[Congressional Record Volume 155, Number 9 (Thursday, January 15, 2009)]
[Senate]
[Pages S418-S419]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          LILLY LEDBETTER ACT

  Mr. CORNYN. Mr. President, I, too, would like to congratulate Senator 
Clinton on her nomination to be Secretary of State; and, alas, there is 
other work left to do in the Senate, as the Senator from Maryland 
alluded to, the Lilly Ledbetter Act, for which we will be voting on 
cloture in a minute. So I have a few words I would like to add 
specifically on that topic.
  We will be voting for the so-called Lilly Ledbetter Act, and I think 
it is important to reflect a little bit on what that bill would 
actually do because, honestly, I think it has been characterized as a 
bill that will protect women's rights, which as a father of two 
daughters I am all in favor of not just cracking the glass ceiling but 
breaking it altogether.
  But, actually, this bill, has a much broader impact and perhaps 
unintended by those who believe it is only about protecting women's 
rights. Indeed, what the Lilly Ledbetter Act would do is eliminate the 
statute of limitations. That sounds like an arcane topic for lawyers 
that only lawyers could love, but basically what it would do in the 
case of Ms. Ledbetter--who had waited almost two decades before she 
raised her discrimination claim, long after the principal witness who 
could have testified in opposition to that claim had died--indeed, the 
purpose of the statute of limitations, as the lawyers in this body well 
know, is to be fair both to the plaintiff who brings the claim and to 
the defendant who has to defend against that claim, to make sure the 
documents and the memories and, indeed, the very existence of those who 
might be able to give testimony can be preserved so the jury can make a 
good decision. But, indeed, if you wait 20 years before you assert your 
rights, and after the principal witness who could testify in opposition 
to your claim has died, that is not exactly fair either.
  So, Senator Hutchison, my distinguished senior Senator from Texas, 
will have an alternative which I hope will be offered. I expect it will 
be offered as an alternative and substitute, which I believe is fair to 
both those who bring a claim of discrimination and those who have to 
defend against it.
  Indeed, I mentioned a moment ago I am the father of two daughters, 
now 27 and 26. Many small businesses that are created in America today 
are headed up by women. Indeed, we need to make sure those small 
businesses have some certainty, have some rules they can rely on in 
terms of knowing when they are likely going to be sued.
  I think the Ledbetter Act could more appropriately be called a trial 
lawyer bailout because, of course, it is premised on the idea that one 
can slumber on their rights and never have to assert them and, indeed, 
fight an uneven fight because those who have to defend against them can 
no longer defend against them because the witnesses are no longer 
available.
  Indeed, at a time when this country is in a recession, I think it is 
appropriate to point out that no country has ever sued its way out of a 
recession. Yet the bill that comes to the floor on which we are called 
upon to vote--the very second bill that is presented to this Senate in 
the midst of this economic crisis--is one that would effectively, as I 
said, eliminate the statute of limitations in employment litigation so 
trial lawyers can bring multimillion-dollar lawsuits over decades-old 
workplace disputes.
  There are many good policy reasons, as I mentioned, why it is 
important to have those statutes of limitations, but it is particularly 
true in employment cases where a person's subjective intent can be the 
decisive issue that the factfinder has to decide, where memories of the 
past can be colored by decades of subsequent workplace experience.
  Another important policy behind the statute of limitations is called 
repose. That is a fancy word that represents the idea that people 
should be allowed to move on with their lives without the constant fear 
of being sued for something that happened 20 years previously.
  Again, during times of economic uncertainty, the Ledbetter bill would 
create not more certainty but more uncertainty. As I suggested earlier, 
small businesses would suddenly be exposed to new liability for acts 
that may have occurred years or decades ago, even if those acts 
occurred under a previous ownership before the current management was 
even in place.
  There will be no way for small businesses and large businesses alike 
to quantify this risk because there is no way to know which of the 
employees may have had a secret grievance they have been harboring for 
many years just waiting for the opportunity to present the claim at a 
time when it cannot be adequately defended.
  Worst yet, this bill would actually encourage plaintiffs and their 
lawyers to strategically lie in wait, delaying their employment 
lawsuits for years while damages accumulate.
  Now, this does not help anybody except for perhaps the lawyers and 
the clients who can take advantage of this one-sided equation. Why sue 
promptly and limit your damages to a few months of back wages when you 
can wait 5 years and sue for 5 years of back wages? This can be 
especially rewarding to a plaintiff who strategically sues

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when you consider that during that 5 years, the plaintiff can 
diligently be preparing a lawsuit while the defendant is ignorant about 
the very grievance itself, perhaps, and memories and records fade.
  So I think it is important, as we go into this bill, that it be 
characterized as the Trojan horse that it is. This is just the 
beginning. If you eliminate the statute of limitations in employment 
discrimination claims, why not eliminate the statute of limitations in 
other claims: medical malpractice, any other business disputes, and the 
like? It is just not fair, and it is not right. We should not allow 
this bill to be represented as a blow for women's equality and women's 
rights because it simply is much broader and has much more of a broader 
implication than that.
  I am convinced this bill is actually a solution in search of a 
problem because it is worth noting that in fiscal year 2007, a total of 
82,000-plus people timely filed complaints of employment discrimination 
with the EEOC. It is important to ask what prevented Ms. Ledbetter from 
doing exactly the same thing, from filing her complaint at the time she 
knew that perhaps she had a grievance that could be presented to the 
employer.
  So I thank you, Mr. President, for the opportunity to speak briefly 
on the bill. Assuming cloture is adopted, I hope we will be taking up 
Senator Hutchison's alternative, which I think strikes the fair balance 
for which I would hope we would all strive, protecting the rights of 
both those who are victims of discrimination and the companies that 
have to defend against those claims.
  Mr. President, I yield the floor.

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