[Congressional Record Volume 155, Number 13 (Thursday, January 22, 2009)]
[Senate]
[Pages S739-S759]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  LILLY LEDBETTER FAIR PAY ACT OF 2009

  The PRESIDING OFFICER. Under the previous order, the Senate shall 
resume consideration of S. 181, which the clerk will report.
  The 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.
       Specter amendment No. 26, to provide a rule of 
     construction.
       Specter amendment No. 27, to limit the application of the 
     bill to discriminatory compensation decisions.
       Enzi amendment No. 28, to clarify standing.
       Enzi amendment No. 29, to clarify standing.

  The PRESIDING OFFICER. Under the previous order, there will be now be 
60 minutes of debate equally divided between the Senator from Texas, 
Mrs. Hutchison, and the Senator from Maryland, Ms. Mikulski, or their 
designees.
  The Senator from Maryland is recognized.
  Ms. MIKULSKI. Well, thank you very much, Mr. President. It was in my 
enthusiasm that I neglected a few parliamentary housekeeping tasks.
  On April 23, when we had the vote in the Senate to vote on the Lilly 
Ledbetter Fair Pay Act, we lost it by two votes. On that day, I said we 
would continue our fight and that we needed to--we the women of America 
and the men who supported us--square our shoulders, suit up to fight 
for a new American revolution. I called upon the other women of America 
to put their lipstick on and be ready to go. Well, today is ``go day.'' 
And we are actively debating this amendment.
  One of the arguments that is often made is that this Fair Pay Act we 
are advocating could trigger either needless and enormous volumes of 
lawsuits or it creates a shifting ball of the statute of limitations. 
Both of those criticisms are false.
  First, the Lilly Ledbetter Fair Pay Act will not trigger more 
lawsuits. Because this bill the Democrats are advocating--and, oh, by 
the way, it is a bipartisan bill. We have over 54 cosponsors; 
Republicans are joining with us. It does not in any way trigger 
enormous lawsuits, because it simply restores the law, with greater 
clarity, that existed before the outrageous Supreme Court decision.
  We were not flooded with volumes of lawsuits on wage discrimination. 
There was an orderly process that occurred.
  The other is this floating statute of limitations argument. Well, 
that is a foggy term. But I tell you what is foggy is the Hutchison 
amendment.
  Now, I so admire the gentlewoman from Texas. We have worked together, 
as I said, on many issues. I know her intentions are good, but her 
language is flawed. I should say, not her language, but the language of 
her amendment. It is foggy.
  Let me go on to this a little bit. The amendment does not address the 
fundamental problem of the pay discrimination case, Ledbetter v. 
Goodyear, which created unreal and strict limitations for filing pay 
discrimination claims. It also fails to recognize that pay 
discrimination, unlike other kinds of discrimination, is repeated each 
time a worker receives an unfair paycheck.
  I want to repeat that. The Hutchison amendment fails to recognize 
that pay or wage discrimination, unlike other forms of discrimination, 
is repeated each time someone receives an unfair paycheck. Instead, the 
Hutchison amendment creates a new confusing standard that requires 
workers to either be subject to the Ledbetter rule or prove they had no 
reasonable suspicion of discrimination when the employer first decided 
to pay them.
  Well, you have to prove a negative. That is almost impossible. From 
the day you walk onto the job or the day your coworker who gets a 
raise, when the guys get it and the girls do not, you would have to be 
snooping around and creating a very hostile workplace, branded a 
troublemaker, because you were saying, well, you would have to every 
week say, well, what did you get paid, Mr. Udall? What did you get 
paid, Mr. Tester? What did you get paid?
  Well, I know we get paid the same pay, and I know we are doing the 
same, equal work. But that is not true in the workplace. So we believe 
the Hutchison amendment actually creates more fog than solutions.
  I want to continue the debate on this. I note that the gentlewoman 
from Texas has not come in, but I see the gentleman from South 
Carolina.
  Mr. GRAHAM. Mr. President, I wish to speak on her time.

[[Page S740]]

  Ms. MIKULSKI. What I would recommend is kind of rotating back and 
forth every 5 minutes. That way everybody gets a chance to speak, 
everyone gets a chance to debate, and everyone will get a chance to 
vote at 11:30.
  The PRESIDING OFFICER. The Senator from South Carolina is recognized.
  Mr. GRAHAM. Mr. President, if you would let me know when 4 minutes 
has expired.
  I thank the chairwoman for allowing me to speak. I wanted to make the 
Record clear. I am not in a fog about the Hutchison amendment. I think 
it makes a lot of sense. The reason I am on the floor is I have a 
pretty good reputation of making sure that people have a fair day in 
court. There is nothing more important in a free democratic society 
than to be able to take your cause to court and have your day in court. 
But what we are doing here, in my opinion, is creating a statutory 
statute of limitations that we have not seen before, that, quite 
frankly, does not make a whole lot of sense to me, if we pass the bill 
that came out of committee.
  Let me tell you why. The ability to create a job in America and keep 
a job here is very much at risk. The way we regulate, the way we 
litigate, and the way we tax will determine if the business will create 
a job in America or go somewhere else. We are on the verge, in my 
opinion, of having a taxation system, a regulatory system, and a 
litigation system that is going to drive people out of business and 
leave this country.
  Quite frankly, if we go down the road this bill is charting, we are 
going to make it harder to do business in this country and we will not 
enhance fairness. The whole concept of the Hutchison amendment is that 
you have 180 days from the time you knew or should have known you are 
being discriminated against.
  The Supreme Court case has a ruling that says you had 180 days from 
the event. That does not seem quite fair to me. But this idea that you 
could realize discrimination or know of it for 20 years and file a 
lawsuit 20 years later, based on the last paycheck, is not fair to the 
legal system, and not fair to business, because a lot of the people 
have left.
  So this is not foggy at all to me. I think a fair process would be 
that within 180 days of the time you knew or should have known you are 
being discriminated against in the workplace, you should file a lawsuit 
to preserve the evidence, to allow people to come in and testify with a 
fresh memory of what is going on.
  That is not what we are doing here. We are allowing people to file 
lawsuits decades, potentially, after they knew or should have known 
they were being discriminated against, and that would create legal 
chaos.
  So we are not advancing fairness, we are creating a system that is 
going to make it harder to do business. And for those employees in the 
workplace who count on their employer opening the door, they are going 
to lose, and the people who have been discriminated against in a 
legitimate way are not going to be enhanced.
  So to the Senator from Texas, I am not in a fog at all about what you 
are trying to do. I think you are trying to do a reasonable thing; that 
is, to protect the rights of people who have been discriminated against 
in a fair way, or have a claim that they think they may have been 
discriminated against in a fair way: 180 days from the time you knew or 
should have known of the act of discrimination, not decades after you 
knew or should have known.
  I think this is the right balance. And if we do not watch it as a 
Nation--we live in a global economy. I want regulations that protect 
the air and the water and the worker. I want a taxation system that 
collects a fair amount from the American people to run this Government 
on which we all depend. I want a legal system that gives everybody 
their day in court with no bias, a fairminded jury or judge deciding 
the claim. If we don't watch it and we go down the road of this bill, 
we are going to make it hard to do business in America, harder than it 
ought to be, harder than fairness requires, and we are going to shut 
out some businesses because the ability to do business in this country 
is at risk in a global economy if we overtax and overregulate and we 
have unfair litigation rules. The idea is to be fair and balanced.

