[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



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                       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.
    [Whereupon, at 11:10 a.m., the Committee was adjourned.]
    [Additional material is being retained in the Committee 
files, see Contents.]
    [Questions and answers and submissions for the record 
follows.]
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