[Congressional Record Volume 155, Number 12 (Wednesday, January 21, 2009)]
[Senate]
[Pages S694-S712]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             LILLY LEDBETTER FAIR PAY ACT OF 2009--Resumed

  The PRESIDING OFFICER. The clerk will report the pending business.
  The assistant legislative clerk read as follows:

       A bill (S. 181) to amend title VII of the Civil Rights Act 
     of 1964 and the Age Discrimination in Employment Act of 1967, 
     and to modify the operation of the Americans with 
     Disabilities Act of 1990 and the Rehabilitation Act of 1973, 
     to clarify that a discriminatory compensation decision or 
     other practice that is unlawful under such Acts occurs each 
     time compensation is paid pursuant to the discriminatory 
     compensation decision or other practice, and for other 
     purposes.

  Pending:

       Hutchison amendment No. 25, in the nature of a substitute.

  Mr. LEAHY. Madam President, I thank the Senator from Texas, and I 
especially thank my dear friend from Ohio, whom we are going to miss 
around here.
  Madam President, I held a hearing at which Miss Lilly Ledbetter 
testified before the Senate Judiciary Committee. It was one of the most 
moving hearings we have had. The fact that a very activist, very 
Republican Supreme Court had basically written new law to deny her 
rights was shocking to everybody before that committee.
  I believe we have to pass the bipartisan Lilly Ledbetter Fair Pay Act 
so employers are not rewarded for deceiving workers about their illegal 
conduct and maybe signal to the Supreme Court to stop legislating, and 
stop being an activist Court, but to uphold the law as we write it.
  One of the Justice Department's roles in our Federal system of 
government is to protect the civil rights of all Americans, including 
those that protect them against discrimination.
  The Bush administration's erosion of longstanding interpretation of 
our antidiscrimination laws has created a new obstacle for victims of 
pay discrimination to receive justice. That was a mistake when it was 
advanced by the Bush-Gonzales et al. Justice Department. It was a 
mistake when five Justices on the Supreme Court adopted the Justice 
Department's erroneous interpretation of congressional intent. It 
culminated in an erroneous opinion written by Justice Alito.
  I understand the Members on the other side of the aisle introduced 
partisan amendments to the legislation. They have that right. But it is 
my belief that the amendments should be opposed for one simple reason: 
they are going to allow illegal pay discrimination to continue.
  We are going to hear that this might encourage workers who are being 
paid less as a result of discrimination to delay filing for equal pay. 
That argument defies logic. Anyone who heard Ms. Ledbetter's testimony 
before either the Senate Judiciary Committee or the Senate Health, 
Education, Labor, and Pensions Committee knows that she, like other 
victims of pay discrimination, had no incentive to delay filing suit. 
But employers, based on the erroneous interpretation by the Supreme 
Court, the activist interpretation by the Supreme Court, now have a 
great incentive to delay revealing their discriminatory conduct: 
blanket immunity.
  The reality is, many employers do not allow their employees to learn 
how their compensation compares to their coworkers'. They can hide it 
and hide it and hide it until these women finally retire, pray that 
they never find out how they were discriminated against, and then say 
when they are found out: Oh, my goodness gracious, you should have 
filed suit earlier. The fact that we had it all locked up and you 
couldn't possibly have known you were being discriminated against is 
your fault. These victims have the burden of proving the discrimination 
occurred and that evidentiary task is only made more difficult as time 
goes on.
  It seems it is always the woman employee's fault. That is wrong. 
Workers like Ms. Ledbetter and her family are the ones hurt by the 
ongoing diminished paychecks, not their employers.
  The bipartisan Ledbetter Fair Pay Act of 2009 does not disturb the 
protections built into existing law for employers, such as limiting 
backpay in most cases to 2 years. It does not eliminate the existing 
statute of limitations. Instead, it reinstates the interpretation of 
when the 180-day time limit begins to run, an interpretation that was 
run over roughshod by the Bush administration at its urging by their 
appointees on the Supreme Court. The bill corrects this injustice to 
allow workers who are continuing to be short-changed to challenge that 
on-going discrimination when the employer conceals its initial 
discriminatory pay decision.
  Opponents of the bipartisan Ledbetter Fair Pay Act may raise other 
excuses. They will no doubt

[[Page S695]]

claim that somehow trial lawyers will benefit, but the reality is the 
Supreme Court in the Ledbetter decision could actually lead to more 
litigation because people will feel they have to file premature claims 
so that time does not run out.
  The Congressional Budget Office has concluded that this legislation 
``would not establish a new cause of action for claims of pay 
discrimination'' and ``would not significantly affect the number of 
filings with the Equal Employment Opportunity Commission'' or with the 
Federal courts.
  Congress passed title VII of the Civil Rights Act to protect 
employees against discrimination with respect to compensation because 
of an individual's race, color, religion, sex or national origin but 
the Supreme Court's Ledbetter decision goes against both the spirit and 
clear intent of our antidiscrimination laws.
  It also sends the message to employers that wage discrimination 
cannot be punished as long as it is kept under wraps.
  At a time when one-third of private sector employers have rules 
prohibiting employees from discussing their pay with each other, the 
Court's decision ignores a reality of the workplace--pay discrimination 
is often intentionally concealed.
  The Lilly Ledbetter Fair Pay Act is the only bill that gives workers 
the time to consider how they have been treated and the time to work 
out solutions with their employers. Our bipartisan bill fulfills 
Congress's goal of creating incentives for employers voluntarily to 
correct any disparities in pay that they find. Most importantly, our 
bipartisan bill ensures that employers do not benefit from continued 
discrimination.
  I will not support amendments that weaken this bipartisan bill. I 
support the ability of all employees to receive equal pay for equal 
work.
  The Lilly Ledbetter Fair Pay Act is the only bill that gives workers 
the time to consider how they have been treated and the time to work 
out a solution with their employers. Our bipartisan bill fulfills 
Congress' goal of creating incentives for employers voluntarily to 
correct any disparities in pay they find. I am not going to support 
amendments that weaken this bipartisan bill. I support the ability of 
all employees to receive equal pay for equal work. It comports 
completely with what we learned in the Judiciary Committee.
  I applaud the Senator from Maryland. I applaud her cosponsors. I am 
proud to be one of them.
  Ms. MIKULSKI. Before the Senator from Ohio speaks as agreed upon, I 
thank the chairman of the Judiciary Committee for his compelling 
remarks and steadfast support for women generally and certainly for his 
longstanding advocacy that women should be paid equal pay for equal or 
comparable work. Thank you very much.
  The PRESIDING OFFICER (Mr. Nelson of Florida). The Senator from Ohio 
is recognized.
  Mr. VOINOVICH. Mr. President, I rise today in strong support of the 
Hutchison substitute amendment.
  Before I discuss the merits of the Hutchison amendment, I wish to 
thank Senator Mikulski for her commitment to debate this legislation in 
a constructive manner. As Senator Mikulski said, we can disagree, 
without being disagreeable.
  I thank the Democratic leader, the Senator from Nevada and the 
minority leader, the Senator from Kentucky, for agreeing that we will 
make our best efforts to return to the tradition here in the Senate of 
debating bills and allowing amendments to be offered, and returning 
things to the point where I think it will enhance the reputation of 
this great body in terms of the body that is looking in on us. I hope 
this is the beginning of a new era here. I think the more we can work 
together, the better they are going to feel about the future of our 
country.
  I would also like to thank my colleague, Senator Hutchison, who I 
know is extremely busy in her role as ranking member of the Commerce 
Committee. Her efforts to draft a solution are commendable. Senator 
Hutchison is in a strong position to speak on issues arising from both 
her substitute amendment and Senator Mikulski's underlying legislation. 
As Senator Hutchison said in her opening remarks, as a young lawyer 
coming out of law school, she experienced the nefarious consequences of 
gender discrimination. In addition, I think her experience as a small 
business owner and the general counsel of a bank provides Senator 
Hutchison with the unique perspective to understand the problems with 
Senator Mikulski's legislation.
  There is one thing on which we all agree: Gender and other forms of 
discrimination are wrong, illegal, and they should not be tolerated. 
This debate should not be about whether one party condones illegal 
discrimination; rather, this debate must focus on how to strike the 
right balance to address the situation in which a person is subject to 
an individual act of discrimination but through no fault of their own 
has no way to know about it.
  As I mentioned during my retirement announcement last week, one of 
the reasons I decided to retire in 2 years was the desire to spend more 
time with my family. I am the proud father of a daughter, Betsy, who 
graduated as a member of Phi Beta Kappa. When she was growing up, I 
said: Honey, the sky is the limit for whatever you want to do.
  In addition to my daughter Betsy, I have seven grandchildren, and six 
of them are girls. I have said the same thing to them: The sky is the 
limit. My oldest granddaughter, Mary Faith, is 12 years old. One of 
these days, she is going to be out in that business world. I want 
Betsy, Mary Faith, and all my grandchildren, to have the opportunity to 
reach their full potential based on their God-given talents, and not be 
constrained by outdated prejudices.
  Based on the debate so far, I believe there is a good deal of 
agreement between Members who support Senator Hutchison and Members who 
support Senator Mikulski's legislation. For example, we agree that 
discrimination based on gender is illegal and wrong. We also agree that 
the dynamics of the modern workplace may make instances of such 
discrimination difficult to detect if the discrimination is reflected 
in pay decisions.
  Unlike when someone is denied a job, a promotion, or is terminated, 
paycheck discrimination may not be obvious. The source of our 
disagreement is how to find a solution to address this specific issue.
  Before I address the specifics of why I support Senator Hutchison's 
amendment over Senator Mikulski's legislation, I believe there are some 
misconceptions about the Supreme Court's Ledbetter v. Goodyear 
decision. Advocates of the Ledbetter legislation have continued to 
state that passing the Lilly Ledbetter Fair Pay Act will restore the 
law to what it was before the Supreme Court's decision. This is 
misleading. In its Ledbetter decision, the Supreme Court clarified a 
faulty interpretation of its early decision in Bazemore v. Friday. The 
Supreme Court did not change the underlying statute of limitations in 
title VII.
  I think it is helpful to understand what the Court did in 
distinguishing these two cases. The Court's Bazemore decision held that 
if an employer's pay structure is facially discriminatory, that is, the 
pay structure sets different compensation on criteria like race or 
gender, then the paycheck is the last act of illegal conduct from which 
the 180-day filing period begins. The Court, rightfully in my opinion, 
distinguished this from the situation in Ms. Ledbetter's lawsuit.
  With Ms. Ledbetter's lawsuit there was not a discriminatory pay 
structure in place, but rather allegations of specific acts of 
discrimination. The Court found those discrete acts occurred outside 
the 180-day filing period. I think that is an important distinction 
Members should understand.
  Still, as some of my colleagues pointed out during this debate, 
specific and discrete acts of wage-based discrimination may be very 
difficult to detect within the 180-day filing period provided under 
title VII. This could lead to situations in which an employer escapes 
liability simply because the person did not know that a discriminatory 
act took place.
  In such a situation, the 180-day filing rule appears to reward bad 
behavior and harm the person facing the illegal discrimination. I agree 
with Senator Mikulski that under this situation a strict 180-day filing 
rule is unfair.
  As one of my colleagues supporting the Ledbetter legislation pointed 
out,

[[Page S696]]

the Supreme Court, in TRW v. Adelaide and in an opinion authored by 
Justice Ginsburg, interpreted a statute of limitations arising under 
the Fair Credit Reporting Act as starting ``from the date on which the 
liability arises.'' Understanding this could unduly penalize victims of 
identity theft, Congress enacted a fix as part of the Fair and Accurate 
Credit Transaction Act of 2003. This fix extended the relevant statute 
of limitations based on the ``discovery by the plaintiff'' of the 
impermissible conduct.
  Unfortunately, this is not the approach the Ledbetter legislation 
takes. Rather, it would adopt a rule allowing for the filing of 
lawsuits 180 days after the last paycheck issued by the employer that 
was affected by a discriminatory act, even if it was a single act that 
occurred many years ago. Thus, the Ledbetter legislation could allow 
for the filing of lawsuits long after someone knew they were subject to 
a discriminatory act, effectively eliminating the statue of limitations 
from title VII in many cases.
  As the Supreme Court noted in its Ledbetter decision, statutes of 
limitations serve an important policy of repose in our justice system. 
Under American legal principles, it has long been public policy that a 
person should not be called into court to defend claims that are based 
on conduct long past.
  As many of my colleagues who have practiced law know, it can be very 
difficult to mount a defense in cases in which the underlying conduct 
occurred long ago because witnesses are difficult to locate, memories 
fade, and records are not maintained. In Ms. Ledbetter's case, the 
supervisor accused of the misconduct died by the time of the trial. Yet 
under the approach taken by the Ledbetter legislation, defendants could 
potentially find themselves facing lawsuits that are years, if not 
decades, old.
  Because she recognizes that paycheck discrimination may not be 
obvious in the modern workplace and that a bad actor should not benefit 
from hiding such discrimination, Senator Hutchison crafted a sensible 
compromise. Under the Hutchison amendment, a person could bring a claim 
under title VII within 180 days after obtaining knowledge or 
information that the person is the victim of discriminatory conduct. In 
other words, you don't start the 180-day statute of limitations until 
the person knows or has reasonable suspicion that she is subject to a 
discriminatory wage. But once you know you have been discriminated 
against, then it is your obligation to bring that to the attention of 
the EEOC and start the process to obtain relief.
  By allowing a person to bring a claim from 180 days after the 
discriminatory conduct is discovered, Senator Hutchison's amendment 
stops bad actors from benefiting, and addresses many of the concerns 
many of my colleagues raised.
  Unfortunately, the Ledbetter legislation would swing the pendulum 
completely in the opposite direction and create an open-ended legal 
liability that could expose businesses, the very entities we need to 
help us lift our economy out of this recession, to expensive new legal 
liabilities.
  While this may not be good for insurance companies who write policies 
and trial lawyers who bring lawsuits, I do not believe the legislation 
is sound public policy.
  Finally, I want to address a related issue before I yield the floor. 
Besides disagreeing on the solution to the issues created by the 
Ledbetter decision, Senator Mikulski's legislation did not go through 
the HELP Committee during this Congress.
  While I understand the HELP Committee held one hearing on the 
Ledbetter bill during the 110th, this hearing occurred before Senator 
Hutchison introduced her legislation, which is now before us as the 
pending amendment. As a result, the Senate is left without the wisdom 
of having testimony and information comparing the different approaches.
  While I understand sometimes it is necessary to bypass committees, 
the Senate has started to bypass the committee process too frequently. 
So often, as a result of that committee process, compromises can be 
worked out so once the bill is out of committee in many instances you 
can get a UC and get that legislation passed, or at least people have 
had a chance to talk about it in terms of some compromise.
  So I am glad to be involved in this debate, but I believe the Senate 
and our Nation would be better served if the Senate got back into the 
habit of taking up legislation after it has gone through the relevant 
committee. In fact, I believe if these two legislative proposals had 
been discussed in the HELP Committee, the committee might have crafted 
a compromise bill that had the support of most, if not all, of my 
colleagues.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Texas is recognized.
  Mrs. HUTCHISON. Mr. President, I appreciate very much the remarks of 
the Senator from Ohio who has much the same feeling about this I do. He 
wants to protect the employee who has known discrimination but also 
knowing that a business or small business needs to know what the 
liability might be and, hopefully, correct it if the notification is 
given in a timely way.
  So I would look forward to talking about my amendment. At this time, 
I ask unanimous consent that my amendment be set aside in order for 
Senator Specter to be able to offer amendments, after which then 
Senator Mikulski will have the floor. Then when we get back to my 
amendment, I would like to debate my amendment.
  Ms. MIKULSKI. Mr. President, I thank the Senator. We wish to follow 
the recommendations of our mutual leadership, which was to debate the 
Hutchison substitute tonight but to get as many amendments laid down 
tonight as we can. The Senator from Pennsylvania has two amendments he 
wants to offer. So I agree with the plan of laying aside the Hutchison 
substitute, having the Senator from Pennsylvania, Mr. Specter, offer 
his amendment, and at such time we will return to our robust debate on 
the Hutchison substitute and, hopefully, we can get a regular order 
going back and forth.
  Mrs. HUTCHISON. Mr. President, I think that is a good plan. I 
appreciate the accommodation of the Senator from Maryland.
  The PRESIDING OFFICER. The Senator from Pennsylvania.


                            Amendment No. 26

              (Purpose: To provide a rule of construction)

  Mr. SPECTER. Mr. President, I call up amendment No. 26.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Pennsylvania [Mr. Specter] proposes an 
     amendment numbered 26.

  The amendment is as follows:

              (Purpose: To provide a rule of construction)

       Strike the heading for section 6 and insert the following:

     SEC. 6. CONSTRUCTION.