  The Hutchison amendment achieves that, and the base bill does not. I 
will be supporting the Senator from Texas, opposing the bill coming out 
of committee.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, I thank the distinguished Senator from 
South Carolina. I believe he laid it out very well. I am very concerned 
about the broadening aspects of the underlying bill. As I have said on 
many occasions, Senator Mikulski and I have worked on so many issues to 
advance the cause of women, the rights of women, fair treatment of 
women. I would like to be able to support her bill, and I support the 
concept of her bill.
  My concern is in two major areas: One is the inability for a 
legitimate defense to be raised if a person waits when they should have 
known there was discrimination, to be able to address that immediately 
or within a reasonable amount of time. I want people to be able to 
raise the issue.
  I have heard of company policies. I have worked in a place where it 
was company policy that one didn't talk about pay. That was when I was 
making $600 a month. Maybe there was discrimination there. If there is 
a company policy or a feeling in the company that if you talk about 
pay, you are going to be punished or maybe even fired, then that makes 
the statute of limitations not function at that point. That, then, is a 
policy that is discriminatory. That is what we are trying to do: give 
the right of the plaintiff to show that he or she could not have known, 
didn't know, and could not have known.
  The second area that is of great concern to me is the expansion of 
the right of the plaintiff to go beyond the plaintiff himself or 
herself, to allow a person affected by the alleged discrimination to 
file suit, which could even occur after the person is not even there or 
is dead. That is putting into our system a possibility that the person 
might not have filed the claim on their own, didn't file it, might not 
have wanted to, might have believed it wasn't the right thing to do, or 
might have believed there were other areas that made up for what the 
person might have thought was not right in one particular area, such as 
the area where he or she worked or the amount of pay.
  I think you have to have a right yourself, but when it is a tort in 
our English law, in our American law, that does not accrue to another 
person generally. There are specific exceptions to that, but in general 
the tort claim goes with the person against whom the tort is committed. 
It should be that way in a discrimination area as well. So adding the 
ability for someone to sue on behalf of someone who isn't suing for 
something that happened to the person who isn't suing is a trail that 
is going to go way beyond the fairness that we try to put into our 
legal system.
  I hope we can pass my amendment. I hope we can keep working on this 
bill. I wish there had been a markup in committee because there might 
have been more of a capability to shape this bill so that it would be 
something that would meet the test of adding to a plaintiff's claim, 
cause of action, opportunities, but without producing such an unfair 
disadvantage to anyone to be able to defend by having a statute of 
limitations that is not effective and by increasing the capability of 
someone to make a claim on behalf of someone who has chosen or doesn't 
make the claim.
  I hope our colleagues will look at this issue. I hope we will be able 
to keep working on this matter. I would vote for this bill if my 
amendment passes. It will be a much harder decision if my amendment 
does not pass because I know the struggles of small business. I have 
great admiration for people who are in small business. I have been in 
small business myself. I know many times margins are very thin, and you 
want to make sure you know what your liabilities might be and that you 
have the ability to plan for that. We want business to thrive. We want 
business to keep employees. We don't want to do anything that causes 
fewer people to be employed because of greater potential liabilities. 
We don't want to do anything that adds

[[Page S741]]

to the instability of the job market today. We want to help our 
businesses get through this time by keeping people working. I am afraid 
the underlying bill will be a deterrent in that respect.
  I appreciate those who have spoken for this amendment. I hope we can 
continue to work on it together.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. Mr. President, how much time remains in the debate?
  The PRESIDING OFFICER. The Senator from Maryland controls 25\1/2\ 
minutes. The Senator from Texas controls 19 minutes.
  Ms. MIKULSKI. Mr. President, I would like to comment on the arguments 
that have been made by the advocates for the Hutchison amendment. 
First, let me say this: If you are a business and you want to avoid a 
lawsuit, there is one clear remedy that does not require statutory 
action, and that is called give equal pay for equal or comparable work. 
If you don't want to end up in court, you don't want to end up at the 
EEOC, you don't want to end up with a tattered and tarred reputation, 
pay people equal pay. That is the way to avoid a lawsuit. Then you 
don't need a law.
  But, no, there are those in our country who still think we are back 
in the 20th or 19th centuries, and we are not going to put up with it. 
We can talk about the 180-day rule and wage-setting decisions and so 
on. I am a pragmatic, pro-business, pro-fairness Senator. My 
grandmother ran a small bakery and was known as having the best 
doughnuts in Maryland--well, certainly in Baltimore. My father ran a 
small grocery store. We paid equal pay for equal work.
  When we talk about small business, I know about small business.
  I also know the Hutchison amendment would create more problems. For 
example, the discovery rule fails to hold employers fully accountable 
for ongoing discrimination. That is a very big deal. If workers suspect 
discrimination but delay filing the claim for fear of retaliation or 
hopes that things could be worked out without litigation, they should 
not be forced to suffer continued wage discrimination indefinitely. 
Wage discrimination continues with every new unfair paycheck. If harm 
is ongoing, the remedy should be as well, regardless of when a worker 
learned of it.
  Doesn't this rule make things better for employers? No. The Hutchison 
amendment is very vague and foggy. The rule encourages premature claims 
which is going to increase litigation. Workers are going to feel 
compelled to file formal claims with the EEOC or take legal action for 
fear that they will be accused of delay. That is what the Supreme Court 
accused Lilly Ledbetter of. They didn't accuse Goodyear of 
discriminating in their paycheck. They accused Lilly Ledbetter of delay 
and Lilly Ledbetter lost out.
  There is a new day coming, including on the Supreme Court. I can't 
wait for those votes. Workers will feel compelled, as I said, to file 
formal claims quickly.
  The Hutchison amendment adopts an uncertain legal requirement that 
will increase litigation costs for workers and employers alike. It also 
creates an environment that is hostile. It means if you are a worker, 
you have to act on rumor or speculation. My gosh, this is like the 
French Revolution and letters of cachet, and it was rumored that they 
were not faithful to concepts of the Revolution. We can't have that in 
our workplace. We have to have a workplace that we are all in together. 
So the Hutchison amendment is well intentioned but deeply flawed in the 
very objective that it seeks to accomplish.
  I hope we defeat the Hutchison amendment and move on with debating 
other amendments.
  I also want to say to the Senator from Texas, if I may have her 
attention, we are going to have a vote, up or down, on her amendment. I 
will not move to table. I think she deserves a clear vote, the way we 
are talking about a new style of civility and openness and so on. At 
the conclusion, that would be the process, rather than going through a 
tabling motion. Is that agreeable with the Senator?
  Mrs. HUTCHISON. I appreciate that very much from the Senator from 
Maryland, as always, because I would like an up-or-down vote. This is 
an amendment that is the decision on this bill. I appreciate that. This 
whole debate has been sort of the test. Harry Reid said we would be 
able to have amendments. Our leader said we would take up the 
amendments that would be relevant to this labor issue. I think everyone 
has performed admirably. I hope we can keep going. I thank the Senator 
very much.
  Ms. MIKULSKI. I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. I suggest the absence of a quorum.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DeMINT. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Amendment No. 31

  Mr. DeMINT. Mr. President, in the interest of time, I have filed 
three amendments. I know the majority leader wants to move this 
through, so I am going to call up one of them and not speak on it at 
this time during the discussion and debate of the Hutchison amendment. 
I ask unanimous consent to set aside the pending amendment and call up 
the DeMint amendment No. 31 and ask for its immediate consideration.
  Ms. MIKULSKI. Withholding the right to object pending an inquiry, is 
it the Senator's purpose simply to call it up so we can consider it 
later today?
  Mr. DeMINT. I just want to get it pending. I will not speak on it 
right now.
  Ms. MIKULSKI. I have no objection.
  The PRESIDING OFFICER. Is there objection to setting aside the 
pending amendment? Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from South Carolina [Mr. DeMint], for himself 
     and Mr. Vitter, proposes an amendment numbered 31.

