are only drawing from a very narrow pool of potential nominees. When you do that, you are going to have skewed outcomes like we have here, a 5:1 disparity against American workers. And that is not going to change until we start bringing in nominees who, as part of their life experience, like Justice Ginsburg, part of their work experiences have fought to open doors, have fought for American workers, have fought for the middle-class and have fought for small businesses. We do not have that in the judiciary right now. We have a judiciary that is predominantly-the attendance is predominantly lawyers who have worked for the most powerful. We have precious few who have worked for people like Ms. Ledbetter who just want a fair shake in the American judiciary. Thank you, Chairman. [The prepared statement of Mr. Mehri appears as a submission for the record.] Chairman Leahy. Thank you very much. Ms. Ledbetter, you can tell from my opening statement I am concerned that the courts reward employers who conceal their discriminatory conduct from their employees. You had mentioned to me earlier Justice Ginsburg's dissent, and it is a powerful dissent. Justice Ginsburg emphasized that pay discrimination is more pernicious than other forms of job discrimination because it is hidden from sight. It is not here in the Congress. Pay is transparent. People can just look up and find out what anybody is paid. Most private employers conceal pay data. Now, you said in your testimony that you first heard about this when somebody left an anonymous note in your mailbox. Is that correct? Ms. Ledbetter. That is correct. And the four of us, the names on that paper, we were doing the exact same job, because there were four crews, A, B, C, D. And I was one of those people making 15 to 40 percent less than the other guys. Chairman Leahy. How did this discriminatory pay affect you, your family, your retirement? Ms. Ledbetter. It affected me a great deal while I was earning a living because I had two children that I needed to send to college. They needed college educations. They needed clothes. They needed all of the normal expenses that a family has during that time. And, also, first-line managers were paid overtime, being time and a half, double time, triple time. That cost me a great deal, because when I was working those extensive hours, I was not getting the money that I was entitled to. And during that period of time I was working, my retirement was based on what I earned. My contributory retirement was based on what I earned. My 401(k) investment was based on what I earned. And then I learned when I retired that Social Security was also based on what I earned. And so it makes me be treated, in my opinion, like a second-class citizen for all of my life because it never can be changed. Another thing I learned early on in the process is that once a person has to file a charge, there is no compensation that can ever adjust for your retirement losses. They do not ever consider that in any lawsuit. So that is gone. And I would have never waited any period of time. I would have gone to court immediately because I needed the money that I was entitled to at the time I was working. Chairman Leahy. Let me ask you a little bit about this. Mr. Lorber has suggested that the courts are telling the Congress, well, we are just enforcing the law, you can write the law differently. But a few months ago, the Senate tried to bring up legislation to overturn the Supreme Court's decision, and the Republicans filibustered even proceeding to it. I mentioned in my opening statement that there is a senior member of the Senate, a Republican, who did not even bother to show up for the vote. He claimed the real problem is ``women just need more job training.'' Now, you worked for this company for 20 years. You were deprived of over $200,000 in pay. Were you lacking the training that your male colleagues had to perform that job? Ms. Ledbetter. No, sir. In fact, I had more training than most because I saw the discrimination early on, me being the lone female, so I was a member of a management association that is national. In fact, I was the first female president that was ever elected to head up that organization that was 95 percent men at the time. And we offered a lot of management courses that were very expensive, and I paid for those. I had over 100 professional courses that I was taking from Auburn University, University of Alabama, University of Georgia, anyone else that offered them. I had more training than most people at the plant. Chairman Leahy. Would it be safe to say you do not want to be dismissed by somebody who said, ``I will pay you less just because you need more training'' ? Ms. Ledbetter. No, sir. I am very offended by that statement. Chairman Leahy. I can imagine. Ms. Ledbetter. Very offended. Chairman Leahy. So am I. So am I. Ms. Ledbetter. And the medical doctor that I participated in a meeting last weekend in New York, she would agree as well. She is a physician. She did not need any more education either. Chairman Leahy. Thank you. My time is up. Senator Feinstein. Senator Feinstein. And I am going to try to keep to the strict time