       Nothing in this Act or any amendment made by this Act shall 
     be construed to prohibit a party from asserting a defense 
     based on waiver of a right, or on an estoppel or laches 
     doctrine.

     SEC. 7. EFFECTIVE DATE.

  Mr. SPECTER. Mr. President, I agree with the underlying approach that 
women ought to receive equal pay for comparable work. I voted for 
cloture on the Ledbetter bill in the last Congress. I had been a 
cosponsor of the bill. I had not cosponsored the legislation this year 
because of my interest in making two changes I think would improve the 
legislation and would reduce the opposition.
  I begin by congratulating Senator Mikulski and Senator Enzi for the 
very important work they have done. I congratulate Senator Hutchison on 
the amendment she has offered, the substitute. I intend to support her 
amendment.
  The time when the statute of limitations begins to run is when the 
employee knew or should have known. I think that is fair. I think it is 
reasonable to say to an individual where you are being discriminated 
against, and you know about it, or you should, in reasonable diligence, 
know about this. This is a standard used in the law in many areas: 
actual knowledge or constructive knowledge, where somebody should have 
known. That is fair to say, at that point a person is on notice, they 
ought to begin their lawsuit. It is fair for the statute of limitations 
to begin running at that time to give the defendant a fair opportunity 
to know about it.
  The amendment I have offered is hand in glove with the concept of

[[Page S697]]

``should have known,'' that is, or actual knowledge, actual or 
constructive, to provide that the defendant will have the defense based 
on waiver or estoppel or laches. Waiver means you take an affirmative 
act and say: I do not want to assert my rights. That is a waiver. 
Estoppel means you are estopped from bringing the defense because of 
some conduct on your part which precludes you from bringing the action, 
or estopped. You are estopped from bringing the claim. And laches means 
too much time has passed, that you are barred by time. These are 
equitable doctrines which have more flexibility as opposed to a 
specific date. The essence of these defenses of waiver, laches, and 
estoppel was articulated in the dissenting opinion of Justice Ginsburg. 
She disagreed in the 5 to 4 decision which precluded women from 
claiming equal pay. She said that women ought to be able to claim equal 
pay and employers have a fair right to defend if they can assert these 
defenses.
  So this is what Justice Ginsburg said: Allowing employees to 
challenge discrimination ``that extends over long periods of time,'' 
into the charge-filing period, does not leave employers defenseless 
against unreasonable or prejudicial delay. Employers disadvantaged by 
such delay may raise various defenses. Doctrines such as ``waiver, 
estoppel, and equitable tolling'' ``allow us to honor Title VII's 
remedial purpose without negating the particular purpose of the filing 
requirement, to give prompt notice to the employer.''
  So what Justice Ginsburg lays out are the defenses which the 
employers would have in any event, but in putting it into the statute, 
it makes it conclusive. I think it is good so that you do not have an 
argument as to whether employers have these defenses. It allows the 
plaintiff to bring the claim, and allows a reasonable defense by the 
employer.
  Mr. President, I now ask unanimous consent that the Hutchison 
amendment and my amendment be set aside so that I may lay down a second 
and final amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Amendment No. 27

  Mr. SPECTER. Mr. President, I now call up amendment No. 27.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Pennsylvania [Mr. Specter] proposes an 
     amendment numbered 27.

  Mr. SPECTER. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

   (Purpose: To limit the application of the bill to discriminatory 
                        compensation decisions)

       At the appropriate place, insert the following:

     SEC. __. LIMITING APPLICATION TO DISCRIMINATORY COMPENSATION 
                   DECISIONS.

       (a) Findings.--In section 2(1) of the Lilly Ledbetter Fair 
     Pay Act of 2009, strike ``or other practices''.
       (b) Civil Rights Act of 1964.--In section 706(e) of the 
     Civil Rights Act of 1964 (as amended by section 3), strike 
     subparagraph (A) of paragraph (3) and insert the following:
       ``(A) For purposes of this section, an unlawful employment 
     practice occurs, with respect to discrimination in 
     compensation in violation of this title, when a 
     discriminatory compensation decision is adopted, when an 
     individual becomes subject to a discriminatory compensation 
     decision, or when an individual is affected by application of 
     a discriminatory compensation decision, including each time 
     wages, benefits, or other compensation is paid, resulting in 
     whole or in part from such a decision.''.
       (c) Age Discrimination in Employment Act of 1967.--In 
     section 7(d) of the Age Discrimination in Employment Act of 
     1967 (as amended by section 4), strike paragraph (3) and 
     insert the following:
       ``(3) For purposes of this section, an unlawful practice 
     occurs, with respect to discrimination in compensation in 
     violation of this Act, when a discriminatory compensation 
     decision is adopted, when a person becomes subject to a 
     discriminatory compensation decision, or when a person is 
     affected by application of a discriminatory compensation 
     decision, including each time wages, benefits, or other 
     compensation is paid, resulting in whole or in part from such 
     a decision.''.

  Mr. SPECTER. Mr. President, the essence of this amendment is to 
strike the term ``or other practices.'' The core issue here is pay, and 
that is what I think we ought to deal with.
  There are objections to this bill on the grounds that it is a lawyers 
bonanza and will allow a lot of litigation. Well, I do not think that 
is a sound argument, but I think there is merit in specifying that this 
legislation is aimed at pay, and if you talk about other practices it 
is going to produce a lot of litigation because there is no definition 
of what the ``other practices'' means.
  For example, other practices might be promotion, might be hiring, 
might be firing, might be training, might be territorial assignment, 
might be transfer, might be tenure, might be demotion, place of 
business reassignment, might be discipline. All of these are 
possibilities when you talk about ``other practices.'' I do not purport 
to be making an exhaustive list. Those are only some of them, the 
possibilities on what might be included in other practices. When 
talking about pay, you know what you are talking about. Now, if it is 
the objective of the drafters of the bill to cover promotion or to 
cover hiring or to cover firing, fine; let's say so. If there is an 
intent to cover any of these other specific items, let's consider that. 
Let's make an evaluation as to whether that is a practice which 
requires remedial legislation. But in order to have ``other 
practices,'' I think we have the potential of reaching a quagmire and 
have a lot of litigation about what the intent was of Congress, a lot 
of questions as to what we intend to do.
  Now, of course, in listing all of these items, if this amendment is 
defeated, I know lawyers will be citing this argument to say, well, if 
the amendment offered by Arlen Specter was defeated, it must mean that 
all of those other practices are included, and then some, which is not 
my intent. But I do believe it would be a crisper bill, and we would 
know exactly what we are talking about.
  Again, I say if anybody wants to include other practices, so be it.
  Mr. President, I was advised that the senior Senator from Illinois 
was going to be here at 5:15. I want the Record to show that I finished 
my comments 1 minute early so as to allow the manager to maintain her 
commitment.
  The PRESIDING OFFICER. The assistant majority leader.
  Mr. DURBIN. Let me thank the Senator from the Commonwealth of 
Pennsylvania for his gracious acknowledgment of my opportunity to speak 
on this legislation. I look forward to working with him. I hope we can 
get this passed.
  Let me tell you what the issue is. Fundamentally, it is just basic. 
In the case of Lilly Ledbetter, here is what it is coming down to: 
Should women be paid the same for work as men? That is it. That is the 
basic question.
  Lilly Ledbetter was a lady who worked at the Goodyear Tire plant in 
Gadsden, AL. You do not expect to find a lot of women working in a 
plant like that, do you? She went on to the managerial part of the 
plant, which meant she was on her way up in the managerial ranks. She 
worked there for years, 19 years, and at the end of the 19 years when 
she was near retirement, somebody said: Lilly, did you realize all of 
these years you were working there that men who had the same job you 
did were being paid more than you?
  She said: That is not right. That can't be true.
  She checked it out, and it was true. All those years she had the same 
job classification, the same job responsibilities, and she was paid 
less.
  She said: It is not fair. I think I ought to receive compensation 
because the company basically discriminated against me just because I 
am a woman. She takes her case and files it. In most cases, it is a 
pretty simple situation. What was the job; what did it pay. Did you pay 
women less than you paid men? These are basic fact questions. Then it 
made it all the way across the street to the U.S. Supreme Court. Then 
nine Justices sat down to take a look at the Ledbetter case. The Chief 
Justice of the Supreme Court, John Roberts, and Sam Alito, a recent 
appointee by the Bush administration to the Supreme Court said: We are 
sorry, Ms. Ledbetter. You cannot recover for this discrimination.
  She said: Why?
  They said: Well, you should have discovered this and reported it the 
first time you got a discriminatory paycheck. The first time you were 
paid

[[Page S698]]

less than a man who had the same job, you had 180 days from that point. 
When that different paycheck was given, you had to file your claim.
  Of course, common sense and life experience would tell you that most 
people at work don't know what their fellow employee is being paid. 
Lilly Ledbetter didn't know. She didn't know for 19 years that the men 
working right next to her were being paid more than she. But the 
Supreme Court said: Sorry, Lilly Ledbetter. Darn shame, but you should 
have filed this claim years ago. The fact that you are still being paid 
a discriminatory wage doesn't work because you had 180 days from the 
first time they sent a different paycheck to a man than a woman to file 
your claim, and you didn't do it. You are out of court. Thanks for 
dropping by. End of case.
  I look back at these Supreme Court Justices' answers when they 
appeared before the Senate Judiciary Committee. I particularly remember 
Chief Justice Roberts because he was the most impressive witness I had 
ever seen. He sat there for days and answered every question without a 
note in front of him. He is a brilliant man. He made a point of saying: 
I feel like a Supreme Court Justice is an umpire. I'll call balls and 
strikes there. I am not supposed to make up new rules for the ball 
game. I'll watch the pitches coming in, and I'll call balls and 
strikes.
  This is a foul ball. This decision by that Supreme Court ignores the 
reality of the workplace today. I asked Senator Mikulski, who is 
leading our effort, what is the basic discrimination between men and 
women in pay today? She said it is about 78 cents for the woman and a 
dollar for the man. As a father of daughters and sons, I think my 
daughters should be treated as fairly as my son. If they do the same 
work, they ought to get the same pay. What Senator Mikulski says in her 
basic bill, the Lilly Ledbetter Fair Pay Act, is we are not going to 
allow the Supreme Court decision to stand. It makes no sense. If the 
company is continuing to discriminate against you in its paycheck, that 
is good enough. You ought to be able to go to court, not the fact that 
the discrimination started 10 years ago, 12 years ago, and you didn't 
know about it.
  Basically, in the law, we have this matter called the statute of 
limitations. It says you get a day in court but only for a window of 
time for most things. If you don't go to court in that window, you 
don't get to go. You are finished. But we make an exception in most 
cases for what is known as fraud and concealment. If the person guilty 
of the wrongdoing has concealed what they are doing and you don't know 
it, you can't say the time is running. It doesn't run in that 
circumstance because there is concealment. In this case, there is 
clearly a situation where you don't know what your fellow employee is 
being paid.
  Senator Hutchison of Texas comes with an amendment. I am sure it is a 
well-intentioned amendment, and I am sure she is not going to defend 
pay discrimination. I am sure she doesn't stand for that; none of us 
do. But she adds a provision, and I wish to make sure I have the 
language right because it is important we take it into consideration. 
She says her amendment would only permit a victim to bring a 
discrimination claim if she ``did not have, and should not have been 
expected to have, enough information to support a reasonable suspicion 
of such discrimination.'' On its face it sounds: What is wrong with 
that? What is wrong with that is now Lilly Ledbetter and people such as 
she have a new burden of proof. They have to prove to the court they 
had no reason to suspect their employer was discriminating against 
them. It becomes subjective. It becomes difficult. It adds another 
hurdle. Why would we assert this hurdle? If anything happened yesterday 
in Washington, DC, it was an announcement of change in this town and in 
this Nation. With the election of Barack Obama as President, many of us 
believe we are going to start standing up for folks who haven't had a 
fighting chance for a long time. People who are being discriminated 
against in the workplace, folks such as Lilly Ledbetter, who spent a 
lifetime getting less pay than the man right next to her, are going to 
have their day in court, a chance to be treated fairly. That is what 
this bill says. That is why Senator Mikulski's leadership is so 
important.
  We are saying to the Supreme Court, wake up to reality. You don't 
know what the person next to you is being paid. They don't publish it 
on a bulletin board. Maybe they do for public employees such as us, and 
that is right. But in the private sector, that doesn't happen. That is 
what this is all about. That is what the battle is all about.
  Senator Hutchison comes here and says: Here is another thing Lilly 
Ledbetter should have had to prove; in her words, Lilly Ledbetter would 
have been required to prove that she should not have been expected to 
have enough information to support a reasonable suspicion.
  I think it goes too far. We ought to look at the obvious. If a person 
is a victim of discrimination, once they have discovered those facts 
and assert those in court, they should have compensation. Employers 
ought to be given notice nationwide that we want people to be treated 
fairly, Black, White, and Brown, men and women, young and old, when it 
comes to job responsibilities. If you do the work, you get the pay. If 
you get discriminated against because your employer is secretly giving 
somebody more for the same job, you will have your day in court.
  I think it is pretty American, the way I understand it. It gets down 
to the basics of what this country is all about.
  I salute Senator Mikulski for her leadership and urge my colleagues 
to oppose the Hutchison amendment and to pass the underlying bill.
  Now I will quote a newspaper from Chicago which occasionally endorses 
me but not very often, the Chicago Tribune, no hotbed of liberalism. 
When they read the Ledbetter decision from the Supreme Court, they 
said:

       The majority's sterile reading of statute ignores the 
     realities on the ground. A woman who is fired on the basis of 
     sex knows she has been fired. But a woman who suffers pay 
     discrimination may not discover it until years later, because 
     employers often keep pay scales confidential. The 
     consequences of the ruling will be to let a lot of 
     discrimination go unpunished.

  Those who vote against the Ledbetter bill or vote for the Hutchison 
amendment will allow a lot of discrimination in America to go 
unpunished. President-elect Obama has said that passing this bill as 
one of the earliest items in his new administration is part of an 
effort to update the social contract in this country to reflect the 
realities working women face each day.
  I urge my colleagues to help update the social contract with this new 
administration and this new day in Washington. Let us, after we have 
cleaned up the mall and all the folks have gone home, not forget why we 
had that election, made that decision as a nation, and why America is 
watching us to see if our actions will be consistent with our promises.
  I yield the floor.
  Mrs. HUTCHISON. Mr. President, is the pending legislation my 
substitute for the Mikulski bill?
  The PRESIDING OFFICER. The pending amendments are the two Specter 
amendments.