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

    (Purpose: To preserve and protect the free choice of individual 
 employees to form, join, or assist labor organizations, or to refrain 
                         from such activities)

       At the appropriate place, insert the following:

     SEC. __. RIGHT TO WORK.

       (a) National Labor Relations Act.--
       (1) Rights of employees.--Section 7 of the National Labor 
     Relations Act (29 U.S.C. 157) is amended by striking ``except 
     to'' and all that follows through ``authorized in section 
     8(a)(3)''.
       (2) Unfair labor practices.--Section 8 of the National 
     Labor Relations Act (29 U.S.C. 158) is amended--
       (A) in subsection (a)(3), by striking ``: Provided, That'' 
     and all that follows through ``retaining membership'';
       (B) in subsection (b)--
       (i) in paragraph (2), by striking ``or to discriminate'' 
     and all that follows through ``retaining membership''; and
       (ii) in paragraph (5), by striking ``covered by an 
     agreement authorized under subsection (a)(3) of this 
     section''; and
       (C) in subsection (f), by striking clause (2) and 
     redesignating clauses (3) and (4) as clauses (2) and (3), 
     respectively.
       (b) Amendment to the Railway Labor Act.--Section 2 of the 
     Railway Labor Act (45 U.S.C. 152) is amended by striking 
     paragraph Eleven.

  Mr. DeMINT. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.


                            Amendment No. 25

  Mrs. HUTCHISON. Mr. President, I ask unanimous consent that my 
amendment be reinstated for the debate and the vote as previously 
ordered.
  The PRESIDING OFFICER. Without objection, the amendment is pending.
  Mrs. HUTCHISON. Mr. President, I just want to say my distinguished 
colleague, the Senator from Maryland, said it is easy for an employer 
to know they will not have a liability; just pay equal. Simple: Pay 
equal. But let me give you an example of what an employer actually 
faces.
  You take the situation where, say, an employer owns a bakery. One 
employee punches in at 8, leaves at 4, does an adequate job during that 
time, and that employee is paid one wage. Another employee always stays 
late when

[[Page S742]]

there is a need to stay late for a reason and comes in early if the 
employer has a big order and needs help early, and the second employee 
is paid more than the first one. But the first one believes there is 
discrimination for some reason--age, race, gender--and, therefore, 
believes they have a claim.
  That is not a situation where the employer should have to pay exactly 
the same to two different people when one goes the extra mile and one 
does not. This is just one example a person who has been in small 
business can tell you happens every day in every business in our 
country. The people who go the extra mile, who do a little more, should 
be able to be rewarded. That is what ownership of a business thrives 
on.
  So I think to just say: Just don't discriminate, is to say, well, if 
one person is doing more, adding more to the business, and becoming 
more productive, we should have the ability as an employer to allow 
that person to make a little more or do something extra. So I do not 
think we want to get into a situation where you are only to pay the 
same wage for two different people who bring different things to the 
table. That is why we have lawsuits. It is why we have EEOC, to make 
those judgment calls.
  So I am trying to make sure we keep an equal and level playing field 
so people who own a business who are struggling in this very tough 
economy have the ability to make the decisions that will keep those 
employees employed and make the judgment calls so that an owner--who is 
the one signing the checks, the one signing the loan applications, the 
one putting forth their whole livelihood and their family's security--
also has a fair chance in any kind of a dispute to do what is best for 
the business and for the employees of the business.
  Thank you, Mr. President. I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I now yield 5 minutes to the Senator 
from Texas to speak on this issue. She has been an unabashed and----
  Mrs. BOXER. The Senator from California, not Texas.
  Ms. MIKULSKI. Excuse me. The Senator from California. It is the big 
State, with big gals here.
  Mrs. BOXER. You got it.
  Ms. MIKULSKI. The Senator from California has been such a 
longstanding and faithful advocate for those who have been left out and 
left behind and particularly an intrepid voice for women.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Thank you so much, I say to Senator Mikulski.
  The bill Senator Mikulski is urging us to vote for simply restores 
the law to what it was in almost every State in the country before the 
Supreme Court dealt us a very serious blow and said, in fact, you had 
to move from the minute the discrimination started.
  Well, what if you had no clue you were being discriminated against, 
just like Lilly Ledbetter, who did not know until an anonymous note 
appeared from a male colleague, and he told her: The men who are doing 
the same work as you are getting paid far more. Well, she did not know 
that for years and years and years. Although the lower courts acted in 
the right fashion, the Supreme Court, in the tightest of decisions, 
destroyed what I consider to be the ability to recover damages when you 
have been blatantly and unabashedly discriminated against simply 
because you are a woman.
  Now, I urge my colleagues to defeat these pernicious amendments that 
are coming. As to the one from my friend, Senator Hutchison, believe 
me, it is a wolf in sheep's clothing. If we adopt the Hutchison 
amendment, people such as Lilly Ledbetter simply would not be helped. 
The Hutchison amendment essentially adopts the flawed decision by the 
Supreme Court in the Ledbetter case. It creates a confusing new 
standard for employees. Let's not take my word for it or Senator 
Mikulski's word for it. Let's take the words of the National Women's 
Law Center. Their whole life has been spent fighting for women's 
rights.
  What do they say? They say: Under the Hutchison amendment--and I am 
quoting--``employees are left without any remedy against present, 
continuing pay discrimination if they do not file a complaint within 
180 days of the first day when they `have or should have expected to 
have' enough information to suspect discrimination.''
  Well, take Lilly Ledbetter. If you never met her, she is the most 
hard-working, direct individual I have ever met. She worked so hard for 
Goodyear Tire. She had no clue, no time to think about whether she was 
getting equal pay. She got up in the morning, she got dressed for work, 
and she worked hard, never suspecting her work would not be rewarded in 
an equal fashion to her male counterparts.
  Under the Hutchison amendment, she is left out in the cold, and all 
those other women who have no clue. Sometimes discrimination is carried 
out in a way that you have no way of knowing that it is happening.
  Now, in the Senate, we have open books. Everybody can see what I 
make, what my staff makes. It is clear. If there is any discrimination 
going on, you can ferret it out, figure it out, and, by the way, you 
have a cause to seek recompense. We do not have a situation as they do 
in the private sector where it is a totally private situation. So it 
could be you could be working for years and years and years and never 
know.
  This bill on which Senator Mikulski is leading us is so important 
because it says every time you get a paycheck, that 180 days runs, so 
you have a chance to make up for this discrimination. So I say to my 
friends, you are going to see these amendments coming at you. Do not 
fall for them. Do not fall for them because they actually undermine, 
undercut, and destroy what we are trying to do for the women of 
America.
  I say to my friend, Senator Mikulski, how proud I am to stand with 
her. She feels this issue in her heart of hearts. She is a working 
woman. She comes from a working-class family. I have to say, I came 
from a family where my mother never even went to high school. She could 
not graduate because she was forced to go to the workplace to support 
her parents. The thought of my mother working so hard every day and 
having someone in the workplace say: Don't worry about that little lady 
over there, she has no power, no clout; we can pay her less than we pay 
a man--and I am sure that occurred because this was a long time ago--
the thought of my mother in the workplace being discriminated against 
and not having the opportunity to do anything about it really sets me 
off.
  I think about all the moms out there in the workplace and I think 
about the grandmas in the workplace. I think about single women in the 
workplace. They have a right to be protected.
  Vote no on Hutchison; vote no on Specter; vote yes on the underlying 
Mikulski bill.
  Mr. President, I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I control the time.
  Mr. President, I now yield 5 minutes to the Senator from Montana, a 
very good friend on this issue.
  The PRESIDING OFFICER. The Senator from Montana is recognized.
  Mr. TESTER. Thank you, Mr. President.
  I thank the Senator from Maryland for her leadership on this issue. 
This is a critically important issue in this country today.
  I would also like to welcome the Senator from New Mexico in the 
Chair. It is good to see you there.
  Mr. President, I rise today in support of the Lilly Ledbetter Fair 
Pay Act. It is a fair, commonsense piece of legislation that honors the 
hard work and dedication of a great Montanan, that Montanan being 
Jeannette Rankin, who was America's first Congresswoman, an outspoken 
peace activist and a champion of equal rights.
  Congresswoman Rankin would have voted yes today because she fought so 
hard for equality and fairness.
  Every employee deserves to earn the same pay for doing the same work, 
regardless of artificial timelines. Lilly Ledbetter worked at Goodyear 
Tire Company for 19 years, and she discovered she was being paid 
significantly less than her male colleagues for doing the exact same 
amount of work. A jury agreed. The jury awarded Ms. Ledbetter 
significant--significant--damages. The U.S. Supreme Court said