limit here. Thank you very much. I was interested, Ms. Ledbetter, in what you said to Senator Leahy, that the way you found out was you received a note from someone. Is that right? Ms. Ledbetter. That is correct. Senator Feinstein. And that note said that you and three other people were being discriminated against with respect to your pay? Ms. Ledbetter. It was just--mine was the only one that had on it extremely low pay. In fact, at that particular time I worked, I was a supervisor in the tire room, the only female. Senator Feinstein. And what percent was your pay below the men? Ms. Ledbetter. Between 15 and 40 percent. Some of them were being paid 40 percent more than mine at that time. Senator Feinstein. I see. Then what did you do about it? Who did you talk to at Goodrich about it? Ms. Ledbetter. I went straight to EEOC. Senator Feinstein. And what did they say? Ms. Ledbetter. They did some investigation, and they called in a few days and said that I had one of the best cases that they had ever seen, but they were so backlogged that I might want to consider getting an attorney and going forward. Senator Feinstein. Did you ever talk to any of the leadership at the company? Ms. Ledbetter. They hired an arbitrator from Texas that called me and made me an offer of $10,000, which that was such an insult to me, knowing, looking back and calculating how much money that I had lost, there was no way. I just could not accept it, and seeing and knowing the injustice, what had been done to me and other people at that factory. And there were two other women who testified at my trial. One of them had been a supervisor during the time that I had been. She had previously been a union worker and was promoted. She finally had taken all the harassment that she could stand, and she sold her service. And at the time she testified for me, she was a supervisor for Honda in Alabama. But they asked her why she never complained, and she said, ``Well, if I had complained, I was a divorced mother with a handicapped son, we live paycheck to paycheck. I could not afford to miss my check.'' Senator Feinstein. Of course, I am not recommending this, but the thought does occur that if every working woman were to take Goodrich tires off of their car, that might sensitize Goodrich. It is an interesting thing to me that increasingly as a society becomes more sophisticated, the leadership substitutes arbitrators-- Chairman Leahy. It was Goodyear. It was Goodyear, not-- Senator Feinstein. Well, all right. Chairman Leahy. It was Goodyear, not Goodrich. Entirely different companies. Senator Feinstein. Yes, right. Ms. Ledbetter. It was Goodyear. Chairman Leahy. I do not want to see people pulling the wrong tires off. Ms. Ledbetter. Neither do I. Neither do I. But you can pull the Goodyears off. [Laughter.] Senator Feinstein. I am going to check mine. I am going to go check my tires. Ms. Ledbetter. You do that. Chairman Leahy. I can see my wife checking the tires right now on my car. Senator Feinstein. But something has to sensitize them, I think, to this concern. There is no greater issue among working women, poll after poll after poll has shown, than wage disparity. And it has got to be changed in our society. And it is not going to be changed, I believe, by arbitrators and conciliators and the middlemen. Ms. Ledbetter. No. Senator Feinstein. It is going to be changed by the CEO of the chairman that says this will not go on within our company. And so I think--aside from the legislation, which I support--some of us who are in the working women world ought to put our heads together and see what we might be able to do to sensitize the top leadership of the company. Now, having said that, this is a very difficult time because of what is happening in the investment and Wall Street community. But notwithstanding that, I think CEOs have to understand that this is a new day and that women have tremendous obligations of home support, family support, tuition, insurance, all kinds of things they have to pay and be responsible for. So no longer can this be tolerated in the workforce. You are leading the way, and, again, I just want to say thank you very much. Ms. Ledbetter. Thank you for that. I do appreciate it, because this will never gain Lilly Ledbetter a dime, what I am doing today. But I have heard from so many people across this country, not just in the South. I originally thought it was a Southern problem. It is not. This is all across the United States. And we minorities are entitled to be treated fairly and paid fairly, and it is no longer just the females' problem or the minorities. It belongs to--it is a family issue because it affects all aspects of a family. You are exactly right in your statement. It does affect the whole bit. Senator Feinstein. Could I ask you one last question? Ms. Ledbetter. Yes. Senator Feinstein. What do you figure in terms of back wages you are entitled to? Ms. Ledbetter. That I am entitled to? Senator Feinstein. Yes. Ms. Ledbetter. It would be very difficult, I would have to go back and look at all the overtime, because it was not uncommon for me to work 12-hour shifts. We were on a continuous operation, and