                            Amendment No. 25

  Mrs. HUTCHISON. Mr. President, I ask unanimous consent that the 
Hutchison substitute be laid on the table and be the pending business.
  The PRESIDING OFFICER. Is there objection?
  Ms. MIKULSKI. Reserving the right to object.
  Mrs. HUTCHISON. Mr. President, it was my understanding that when 
Senator Specter laid aside my amendment, we would return to my 
amendment, my substitute, after his two amendments had been offered. 
That was what we intended and that is what I was trying to restore.
  Ms. MIKULSKI. I believe that clarifies it. I concur. I withdraw my 
reservation of objection.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
amendment of the Senator from Texas will be the pending business.
  Mrs. HUTCHISON. I yield 10 minutes to the Senator from Alaska.
  The PRESIDING OFFICER. The Senator from Alaska.
  Ms. MURKOWSKI. Mr. President, I rise to speak in support of the 
Hutchison substitute amendment to

[[Page S699]]

the Lilly Ledbetter Fair Pay Act. I do believe this substitute 
amendment strikes a fair balance in ensuring that employees can be 
relieved of discrimination. I wish to say, at the outset of my 
comments, I am very pleased we are able to offer amendments to this 
legislation. I do intend to work with my colleagues to craft and 
support any other amendments that I believe will improve the 
legislation before us.
  Before speaking directly to the Hutchison substitute, I wish to make 
very clear one point: Discrimination because of an individual's gender, 
ethnicity, religion, age or disability cannot be tolerated. No American 
should be subject to discrimination. If they are, they have the right 
to the law's full protection.
  The heart of the Supreme Court's Ledbetter decision is the ruling 
that the law requires an employee to file a complaint within 180 days 
of when the discriminatory intent is first activated by paycheck. Last 
year, I had the opportunity to speak with Lilly Ledbetter. I know she 
made a visit to many offices. I had a good conversation. I believed her 
when she told me she didn't know her wages were lower than those of her 
male colleagues. I agreed it is often very difficult, perhaps 
impossible, to know how one's wages compare with another employee's, 
and that even if an employee does know that he or she is being paid 
less, that often it is very difficult to know for sure that the reason 
for the disparity is discrimination.
  The best solution to this problem, though, is not necessarily to 
restart the clock at each paycheck. I believe the best solution is to 
clarify that if the employee did not know about the discriminatory 
action at the time it was supplied or could not have reasonably 
suspected discrimination, the clock starts when that knowledge is 
available to the employee or when it is reasonable for the employee to 
have known of the discrimination.
  It is also reasonable to require that an employee file a complaint in 
a timely manner, once that knowledge or that suspicion is available. 
The Hutchison substitute is a good fix to the Ledbetter decision. Her 
amendment not only recognizes that many employees do not know what 
their colleagues are being paid or that any disparity is due to 
discrimination, the Hutchison substitute amendment would also restore 
the reasonable requirement that the employee file a complaint in a 
timely manner.
  We all know memories have a tendency to fade away. Paperwork may be 
lost or thrown away. People leave jobs. Requiring an employee to file a 
timely claim benefit benefits the employee in pressing his or her 
claim. How can the Equal Employment Opportunity Commission investigate 
a claim of discrimination and find the truth, if the discriminating 
supervisor has retired, moved away or, perhaps, even died? That is what 
happened to Lilly Ledbetter. The supervisor who made the original 
discriminatory decision about her wages died before she could even file 
her complaint. He wasn't even available to be questioned or cross-
examined. How can the EEOC find out the truth, if the records were lost 
that show a woman or a minority or senior or disabled person's first 
paycheck was inordinately lower than the first paycheck of his or her 
peers?
  So Senator Hutchison's amendment ensures that this clock does not 
start running on the 180-day statute of limitations until an employee 
finds out about, or could reasonably be expected to suspect, the 
possibility of discrimination. It ensures that workers can hold their 
employers accountable for pay discrimination.
  Now, some have argued--or some will argue--Senator Hutchison's 
amendment would institute an unfair discovery rule. They argue it will 
force employees to file before they are sure of discrimination, when 
they may most fear retaliation. But I disagree. Senator Hutchison's 
amendment says the clock starts when the employee ``did not have, and 
should not have been expected to have, enough information to support a 
reasonable suspicion of such discrimination, on the date on which the 
alleged unlawful employment practice occurred.'' It does not say the 
employee must file when they have a hunch. It says a ``reasonable 
suspicion.''
  Opponents of this amendment may also contend that the Lilly Ledbetter 
Fair Pay Act simply restores the paycheck accrual rule that was in 
place before the Supreme Court decision and that a discovery rule would 
be a new hurdle for employees to deal with. Again, I disagree with 
this. Prior to the Supreme Court's Ledbetter decision, the EEOC 
applied, through regulation, the concept--many attorneys are familiar 
with it--of ``equitable tolling.'' This concept basically means that a 
plaintiff may proceed with a complaint notwithstanding missing a 
deadline if the employee did not know he or she was being discriminated 
against.
  The Hutchison amendment actually strengthens that familiar, often 
used legal concept that protects employees' rights by putting it in the 
statute.
  Opponents of placing a so-called discovery rule in the law also 
allege it would lead to confusion in the courts. They call it an 
unclear and untested rule. Again, I would disagree. The EEOC and the 
courts are quite familiar with the concept of equitable tolling, and 
there is substantial case law in which it has been applied.
  Opponents also claim a discovery rule will force plaintiffs to prove 
a negative--that the employee should not be expected to have known 
about the discrimination--before they even get to the question of 
whether there was discrimination. I believe it is fairly easy to prove 
that one did not have access to the pay records of other employees, 
that it is fairly easy to prove the piece of information that led the 
employee to file the complaint was not available to him or her earlier.
  I believe the substitute amendment we have before us strikes the 
right balance in ensuring that employees can be relieved of 
discrimination. It recognizes employees often do not know their pay is 
different from their colleagues. It recognizes it is not always obvious 
that a pay disparity is based on discrimination.
  For those reasons, I have cosponsored this amendment by my colleague, 
Senator Hutchison, and I urge my other Senate colleagues to support it.
  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I thank the Senator from Alaska for 
her support of my amendment.
  I wish to lay out my amendment one more time, and then the long-
suffering and ever-patient Senator from Maryland will have the chance 
to rebut. She has been so wonderful about making sure everyone got a 
chance to speak and knowing we would still be here to debate this 
amendment, and then setting a time agreement for the vote tomorrow, 
when the leaders have made that decision.
  This is such an important issue. As the Senator from Alaska has said, 
and really everyone has said, we all want to make sure we give every 
opportunity to a person who has faced discrimination in the workplace 
to be able to have a redress of that discrimination.
  The law, as it is today, gives 6 months for a person to be able to go 
forward to the EEOC, and then later to the courts, to say there has 
been an act of discrimination. Now, most of the time it is easy for an 
employee to know when a cause of action occurs. If it is age 
discrimination and someone has been demoted; if it is a firing, of 
course; any lessening of duties or responsibilities, that is a signal 
that perhaps there is some discrimination of some kind--whether it be 
based on age or gender or whatever might be alleged.
  The harder issue is pay, there is no question because most people do 
not talk about what they make around the water cooler or in the break 
room. Most people hold that close because there are many factors that 
go into pay. Because of that, it is harder to do the fair thing. That 
is what I am trying to do with my amendment, to make sure there is a 
fair opportunity for an employee to have the right of redress and also 
a fair opportunity for the person in business to know if there is a 
liability or a mistake.
  If the Mikulski bill passes, one would be able to sit on a claim 
because it would not matter if the person should have known of the 
alleged discrimination. They can pick their time, and it could be 
months, years, decades after a discrimination has occurred. This is a

[[Page S700]]

problem because the employer has to be able to have an opportunity to 
mount a legitimate defense with records that would be kept, with 
witnesses who would come forward, with memories that would be fresh, to 
give the employer the right to know what the liability is and be able 
to have witnesses or the person who is accused there to make the other 
side of the case.
  In pay discrimination, what we are doing in my substitute is 
basically setting a standard that will be uniform across the country, 
in all courts. It is what the Supreme Court has said should be the 
test. In some districts, the court will say: Well, let's hear from the 
employee why she did not know or why he did not know. If the court 
says: Well, I think that is reasonable--maybe there is a policy in the 
company that if you talk about your salary, that is grounds for firing. 
Now, that would be a very strong presumption for the employee that 
maybe they were in the dark. So we want that employee to have the right 
to say there is no way I could have known. There was a policy against 
it. But we need to have that standard across the board in every 
district. Some courts will do it, but not every court will do it, which 
is why my substitute amendment is needed, because we need every 
employee to have the ability to make the case that person could not 
have known.
  Now, the distinguished assistant majority leader said that puts the 
employee with the burden of proof. Well, the employee is the plaintiff. 
The plaintiff always has the burden of proof in our legal system. We 
would certainly--if it were something that would make a difference to 
the Senator from Maryland or the Senator from Illinois; if it would 
make a difference that we would establish a rebuttable presumption that 
would favor the employee but be allowed to be rebutted by the 
employer--we could talk about that, and I would be open to that 
suggestion.
  But the plaintiff bringing the case in our system does have the 
burden of proof. What we want is to assure that responsibility is 
codified in the law, that it is codified so that person has the right, 
but also the responsibility to press a claim. This is the important 
part of the substitute that says we want the right of the employee to 
be able to say they did not know, and why, and give courts the chance 
to apply a standard that would be set for everyone in this country to 
have the right to press the claim if they did not know.
  On the other hand, the reason we have statutes of limitations--and we 
have had since the beginning of law in this country, and in other civil 
law countries--is that the defendant does have a right to be able to 
make the defense and be able to anticipate what the liability might be. 
A small business that has a person come forward who has a claim from 10 
years ago, and they did not know the employer did not know this right 
was accumulating and could result in a catastrophic effect on a small 
business--when if the employee, when he or she suspected, brought 
forward this claim, perhaps it could be settled right then and there so 
everyone wins.
  So I hope we can work on this bill so we do give fairness to both 
sides in a legal case. We wish to have the right of the employee to 
come forward when that person knew or should have known within 6 months 
of that right accruing; and we need to have the right for the business 
to be able to have evidence, records, witnesses, and fresh memories to 
mount an effective case in defense if they are going to rebut the 
charge. That is one part of the substitute.
  The other part is, I think, also very important; and that is that in 
the bill before us there is a major change in common law and in tort 
law that has also been a part of our legal system and our case law 
since the beginning of law in our country and in other countries that 
have the types of laws we do; and that is that a tort accrues a right 
to the person who is offended or damaged or hurt by another action. It 
does not accrue to another person who is affected by or might be 
considered affected by this claim.
  Now, there are exceptions to that. But in the main, it is, I think, 
essential, if we are going to have a statute of limitations that goes 
beyond the act itself--and in this case it would be 6 months, which is 
the law today--that it accrue to the person actually injured, the 
employee, and not some other person on behalf of the person who did not 
bring the case.
  Under the Mikulski bill, the Ledbetter Act, a new right has been 
given to a person who may not be the person with the injury. So it 
could be a case where the person dies after working at a place of 
employment, a business. The person dies, and within 6 months of that 
person's last paycheck and subsequent death, some other person--an 
heir, a child, a mother, a father--could bring a case, which the person 
who has allegedly been discriminated against chose not to bring or did 
not bring. In such an absurd case, possible under the Ledbetter bill, 
you do not even have the person discriminated against to testify. I 
think this is a very big hole in the concept of fair play that our 
legal system tries to provide. By saying ``other affected parties,'' I 
think we have opened up a whole new right and possible class of 
plaintiffs that has not been contemplated before and could achieve an 
inequitable result.

  So I hope very much that people will look at my substitute and try to 
get to the same end Senator Mikulski and I both want, by trying to 
shape the legislation so that it keeps the fairness in the process for 
a person who claims a discrimination and a person in the business that 
has hired this person to have a fair right for a defense. That should 
be our goal. I think my substitute does achieve that balance. I hope 
very much we can work this into a bill that all of us can support for 
people who have certainly known discrimination, as I have, and for 
people who want to make sure their children and grandchildren don't 
face discrimination, as well as for those who wish to make sure we 
don't discriminate against that small business owner who is all of a 
sudden, after 10 or 15 years, maybe looking at a liability that they 
didn't know about, couldn't prepare for because they don't know about 
it; maybe it is a mistake and maybe it could be corrected if we keep 
that statute of limitations that would say a person knew or should have 
known can have 6 months to file a claim so there can be an equitable, 
judicial remedy for this potential claim.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. Mr. President, I yield the floor to the Senator from 
Maryland for such time as he may consume. He has been a longstanding 
advocate for women. He is a current member of the Judiciary Committee. 
He was the Speaker of the House in Maryland. He was a member of the 
House of Representatives, and now is a member of the Senate Judiciary 
Committee. He is a real leader and I think we can look forward to a 
thoughtful presentation.
  The PRESIDING OFFICER. The Senator from Maryland does not control the 
time.
  The Senator from Maryland is recognized.
  Mr. CARDIN. Mr. President, let me first thank my colleague from 
Maryland for giving me the opportunity to speak, but also to thank her 
for her extraordinary leadership on behalf of gender equality in our 
Nation. Senator Mikulski is no stranger to this issue. She has fought 
her entire life on behalf of equality for all people in this country. 
From her days as a social worker to her service on the City Council of 
Baltimore and now to the Senate, she has been our leader on speaking 
out for what is right on behalf of women, on behalf of all of the 
people of our Nation. So I thank Senator Mikulski very much for 
everything she has done, not just on this issue but on so many issues 
that affect equality for the people of our country.
  This has been an extraordinary week. On Monday we celebrated the life 
and legacy of Dr. Martin Luther King, Jr. Dr. King had a dream that 
everyone in this country would have the equal opportunity of this great 
land, regardless of race, religion, sexual orientation, or gender. He 
had a dream. Then, yesterday, we saw this Nation take a giant step 
forward in reaching that dream with the inauguration of Barack Obama as 
the 44th President of the United States. We can take another giant step 
forward now by passing the legislation that my colleague from Maryland 
is bringing forward, the Lilly Ledbetter Fair Pay Act. It is so 
important that we do this.

[[Page S701]]

  Let me give my colleagues some of the facts. They know this, but it 
is worth repeating. Today in the workplace women are being 
discriminated against. On average, women make 77 percent of what a male 
makes for the same work. That is unacceptable and inexcusable. We need 
to change that.
  Lilly Ledbetter worked for 19 years at Goodyear Tire Company. It was 
shown that she was making $15,000 less than her male counterparts were 
making in the United States of America. Well, we passed legislation to 
make sure that could not happen and that there were rights to protect 
women who were discriminated against by that type of action by an 
employer. Lilly Ledbetter did what was right. She filed her case and it 
was found that, yes, she was discriminated against, but guess what. Her 
claim was denied by the Supreme Court of the United States by a 5-to-4 
vote because she didn't bring her case within 180 days of the 
discrimination. She didn't know about the discrimination until a fellow 
worker told her about it, well past 180 days. She couldn't possibly 
have brought the case within 180 days.
  Now it is time for us to correct that Supreme Court decision, and 
that is exactly what the legislation Senator Mikulski has brought 
forward will do. It will reverse the Supreme Court decision giving 
women and giving people of this Nation an effective remedy if an 
employer discriminates based upon gender.
  I have listened to some of the debate on the floor. I don't want to 
see us put additional roadblocks in the way of women being able to have 
an effective remedy. I respect greatly my colleague from Texas. She is 
very sincere and a very effective Member of this body. However, I don't 
want to have lawyers debating whether a person can bring a claim, as to 
whether they had reasonable cause or try to think of what someone was 
thinking about at the time. This is very simple. If you discriminate 
against your employee, they should have an effective remedy. The 
Supreme Court turned down that remedy. The legislation that is on the 
floor corrects it. It is our obligation, I believe, to make sure that 
is done.
  So I wish to take these few moments to urge my colleagues to pass the 
legislation that is before us. Let's not put additional roadblocks in 
the way. Let's not pass amendments that will become ways in which 
employers such as Goodyear Tire could prevent their employees from 
getting fair pay. The time is now. Let's pass this legislation.
  I again congratulate my colleague from Maryland for her leadership on 
this issue.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The senior Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I thank my colleague for his eloquent 
and persuasive argument.
  I rise to debate with my colleague from Texas her amendment. Before I 
go into the Hutchison substitute amendment, I wish to clear up two 
misconceptions. The first misconception is that there have been no 
hearings on this bill; somehow or another this is a fast-track, jerry-
rigged, gerrymandered process. That couldn't be further from the truth.
  In 2008, we held two hearings on Ledbetter, one in January of 2008--
just about this time--in the Senate Health, Education and Labor 
Committee, which was a very active committee. Second, we also held a 
hearing in the Senate Judiciary Committee to get the extensive legal 
commentary. That hearing was held on September 23. There are those who 
would say, But that was the last Congress. Well, that was last year, 
but the relevant facts are the same. So there have been extensive 
hearings in the Senate and in the House. I believe we are following a 
framework for getting views through the regular process.
  Now, our new President, President Barack Obama, has said very clearly 
that he wants to create jobs in this country. If you don't have a job, 
you get a chance to get one, and if you do have a job, you get a chance 
to hold on to it. Additionally, he said that if you have a job or you 
are going to get a job, you will not face wage discrimination in the 
United States of America. That is why he wants not only in his first 
100 days, but in his first 10 days, to pass legislation that closes a 
loophole on wage discrimination.