[[Page S743]]

too much time had passed since her first paycheck, and the Court ruled 
that Ms. Ledbetter's claim was invalid and even took away that jury 
award. Thankfully, this legislation undoes that wrongheaded decision. 
It clarifies the law to make it fair to America's workers.
  When he signed the original Equal Pay Act in 1963, President Kennedy 
said protecting America's workers against pay discrimination is ``basic 
to democracy.'' Forty-six years after President Kennedy signed that 
historic piece of bipartisan legislation, American women still make 
only 77 cents for every dollar a man makes for doing the same work. 
African-American workers make 18 percent less, while Latinos make 28 
percent less for doing the same work. American Indians make even less.
  Nearly 100 years after Jeannette Rankin came to Congress, we cannot 
ignore this kind of discrimination. We have a duty to speak out against 
pay discrimination and to make sure the law is clear. Hard-working 
Americans deserve nothing less than equal pay for equal work.
  Mr. President, I urge all my colleagues to pass the Lilly Ledbetter 
Fair Pay Act.
  With that, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, how much time is remaining on my side?
  The PRESIDING OFFICER. The Senator from Maryland controls 9 minutes 
35 seconds. The Senator from Texas controls 13 minutes 24 seconds.
  Mrs. HUTCHISON. Mr. President, I wish to reserve my time. There is 
another speaker coming down now on my side. The Senator from Maryland 
may wish to go forward or we may wish to wait and have the time equally 
divided.
  Ms. MIKULSKI. Mr. President, while we are working this out, I suggest 
the absence of a quorum, with the time equally divided, while we 
establish our next steps forward.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, we are in the closing minutes of the 
debate on the Hutchison substitute. We know there is one more speaker 
besides the Senator from Mississippi. This is not going to be my last 
say for this bill, but I do wish to offer my concluding arguments on 
the Hutchison amendment.
  First, I ask unanimous consent to submit for the record a Q&A on the 
question of the Hutchison amendment because when all is said and done, 
I wish for there to be a very clear record on congressional intent so 
we won't have the type of Supreme Court decisions that brought us here 
today.
  So I ask unanimous consent to have a Q&A on the Hutchison amendment 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    Q & A on the Hutchison Amendment

        Q: What does Senator Hutchison's amendment do?
       A: The amendment doesn't address the fundamental problem of 
     the pay discrimination case, Ledbetter v. Goodyear, which 
     created unrealistic limits for filing pay discrimination 
     claims. It also fails to recognize that pay discrimination, 
     unlike other kinds of discrimination, is repeated each time a 
     worker receives an unfair paycheck. Instead, the amendment 
     creates a confusing new standard that requires workers to 
     either be subject to the Ledbetter rule, or prove that they 
     had no reasonable suspicion of discrimination when the 
     employer first decided to pay them less than others.
       Q: Would Senator Hutchison's amendment have solved the 
     problems for Lilly Ledbetter?
       A: No. The Hutchison amendment would have imposed 
     additional burdens on Ms. Ledbetter and increased the costs 
     of her litigation. It is impossible to show exactly when a 
     worker would have known discrimination was occurring. Yet the 
     Hutchison amendment forces workers to prove a negative--that 
     they did not have information to suspect discrimination. This 
     unnecessary requirement will lead to confusion and needless 
     litigation. Goodyear argued that Ms. Ledbetter should have 
     realized earlier based on workplace rumors that she was a 
     victim of discrimination, even though they kept salaries 
     hidden. Ms. Ledbetter would have had to spend time and 
     resources litigating this issue, which has nothing to do with 
     the real problem of discrimination.
       Q: Isn't the Hutchison amendment a fair approach to the 
     problem, since it gives a claim to workers who have no way of 
     discovering discrimination within 180 days of an employer's 
     pay-setting decision?
       A: No. The discovery rule fails to hold employers fully 
     accountable for ongoing discrimination. If workers suspect 
     discrimination, but delay filing a claim for fear of 
     retaliation or in hopes of working things out without 
     litigation, they should not be forced to suffer continued pay 
     discrimination indefinitely. Pay discrimination continues 
     with every new unfair paycheck. If the harm is ongoing, the 
     remedy should be as well--regardless of when a worker learned 
     of it.
       Q: Doesn't this rule make things better for employers?
       A: Not at all. The rule encourages premature claims, which 
     will increase litigation. Workers will feel compelled file 
     formal claims quickly, for fear that they will be accused of 
     delay, even if the only evidence they have is based on rumors 
     or speculation. In addition, the amendment adopts an 
     uncertain legal requirement that will increase litigation 
     costs for workers and employers alike.
       Q: Is there a better way of fixing the problem created by 
     the Ledbetter case?
       A: The bipartisan Lilly Ledbetter Fair Pay Act creates a 
     fair, bright-line rule that workers and employers can easily 
     understand, and which was applied by most courts and the EEOC 
     under both Republican and Democratic Administrations before 
     the Ledbetter decision.