when my peer on the other shift was out, I was required to work his shift as well as mine. And there was one 3-month period that I worked 3 months, 12 hours at night, and I was required to be there an hour early and stay over an hour after the shift. And it was a 35-minute drive to where I lived. So, needless to say, I did not sleep much or eat much, either. I was primarily working. So it would be quite a bit. And then my retirement, my contributory retirement was a percentage of what I was earning, and Goodyear matched it. And then the 401(k), I put in 10 percent, which was the max allowable. And they matched with 6 percent stock. And at that time in those days, the stock was running around $77 per share. So I missed a lot of money just on that. It is a tremendous amount of money. Chairman Leahy. The jury found $200,000, didn't they? Ms. Ledbetter. That is correct. And, also, the back pay, that is another problem that some in the Supreme Court said, why, people, if this was changed, people would be coming out of the woodwork filing lawsuits. That is not true because there is no incentive. I can only go back 2 years. That is the law. Nothing is changed about that, and I knew that when I filed my charge on going back for equal pay. You are only entitled to 2 years. And they took, the courts took the lowest-paid person in the department and calculated my back pay, which would have been, without overtime, just $60,000. I lost that. The Supreme Court took that away. They said that we should have had that all in one--in two different cases. Well, my attorney in Birmingham, Alabama, started out in two different cases. But the judge there said put them all together because they would all come under Title VII, Equal Pay. And this gentleman is exactly right. Equal Pay passed in 1963. And why in 2008 are so many, so many women not being paid fairly? And the other gentleman is exactly right. They are first to be laid off, they are the first to be cut, their wages and their work shifts. Senator Feinstein. Thank you. Chairman Leahy. Thank you. Senator Cardin of Maryland is here. Please go ahead. Senator Cardin. Thank you, Mr. Chairman. I want to really thank Senator Feinstein and thank our Chairman, Senator Leahy, for what they have done throughout their entire career to speak out and to do everything they can so that we address the inequities of pay in this country. They have been true champions, including my senior Senator, Senator Mikulski, who has been in the forefront on this fight. And I thank all three of our witnesses for your fighting for this, and for your continuous support for the right causes. And I must tell you, Ms. Ledbetter, I think you will have done more for equal pay than just about any other person. And I know that you will not benefit directly. But you have done a lot for our country. You are right, we have been struggling for this for many years. I was in the State legislature when we passed an equal pay statute, and still we have the inequities in our own State. And the Supreme Court decision in your case is just so outrageous, it defies logic. How are you expected to be able to file a claim if you did not know about it, that you were being discriminated against? That defies just common sense. And I think Americans understand that what this Nation stands for, our basic protections of treating people fairly, is a protected right. And yet the Supreme Court by its 5-4 decision effectively said there is no way to enforce the right of equal pay for equal work. And your courage and what you continue to do by being here as a witness--and I was with you in Denver, and I appreciate the fact that we got information out, had that opportunity. I think you have really put the conscience of America behind this issue, and I really just wanted to thank you for that. You are right, it is a critical issue for the individual. It is economic security. If you are not paid fairly, you are being robbed of the proper compensation for the work that you are doing. But it affects more than just your paycheck. It affects your retirement, and we are struggling with economic security for retirees. And women are at a terrible disadvantage today because of the compensation issue as one of the major factors of why women are not as well prepared for retirement security as their male counterparts. So it is beyond just the paycheck that you receive. It affects your entire security. It affects your family's security. I believe it affects the economic security of America. I think we are being robbed of the right system, and it is affecting all of us, and it certainly affects the moral fiber of our Nation, what we stand for. The principles of America are very much challenged by these efforts. So I just really wanted to take the time to be here to thank all three of you, all three of our witnesses, and to let you know that we will continue to make sure that this is corrected. It is important not just for the individuals who are being discriminated against. This is critically important for our country. It is what we stand for. It is our highest priority, protecting the rights of our citizens. And I think your presence