  That takes me to the second misconception. The Lilly Ledbetter Fair 
Pay Act, which I am the lead sponsor of--but I wish to acknowledge the 
role of Senator Kennedy as the lead sponsor, and I am carrying this 
responsibility as a member of the committee. Now, the second 
misconception is that somehow or another the Fair Pay Act only deals 
with wage discrimination affecting women. Oh, no. It deals with wage 
discrimination affecting all people. So if you are discriminated 
against in your paycheck because of your race, ethnicity, religion, 
natural origin, or gender, this legislation will protect you. This 
loophole was created by the Supreme Court, and I will elaborate on that 
as well.
  So we followed hearings. This bill, as part of President Obama's hope 
for America, makes sure that when you get a job or you keep your job, 
you will never be discriminated against in your wages. So I wanted to 
clear up those two misconceptions.
  Now I wish to go to the Hutchison substitute. First, I wish to 
acknowledge the Senator from Texas, my truly very good friend, for her 
long-standing advocacy for women. We have worked together on a 
bipartisan basis for women. Her advocacy has been steadfast. She has 
been of particular help. We have worked together on the women's health 
agenda. We have mammogram standards in this country because of the 
Hutchison-Mikulski amendment. We have helped with breast cancer 
research funding because we have worked together, and I could give 
example after example.
  I also wish to acknowledge that the Senator from Texas herself was 
discriminated against in the workplace. Maybe later on in the debate 
she will share her own very compelling personal story. So I wish to 
acknowledge that.
  I also wish to acknowledge that we--the women of the Senate--can 
disagree, which she and I do tonight, without being disagreeable. There 
is no doubt that the Senator from Texas and I agree that we do not want 
wage discrimination against women. Where we disagree is not on the goal 
but on the means. She has her substitute, and I have, which I think is 
the superior framework, the Lilly Ledbetter Fair Pay Act. I wish to be 
clear that in this new Senate, we can offer amendments, we can have our 
shared goals, and we can do it in a way that is not prickly or 
rancorous and so on. So I wish to be able to say that. Although I 
disagree with her, my bill--the Kennedy-Mikulski bill--which has 54 
cosponsors, simply restores the law before the Supreme Court decision. 
It is a legal standard that nine separate decisions in front of courts 
of appeal agreed with.
  Let me elaborate. The Hutchison amendment acknowledges that the 
Supreme Court Ledbetter decision is unfair and it has closed the 
courthouse door for legitimate claimants. Unfortunately, Senator 
Hutchison's effort to fix Ledbetter's problem is flawed. I think it is 
a well-intentioned but misguided attempt. Her amendment will not fix 
the problem caused by the Ledbetter decision. In fact, review of her 
amendment leaves the core of the Ledbetter's harsh ruling intact, 
creating only a very narrow and vague exception. Moreover, the 
exception creates significant legal hurdles for those workers who try 
to take advantage of it.
  In the Ledbetter decision, the Supreme Court said an employee must 
challenge pay discrimination within 180 days of the employer's initial 
decision to discriminate or the employee will be forever barred from 
enforcing her rights. This decision gave employers a free pass to 
continue discrimination. By keeping in place the heart of the Ledbetter 
decision, the Hutchison amendment would allow such injustice to 
continue.
  The Senator from Texas says her amendment would bring balance to our 
antidiscrimination laws, but in reality it imposes a very unreasonable 
standard on workers--a standard that would be almost impossible for 
someone to meet.
  Under the Hutchison framework, a worker would have to prove not only 
that she did not know she was being discriminated against but also she 
``should not have been expected to have had enough information to 
support a reasonable suspicion of discrimination.''

[[Page S702]]

  How can workers prove what someone else expects of them? How does a 
worker prove a negative, that she didn't suspect that something in the 
workplace wasn't quite right? And--again quoting the Hutchison 
recommendation--what is a ``reasonable suspicion of discrimination''? 
That phrase, ``reasonable suspicion of discrimination,'' is vague, and 
fuzzy, and I am concerned would even add to the already legal burdens. 
There is no similar standard in any other discrimination law.
  Workers would have to prove they could meet this vague standard 
before they could even raise their allegations of discrimination. This 
means time and resources spent on what workers knew and when they knew 
it instead of on the conduct of unscrupulous employers.
  Even conservative commentators are worried about the Hutchison 
amendment. Andrew Grossman of the Heritage Foundation noted that the 
Hutchison amendment would fail to provide the certainty of a hard 
statute of limitations.
  By contrast, the Lilly Ledbetter Fair Pay Act would restore a bright 
line for determining the timeliness of pay discrimination claims. We 
know employers and workers can understand this rule and live with it 
because it was the law of the land in most of the country for decades 
prior to the Ledbetter decision. Our bill would simply put the law back 
to what it was before the Supreme Court upended the law.
  Although Senator Hutchison claims her amendment would protect 
employers from unreasonable lawsuits, it could cause an explosion in 
the number of lawsuits. If this amendment was adopted, workers would 
feel compelled to file claims quickly for fear that they would miss 
their statute of limitations. So the only way you can protect yourself 
is to file a claim because you might have a reasonable suspicion. Given 
the way women are treated in the workplace, you could have a reasonable 
suspicion every time you walk in somewhere. Workers have to run to the 
EEOC even if the only evidence of discrimination is rumor or 
speculation. This could create a very nasty and hostile work 
environment. Without any guidance of what constitutes a ``reasonable 
expectation'' or a ``reasonable suspicion'' of discrimination, workers 
will file a tremendous number of claims. That is just what we don't 
want to do. We want to return to the law.
  They say the Lilly Ledbetter Fair Pay Act is only going to cause an 
explosion of lawsuits, but it didn't before the Supreme Court decision. 
In fact, we now know the Lilly Ledbetter Fair Pay Act would not cause 
an increase in lawsuits because it gives the workers the time they need 
to consider how they have been treated and try to work out solutions 
with employers before they get into filing complaints and also 
lawsuits.
  You don't have to take my word for this. History proves it. The rule 
that workers can file claims within 180 days of receiving a 
discriminatory paycheck did not encourage any unreasonable number of 
lawsuits in the decade before the Ledbetter Supreme Court decision.
  We turned to CBO, again, a pretty cut-and-dry, button-down crowd. 
They said this bill would not increase claims filed with the EEOC or 
lawsuits filed in court, meaning the Lilly Ledbetter Fair Pay Act, not 
the Hutchison amendment.
  The best evidence the Hutchison amendment does not solve the problems 
caused by the Ledbetter decision is that the amendment would not have 
helped Lilly Ledbetter herself. Isn't that something. Under the 
Hutchison framework, this amendment would have tipped the scales of 
justice against her in favor of her law-breaking employer because it is 
virtually impossible to meet the reasonable expectation of a reasonable 
suspicion standard. Ms. Ledbetter would have been forced to spend all 
of her time and all of her money trying to prove that she had no reason 
to suspect discrimination before the EEOC or the courts could have even 
considered Goodyear's illegal and unfair treatment of her. 
Discrimination claimants face enough difficult hurdles. Brave workers, 
such as Lilly Ledbetter, do not need more disincentives to stand up for 
themselves and their rights.
  The Lilly Ledbetter Fair Pay Act is a bipartisan solution. It 
responds to the basic injustice of the Supreme Court Ledbetter v. 
Goodyear decision. I urge my colleagues to vote against the Hutchison 
amendment and vote for the Lilly Ledbetter Fair Pay Act.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Cantwell). The Senator from Texas.
  Mrs. HUTCHISON. Madam President, I was going to engage in a 
discussion with the Senator from Maryland. I see the Senator from 
Minnesota is in the Chamber. Is it OK to proceed?
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Madam President, I wish to talk about a couple of 
points that were made by the Senator from Maryland.
  First, I want to say how much I appreciate her talking about how much 
we have done together in the Senate for women. We have made significant 
legislation that has improved the lives of women. She mentioned many of 
the bills we cosponsored.
  The other one I want on the record, because I think it is so 
important for the homemakers of our country, is the homemaker IRA, 
which was the Hutchison-Mikulski bill that allows stay-at-home spouses, 
those who work inside the home, to put aside the same amount for 
retirement security that will accrue without being taxed as someone who 
works outside the home, which was not the case before Senator Mikulski 
and I passed our bill. It is one of the singular achievements, I think, 
in helping especially women who usually go in and out of the workplace 
to save, without being taxed every year, in a retirement account the 
same amount as if they work outside the home.
  We have worked together, and I know we will work together on many 
other issues. And I hope we will end up working together on this issue 
because we do have the same goal, and that is to provide a fair legal 
process for people to have the right to sue for discrimination and the 
employer that is accused to have the right of defense.
  I ask unanimous consent to print in the Record the report of the 
Heritage Foundation that was mentioned earlier.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Heritage Foundation, Jan. 7, 2009]

        The Ledbetter Act: Sacrificing Justice for ``Fair'' Pay

                        (By Andrew M. Grossman)

       Congressional leaders have said that they will fast-track 
     the Lilly Ledbetter Fair Pay Act, a bill that would allow pay 
     discrimination lawsuits to proceed years or even decades 
     after alleged discrimination took place. Proponents say that 
     the legislation is necessary to overturn a Supreme Court 
     decision that misconstrued the law and impaired statutory 
     protections against discrimination, but the Court's decision 
     reflected both longstanding precedent and Congress's 
     intentions at the time the law was passed.
       In addition, eliminating the limitations period on claims 
     would be bad policy. Since ancient Roman times, all Western 
     legal systems have featured statutes of limitations for most 
     legal claims. Indeed, they are so essential to the 
     functioning of justice that U.S. courts will presume that 
     Congress intended a limitations period and borrow one from an 
     analogous law when a statute is silent. While limitations 
     periods inevitably cut off some otherwise meritorious claims, 
     they further justice by blocking suits where defensive 
     evidence is likely to be stale or expired, prevent bad actors 
     from continuing to harm the plaintiff and other potential 
     victims, prevent gaming of the system (such as destroying 
     defensive evidence or running up damages), and promote the 
     resolution of claims. By eliminating the time limit on 
     lawsuits, the Ledbetter Act would sacrifice these benefits to 
     hand a major victory to trial lawyers seeking big damage 
     payoffs in stale suits that cannot be defended.
       The Ledbetter Act would also lead to myriad unintended 
     consequences. Foremost, it would push down both wages and 
     employment, as businesses change their operations to avoid 
     lawsuits. Perversely, it could actually put women, 
     minorities, and workers who are vocal about their rights at a 
     disadvantage if employers attempt to reduce legal risk by 
     hiring fewer individuals likely to file suit against them or 
     terminating those already in their employ.
       Rather than effectively eliminate Title VII's limitations 
     period, Congress could take more modest, less risky steps to 
     ease the law's restrictions, if such change is warranted. 
     Most directly, it could lengthen the limitations period to 
     two or three years to match the periods in similar laws. 
     Another option is to augment the current limitations period 
     with a carefully drafted ``discovery rule'' so that the time 
     limit on suing begins running only when an employee 
     reasonably suspects, or should reasonably suspect, that he or 
     she has been discriminated against.

[[Page S703]]

     While either of these options would sacrifice some of the 
     benefits of the current limitations period, they are far 
     superior alternatives to throwing the law wide open to stale 
     claims and abuse.


                           The Ledbetter Suit

       For all the rhetoric about the Supreme Court's Ledbetter 
     decision--the New York Times, for one, called it ``a blow for 
     discrimination''--it addresses not the substance of gender 
     discrimination but the procedure that must be followed to 
     assert a pay discrimination claim. Specifically, the case 
     presented only the question of when a plaintiff may file a 
     charge alleging pay discrimination with the Equal Employment 
     Opportunity Commission (EEOC), a prerequisite to suing.
       Lilly Ledbetter, who worked for Goodyear Tire and Rubber 
     Co. from 1979 until 1998 as a factory supervisor, filed a 
     formal EEOC charge in July 1998 and then a lawsuit in 
     November, the same month that she retired. Her claim was that 
     after she rebuffed the advances of a department foreman in 
     the early 1980s, he had given her poor performance 
     evaluations, resulting in smaller raises than she otherwise 
     would have earned, and that these pay decisions, acting as a 
     baseline, continued to affect the amount of her pay 
     throughout her employment. She said she had been aware of the 
     pay disparity since at least 1992.
       Initially, Ledbetter sued under the Equal Pay Act of 1963 
     (EPA) and Title VII of the Civil Rights Act of 1964, a more 
     general anti-discrimination statute. The EPA, unlike Title 
     VII, has been interpreted not to require proof that pay 
     discrimination was intentional but just that an employer paid 
     an employee less for equal work without a good reason for 
     doing so. For such claims, the EPA imposes a two-year statute 
     of limitations, meaning that an employee can collect 
     deficient pay from any discriminatory pay decisions made 
     during that period, whether or not the employer intended to 
     discriminate in any of those decisions. Title VII, while 
     imposing a shorter filing deadline of 180 days and requiring 
     proof of intent to discriminate, allows for punitive damages, 
     which the EPA does not. Perhaps for this reason, Ledbetter 
     abandoned her EPA claim after the trial court granted summary 
     judgment on it in favor of her former employer.
       On her Title VII claim, however, Ledbetter prevailed at 
     trial before a jury, which awarded her $223,776 in back pay, 
     $4,662 for mental anguish, and a staggering $3,285,979 in 
     punitive damages. The judge reduced this total award to 
     $360,000, plus attorneys' fees and court costs.
       Goodyear appealed, and the Eleventh Circuit Court of 
     Appeals reversed the decision on the grounds that Ledbetter 
     had not provided sufficient evidence to prove that an 
     intentionally discriminatory pay decision had been made 
     within 180 days of her EEOC charge. Ledbetter appealed to the 
     Supreme Court, challenging not that determination but only 
     the Court of Appeals' application of Title VII's limitations 
     period.
       In a decision by Justice Samuel Alito, the Supreme Court 
     held that the statute's requirement that an EEOC charge be 
     brought within 180 days of an ``alleged unlawful employment 
     practice'' precluded Ledbetter's suit, because her recent pay 
     raises were not intentionally discriminatory. Ledbetter 
     argued that the continuing pay disparity had the effect of 
     shifting intent from the initial discriminatory practice to 
     later pay decisions, performed without bias or discriminatory 
     motive. The Court, however, had rejected this reasoning in a 
     string of prior decisions standing for the principle that a 
     ``new violation does not occur, and a new charging period 
     does not commence, upon the occurrence of subsequent 
     nondiscriminatory acts that entail adverse effects resulting 
     from the past discrimination.'' For those familiar with the 
     law, this appeared to be a rehash of a 1977 case that reached 
     the same conclusion on identical grounds.
       Thus, the Court affirmed the lower decision against 
     Ledbetter.


                  The Purposes of Limitations Periods

       That result did not speak to the merits of Ledbetter's 
     case--that is, whether she had suffered unlawful 
     discrimination years before--but only to the application of 
     the statute's limitations period. Although it seems 
     intrinsically unfair to many that a legal technicality should 
     close the courthouse doors, statutes of limitations, as the 
     majority of the Court observed, do serve several essential 
     functions in the operation of law that justify their cost in 
     terms of barred meritorious claims. In general, limitations 
     periods serve five broad purposes.
       Justice Story best articulated the most common rationale 
     for the statute of limitations: ``It is a wise and beneficial 
     law, not designed merely to raise a presumption of payment of 
     a just debt, from lapse of time, but to afford security 
     against stale demands, after the true state of the 
     transaction may have been forgotten, or be incapable of 
     explanation, by reason of the death or removal of 
     witnesses.''
       Indeed, Ledbetter itself illustrates this function. 
     Different treatment, such as pay disparities, may be easy to 
     prove even after much time has lapsed, because the kinds of 
     facts at issue are often documented and, indeed, are rarely 
     in dispute. More contentious, however, is the defendant's 
     discriminatory intent, which Title VII requires in addition 
     to proof of disparate treatment. The evidence proving intent 
     can be subtle--for example, ``whether a long-past performance 
     evaluation . . . was so far off the mark that a sufficient 
     inference of discriminatory intent can be drawn.'' With the 
     passage of time, witnesses' memories may fade, stripping 
     their accounts of the details necessary to resolve the claim. 
     Evidence may be lost or discarded. Indeed, witnesses may 
     disappear or perish--the supervisor whom Ledbetter accused of 
     misconduct had died by the time of trial. Sorting out the 
     subtleties of human relationships a decade or more in the 
     past may be an impossible task for parties and the courts, 
     one at which the defendant, who did not instigate the suit, 
     will be at a particular disadvantage. This seems to have been 
     the case in Ledbetter.
       Statutes of limitations, in contrast, require a plaintiff 
     to bring his or her claim earlier, when evidence is still 
     fresh and the defendant has a fair chance of mustering it to 
     mount a defense. In this way, statutes of limitations also 
     serve to prevent fraudulent claims whose veracity cannot be 
     checked due to passage of time.
       Second, statutes of limitations also help to effectuate the 
     purposes of law. They encourage plaintiffs to diligently 
     prosecute their claims, thereby achieving the law's remedial 
     purpose. This is particularly the case for statutes such as 
     those forbidding discrimination in employment practices, 
     where Congress has created causes of action to supplement 
     government enforcement actions. Litigation under such 
     statutes is, in part, a public good, because the plaintiff in 
     a meritorious suit secures justice not just for himself but 
     for similarly situated victims, as well as the public at 
     large, which has expressed its values through the law. Anti-
     discrimination law is the archetypical example of an area 
     where private suits can promote far broader good. Other 
     victims and the public are best served when workers who 
     believe they have been subject to discrimination have the 
     incentive to investigate the possible unlawful conduct, 
     document it, and then challenge it in a timely fashion. 
     This was an explicit goal of the Civil Rights Act of 1964, 
     whose drafters reasoned that the short limitations period 
     and mandatory EEOC administrative process would lead most 
     discrimination complaints to be resolved quickly, through 
     cooperation and voluntary compliance.
       Third, time limits on filing lawsuits prevent strategic 
     behavior by plaintiffs. In some cases, plaintiffs may wait 
     for evidence favorable to the defense to disappear or be 
     discarded, for memories to fade and witnesses to move on, 
     before bringing claims. Particularly under laws that allow 
     damages continuing violations or punitive damages, plaintiffs 
     may face the incentive to keep quiet about violations as the 
     potential pool of damages grows. Concerns that plaintiffs 
     will game the system in this way are so prevalent that an 
     entire doctrine of judge-created law, known as ``laches,'' 
     exists to combat certain of these abuses. Laches, however, is 
     applied inconsistently, and courts often decline its exercise 
     in enforcing statutory rights. A limitations period puts a 
     limit on the extent to which plaintiffs can game the law by 
     delaying suit.
       Fourth, time-limiting the right to sue furthers efficiency. 
     Valuable claims are likely to be investigated and prosecuted 
     promptly, while most of dubious merit or value are ``allowed 
     to remain neglected.'' Thus, ``the lapse of years without any 
     attempt to enforce a demand, creates, therefore, a 
     presumption against its original validity, or that it has 
     ceased to subsist.'' Statutes of limitations, then, are one 
     way that our justice system focuses its limited resources on 
     the most valuable cases, maximizing its contribution to the 
     public good.
       Finally, there is an intrinsic value to repose. It promotes 
     certainty and stability. Putting a deadline on claims 
     protects a business's or individual's settled expectations, 
     such as accounting statements or income. At some point, 
     surprises from the past, in the form of lawsuits, cease to be 
     possible. As with adverse possession of land, the law 
     recognizes that, though a wrong may have been done, over time 
     certainty of rights gains value.
       For these important reasons, statutes of limitation are 
     ubiquitous in the law and have been since ancient Roman 
     times. Limitations periods necessarily close the courthouse 
     doors to some potentially worthwhile claims--an outcome so 
     harsh that it would be ``pure evil,'' observed Oliver Wendell 
     Holmes, if it were not so essential to the operation of law. 
     That a single good claim has been barred, then, proves not 
     that the deadline for suit is unfair or unwise but only that 
     justice cannot provide a remedy in every case.