  Ms. MIKULSKI. Now, let's get to the facts. The difference between the 
Hutchison alternative and the Lilly Ledbetter bill is this: The Lilly 
Ledbetter Fair Pay Act restores the law to the way it was before the 
Supreme Court decision, Ledbetter v. Goodyear. The Hutchison 
alternative creates a whole new legal standard which regrettably is 
very vague and I am concerned will trigger a tremendous amount of 
lawsuits and further add to hostility and suspicion in the workplace. 
The issue of triggering more lawsuits as an argument for the Hutchison 
alternative is flawed because the Hutchison substitute will create 
confusion in the courts and for employers trying to interpret when 
employees should have known they were being discriminated against. The 
Ledbetter Fair Pay Act establishes a legal framework that had been 
accepted by nine appellate courts and the EEOC, and it has been a 
standard that has stood essentially the test of time.
  Let's go to the statute of limitations. The Lilly Ledbetter Fair Pay 
Act says it is 180 days from the last unequal paycheck, not from the 
initial point of hiring or the initial point of a discriminatory pay 
raise. The Hutchison alternative goes 180 days from when employees have 
or should have been expected to have knowledge that they were being 
discriminated against. This ``expected to have'' is really what is so 
foggy. Also, as long as employers are discriminating, employees can get 
justice. Under the Hutchison alternative, employees have no remedy if 
the claim is not brought when they should have known. I don't know when 
you should have known.
  Also, the Lilly Ledbetter Act gives workers a chance to figure out 
whether they are being discriminated against, approach the employer, 
and perhaps have an alternative dispute resolution on this before EEOC 
complaints, before going to court, and so on. I am concerned that the 
Hutchison amendment language ``should have known''--this ``should have 
known,'' where you would have to operate on rumor and speculation--will 
force many lawsuits as employees will sue before running out of time.
  The Lilly Ledbetter Fair Pay Act also gives workers a chance to be 
able to resolve this. If an employer is currently paying women less 
than men, that is illegal. Under the Hutchison amendment, it forces 
employees to prove when they suspect discrimination. I have made that 
point over and over.
  So in summary, I say to the private and nonprofit sector: If you 
don't want to be sued, don't discriminate. That is the best way to go. 
If you don't want to be sued, don't discriminate.
  The other point I wish to make is that the Fair Pay Act doesn't only 
affect women, it affects anyone who might be discriminated against in 
wages. So that means yes for women, but this bill would cover you if 
you have been discriminated against on the basis of race, ethnicity, 
national origin, religion, and the traditional forms

[[Page S744]]

of discrimination that regrettably we have dealt with. So this bill is 
not a women-only bill. We women certainly wouldn't discriminate against 
other people.
  The Lilly Ledbetter Fair Pay Act takes us to where we need to be to 
fully implement the Civil Rights Act of 1964. If we have a dream, I 
have one too: that we pass the Lilly Ledbetter Fair Pay Act.
  Mr. President, I yield the floor and reserve the remainder of my 
time.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, we are 5 minutes away from voting. The 
last speaker on my side was not able to make it, so I wish to close on 
my amendment.
  What some courts around our country do is allow a plaintiff to say 
that he or she knew or didn't know, allow the person to say why they 
didn't know, and let the plaintiff go forward to give their defense or 
to give this statement as the reason why the statute of limitations 
should be tolled. In many jurisdictions, this is accepted and the 
statute of limitations is tolled.
  What my substitute does is codify this so every jurisdiction will 
allow the plaintiff to have a right to say: I didn't know, and here is 
why I didn't know, and I need to be able to toll the statute of 
limitations to have my rightful amount of pay or the job I have been 
denied. It codifies so that it is clear. It brings clarity to the law 
and a unification of all the districts' views that this plaintiff 
should be allowed to say: I could not have known, and that is why I 
didn't file my claim earlier.
  The other part of my amendment that I think is very important is that 
it does not allow the added person who is not the person who alleges 
the discrimination to still file a lawsuit on behalf of that person who 
did not file the lawsuit. That is in the underlying bill. I think it is 
a huge increase in another area of litigation that we don't have in the 
law today. In fact, in most tort claims we don't allow that because it 
is important when a person has a claim that they make the decision to 
pursue that claim. Having another person who might claim to be affected 
by the discrimination against someone else really takes one into a 
whole other realm of ``he said, she said.'' Well, why would an heir be 
able to file when the other person didn't? Maybe the person is gone, 
maybe the person is dead, maybe the person did not want to make this 
claim or would have had they been alive and they could make the 
decision. It just adds an element of instability in the system that I 
don't think we have seen really in any other area of the law.
  I want to have a fair judicial system. I want there to be more rights 
for the plaintiff to be able to come forward and sue for discrimination 
if they feel they have been discriminated against and to be able to 
say: I didn't know, I couldn't have known, our company doesn't let us 
talk about what we make, and have that before the court because I don't 
want anyone in this country to be discriminated against.
  I also want a businessperson--a small businessperson, a big 
businessperson, anyone who is creating jobs in our country and trying 
to make it so that we keep our economy strong and keep jobs from being 
let go--I want that person to have a fair chance too. If you have a 
person who files a claim when the supervisor who is alleged to have 
made the discrimination is dead, that is a problem for the company to 
be able to make a defense, and that is what this whole case is about.
  I believe Lilly Ledbetter was a good employee. I think she probably 
put forward her claim believing she had a discrimination, and I believe 
she probably did. I believe she started at a lower level, and even 
though she was increased at the same level every year as her peers, 
because she started out at the bottom or at a lesser level, that did 
cause discrimination.
  If she had brought the claim in a timely way when she first knew or 
should have known because of a note that she received that was 
anonymous, then she probably would have been able to prevail.
  I think she is a good and nice person, but we are setting a standard 
in the law that is going to make it very difficult for businesses to 
know what their liability is if a person claims something that happened 
6, 8, 10 years ago. Not being able to have the records, not being able 
to have the witnesses, not being able to have the memories of people is 
going to be a significant deterrent for the employer to run the 
business.
  I particularly have a place in my heart for small businesses because 
I know it is very difficult for a small business to make the salaries 
and the payroll and to put their livelihoods on the line.
  I want to make sure we are fair to everyone. I want a person who is 
discriminated against to have a right of action. I do. I have said it 
before, I have been discriminated against. I know how it feels to be on 
the lower level when you know you are working harder. I know. But it is 
so important that also the person I am working for have a chance to 
defend with their witnesses and their records and let the court have 
everything to make a fair decision.
  In America, one of the things we have prided ourselves on that was 
put in the Constitution by our Founding Fathers is fairness, justice. 
We are a country that prides itself on fairness and justice. We have to 
make sure we continue to have equal rights of plaintiffs and defendants 
to be heard, and that is what my amendment does.
  If my amendment is adopted, I know we will add to the plaintiffs' 
capabilities, but with a fair right for the defense to make their case. 
And that is what our justice system should be.
  I hope we will adopt this amendment. I hope we can keep working on 
this bill. I am sure there are other things we can do. I would like for 
us to talk about the ability to have a negotiation. I tolled the 
statute of limitations when a point is brought up and there is a 
negotiation, an arbitration going on between an employer and an 
employee. When we go to conference, if my amendment is adopted, and we 
can work something like that out, I will be for it. I think it is a 
fair point because we do want to have the total ability of the 
plaintiff to be able to make his or her case, and we want to keep 
people employed in this country, and we do not want there to be a 
deterrent for small businesses to keep the people they have employed so 
we can get the economy going again in this country and go back to the 
full employment we had maybe 2 years ago and try to make sure we don't 
have in any way a deterrent for people to know what their liabilities 
are and start pulling back.
  I hope we can adopt my amendment and continue to work on this bill.
  I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. Mr. President, we have now concluded the debate on the 
Hutchison amendment. It is time for change. It is time to turn the page 
rather than turn back the clock. It is time to defeat the Hutchison 
amendment and proceed with the bill. We have five pending amendments. 
We are fired up, and we are ready to go.
  I yield back my time, and if the Senator does so, I will ask for the 
yeas and nays and then vote.
  Mrs. HUTCHISON. Mr. President, I yield back my time, and I ask for 
the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  Under the previous order, the question is on agreeing to amendment 
No. 25 offered by the Senator from Texas, Mrs. Hutchison. The clerk 
will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Iowa (Mr. Harkin) and 
the Senator from Massachusetts (Mr. Kennedy) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 40, nays 55, as follows:

                       [Rollcall Vote No. 7 Leg.]