here today gives us additional energy to continue this battle until we have won. Thank you. Ms. Ledbetter. Thank you, sir. Senator Feinstein. Thank you, Senator Cardin. I think your words are well stated, and I think we all agree with them. Senator Leahy just absented himself for a few moments, but I think unless there are additional things that any member of the panel has to say--oh, he is back. I was just going to adjourn the hearing. Chairman Leahy. Thank you. As we have said, we are all trying to cover about three different things because of the financial matters going on. I apologize. I had to return a phone call on that. Mr. Mehri, I have read a number of these reports you have talked about, but I have also looked at this Harvard Law and Policy Review, ``Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? '' You have practiced in this area for years. Under the Cornell study, Federal courts of appeals are five times more likely to overturn a trial verdict in favor of an employee than they are to overturn a verdict in favor of an employer. You refer to it basically as an anti-employee bias in our Federal courts. Is that something that surprises you? You have practiced there for years. Mr. Mehri. Chairman Leahy, I knew we had an uphill battle. But when I found out that there was a 5:1 disparity against employees from our U.S. appellate courts, I was shocked. And it pains me because I know the struggles that workers have like Ms. Ledbetter, hundreds or thousands of employees around the country who are just trying to get their fair shake in our Federal courts. And when they overcome all these obstacles to get to the point where they have a fact finder, they have a case of substantial merit if the jury or the judge ruled in their favor, to have these appellate courts this hostile to employees, finding every way possible to rule against the employee, rewriting the law, ignoring the deference that one should have to the fact finder who is there hearing the witnesses, that shocks me. And it puts our civil justice system on a very weak foundation and imperils our civil justice system. There is a connection between your hearing today, Chairman, and the other hearings today about the economic crisis, because what has happened is that ideology has been the No. 1 criteria for these nominees, now let's have a broader perspective. In both examples, the workers are the ones who are suffering. Chairman Leahy. Well, some of us have been troubled by not just the courts' policy, but in this case, the Equal Employment Opportunity Commission, the EEOC, which, as all three of you know, is charged with enforcing Title VII, they filed a brief in support of Ms. Ledbetter before the Eleventh Circuit. But when it came up to the Supreme Court, the Solicitor General of the United States, who normally would be expected to support EEOC's interpretation, he filed a brief against Ms. Ledbetter. Mr. Mehri. That troubles me, Chairman, because the experts are the EEOC, and as Justice Ginsburg pointed out in her dissent, they actually have a common-sense paycheck accrual rule in part of the EEOC manual. They are the experts. They are on the front lines. And when the Solicitor General overruled them between the U.S. Court of Appeals and the U.S. Supreme Court, I think that has had a chilling effect on the EEOC on subsequent cases that are going to go before the Supreme Court. I caution the Committee to take a look at that because when you politicize something like this, the losers of it in this circumstance is America's commitment to civil rights. Chairman Leahy. Mr. Lorber, I gather you would not agree. Is that--or do you agree? Mr. Lorber. No, I do not agree, Mr. Chairman. With all due respect, you are looking at cases such as Ms. Ledbetter's case which are cases of procedure, which are cases as to when one knows the wrong has occurred, when one should bring the case. Now, the statutes are clear as to when you have to bring your cases. In employment, evidence gets stale very quickly. The decisions, with all due respect, are not made by the CEOs. They are often made by managers in plants throughout the country. And the notion that you could wait and bring a case 2, 3, 5, 7, 10 years after an act occurred when the actor may no longer be available to explain why he or she made that act simply makes no sense. Chairman Leahy. But doesn't that kind of beg the question? Ms. Ledbetter did not know about the discrimination. But Goodyear did know about the discrimination. They knew they were discriminating. They kept it hidden. She had no way of knowing it. Workers do not have any incentive to sleep on their rights. But if the discrimination went on all that time, why shouldn't they be able to challenge it? Remember, there are four members of the Supreme Court who obviously disagreed with your position. Justice Ginsburg wrote a very compelling dissent in that. Just as a matter of fairness, I find it difficult that if a company discriminates against an employee, they keep that discrimination hidden and do it in such a way that the employee does not realize they are being discriminated against, and then when they find out subsequently, the