                           The Ledbetter Act

       Nonetheless, editorial reaction to Ledbetter was swift and 
     almost entirely negative, with most writers drawing from 
     Justice Ginsburg's bombastic dissent (which she read in part 
     from the bench) calling the majority's reasoning ``cramped'' 
     and ``incompatible with the statute's broad purpose.'' 
     Ginsburg's logic, repeated on the opinion pages, and often 
     news pages, of countless newspapers, was that Ledbetter was a 
     member of a protected class (women), performed work equal to 
     that of the dominant class (men), and was compensated less 
     for that work due to gender-based discrimination. End of 
     story. Pay discrimination, Ginsburg argued, is different than 
     other forms of discrimination and is more akin to a ``hostile 
     work environment'' claim, which by its nature involves 
     repeated, ongoing conduct. But

[[Page S704]]

     this is creative reimagining of the statute: Nowhere in it is 
     there any room for the limitations period present in the 
     statute or indeed any of the other requirements that Congress 
     crafted.
       Unfortunately, though, it was Ginsburg's dissent, and her 
     unseemly urging that ``once again, the ball is in Congress' 
     court,'' that spurred the drafters of the Lilly Ledbetter 
     Fair Pay Act, which was introduced soon after the Court 
     issued its decision and passed the House in short order. The 
     bill would adopt Ginsburg's view, amending a variety of anti-
     discrimination laws to the effect that a violation occurs 
     ``each time wages, benefits, or other compensation is paid'' 
     that is affected by any discriminatory practice. In this way, 
     the law would simply eliminate the limitations period as 
     applied to many cases.
       Under the Ledbetter Act, employees could sue at any time 
     after alleged discrimination occurred, so long as they have 
     received any compensation affected by it in the preceding 180 
     days. While this would certainly reverse Ledbetter, it goes 
     much further by removing any time limitation on suing in pay-
     related cases, even limitations relating to the employee's 
     learning of the discrimination--an approach that is known in 
     other contexts, such as fraud, as a ``discovery rule.'' This 
     new rule is also broader in that it would apply to any 
     (alleged) discrimination that has had an (alleged) effect on 
     pay, such as an adverse promotion decision. In addition, 
     retirees could bring suits alleging pay-related 
     discrimination that occurred decades ago if they are 
     presently receiving benefits, such as pensions or health 
     care, arguably effected by the long-ago discrimination.
       In these ways, the Ledbetter Act would allow cases 
     asserting extremely tenuous links between alleged 
     discrimination and differences in pay, which may result from 
     any number of non-discriminatory factors, such as experience. 
     Employers would be forced to defend cases where plaintiffs 
     present evidence of a present wage gap, allegations of long-
     ago discrimination, and a story connecting the two. As wage 
     differences between employees performing similar functions 
     are rampant--consider how many factors may be relevant to 
     making a wage determination--a flood of cases alleging past 
     discrimination resulting in present disparity would likely 
     follow passage. In addition to investigatory and legal 
     expenses, employers will face the risk of punitive damages 
     and the difficulty of rebutting assertions of discriminatory 
     acts from years or decades ago.
       The flood of lawsuits would not be endless, however, 
     because, as Eric Posner observes, employers can be expected 
     to change their hiring, firing, and wage practices to reduce 
     the risk of lawsuits. To the extent that disparities in 
     treatment are the result of discrimination, this may undercut 
     its effects. But if, as Posner puts it, businesses ``start 
     paying workers the same amount even though their productivity 
     differs because they fear that judges and juries will not be 
     able to understand how productivity is determined,'' the law 
     would impose significant costs on businesses and, by 
     extension, consumers and the economy. The result would be a 
     hit to employment and wages, combined with higher prices for 
     many goods and services.
       Perversely, the Ledbetter Act may actually harm those it is 
     intended to protect. In making employment decisions, 
     businesses would consider the potential legal risks of hiring 
     women, minorities, and others who might later bring 
     lawsuits against them and, as a result, hire fewer of 
     these individuals. Even though this discrimination would 
     violate the law, it would be difficult for rejected 
     applicants to prove. Other employers might simply fire 
     employees protected by Title VII--and especially those who 
     are vocal about their rights under the law--to put a cap 
     on their legal liabilities. Again, this would be illegal, 
     but difficult to prove.
       These kind of unintended consequences have been a chief 
     effect of the Americans with Disabilities Act, which 
     prohibits discrimination against individuals with 
     disabilities and enforces that prohibition through civil 
     lawsuits. Today, the disabled earn less and work far less 
     than they did prior to enactment of the ADA, and a number of 
     economists, including MIT's Daron Acemoglu, blame the ADA for 
     reducing the number of employment opportunities available to 
     the disabled. In this way, by dramatically increasing 
     employers' exposure to potential liability when they hire 
     members of protected classes, the Ledbetter Act would put 
     members of those classes at a disadvantage in the labor 
     marketplace.


                     Big Payoffs for the Trial Bar

       It is difficult to explain the hue and cry from parts of 
     the bar that accompanied Ledbetter, given that the plaintiff 
     clearly could have proceeded under the Equal Pay Act without 
     running into a limitations period problem. One explanation is 
     that Title VII, unlike the EPA, allows for punitive damages 
     in addition to several years' worth of deficient pay. Had she 
     proceeded under the EPA and prevailed, Ledbetter would have 
     received deficient pay going back two or three years prior to 
     filing a charge with the EEOC--about $60,000 according to the 
     trial court. But under Title VII, the case was worth six 
     times that amount, due to a large punitive award.
       That result becomes all the more alluring to the 
     plaintiff's bar when one considers the possibility of follow-
     on lawsuits and, in limited instances, class actions. A 
     single legal victory against an employer could provide the 
     fodder for scores of lawsuits by similarly situated employees 
     and former employees receiving benefits, each alleging a 
     pattern of discrimination affecting pay, as evidenced by the 
     previous lawsuits. In this way, each lawsuit becomes easier 
     and cheaper to bring than the last. Employers, then, would 
     face the choice of fighting every suit with all their might--
     because any loss could lead to scores more--or agreeing to 
     generous settlements, even in marginal cases, to avoid the 
     risk of high-stakes litigation.
       This may account for the trial bar's keen interest in the 
     Ledbetter Act--it is among the top priorities of the American 
     Association for Justice (formerly the American Trial Lawyer's 
     Association)--despite the existence of other, less attractive 
     statutory remedies for those who are the victims of recent or 
     continuing discrimination or unjustified pay disparities.


                            Safer Solutions

       It is true, as proponents of the Ledbetter Act have noted, 
     that the statute of limitations for Title VII is shorter than 
     most others. There are good reasons for this, though, 
     considering the context in which it was drafted. Chief among 
     them, many Members of Congress, when they considered the 
     Civil Rights Act of 1964, feared that businesses would be 
     overwhelmed with litigation. Others favored voluntary 
     conciliation over litigation. Some might have been concerned 
     that evidence of discriminatory intent would fade away if the 
     limitations period were too long. A relatively brief 
     limitations period certainly satisfies these concerns.
       But if Congress believes that it is too short, it has far 
     less drastic and disruptive options at its disposal than 
     effectively eliminating the limitations period altogether. It 
     could, quite simply, extend the period to two or three years 
     to match the EPA. This would give employees more time to 
     uncover possible discrimination and seek remedies, without 
     allowing a flood of lawsuits premised on aged grievances. 
     There is also more logic to matching the more specific 
     statute's limitations periods than leapfrogging it so 
     dramatically.
       Another option was proposed in the last Congress as the 
     ``Title VII Fairness Act'' (S. 3209, 110th Cong.). This 
     legislation would maintain the current limitations period but 
     augment it with a ``discovery rule'' so that the period 
     begins running only when the employee reasonably suspects, or 
     should reasonably suspect, that he or she has been 
     discriminated against. This approach has the benefit of 
     encouraging employees to investigate and take action on 
     worthwhile claims, while keeping many stale claims out of 
     court. Some courts, however, might twist this looser rule to 
     allow stale claims brought by sympathetic plaintiffs, such as 
     Lilly Ledbetter, who learned about the possible 
     discrimination fully six years before filing a charge. It 
     would also undermine, somewhat, the clear bright-line rule 
     that a hard statute of limitations provides. Nonetheless, 
     this approach would provide far more certainty, and prove far 
     less disruptive, than eliminating the limitations period.


                            A Perfect Storm

       It was a surprise to many legal observers a year and a half 
     ago that the Ledbetter case--an unremarkable application of a 
     rule settled 20 years prior--would attract any interest at 
     all. But on closer examination, the course of events leading 
     up to the Supreme Court's decision, and the reaction since, 
     have not been by chance but by design, part of a ``perfect 
     storm'' orchestrated by trial lawyers, wrongheaded civil 
     rights organizations, and labor groups to achieve a radical 
     shift in employment law. These special interests have an 
     extensive agenda planned for the current Congress. Yet 
     Members should consider each plank of it on the merits.
       Far beyond reversing the result of a single Supreme Court 
     decision--one that, viewed fairly, was consistent with 
     precedent and fairly represented Congress's intentions--the 
     Lilly Ledbetter Fair Pay Act would open the door to a flood 
     of lawsuits, some frivolous, that employers would find 
     difficult or impossible to defend against, no matter their 
     ultimate merit. Rather than help employees, the bill could 
     end up hurting them by reducing wages and job opportunities--
     at a time when unemployment is rising and many are nervous 
     about their job prospects. Instead, Congress should recognize 
     that statutes of limitations serve many important and 
     legitimate purposes and reject proposals that would allow 
     litigants to evade them.

  Mrs. HUTCHISON. Madam President, it is very important that we have 
the whole legal memorandum on the Ledbetter Act and my substitute 
amendment. I want to read a couple of paragraphs from it. The Heritage 
Foundation report says:

       Another option was proposed in the last Congress--

  My bill--

     as the ``Title VII Fairness Act.'' This legislation would 
     maintain the current limitations period but augment it with a 
     ``discovery rule'' so that the period begins running only 
     when the employee reasonably suspects, or should reasonably 
     suspect, that he or she has been discriminated against. This 
     approach has the benefit of encouraging employees to 
     investigate and take action on worthwhile claims, while 
     keeping many stale claims out of court. Some courts, however, 
     might twist the looser rule to allow stale claims brought by 
     sympathetic plaintiffs, such as Lilly

[[Page S705]]

     Ledbetter, who learned about the possible discrimination 
     fully six years before filing a charge. It would also 
     undermine, somewhat, the clear bright-line rule that a hard 
     statute of limitations provides. Nonetheless, this approach 
     would provide far more certainty, and prove far less 
     disruptive, than eliminating the limitations period.

  Which the underlying bill does. I added for emphasis those last 
words.
  It goes on to say:

       Far beyond reversing the result of a single Supreme Court 
     decision--one that, viewed fairly, was consistent with 
     precedent and fairly represented Congress's intentions--the 
     Lilly Ledbetter Fair Pay Act would open the door to a flood 
     of lawsuits, some frivolous, that employers would find 
     difficult or impossible to defend against, no matter their 
     ultimate merit. Rather than help employees, the bill could 
     end up hurting them by reducing wages and job opportunities--
     at a time when unemployment is rising and many are nervous 
     about their job prospects. Instead, Congress should recognize 
     that statutes of limitations serve many important and 
     legitimate purposes and reject proposals that would allow 
     litigants to evade them.

  The full reading of this legal memorandum by the Heritage Foundation, 
I think, makes the case for my substitute as the right approach, giving 
more rights to the plaintiff but not eliminating or discriminating 
against the business to defend itself.
  Let me make two points. My amendment codifies the employee's right to 
establish what he or she didn't know. It is so necessary that we have 
this right, and it is necessary to know when the person should have 
known and make that part of the record. Otherwise, it would allow a 
person to knowingly sit on a claim, to run up the amount that might be 
added to the discriminatory act in punitive damages. That should not be 
a part of our legal system.
  There is one other point I want to make about the Supreme Court case 
that the Mikulski bill will overturn.
  The Supreme Court separated a discriminatory pay policy from a single 
discriminatory act. That was their intention. It is the law today, and 
it would be the law under my substitute, that if there is a policy of 
discriminatory pay, every paycheck would be a discriminatory act. So it 
would continue if it were a policy. That is the law, and it should be 
the law, and it will be the law if my substitute is adopted.
  What the Supreme Court did in the Ledbetter case was say when it is a 
single act of discrimination, not one that is discriminatory in policy, 
that should have a statute of limitations. But perhaps we could have a 
reasonable rebuttable presumption that the person should have known, 
and when the person brings the claim, that person can establish: I 
could not have known because we weren't allowed to talk about our pay. 
That could be a reason the court would say is legitimate, and it would 
uphold the statute of limitations.
  The Senator from Pennsylvania was here earlier. He has several 
amendments. The Senator from Wyoming, Mr. Enzi, has an amendment. I 
think we can make this a good bill that everyone will think is fair, 
that will give more rights to the plaintiff but does not keep the 
defense from having a fair chance to defend the business. And I believe 
that is the right approach.

  I hope we can pass my substitute. I hope we can continue to work on 
this bill so that everyone will feel good about voting for it and our 
businesses won't be subject to a lawsuit 10 years after an act is 
alleged to have occurred and have a bill run up, when maybe if we have 
a statute of limitations that is reasonable and you have the ability to 
bring it, it could even be settled right then and there so that the 
employer is not going to have a big expense that might even close the 
business and lay off more people, which is not a result any of us would 
want. So I hope we can write the law carefully to avoid that 
eventuality.
  Madam President, I yield the floor.
  Ms. MIKULSKI. Madam President, I know the Senator from Minnesota 
wishes to speak, and I also know the Senator from New Jersey is here. I 
believe we are going to turn next to the Senator from New Jersey.
  Madam President, while the Senator from New Jersey, who just arrived, 
is still organizing, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. MENENDEZ. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MENENDEZ. Madam President, is there a time limitation?
  The PRESIDING OFFICER. There is not.
  Mr. MENENDEZ. Madam President, I rise today to support the Lilly 
Ledbetter Fair Pay Act in order to defend the Civil Rights Act of 1964 
and to protect all Americans from the evils of discrimination.
  Yesterday, millions of Americans rejoiced as Barack Obama was sworn 
in as the 44th President of the United States. Hope for a more 
inclusive America, a more unified America, a more just America swept 
across this land from our biggest cities to our smallest towns. There 
was a sense of wonder that someone who wouldn't have been allowed to 
eat in certain restaurants or drink from certain water fountains over 
40 years ago had just become the freely elected leader of the greatest 
country on Earth. We should be incredibly proud of the progress we have 
made since the errors of slavery and Jim Crow.
  But while we believe our Union can be perfected, we know it still 
isn't perfect. We know that equal opportunity and impartial justice for 
all have yet to be attained. And we know what the consequences are, 
for, as Dr. King so eloquently put in his letter from a Birmingham 
jail, ``Injustice anywhere is a threat to justice everywhere.''
  Despite the progress we have made, we live in a country where women 
still earn 78 cents for every dollar a man makes, where African 
Americans earn only 80 cents for every dollar a White man makes and 
Latinos earn only 68 cents for every dollar a White man makes. Our 
country, therefore, is still far from perfect.
  Today, the Senate has a historic opportunity to narrow the gap 
between our ideals and our practices. We have the opportunity to say 
that women should be treated the same as men. We have the opportunity 
to say that people should be fairly paid for their labor. We have the 
opportunity to loudly proclaim in a unified voice that discrimination 
will not be tolerated in America.
  As of last year, after a misguided Supreme Court decision overturned 
what had been the law of the land for decades, a worker can't bring an 
action for wage discrimination if the original decision to discriminate 
happened more than 180 days beforehand. The Supreme Court said 
employers can get away with discrimination if they hide it long enough, 
even though the effects of that bigotry have no expiration date.
  The Lilly Ledbetter Fair Pay Act would recognize the long-term, 
continuous, systemic discrimination as it really is and not let 
offending companies get away with it through loopholes and 
disinformation. If a woman sees her wages continuously fall behind 
those of her male counterparts or a worker gets paid a wage far lower 
than the company average just because she is Black, they should be able 
to challenge their employers even if the original decision to 
discriminate was made years ago.
  Narrowly defining discrimination as merely the original decision to 
discriminate makes no sense at all. Let's say, for example, that a 
criminal hacks into your bank account and decides to steal a portion of 
your paycheck every 2 weeks. If we were to apply a precedent similar to 
the Ledbetter case, if the hacker doesn't get caught 180 days after the 
initial decision to hack in, he can keep stealing forever with no fear 
of prosecution. Current discrimination law makes about that much sense.
  Now, some of my colleagues on the other side of the aisle will ask 
why workers often don't file their claim within 180 days from the first 
instance of discrimination. Well, there are several reasons. To begin 
with, workers generally find it difficult to compare their salaries to 
coworkers, and many businesses actually prohibit it. Even if a worker 
sees her pay is lower than her coworkers, she might not recognize it 
was a result of discrimination. And if workers do recognize it as 
discrimination, they often wait to contact the EEOC--the Equal 
Employment Opportunity Commission--or decide not to due to feeling 
ashamed or more often they fear retaliation by their company.