                                YEAS--40

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     Lugar
     Martinez
     McCain
     McConnell

[[Page S745]]


     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Specter
     Thune
     Vitter
     Voinovich
     Wicker

                                NAYS--55

     Akaka
     Baucus
     Bayh
     Begich
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Hagan
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--2

     Harkin
     Kennedy
       
  The amendment (No. 25) was rejected.
  Ms. MIKULSKI. I move to reconsider the vote.
  Mr. DURBIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, we have been making progress on this bill. 
People are cooperating. While we have a lot of Senators in the Chamber, 
I have to add that we have a lot of work to do. I mentioned briefly 
yesterday, and I will say briefly again today, when the time is up, the 
vote is going to be cut off. It will affect Republicans and Democrats, 
but maybe we will get here in time to vote. We cannot hold up this 
place, we have so much work to do. We are going to finish Ledbetter 
today or tonight. Whatever it takes, we will finish that. I think we 
have set a good tone. I hope I do not have to file cloture on this 
tonight for a Saturday cloture vote. I don't want to do that. We have a 
lot of other things we can do that we can get done and not have to mess 
with the weekend.
  I am in touch with the Republican leader, and I think we have a way 
of moving forward next week, but everyone who has amendments to offer 
on Ledbetter should do it today and we can finish this early this 
evening, late this afternoon, or sometime tonight.
  We have other things to do. We have nominations we have to move. I 
spoke to the Republican floor staff today. They said they are hotlining 
a number of nominations. President Obama is getting very anxious on the 
nominations that have not been approved. He wants to get that done as 
quickly as possible, to get the country moving with the Cabinet spots 
being filled.
  The manager of the bill, Senator Mikulski, is in charge of this 
legislation, as she is in charge of everything in her life. I 
appreciate her good work, and we are going to move this bill. She 
understands we are going to finish this bill today.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. ISAKSON. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ISAKSON. Taking the lead from the majority leader, would now be 
an appropriate time to call up an amendment I have filed at the desk? I 
call up amendment No. 37.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. The only problem, I say to my friend from Georgia, is we do 
not have a copy of it. If we could see it, that would be terrific.
  Mr. ISAKSON. The staff is copying it now.
  Mr. REID. What we are trying to do, I say to Senator Isakson and the 
rest of the people in the Chamber, is, we have a number of amendments 
that have been filed. We want to try to set them up. We want to try to 
set up a process to get rid of the amendments that have already been 
filed. We certainly look forward to the Senator from Georgia offering 
the amendment.
  I see no reason we should not go ahead and have the Senator offer 
that now. Everyone should be alerted we are going to have the managers 
of this legislation clear the decks after Senator Isakson offers his 
amendment. If people want to offer amendments after that, certainly 
that is appropriate. But we are going to get rid of these amendments 
either by tabling them or having votes on them after people have had 
enough debate on them.
  Mr. ISAKSON. Will the leader yield for a question?
  Mr. REID. Sure.
  Mr. ISAKSON. Mine is a short amendment. I can summarize with a one-
compound sentence explanation. Do you want me to do it now or later?
  Mr. REID. I saw it. Just lay it down now.


                            Amendment No. 37

  Mr. ISAKSON. Mr. President, I would like to lay down amendment No. 
37, the Isakson amendment.
  The PRESIDING OFFICER. Without objection, the pending amendment is 
set aside. The clerk will report the amendment.
  The bill clerk read as follows:

       The Senator from Georgia [Mr. Isakson] proposes an 
     amendment numbered 37.

  Mr. ISAKSON. I ask unanimous consent 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 Act to claims resulting from 
discriminatory compensation decisions, that are adopted on or after the 
                     date of enactment of the Act)

       On page 7, strike lines 11 through 20 and insert the 
     following:

     SEC. 6. EFFECTIVE DATE.

       (a) In General.--This Act, and the amendments made by this 
     Act, take effect on the date of enactment of this Act, except 
     as provided in subsection (b).
       (b) Claims.--This Act, and the amendments made by this Act, 
     shall apply to each claim of discrimination in compensation 
     under title VII of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e et seq.), the Age Discrimination in Employment Act of 
     1967 (29 U.S.C. 621 et seq.), title I and section 503 of the 
     Americans with Disabilities Act of 1990, and sections 501 and 
     504 of the Rehabilitation Act of 1973, if--
       (1) the claim results from a discriminatory compensation 
     decision and
       (2) the discriminatory compensation decision is adopted on 
     or after that date of enactment.

  Mr. ISAKSON. Mr. President, would it be appropriate now for me to 
give that one-line explanation or wait until the manager of the bill is 
back? Shall I go ahead now?
  Mr. President, amendment No. 37 is very simple. It says the 
provisions of this legislation take effect on the day the legislation 
becomes law and is not retroactive, which is obviously the intent of 
everything we do. So any incident that occurred in the past could not 
be reopened for litigation, but any case after the day of enactment 
would be governed by the provisions of the law as they are in the new 
legislation. I think it is a simple, straightforward amendment, and I 
urge its adoption at the appropriate time.
  Mrs. HUTCHISON. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. HARKIN. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Hagan). Without objection, it is so 
ordered.
  Mr. HARKIN. Madam President, it is unbelievable to me that more than 
four decades after the passage of the Equal Pay Act and the Civil 
Rights Act women are only making 78 cents on the dollar for every 
dollar a man makes. Discrimination takes many forms. Sometimes it is 
brazen and in your face, like Jim Crow and apartheid, and sometimes it 
is silent and insidious. That is what is happening in workplaces all 
across America today.
  Millions of female-dominated jobs--social workers, teachers, 
childcare workers, nurses, and so many more--are equivalent in effort, 
responsibility, education, et cetera, to male-dominated jobs, but they 
pay dramatically less. The Census Bureau has compiled data on hundreds 
of job categories, but it found only five job categories where women 
typically earn as much as men, five out of hundreds.
  Defenders of this status quo offer all manner of bogus explanations 
as to why women make less. How many times have I heard the fairy tale 
that women work for fulfillment but men work to support their families? 
This ignores, first of all, so many single women who work to support 
themselves and their families, and married