employer can then step forward and say, ``You should have discovered it before now. We hid it. We had all the ability to hide it. You had no way of knowing it. But, gosh, we got away with it.'' Is that fair? Mr. Lorber. The way you articulate it, I have questions about it, but I would simply say that there are alternatives. What is being asked for now is an unlimited time to bring cases when the evidence simply is stale. You have made it clear throughout your career, which is distinguished beyond anything anybody else could aspire to, that you began as a prosecutor. You know about stale evidence. You know when the evidence has to be brought. There are other proposals, I understand, before the Senate, Senator Hutchison and others talking about discovery rules, rules which would enable the matter to be brought when and if the matter is discerned and understood. But what has happened here, what employers are being asked to deal with are cases that might be 20 years old. We know, fortunately or not, that the places of business where the acts occurred may no longer exist. And to ask that there be liability, this unlimited liability, liability which simply turns the Equal Pay Act on its head in a manner that does not reflect what the intent of these laws were does not seem to make sense. If, in fact, there are these types of problems, the Congress dealt with it in-- Chairman Leahy. But there are things--I mean, you talk about the criminal law and the statute of limitation. Obviously, there are some cases where the statute of limitation never runs. Some cases are considered serious enough even if the case is brought 45 years later, it can still be brought. And, of course, I agree with you about the difficulty in finding evidence on that. But there are other cases that are very specific. The analogy I would use, if somebody flees a jurisdiction to avoid prosecution, the statute does not start running in most jurisdictions. I would argue that if you hide what you are doing, the statute should not run either. Obviously, we disagree on this point, and obviously, I find the dissent more compelling than the majority. But I also wanted, because I knew you disagreed with what Mr. Mehri said, I wanted you to have a chance to state it. You talked about the Hutchison bill. Are you familiar with that bill, Ms. Ledbetter? Ms. Ledbetter. Yes, sir. Chairman Leahy. Would that have helped? If that had been law at the time of your case, would that have helped you? Ms. Ledbetter. No, sir. No, sir. The only thing that would have helped me is the law as it was prior to the Supreme Court ruling the day of the--May 29th, I believe, of 2007. If the law had stayed like it was and the Supreme Court had interpreted the law like it had been, I would have been fine. The system worked for me, and I would like to point out, too, that there is never an incentive for anybody to sit and wait to file a charge, because one--I would like to tell the Committee, too, that I filed an EEO charge in 1998, early, and this is 2008, and I am still talking. And the ruling did not come down until May of 2007. A person has to give up a lot of their life to go through something like this, and it is very difficult. It is not easy. And there is no incentive because I was working for my family and I needed every dime that I possibly could have earned. That is why I worked every hour of overtime I could, and I would have gone immediately--which I did when I knew. I never knew any earlier. The Hutchison bill, the way I understand it, is not right on the point of when you know. It is when--something like you might have known or should have known or--and I am not a lawyer, I am not an expert, but it would not have helped me. The Lilly Ledbetter Fair Pay bill, as it is written, is the only correct way to put the law back, and it is very simple. Very simple. It should be a law that Democrats and Republicans could agree on because it is a human rights, civil rights solution to the problem. Chairman Leahy. Well, Ms. Ledbetter, I can assure you I am one of the ones who knows it is going to be here next year because of the 6-year term. This bill will come back up. Ms. Ledbetter. Good. Chairman Leahy. I would urge Senators not to avoid voting on it. I would hope that they would allow us to vote on it. And, frankly, I will not take as an excuse in a vote against it--I will not agree with somebody who says, ``Well, women just need more training.'' Ms. Ledbetter. No. No, we don't. No more education either. Chairman Leahy. When my wife went back to nursing after raising kids, I know the kind of training she had just to get recertified and to get her RN license. She and male nurses were getting exactly the same training. I will keep the record open, Mr. Lorber, if you want to add, of course, to anything that was said there. In fairness to you, we will. Mr. Mehri, the same; Ms. Ledbetter, the same. I apologize for the lack of people here, but this really is, in my 34 years here, one of the most extraordinary times in the Senate, and Senators are all over the place. So thank you very, very much, all three of you. 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