[[Page S706]]

They fear the consequences of ``rocking the boat'' and figure a job in 
which they are discriminated against is better than being fired and 
having no job at all. And certainly, in these incredibly tough economic 
times, that is a rising reality. To make matters worse, skyrocketing 
unemployment rates have only put these vulnerable workers in a more 
precarious and often helpless position.
  Some of my Republican colleagues will also argue that this 
legislation will open the floodgates, leading to thousands of lawsuits 
claiming wage discrimination. But this argument simply has no merit. 
For over 40 years, the courts have interpreted the Civil Rights Act of 
1964 to be consistent with the Lilly Ledbetter Fair Pay Act. Eight out 
of nine appellate courts interpreted it that way, and yet there was no 
flood of litigation then, nor will there be after we enact this vital 
piece of legislation into law.
  Some of my conservative colleagues will argue that this legislation 
will make companies liable for decades of backpay and will encourage 
workers to intentionally delay and file claims years later when those 
accused might no longer be around to defend themselves. Again, these 
arguments simply ignore the facts. Under this legislation, backpay 
would be capped at 2 years regardless of how long the victim was 
discriminated against and the burden to prove discrimination took place 
is borne by the worker. Any lack of witnesses available to testify 
would only hurt the worker's efforts to prove their case.
  Critics who say this legislation will cripple businesses miss the 
point. The fact is that companies following the law are currently put 
at a competitive disadvantage compared to those who exploit their 
workers. The executive director of the U.S. Women's Chamber of 
Commerce--a strong business advocacy group--succinctly noted:

       The Lilly Ledbetter Fair Pay Act rewards those who play 
     fair--including women business owners--unlike the Supreme 
     Court's decision, which seems to give an unfair advantage 
     to those who skirt the rules.

  So we have a strong business advocacy group saying treat those who 
are obeying the law as it was intended and as it, in fact, has been 
pursued for over four decades in a way that doesn't put them at a 
competitive disadvantage. The vast majority of businesses that practice 
legal hiring procedures will not have to change anything and will no 
longer be punished for doing the right thing.
  Wage discrimination is real. The Fair Pay Act would strike a clear 
blow against it. So we have to make sure to keep the legislation 
strong. Unfortunately, I am afraid the amendment offered by our 
colleague from Texas, Senator Hutchison, would severely undermine it. 
That amendment would require people to prove they had no reason--no 
reason--to suspect their employer was discriminating against them in 
180 days. The amendment is pretty confusing just on its face. I have to 
ask, how does an employee prove she doesn't suspect discrimination? And 
when should she have to? In general, I don't see how it is relevant 
whether a victim suspects discrimination; the issue is whether there is 
discrimination. If it is happening, it has to be stopped, plain and 
simple. You can't ultimately be in a position in which you are allowed 
to discriminate and get away with it. If we send that message in our 
society, then all the progress we have made will be rolled back.
  Madam President, I would like to believe that every Member of this 
body champions principles of equality, justice, and liberty as much as 
I do. But principles are meaningless without practice. Without 
vigilantly ensuring that no person is discriminated against because of 
their gender, their race, their religion, their ethnicity, or their 
sexual orientation, our principles become just empty words.
  I would like to remind my colleagues that inaction on this issue is 
akin to tacit acceptance. And as Dr. King said:

       We will remember not the words of our enemies but the 
     silence of our friends.

  I urge my colleagues to remember those wise words and put their votes 
where their values are by supporting this vital piece of civil rights 
legislation.
  I thank my distinguished colleague from Maryland for leading the 
charge. She has been an exceptional fighter on this issue, and I know 
she will soon see the fruits of her labor, not for herself and her 
advocacy but for millions of women, Latinos, and African Americans who 
find themselves discriminated against and who deserve the ability for 
all to be able to enjoy the fruits of their labor without such 
discrimination.
  Madam President, I thank my distinguished colleague from Minnesota 
for allowing me to move forward in this time, during this process, and 
I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Madam President, I am proud to join with Senator 
Mikulski and so many others in calling for the Senate to take up and 
pass the Lilly Ledbetter Fair Pay Act and to do it as soon as possible.
  Many here have told Lilly Ledbetter's story, so I am not going to go 
through it again. But I will tell you, sometimes when you get to know 
someone, as I have gotten to know Lilly Ledbetter as a person, it means 
more to you. It is like when someone is arguing against a change in the 
law, and they suddenly find it happens to their own wife or their own 
daughter, they start to feel a little differently about it. So that is 
why I believe it is very important to do this and to make this as 
simple as possible and as easy as possible in order to make sure there 
is not discrimination in the workplace, because it is a sad reality, 
that still, 88 years after the 19th amendment gave women equal voting 
power, and 45 years after the passage of the Equal Pay Act, it still 
takes women 16 months to earn what men can earn in 12 months.

  I have been listening to some of the arguments made today. I was 
picturing what would happen if, in fact, that Supreme Court decision 
stayed in place, which basically said that you are supposed to somehow 
figure out you are being discriminated against. It says it doesn't 
matter if you knew or not. If it happens, you have to sue right away. I 
was thinking how that would work in reality, how you are supposed to 
find out and how Lilly Ledbetter was supposed to find out. It would be 
as if Senator Menendez and I worked in the same company and we were 
doing the same job and both doing it well and he was paid more than I 
was. How would you know that, if you are an employee at a workplace? 
Are you supposed to start snooping through their paychecks and opening 
them and trying to figure out how much he is paid? I don't think a 
normal person would do that.
  Are you supposed to start getting to know the people who work around 
him to find out how much money he makes, see if he told anyone, start 
asking around about your fellow employee? This doesn't make sense in 
the real world workplace, and it certainly, as has been pointed out, is 
not consistent with 40 years of law in this area.
  Today we have before us the Hutchison amendment. I appreciate the 
work of Senator Hutchison in so many areas, how the women of the Senate 
work on a bipartisan basis, but I believe in the end this amendment is 
wrong. What this amendment basically says is you are not going to be 
able to bring any kind of claim of discrimination, even a valid one, 
without having to go through a bunch of hoops and dot a bunch of I's 
and cross a bunch of T's that is very hard to do. Again, if you want to 
make sure this discrimination doesn't take place, make it a clear rule, 
make it a bright-line rule, as we do in so many other employment cases.
  Under the Hutchison amendment, our workers are subject to that 
Supreme Court decision in Ledbetter, unless they can prove they had no 
reason to suspect that their employer was discriminating against them.
  Again, I believe this is done for good motives, in the spirit of some 
kind of compromise. But, again, I try to look at the real world and 
think: How would you be able to prove this? Maybe things happen in the 
real world, maybe one of your work colleagues--if Senator Menendez and 
I were working in the same factory and maybe someone else, maybe you, 
the Presiding Officer, also worked there and maybe sometime at a coffee 
break you said: You know, I think he is making more money than you are, 
and it goes away and nobody talks about it. Would that be enough? Would 
that be enough to show a suspicion that you thought you were being

[[Page S707]]

discriminated against, that he was making more money?
  What if he bought a new car, a nice new car. He is driving around in 
that nice car and people are starting to think: I wonder if he got a 
raise. Is that a suspicion that he is making more money? What if you 
just think he is making more money and you tell one person on the 
phone, but you don't know for sure?
  When you start thinking this through, you realize why this standard, 
this ``reasonable suspicion'' standard, doesn't appear in our 
employment statutes. It is because it is simply unworkable as a 
standard, despite the good motivation to try to come up with some 
understanding, some kind of compromise. It doesn't make any sense. It 
is based on rumor.
  I believe there are enough rumors around this place without starting 
to put them into law. A rumor starts somewhere. It changes someplace 
else. By the time it comes back to you, it is totally different, and I 
would rather not write rumors and suspicions into the law. I prefer a 
bright-line rule.
  As has also been mentioned by some of my colleagues, we have not seen 
this unfair rush of litigation under the existing law. In fact, under 
this, if you have suspicions, it would force you to try to rush to file 
your claim. I think a good argument could be made--we don't know for 
sure, but a good argument could be made it would actually lead to more 
claims. This idea that it would force a worker, put the burden on the 
worker to spend time and money trying to meet this complicated standard 
that does not appear anywhere else in the law deprives employers and 
employees of a clear bright-line rule for determining the timeliness of 
claims.
  I know from my work in the private sector for 13 years, people prefer 
bright-line rules. It makes it easier for everyone.
  One of the arguments made is that somehow this would allow some 
raving employee, some mad employee to go back--they would simply hide 
their case so no one would know about it so they could keep getting 
backpay. This argument defies the actual rules. What are the actual 
rules? It says you can go back for only 2 years. Look what happened in 
the Lilly Ledbetter case. She went to her trial. The jury awarded her a 
big amount, but then it had to be reduced because the law acknowledged 
this, the argument made of the difficulty, and said you can only go 
back for 2 years. The law also has caps on damages for major employers. 
I think it is something like $300,000. There are caps. There are look-
back rules that get to the argument that was made here. You can see it 
right in the Ledbetter case, if you do not believe me. The money was 
reduced because of those rules that are in place.
  Why suddenly we would put in a standard that we do not have in the 
law today, when, in fact, we have that 2-year backpay rule to protect 
against exactly the arguments that were being made, and we have caps in 
place?
  The Lilly Ledbetter Fair Pay Act is the only bill that gives 
employees the time to consider how they have been treated and try to 
work out solutions with their employers. That often happens. We 
encourage that. We would like that to happen. You don't want everyone 
running into court. It fulfills Congress's goals, creating incentives 
for employers to voluntarily correct any disparity in pay they find, 
and it ensures that employers do not benefit from continued 
discrimination. That is all it does. It is simple.
  Let me tell you a little story from the State of Minnesota to end 
here, why I care about this so much. That is that my grandpa was a 
miner up in northern Minnesota. He worked hard his whole life. He never 
graduated from high school, saved money in a coffee can to send my dad 
to college. He worked hard in those mines. It was a rough-and-tumble 
world up in the mines of northern Minnesota.
  In the mine next door to where my grandpa worked, there were a number 
of women--decades later, after my grandpa worked there--who started 
working in the mines. It was not an easy life. If anyone has seen the 
movie ``North Country,'' that was the basis of the movie. It happened 
in the mines. My relatives were right next door.
  The women there were discriminated against. I am not sure of all the 
details. Maybe some of it was pay, but some of it was just 
discriminatory treatment. It went on and on. It was an example, if you 
have seen that movie, of how difficult it was for them to get the 
gumption to stand and finally file suit because they liked these guys. 
They were their coworkers. They worked with them. They wanted to fit in 
and they tried so hard. Eventually, they brought a lawsuit, but it took 
time for them to be able, in that hard, rough-and-tumble world of those 
iron ore mines, to bring that lawsuit.
  They eventually did and they eventually won that suit at great 
personal sacrifice to them, as documented in that movie, ``North 
Country.''
  Things changed as a result of that lawsuit at the mines. It was not a 
popular thing they did. It is not even popular right now. But things 
changed in those mines. When I ran for the Senate, the first 
endorsement I got was from the United Steelworkers. The guy who gave it 
to me was the guy who was the union steward, the same guy, Stan 
Daniels, at that mine at that time, that was the subject of the 
lawsuit.
  I got elected the first woman Senator from Minnesota. The world 
changes. That is why this bill is so important, to maintain that right 
of workers. I know in my State there is lots of the discriminatory 
treatment going. The world changes as people realize and understand the 
law and employers are educated on the law, but we still need that 
safety valve in place. We still need those protections in place so 
workers can get paid fair pay for what they do.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. Madam President, we are awaiting the arrival of the 
distinguished ranking member of the Health, Education, Labor, and 
Pensions Committee because he wishes to offer an amendment this 
evening. We wish to accommodate him. The Senator from Wyoming has been 
the soul of civility on this issue and has helped us to move the bill 
thus far. But it is our intention to ask all speakers to come now 
because the Senator from Texas and I would like to be able to conclude 
this debate for this evening--not to conclude the debate, but for this 
evening--around 7. I am not making a unanimous consent request, I just 
wish to put a few things out there.
  While we are waiting for the arrival of our colleague from Wyoming, I 
would like to have printed in the Record an excellent monograph put out 
by the National Women's Law Center on the Hutchison amendment. It is a 
very lawyer-like paper, but it is also done in plain English. That 
outlines some of the real issues the Hutchison substitute could 
present.
  I ask unanimous consent that this paper in its entirety be printed in 
the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Ms. MIKULSKI. Just to give a few highlights, they advise us that the 
Hutchison bill allows clear pay discrimination to continue without a 
remedy. That is why we are doing this Lilly Ledbetter Fair Pay Act in 
the beginning. They make that point because they say:

       The Hutchison bill prevents employees from challenging 
     discrimination to which they continue to be subject. [It] 
     perpetuates the basic problem created by the Ledbetter 
     decision.

  That is what I argued earlier in the evening.

       Under the bill, employers are left without any remedy 
     against present and continuing pay discrimination if they do 
     not file a government complaint within 180 days of the first 
     day when they ``have or should be expected to have'' enough 
     information to suspect discrimination.

  One of the main arguments, the differences we have with our colleague 
from Texas, is the should have, we should have, we should have known--
how should you have known?
  When you go into a workplace, one of the few things that is not 
discussed is pay. I commented in an earlier debate, you can talk about 
anything in the workplace. You can talk about religion at the water 
cooler. You can talk about politics at the Xerox machine. But you 
cannot talk about pay. This could have, should have--we don't want to 
have a framework where everyone who has been discriminated against by 
our culture and by our practice in the

[[Page S708]]

workplace goes into a new job with a chip on their shoulder. We are 
going to presume people are fair-minded. That is the way most people 
show up every day. This Hutchison amendment, could have, would have, 
should have, I think is going to create a nightmare. It is going to do 
exactly what the Senator doesn't want. I think it is going to generate 
more lawsuits and not only more lawsuits but more lawyers arguing about 
could have or should have suspected.

       The Hutchison bill permits employers to escape 
     accountability for continuing pay discrimination. Like the 
     Ledbetter decision, the Hutchison substitute immunizes an 
     employer from any challenge to pay discrimination, even where 
     the employer continues to profit from it. Under the Hutchison 
     bill, an employer is off the hook for, and can continue to 
     gain a windfall from, continued pay discrimination. . . .

  You know, when you discriminate, you don't usually just discriminate 
against one person in the company. It is usually more than one--others. 
Again, we are back to this would have, should have, could have.

       The Hutchison bill deprives employees of the chance to 
     assess the extent of the discrimination and work voluntarily 
     with their employers to address any disparities.
       [It] forces employees to forfeit their claims if they take 
     the time to work out disputes amicably.

  That is exactly what we want. We want to be able to work out disputes 
amicably, to go to maybe some alternative dispute resolution 
mechanism, have time to find out the facts: What is the situation? 
Particularly because pay disparity may start small and grow over time. 
Employees may want to give their employers the benefit of the doubt 
hoping the employers will voluntarily remedy that gap or may want to 
work actively with the employer to resolve the dispute. This is 
especially true for employees new on the job. The Hutchison amendment 
denies employees this opportunity, forcing them from the get-go to file 
adversarial Government complaints immediately upon suspecting 
discrimination or risk losing the right to any relief.