[[Page S746]]

women whose paycheck is all that allows their families to make ends 
meet and educate their kids. It also ignores the harsh reality that so 
many women face in the workplace that they have to work twice as hard 
to be taken seriously or they get pushed into being a cashier instead 
of a more lucrative sales job. These acts of discrimination deny women 
fair pay, but they also deny women basic dignity.
  Let me cite one example of what I am talking about. Last year, in a 
hearing before our Health, Education, Labor and Pensions Committee, we 
heard testimony from Dr. Philip Cohen of the University of North 
Carolina. Dr. Cohen compared nurses' aides, who are overwhelmingly 
women, and truckdrivers, who are overwhelmingly men. In both groups the 
average age is 43. Both require ``medium amounts of strength,'' and in 
some cases nurses' aides have to be stronger than truckdrivers. 
Truckdrivers now have power steering and power brakes and stuff like 
that. Nurses' aides have to pick up patients and turn them over and 
stuff like that. Nurses' aides on average have more education and more 
training than truckdrivers. But nurses' aides make less than 60 percent 
of what a truckdriver makes.
  Given that this discrimination is so obvious and pervasive, you would 
expect that women would have no trouble obtaining simple justice 
through our court system, but in a major decision in June of 2007 in 
the case of Ledbetter v. Goodyear Tire & Rubber Company, the Supreme 
Court took us back. In a 5-to-4 ruling, the Court made it extremely 
difficult for women to go to court to pursue claims of pay 
discrimination, even in cases where the discrimination is flagrant. A 
jury acknowledged that Lilly Ledbetter, a former supervisor at 
Goodyear, had been paid $6,000 a year less than her lowest paid male 
counterpart. But the Supreme Court rejected her discrimination claim. 
Why? The Court held that women workers must file a discrimination claim 
within 180 days of their pay being set when they were first hired, even 
if they were not aware at the time their pay was significantly lower 
than their male counterparts.
  That is important to note. The Court said you have to file your 
discrimination claim within 180 days of your pay being set when you are 
hired, even if you don't know, even if you did not know that your pay 
was significantly lower than your male counterparts.
  As Justice Ginsburg said in a forceful dissent, this is totally out 
of touch with the real world of the workplace. In the real world, pay 
scales are often kept secret, employees are often kept in the dark 
about coworkers' salaries. Lacking such information, how can you 
determine when your pay discrimination begins? Furthermore, the vast 
discrepancies are often a function of time. If your original pay was 
just a little bit lower than your colleagues' pay, but you worked there 
for 20 years and you all get pay raises, you can see over 20 years that 
gap widens and widens and widens.
  So what started out to be a small gap winds up being a big gap over a 
period of time. Now, in the case of Lilly Ledbetter, not only was she 
discriminated against for all of her lifetime of work at Goodyear 
because she started out at a lower pay scale, that gap widened over 
time, but she is also now going to be discriminated against for the 
rest of her life in terms of her pension. Because she is making so much 
less than her male counterparts, her pension is going to be less.
  But Lilly Ledbetter did not get discriminated against once, she got 
discriminated against for over 20 years, and now for the rest of her 
lifetime in terms of the pension she gets. So what the Supreme Court 
decision means is that once that 180-day window for bringing a lawsuit 
is passed, this discrimination gets grandfathered in. This creates a 
free harbor for employers who have paid female workers less than men 
over a long period of time. Basically, it gives the worst offenders a 
free pass to continue their gender discrimination.
  Think about it. Once the 180 days has passed, the employer is home 
free. So you hire women, you pay them a little bit less than their male 
counterparts, but they do not know that because you do not publish the 
coworkers' salaries. After 180 days, you are home free. You can 
continue that discrimination for the next 10, 15, 20, 25 years, and 
there is not a darn thing a woman can do about it under that Supreme 
Court 5-to-4 decision.
  Well, now, I also heard several businesses were complaining that if 
we peg, if we peg the 180-day limit to the continued payment of 
discriminatory paychecks, which is what this bill before us does, they 
will keep accruing liability. So the companies will continue to accrue 
liability.
  Well, there is a simple answer to that. They can stop the clock 
anytime they want. Go through the books one day, make sure all the 
women are being paid fairly. On that day, you stop sending everyone 
discriminatory paychecks. On that day, everyone gets a fair deal. On 
that day, you stop accruing liability.
  The very thought that an employer would say: Well, we cannot have 
this bill, the Lilly Ledbetter bill we are talking about, because, gee, 
you know, after 180 days I keep accruing liability. Well, stop it. Stop 
paying the discriminatory pay. Go through your books, find out what the 
discrimination is, if it exists, and pay everyone fairly.
  Ledbetter was a bad decision. As Justice Ginsburg says, it ignores 
the reality of today's workplace. I am glad to work together with 
Senator Kennedy and Senator Mikulski, champions of this effort, to 
reverse the damage done by that decision.
  This bill would establish that the unlawful employment practice under 
the Civil Rights Act is the payment, is the payment, of a 
discriminatory salary, not the original setting of the pay level.
  It would be a great miscarriage of justice for this Senate to tell 
Lilly Ledbetter that her 20 years of discrimination, and the resulting 
loss of income in retirement, in her pensions should go unchecked 
because she did not have a crystal ball telling her what her coworkers 
were making at the time her pay was set. She had no way of knowing 
that.
  While the need for the passage of this legislation is critical and 
immediate, it is not enough. It is not good enough to go back to the 
way the law worked 2 years ago, because at that time, women were still 
making only 78 cents on the dollar as compared to men. That should be 
intolerable in our society.
  Moreover, if pay scales are kept secret, if there is not some 
transparency, how can women know if they are being discriminated 
against? That is why we need to pass the Fair Pay Act, which I have 
introduced in every Congress starting in 1996, the Fair Pay Act. Not 
only does that act require that employers provide equal pay for 
equivalent jobs, my bill also requires the disclosure of pay scales and 
rates for all job categories at a given company.
  This will give women the information they need to identify 
discriminatory pay practices. This could reduce the need for costly 
litigation in the first place. Now, I am not saying a company has to 
publish the salary of every single person. That is not what I am 
saying. What our bill says, the Fair Pay Act says, is you have to make 
transparent what the pay scales are in categories, certain categories.
  Now, I asked Lilly Ledbetter, when she appeared before our committee 
a year ago, I think it was, I asked her about the Fair Pay Act. I said: 
If you had had this kind of information when you first went to work, 
could you have negotiated for better pay and avoided the litigation? 
And she said: Yes. But she did not have that information. Well, there 
are countless more Lilly Ledbetters out there who are paid less than 
their male coworkers but will never know about it unless they have this 
kind of information. My Fair Pay Act amends the Fair Labor Standards 
Act of 1938 to prohibit discrimination in the payment of wages on the 
basis of sex, race, national origin. Most importantly, it requires each 
individual employer to provide equal pay for jobs that are comparable 
in skill, effort, responsibility, and working conditions.
  We know about the Paycheck Fairness Act. I support that also. But we 
have the Equal Pay Act that was passed in, I think, 1963--1963--which 
says that, if a woman has the same job as a man, equal pay for equal 
jobs, you have to pay them the same. That has been in law since 1963. 
To be sure, it has not been enforced enough, and that is why we need 
the paycheck fairness bill that is here, to enforce it more.