  Now, not only is this bad law, it is bad policy, and it is going to 
be bad budget. I chair the Appropriations Committee which funds the 
EEOC. Under the administration that left town, they were revenue 
starved. They have a tremendous backlog right this minute of a variety 
of discrimination cases. Some were wages, some dealing with gender or 
race or ethnicity or religion. Many of those workers really feel under 
siege with the workload they are going to carry. Under the Hutchison 
amendment, as soon as you walk into your workplace and you have a 
whiff, a rumor, gossip, or, oh, gee, wonder what is going on, then you 
have to run right to the EEOC and file a complaint.
  I do not think that is good common sense. It sure is not good money 
sense from the strain it is going to put already on an overburdened 
EEOC. I think we are headed in the wrong direction.
  This Hutchison bill creates burdensome and expensive, time-consuming 
distractions from the fundamental issue of whether an employee has been 
subject to pay discrimination. I fear that the Hutchison bill will 
increase the number of lawsuits filed against employers, and it is 
going to result in very protracted and very expensive minitrials in 
those cases that are brought.
  We want to get into making sure we end wage discrimination. This bill 
will result in confusion for the courts and for employers. This bill 
rejects the bright-line familiar rule in effect before the Ledbetter 
decision in favor of a standard that raises numerous thorny legal and 
factual issues.
  I like the Ledbetter Fair Pay Act, which is my bill, and also is 
sponsored by 54 other Members of the Senate which simply restores the 
familiar role for assessing the timeliness of discrimination claims 
that prevailed in virtually every court in this country prior to the 
Ledbetter decision. The Hutchison bill creates an entirely new legal 
regime.
  The bill raises innumerable questions, including when an employee 
could have been found to have a ``reasonable suspicion of 
discrimination.''
  Madam President, I have more arguments to make, but at the end of the 
day, why is the Lilly Ledbetter Fair Pay Act so excellent? Well, the 
bill from the viewpoint that I am advocating and the legislation that I 
am sponsoring would give employees the time to evaluate their 
suspicions of discrimination and work toward solutions with their 
employers, including voluntarily.
  It would ensure that employers are held accountable for continued 
discrimination and, most of all, it would provide certainty in 
assessing the timeliness of pay discrimination claims and restore the 
law before the outrageous Supreme Court decision.
  Congress should reject the approach of the Hutchison bill and instead 
act expeditiously to enact the Lilly Ledbetter Fair Pay Act.

                               Exhibit 1

                 [From the National Women's Law Center]

 The Title VII ``Fairness'' Act, S. 3209, Allows Pay Discrimination To 
                                Continue

       On May 20, 2007, in Ledbetter v. Goodyear Tire & Rubber 
     Co., the Supreme Court held that employees must file claims 
     with the government for compensation discrimination within 
     180 days of an employer's initial decision to discriminate or 
     be barred from future challenges--no matter how long the 
     discrimination has continued. The Court's decision upends 
     decades of prior precedent and is fundamentally unfair to 
     those subject to pay discrimination. Under the Ledbetter 
     rule, employees have no recourse--and employers have no 
     accountability--for continuing discrimination once 180 days 
     have passed from the initial pay decision.
       In July, 2007, the House of Representatives passed the 
     Lilly Ledbetter Fair Pay Act to overturn the Ledbetter 
     ruling. The Act would restore the law that applied virtually 
     everywhere in the country before the Supreme Court's 
     decision--that each discriminatory paycheck constitutes an 
     act of discrimination that can be challenged. The Senate's 
     vote on a motion to advance the Ledbetter Fair Pay Act fell 
     just three votes short of passage in April of 2008.
       In June, Senator Hutchison (together with other Senators 
     who voted against advancing the Ledbetter Fair Pay Act) 
     introduced S. 3209, an alternative titled the Title VII 
     Fairness Act. But unlike the Ledbetter Fair Pay Act, the 
     Hutchison bill fails to restore prior law or solve the 
     problems created by the Ledbetter decision; it instead 
     creates damaging new legal hurdles for people receiving 
     discriminatory pay to overcome. Indeed, the Hutchison bill 
     stands to set back basic anti-discrimination protections in 
     the workplace even beyond equal pay.
       The Hutchison bill allows clear pay discrimination to 
     continue without a remedy.
       The Hutchison bill prevents employees from challenging 
     discrimination to which they continue to be subject. The 
     Hutchison bill perpetuates the basic problem created by the 
     Ledbetter decision. Under the bill, employees are left 
     without any remedy against present, continuing pay 
     discrimination if they do not file a government complaint 
     within 180 days of the first day when they ``have or should 
     be expected to have'' enough information to suspect 
     discrimination.
       The Hutchison bill permits employers to escape 
     accountability for continuing pay discrimination. Like the 
     Ledbetter decision, the Hutchison bill immunizes an employer 
     from any challenge to pay discrimination even where the 
     employer continues to profit from it. Under the Hutchison 
     bill, an employer is off the hook for, and can continue to 
     gain a windfall from, continued pay discrimination that is 
     not immediately challenged when the employee first ``should 
     have'' suspected it.
       The Hutchison bill deprives employees of the chance to 
     assess the extent of the discrimination and work voluntarily 
     with their employers to address any disparities.
       The Hutchison bill forces employees to forfeit their claims 
     if they take the time to work out disputes amicably. 
     Particularly because pay disparities may start small and grow 
     only over time, employees may want to give their employers 
     the benefit of the doubt, hoping that the employers will 
     voluntarily remedy the pay gap--or may want to work 
     actively with their employers to resolve the dispute over 
     time. This is especially true if an employee is new on the 
     job. But the Hutchison bill denies employees this 
     opportunity, forcing them to file adversarial government 
     complaints immediately upon suspecting discrimination or 
     risk losing the right to any relief.
       The Hutchison bill denies employees adequate time to assess 
     the merits of their claims. Particularly because employees 
     subject to pay discrimination may be in an ongoing 
     relationship with an employer, they are likely to want to be 
     sure that they have meritorious claims before filing a 
     government challenge to their employers' practices. But the 
     Hutchison bill limits employees' ability to take the time 
     necessary to confirm their suspicions of discrimination or 
     act when the problem reaches serious proportions.
       The Hutchison bill creates burdensome, expensive and time-
     consuming distractions from the fundamental issue of whether 
     an employee has been subject to pay discrimination.
       The Hutchison bill will increase the number of lawsuits 
     that are filed against employers. Employees who suspect 
     discrimination will be forced to file preemptive claims to 
     avoid forfeiting their rights. The Hutchison bill will thus 
     increase the amount of litigation that occurs.

[[Page S709]]

       The Hutchison bill will result in protracted and expensive 
     mini-trials in the cases that are brought. Employers and 
     employees will be forced to engage in costly battles before 
     even getting to the merits of a discrimination dispute--that 
     is, whether a pay decision was, in fact, based on sex, race, 
     disability or another prohibited ground. A court will have to 
     resolve multiple threshold issues, including what the 
     employee suspected about pay discrimination and when s/he 
     suspected it. On top of that, even if an employee in fact had 
     no suspicion of discrimination, she will have to prove that 
     her failure to suspect was reasonable. These time-consuming 
     battles will only add to the cost and burdensomeness of 
     litigation--and will increase the difficulty employees denied 
     equal pay will have in getting the wages they have earned.
       The Hutchison bill will result in confusion in the courts 
     and for employers.
       The Hutchison bill rejects the bright-line, familiar rule 
     in effect before the Ledbetter decision in favor of a 
     standard that raises numerous thorny legal and factual 
     issues. Unlike the Ledbetter Fair Pay Act, which simply 
     restores the familiar rule for assessing the timeliness of 
     pay discrimination claims that prevailed in virtually every 
     court in the country prior to the Ledbetter decision, the 
     Hutchison bill creates an entirely new legal regimen. The 
     bill raises innumerable questions, including when an employee 
     can be found to have a ``reasonable suspicion of 
     discrimination.''
       The Hutchison bill will result in inconsistent standards 
     for employers in different parts of the country for years to 
     come. Because courts will likely reach different conclusions 
     on the many legal and factual questions raised by the bill, 
     employers in different parts of the country will likely be 
     subject to conflicting rules, making it difficult, if not 
     impossible, to understand their legal obligations. It will be 
     years, if not decades, before these questions are 
     authoritatively resolved by the Supreme Court.
       The Hutchison bill could limit protections for employees in 
     contexts beyond pay discrimination.
       The Hutchison bill is not restricted to pay discrimination. 
     The so-called Title VII Fairness Act applies to any unlawful 
     employment practice under the anti-discrimination laws. As a 
     result, it goes well beyond the targeted, restorative 
     approach of the Ledbetter Fair Pay Act.
       The Hutchison bill could have particularly troubling impact 
     on harassment claims. Under current law, employees can bring 
     harassment claims as long as any incident of ongoing 
     harassment occurs within 180 days prior to the complaint--
     regardless of how many incidents have occurred previously. It 
     is predictable that some employers would use this bill's 
     broad scope to try to escape their responsibility for sexual 
     harassment and other types of discrimination.
       The Hutchison bill responds to a purported ``problem'' that 
     is, in fact, wholly invented.
       Employees have no incentive to delay filing pay 
     discrimination claims. Because employees typically cannot 
     afford to struggle without pay to which they are legally 
     entitled, it is simply a red herring to suggest that they 
     will delay filing pay discrimination for years, or even 
     decades. Furthermore, because Title VII has a two-year limit 
     on the back pay that any plaintiff can receive, that means 
     that if they delay they will lose compensation for all but 
     the last two years of pay discrimination they suffer. 
     Therefore, there is every incentive for an employee to file a 
     pay discrimination complaint as soon as reasonably possible. 
     It is the employer, not the employee, who benefits from any 
     delay.
       Employers were satisfied with the rules in place before the 
     Ledbetter decision. Prior to the Ledbetter decision, 
     employers were not asking for a change to the longstanding 
     rules relating to the timeliness of pay discrimination claims 
     that the Ledbetter Fair Pay Act restores. There is no 
     evidence that the operation of the rule prejudiced employers 
     or resulted in the success of non-meritorious claims. In 
     fact, employers benefited from the certainty of the rule in 
     place before Ledbetter.
       The Lilly Ledbetter Fair Pay Act is the only bill that will 
     address the basic pay discrimination that Lilly Ledbetter, 
     and others like her, suffer.
       The Ledbetter Fair Pay Act is the only bill that would have 
     helped Lilly Ledbetter. Under the Hutchison bill, Lilly 
     Ledbetter--to whom a jury awarded more than $3 million in 
     damages for the egregious discrimination she endured--would 
     have been embroiled in protracted arguments about what she 
     knew about her workplace and when. A court would have had to 
     decide, for example, whether idle gossip and boasting by her 
     coworkers--who had harassed and lied to her in the past--were 
     sufficient to give Ms. Ledbetter a ``reasonable suspicion'' 
     of discrimination. By contrast, the Ledbetter Fair Pay Act 
     creates a bright line rule that would ensure the timeliness 
     of claims like Ms. Ledbetter's, when the pay continues into 
     the present.
       The Ledbetter Fair Pay Act is the only bill that corrects 
     the problems with the Supreme Court opinion. Unlike the 
     Hutchison bill, the Ledbetter Fair Pay Act would:
       Give employees the time to evaluate their suspicions of 
     discrimination and work toward solutions with their 
     employers;
       Ensure that employers are held accountable for continued 
     discrimination;
       Provide certainty in assessing the timeliness of pay 
     discrimination claims;
       Restore the law.
       Congress should reject the approach of the Hutchison bill 
     and should instead act expeditiously to enact the Lilly 
     Ledbetter Fair Pay Act.

  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Madam President, I know the Senator from Rhode Island 
wants to speak. I will take a minute and say a couple of things.
  We are going to codify a right that is not in the law today. It is 
sometimes applied by judges and sometimes not. We do clarify so that 
there is fairness for the employee as well as for the small business 
owner to know if something is occurring.
  Our standard is, should have known, and that is what the person can 
show, that they had no way to know that a discrimination was occurring. 
We are clarifying and trying to make it more fair and more clear and 
more uniform across all the districts in our country.
  That is our goal, and I do hope we will be able to have this 
amendment that will make it a law that is better for employees who 
might have been discriminated against, but also give the fair right to 
an employer not to have a right sat on and built up so that it becomes 
something that could hurt the small business and be unexpected.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Madam President, I ask unanimous consent to speak as 
in morning business for up to 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Accountability

  Mr. WHITEHOUSE. Madam President, I rise as we celebrate a new 
President, a new administration, a new mode of governing, and a new 
future for America.
  Even in the gloom of our present predicaments, Americans' hearts are 
strong and confident because we see a brighter future ahead. President 
Obama looks to that future. Given the depth and severity of those 
present predicaments, we need all his energy to look forward to lead us 
to that brighter day, forward to what Winston Churchill in Britain's 
dark days called ``broad and sunlit uplands.'' But as we steer toward 
this broad and sunlit future, what about the past?
  As the President looks forward and charts a new course, must someone 
not also look back to take an accounting of where we are, what was 
done, and what must now be repaired? Our new President has said, 
``America needs to look forward.'' I agree. Our new Attorney General-
designate has said: We should not criminalize policy differences. I 
agree, and I hope we can all agree that summoning young sacrificial 
lambs to prosecute, as we did after Abu Ghraib, would be reprehensible.
  But consider the pervasive, deliberate, and systematic damage the 
Bush administration did to America, to her finest traditions and 
institutions, to her reputation, and integrity. I evaluate that damage 
in history's light. Although I am no historian, here is what I believe: 
The story of humankind on this Earth has been a long and halting march 
from the darkness of barbarism and the principle that to the victor go 
the spoils, to the light of organized civilization and freedom.
  During that long and halting march, this light of progress has 
burned, sometimes brightly and sometimes softly, in different places at 
different times around the world.
  The light shone in Athens, when that first Senate made democracy a 
living experiment, and again in the softer but broader glow of the 
Roman Empire and Senate. That light burned brightly, incandescently, in 
Jerusalem, when Jesus of Nazareth cast his lot with the weak and the 
powerless.
  The light burned in Damascus, Baghdad, Cairo, and Cordoba, when the 
Arab world kept science, mathematics, art, and logic alive, as Europe 
descended into Dark Ages of plague and violence.
  The light flashed from the fields of Runnymede when English nobles 
forced King John to sign the Magna Carta, and it glowed steadily from 
that island kingdom as England developed Parliament and the common law 
and was the first to stand against slavery.
  It rekindled in Europe at the time of the Reformation, with a bright 
light flashing in 1517 when Martin Luther nailed his edicts to the 
Wittenberg Cathedral doors, and faced with excommunication stated: 
``Here I stand. I can do no other.''

[[Page S710]]

  Over the years, across the globe, that light, and the darkness of 
tyranny and cruelty, have ebbed and flowed. But for the duration of our 
Republic, even though our Republic is admittedly imperfect, that light 
has shown more brightly and more steadily in this Republic than in any 
place on Earth as we adopted the Constitution, the greatest achievement 
yet in human freedom; as boys and men bled out of shattered bodies into 
sodden fields at Antietam and Chickamauga, Shiloh, and Gettysburg to 
expiate the sin of slavery; as we rebuilt shattered enemies, now 
friends, overseas and came home after winning world wars; and as we 
threw off bit by bit ancient shackles of race and gender to make this a 
more perfect Union for all of us.
  What has made this bright and steady glow possible is not that we are 
better people, I believe, but that our system of government is 
government of the people, by the people, and for the people. Why else 
does our President take his oath to defend the Constitution of the 
United States of America? Our unique form of self-government is a 
blessing, and we hold it in trust, not just for us but for our children 
and grandchildren down through history; not just for us but as an 
example out through the world.
  That is why our Statue of Liberty raises a lamp to other nations 
still engloomed in tyranny. That is why we stand as a beacon in this 
world, beckoning to all who seek a kinder, freer, brighter future.
  We hold this unique gift in trust for the future and for the world. 
Each generation assumes responsibility for this Republic and its 
Government, and each generation takes on a special obligation when they 
do. Our new President closed his inaugural address by setting forth the 
challenge by which future generations will test us: Whether ``with eyes 
fixed on the horizon and God's grace upon us, we carried forth that 
great gift of freedom and delivered it safely to future generations.''
  There are no guarantees that we will. This is a continuing experiment 
we are embarked upon and a lot is at stake. Indeed, the most precious 
thing of man's creation on the face of this Earth is at stake. That is 
what I believe.
  So from that perspective, what about the past? No one can deny that 
in the last 8 years America's bright light has dimmed and flickered, 
darkening our country and darkening the world. The price of that is 
incalculable. There are nearly 7 billion human souls in this world. 
Every morning, the Sun rises anew over their villages and hamlets and 
barrios, and every day they can choose where to invest their hopes, 
their confidence, and their dreams.
  I submit that when America's light shines brightly, when honesty, 
freedom, justice, and compassion glow from our institutions, it 
attracts those hopes, those dreams, and the force of those 7 billion 
hopes and dreams, the confidence of those 7 billion souls and our 
lively experiment is, I believe, the strongest power in our national 
arsenal, stronger than atom bombs. We risk it at our peril.
  Of course, when our own faith is diminished at home, this vital light 
only dims further, again, at incalculable cost. So when an 
administration rigs the intelligence process and produces false 
evidence to send our country to war; when an administration descends to 
interrogation techniques of the Inquisition of Pol Pot and the Khmer 
Rouge, descends to techniques that we have prosecuted as crimes in 
military tribunals and Federal trials; when institutions as noble as 
the Department of Justice and as vital as the Environmental Protection 
Agency are systematically and deliberately twisted from their missions 
by odious means of institutional sabotage; when the integrity of our 
markets and the fiscal security of our budget are open wide to the 
frenzied greed of corporations, speculators, and contractors; when the 
integrity of public officials, the warnings of science, the honesty of 
government procedures, and the careful historic balance of our 
separated powers of government are all seen as obstacles to be overcome 
and not attributes to be celebrated; when taxpayers are cheated and the 
forces of government ride to the rescue of the cheaters and punish the 
whistleblowers; when a government turns the guns of official secrecy 
against its own people to mislead, confuse, and propagandize them; when 
government ceases to even try to understand the complex topography of 
the difficult problems it is our very purpose and duty to solve and 
instead cares only for those points where it intersects with party 
ideology so that the purpose of government becomes no longer to solve 
problems but only to work them for political advantage; in short, when 
you have pervasive infiltration into all the halls of government--
judicial, legislative and executive--of the most ignoble forms of 
influence; when you see systematic dismantling of historic processes 
and traditions of government that are the safeguards of our democracy; 
and when you have a bodyguard of lies, jargon, and propaganda emitted 
to fool and beguile the American people, well, something very serious 
in the history of our Republic has gone wrong, something that dims the 
light of progress for all humanity.

  As we look forward, as we begin the task of rebuilding this Nation, 
we have an abiding duty to determine how great the damage is. I say 
this in no spirit of vindictiveness or revenge. I say it because the 
thing that was sullied is so precious. I say it because the past bears 
upon the future. If people have been planted in government in violation 
of our civil service laws to serve their party and their ideology 
instead of serving the public, the past will bear upon the future. If 
procedures and institutions of government have been corrupted and are 
not put right, that past will assuredly bear on the future.
  In an ongoing enterprise such as government, the door cannot be so 
conveniently closed on the closets of the past. The past always bears 
on the future. Moreover, a democracy is not just a static institution. 
It is a living education, an ongoing education in freedom of a people.
  As Harry Truman said, addressing a joint session of Congress back in 
1947:

       One of the chief virtues of democracy is that its defects 
     are always visible, and under democratic processes can be 
     pointed out and corrected.

  Entirely apart from tentacles of the past that may reach into the 
future are the lessons we as a people have to learn from this past 
carnival of folly, greed, lies, and sabotage, so that it can, under 
democratic processes, be pointed out and corrected. If we blind 
ourselves to this history, if we pull an invisibility cloak over it, we 
will deny ourselves its lessons. Those lessons came at too painful a 
cost to ignore. Those lessons merit discovery, disclosure, and 
discussion. Indeed, disclosure and discussion is the difference between 
a valuable lesson for the bright upward forces of our democracy and a 
blueprint for darker forces to return and do it all over again.
  A little bright, healthy sunshine and fresh air so that an educated 
population knows what was done and how can show where the tunnels were 
bored, when the truth was subordinated, what institutions were 
subverted, how our democracy was compromised; so this grim history is 
not condemned to repeat itself; so a knowing public, in the clarity of 
day, can say: Never, never, never again; so we can keep that light, 
that light that is at once America's greatest gift and greatest 
strength brightly shining. To do this, I submit, we must look back.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Begich). The Senator from Wyoming is 
recognized.


                   Amendments Nos. 28 and 29, En Bloc

  Mr. ENZI. Mr. President, I ask unanimous consent to set aside the 
current amendment so that I may offer two amendments, amendments Nos. 
28 and 29, and then return to the pending amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Wyoming [Mr. Enzi] proposes amendments en 
     bloc numbered 28 and 29.

  The amendments are as follows:


                            Amendment No. 28

                     (Purpose: To clarify standing)

       Beginning on page 3, line 22, strike ``adopted,'' and all 
     that follows through ``including'' on page 4, line 1, and 
     insert ``adopted or when an individual becomes subject to a 
     discriminatory compensation decision or other practice, 
     including''.

[[Page S711]]

                            Amendment No. 29

                     (Purpose: To clarify standing)

       Beginning on page 5, line 6, strike ``adopted,'' and all 
     that follows through ``including'' on page 5, line 10, and 
     insert ``adopted or when a person becomes subject to a 
     discriminatory compensation decision or other practice, 
     including''.


                            Amendment No. 25

  Mr. ENZI. Mr. President, I rise to speak in support of the Hutchison 
amendment. Before I do that, I want to voice some concern, again, about 
the process we have gone through on this bill and that we might be 
going through on others. I just came from a health care meeting where 
we are, in a bipartisan way, trying to reform health care. That is 
being done the right way. We have a task force and the task force has 
set down principles and questions. Those of us on the task force are 
returning to Members of our side of the aisle and gathering their 
input, answers, and additional questions. We will keep going through 
this process until we have hammered out the principles. Then we will 
start putting substance in it. Then it will go to the two committees of 
jurisdiction. That makes it a lot more difficult than most bills. It 
will go to both the HELP Committee for the health policy portion, and 
then it will go at the same time to the Finance Committee for the way 
to finance what we are talking about in the policy.
  We did this on the pension bill. That was a 1,000-page bill that only 
took up an hour of floor time while we debated two amendments, had 
those two votes, and a final vote. That is the simpler way of doing 
bipartisan work that winds up with an actual result. So often here we 
spend all of our time debating the 20 percent we don't agree on and 
fail to look for any kind of a third way of doing something that solves 
the problem we started out on originally. This is not a very conducive 
atmosphere to negotiate anything. It is not a negotiation. It is a lay 
down your amendment, have it voted up or down, and because there can't 
be any nuances in it, the hundred voices are not heard. The voices of 
the constituents of the 100 people who serve here are not heard. We 
vote down a lot of things. Occasionally, we vote for something. But 
usually, what is brought to the floor is done so without any kind of a 
real set of principles, let alone consensus, and thus, never makes it 
through the body.
  I know there have been some changes in majority and minority. That 
will still hold true, and I appreciate the majority agreeing that there 
will be amendments and that I got to offer two amendments that we will 
be debating and voting on later, I hope. This is kind of a test to see 
if we are going to do anything in a bipartisan way, and to see if we 
can do it from the floor of the Senate rather than in committee. This 
has not had a committee markup. This has not had the voice of the 23 
people working, in some detail probably, through a couple hundred very 
detailed amendments, and that would be resolved between the Members. 
That is the most effective way to address the issue and to get it 
resolved.
  The issue that was raised is, what if an employer discriminated 
against an employee because she was female and paid her less than male 
colleagues doing the same job with the same skills and experience? That 
is terrible. Such conduct by an employer has been illegal for 45 years 
under one statute and 46 under another. But like virtually all rights 
of action, it has to be exercised within a statute of limitations. So 
this bill's supporters ask: What if the employer hid the information 
the employee needed to realize she was the victim of discrimination and 
she missed the deadline to sue? We don't want that to happen, and 
courts have dealt with that issue by extending the statute of 
limitations on a case-by-case basis through the use of estoppel and 
equitable tolling. The reason this was not applied in the Lilly 
Ledbetter case was because there she stated in court proceedings that 
she was aware of the pay disparity many years before she brought the 
lawsuit. But putting her case aside, I can certainly agree that the 
statute of limitations should be extended, particularly in cases where 
an employer has deliberately hidden the fact of discrimination.
  Senator Hutchison's amendment does just that. It codifies the 
discretion courts have applied for years. Under the Hutchison 
amendment, individuals who, because of conscious concealment or simple 
lack of information, are not aware of discrimination are not prevented 
from filing and pursuing their discrimination claim, even if it is well 
beyond the statute of limitations. Here we have an amendment that would 
provide some statute of limitations but takes care of that case where 
somebody illegally hides information or where it isn't the normal 
course of business to get that information.
  I wish to review what the Hutchison amendment does not do. It does 
not eliminate the statute of limitations for all employment 
discrimination cases and thereby create a litigation bonanza. It does 
not eliminate the incentive for employees to air and resolve concerns 
about whether they are being treated fairly in the workplace. It does 
not open up standing to bring employment discrimination cases to 
individuals other than the affected employee. That is an important part 
right there. In the bill we are talking about, I know we would have 
extensive committee discussion about other affected parties. Who would 
they be? How long could they make a claim? Can it be generations later? 
Does it have to be at the time of death, while the person is still 
working there? We can't tell from the bill, but other affected persons 
is anybody the person may or may not be related to who could be 
affected by the decision.
  Can you think of anything broader than that? Don't you think that 
ought to be pulled back a little bit? Again, we didn't talk about 
principles. We didn't go through committee. We didn't put in multiple 
amendments that could have brought up some of these points, so here we 
are on the floor of the Senate kind of doing up-or-down amendments and 
I am sure arriving at things that, even if they pass, will come to 
raise a lot of questions in a very short period of time. That is not 
what we are supposed to be getting done for the American people.
  The Hutchison amendment does not present a direct threat to our 
already struggling defined benefit pension system. The more strain we 
put on that, the less people are going to do it, and we want people to 
have pensions. So for all of those reasons, I will support Senator 
Hutchison's wise and effective approach, one that could probably be 
negotiated finer and done more carefully, but that would be committee 
work. I will support it because I think it is a wise and effective 
approach that will ensure that no one loses the right to sue because 
they didn't have the information to realize they were being mistreated. 
That is our goal.
  While I am expressing strong support of S. 166, which is the 
Hutchison alternative, and I spoke on this matter earlier, I continue 
to express my deep concern shared by most of my colleagues about the 
way the bill has been handled. I will keep bringing that up on this and 
every bill that skips the process.
  By circumventing the regular order and not subjecting this 
legislation to the committee amendment process, I believe it has 
inadequate review and debate and no opportunity for a measured 
consideration of other means of achieving its same stated legislative 
goals. That is a process which should be done in committee, not 
attempted to be done on the floor. However, that is the route that is 
being forced on us, the minority, so that is the route we will have to 
follow now. We hope this is not a precedent-setting bill--or precedent-
setting process. It definitely will be a precedent-setting bill 
regardless of whether it is S. 181 or S. 166. Yet when we compare the 
substance of S. 181 with that of the Hutchison bill, it should be clear 
the legislation has suffered from a lack of process and the review and 
scrutiny it needs and could bring.
  Now, we should begin by first keeping clearly in mind the harm which 
S. 181 was purportedly designed to address. The problem is a simple 
one. Title VII requires that the victims of employment discrimination 
must commence a legal claim within 180 days of the act of 
discrimination, or in the case of a series of discriminatory acts, 
within 180 days of the last act in the series.
  I should note that in most States the limitations period is actually 
300 days. But in Mrs. Ledbetter's home State of Alabama, it is 180 
days, so I will use that number in my statement today.

[[Page S712]]

  When title VII was drafted, Congress consciously used the 180-day 
period because they wanted to ensure that all claims of employment 
discrimination were raised immediately and remedied quickly--get the 
relief to the person right away. However, what happens if the victim 
does not know he or she has been discriminated against? There are a lot 
of possible examples of this. Suppose an individual who is a member of 
a racial minority applies but is not selected for a job bid or a 
promotion yet learns, more than 180 days after being denied the job, 
that it was awarded to a White applicant with the same or lesser 
qualifications? Or suppose a female worker receives a wage increase but 
does not learn until well beyond 180 days from when she gets the wage 
increase that she has received less than her male peers? She may not 
know she is being compensated less because her employer has 
intentionally hidden those facts or simply because employees may simply 
not know such information. In either case, the result is the same--the 
employee, through no fault of his or her own, simply does not know they 
may be the victim of discrimination until well beyond the 180 days from 
the time they received their wage increase or lose their job bid.
  Let us be completely clear. I do not believe there is anyone who 
believes an employee in any of those or similar circumstances should 
lose the right to file a discrimination claim because they did not have 
the necessary facts and did not have any reason to know they were being 
discriminated against before the 180 days passed. This was precisely 
the problem that S. 181, the Ledbetter bill, was allegedly designed to 
address. If that were actually the case, I would vote for the Ledbetter 
bill. But the Ledbetter bill goes way beyond addressing the kind of 
situations I have outlined here--so far beyond that it creates new 
problems that make supporting it impossible for me and many other fair-
minded Members.
  By contrast, the Hutchison bill directly addresses and solves the 
very problems I have outlined. Under the Hutchison bill, the denied job 
applicant who did not learn the facts until long after his bid was 
denied or the female worker who did not know her wage differential 
compared to her male peers, either because of conscious concealment or 
simple lack of information, are not prevented from filing and pursuing 
their discrimination claim, even if it is well beyond the 180 days from 
when they got the raise or did not get the job. The Hutchison bill does 
this by making the 180-day period a flexible one that can be readily 
extended in the kind of cases I have mentioned.
  On the other hand, the Ledbetter bill does this by eliminating the 
180-day limitation period completely. The Hutchison bill is a rifle 
shot to solve a problem that everyone agrees must be solved. The 
Ledbetter bill is a shotgun blast that causes collateral damage to 
important safeguards in our system of laws.
  Limitation periods, such as the 180-day period for Title VII 
employment discrimination claims, are a feature in every law that 
grants the right to someone to bring a legal action against someone 
else. They are universal because such limitations serve two very 
important purposes.
  First, the existence of a limitations period is an inducement to 
those who have claims to seek redress promptly. All of us have an 
interest in a society where the laws are promptly enforced and, where 
the beneficiaries of those laws are promptly protected and promptly 
compensated. This is particularly true in the area of discrimination 
where society benefits best when discrimination is immediately exposed 
and immediately remedied. It may affect more than just the one person.
  Second, limitations periods serve to ensure fairness in our 
litigation process. The simple truth is that the more removed in time 
an event is, the less likely anyone is to remember it clearly or 
accurately. In a work setting, those who made compensation decisions 5, 
10, 20 years ago, may no longer be around. And even if they are around, 
how could they possibly remember with any accuracy the basis for the 
decisions? Under our Tax Code, records are not kept nearly that long 
for individuals or for businesses.
  The inability to fairly defend against a claim and the inability to 
develop reliable evidence are the exact reasons why laws invariably 
contain a limitations period. Limitations periods are why someone 
cannot come along and try to sue you over an automobile accident that 
took place 20 years ago, or commence a legal action to take your house 
away because of a claimed defect in the title that is decades old, and 
why the Government cannot pursue actions against citizens that have 
become stale with time.
  But S. 181 would do away with such limitation periods in employment 
discrimination cases and allow individuals to reach back in time to 
raise claims about which there is no fair chance to defend, no evidence 
of any value, and possibly nobody who was even there. We do not have to 
do this to address the concerns raised by the proponents of S. 181. 
Senator Hutchison's bill addresses those concerns completely.
  S. 181 has a number of other problems which will be explained by my 
colleagues as we proceed to this bill, such as the potential to 
severely destabilize defined benefit pension plans and the expansion of 
individuals with standing to sue under civil rights laws. These are 
normally the kind of discussions we would have in the committee of 
jurisdiction, which in this case would be the Health, Education, Labor, 
and Pensions Committee, where our members and staff are well-versed in 
employment laws. However, the majority's actions will require us to 
have those discussions on this floor. It is not the way I want to do 
it, and it is not the way the American people expect us to do business, 
and it is not the way we will get things done.
  Now, on this bill a vast number of people voted to proceed to the 
bill, and we all waived the 30 hours that could have been required 
before we could even make the first amendment. It was a nice concession 
on both sides; speeds up the process. But there are a number of 
opportunities--if the process were to get jammed--that huge hours can 
be added to the deliberations on this bill that do not need to be, that 
would not have been, probably, had it gone through the committee 
amendment process.
  I just cannot emphasize enough how important that is to me. I made 
sure it happened when we were in the majority. I am hoping it will 
happen on future bills while I am in the minority. Cooperation around 
here gets a lot more done, and that is what the American people expect 
of us.
  I yield the floor.
  Mr. SANDERS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________