[[Page S747]]

  But the fact is, it has been the law since 1963, equal pay for the 
same job. What we now need to address 45, 49, 46 years later is equal 
pay for equivalent work because so many jobs in our society are kind of 
denoted as ``women's jobs.'' Are they crucial to our society? You bet 
they are.
  But for some reason, because they are ``women's jobs,'' they get paid 
less. I used the example of a truckdriver. Philip Cohen, from the 
University of North Carolina, testified before our committee, and he 
gave this example. They did a large study. I will repeat it again for 
emphasis sake of truckdrivers and nurses' aides.
  Truckdrivers, overwhelmingly men; nurses' aides, overwhelmingly 
women; medium age for all of them, 43. They both require median levels 
of strength. Truckdrivers do not need a lot of strength anymore; they 
have power steering and power brakes and everything else. Nurses' aides 
still have to lift people and duties such as that. So a median amount 
of strength is required. Nurses' aides actually have more education and 
more training than truckdrivers. Yet nurses' aides are paid less than 
60 percent of what a truckdriver makes.
  Why is that? Is it somehow nurses' aides are not as important as a 
truckdriver? I will be glad to debate that any day of the week. When 
you are ill or when you need long-term care, do you want a truck driver 
or a nurses' aide? Answer me that question. I think a truckdriver is 
important, I do not mean to denigrate them, but I am saying nurses' 
aides are every bit as important.
  Childcare workers. What could be more important to our country than 
taking care of our country's youngest children? Mostly women, grossly 
underpaid, compared to male workers in terms of skill, effort, 
responsibility, and working conditions.
  A lot of people say: Well, you know, we cannot--this is all nice pie-
in-the-sky stuff. We cannot do it. But 20 States, 20 States have fair 
pay policies in place for their State employees, including my State of 
Iowa. I would point out the State of Iowa passed a fair pay bill for 
all State employees in 1985, when we had a Republican governor and a 
Republican legislature.
  Oh, the sky was going to fall. This was going to cost our taxpayers 
enormous sums of money. Well, the sky did not fall. Women are making 
more money, and our State is better for it. I might point out that our 
neighbor to the north, Minnesota, not only has fair pay policies for 
their State employees, they have it for their municipal and local 
workers also.
  Twenty States have done this for State employees. So, again, this 
should not be any kind of partisan issue. Some people say: We do not 
need any more laws, that market forces will take care of the wage gap. 
But experience shows there are some injustices the market simply will 
not rectify. That is why we did pass the Equal Pay Act in 1963, why we 
passed the Civil Rights Act, the Family and Medical Leave Act, and the 
bill that has my name on it, the Americans with Disabilities Act.

  Were there market forces out there pushing to end discrimination 
against people with disabilities? No. But we did it. We are better off. 
That is the same way market forces are not going to take care of this, 
this issue of unequal pay for women in so many jobs in our country.
  I guess now that we are on the Enzi amendment, which would eliminate 
the language saying that those affected by discriminatory pay practices 
can sue--well, I am glad about one thing, that my colleagues are 
acknowledging discrimination hurts everyone because it does. It hurts 
everyone in two ways. First, an injury to one is an injury to all. But, 
second, I defy you to find a person in America who does not have a 
woman in their family, a person of color, someone with a disability, 
someone who observes a different or any religious practice. That is the 
point we have been trying to make all along.
  But this bill, as written, does not allow all those very indirectly 
affected parties to bring suit. This is patterned after language in the 
1991 Civil Rights Act, and that legislation has not resulted in all the 
people who are hurt by discrimination to bring suit.
  It has been interpreted all those years to mean the party directly 
injured by the discriminatory practice. However, if we strike this 
language, we risk failing to fix the full extent of the problem caused 
by the Ledbetter decision.
  It is important to use precise language to make sure all the 
employees affected by discriminatory pay decisions by their employer 
are covered, not just the one who was discriminated against but all 
those employees affected.
  I would like to close with a story from a woman from my State, Angie. 
She was employed as a field office manager at a temp firm, temporary 
workers firm. The employees there were not allowed to talk about pay 
with their coworkers. Only inadvertently did Angie find out that a male 
office manager at a similar branch who had less education, less 
experience, was earning more than she was.
  Well, in this case, the story has a happy ending. She cited this 
information in negotiations with her employer, and she was able then to 
get a raise. But the experience left her feeling bewildered and 
betrayed, and this ultimately led her to quit her job. Had she not 
inadvertently found this out, she would have continued to have been 
discriminated against.
  So I think there is a twofold lesson in this true story. The first 
lesson is that if we give women information about what their male 
colleagues are getting, they can negotiate a better deal for themselves 
in the workplace.
  The second lesson is that pay discrimination is a harsh reality in 
the workplace. Not only is it unfair, it is also demeaning and 
demoralizing, and it should cease its existence in our society.
  Individual women should not have to do battle in order to win equal 
pay. We need more inclusive national laws to make equal pay for equal 
work a basic standard and a legal right but also equal pay for 
equivalent work so that we don't discriminate against whole classes of 
people just because of the job they do. Childcare workers, social 
service workers, nurses aides, nurses, homemakers--why should people 
who are cleaning houses make less than janitors? People who clean 
houses are generally women and janitors happen to be men, but they are 
both doing the same kind of work.
  We have to come to grips with this before we will ever really end 
discriminatory pay. The Lilly Ledbetter bill before us is a step in the 
right direction. But unless and until we pass the Fair Pay Act, which 
has been supported by the business and professional women of America 
since we first introduced it in 1996, until we pass that, 
discrimination against women will continue wholesale in America. We 
will continue to demean the kinds of jobs so important to us--
childcare, nurses, nurses' aides, teachers, Head Start workers, the 
women who clean our homes, take care of our elderly in long-term care 
facilities. Go into any long-term care facility, go where your 
grandparents are or maybe your parents. Who is taking care of them? 
Nine times out of ten, it will be a woman. Their responsibilities are 
immense. Their effort, the training they need is important. They have 
to have all that. Yet they are making much less than their male 
counterparts in other parts of society.
  The Lilly Ledbetter bill is important. We have to pass it, but we 
have to get the Fair Pay Act passed one of these years. As I said, I 
have been introducing it since 1996. Then they get the paycheck 
fairness bill up. We have to do that. That is important. Don't get me 
wrong, that is important. But the biggest discrimination in our society 
is the discrimination that occurs against women who have what has been 
denoted as ``women's jobs'' in our society. It is time to end that 
discrimination.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NELSON of Florida. I ask unanimous consent that the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NELSON of Florida. Madam President, it is great to see you as our 
Presiding Officer. I might call to the attention of the Senate again 
that the Presiding Officer, the junior Senator from North Carolina, has 
roots that go very deep in the State of Florida. Her

[[Page S748]]

family is one of the prominent families of our State. The Senator 
happens to have been raised in Lakeland, FL, in Imperial Polk County. 
It is a delight to have her come join the Senate family.
  I wish to address the matter before us, which is the Lilly Ledbetter 
bill. We have a chance, with passage of this legislation, which is 
going to occur perhaps tonight, to have it as a major first step in the 
legislative process that will ultimately go to the new President for 
his signature into law to right a wrong, to bring justice where justice 
has not been because of an insidious kind of discrimination, 
discriminating in the employment workplace, by paying women less than 
men for the same task that is performed.
  You would think that back in the 1920s, with America finally coming 
to realize that American women had the right to vote, the course would 
have been set back then in removing that discrimination. But here it is 
in the new century, in the dawn of a new age, and we still have to 
confront this inequity. We will do that. It is too bad we had to do 
that now as a result of a 5-to-4 decision in the Supreme Court that, 
for technical reasons, said Mrs. Ledbetter could not be made whole 
financially because she did not know of the discrimination that had 
happened to her some 15 years before. Whatever that technicality was, 
it was unfortunate that the Supreme Court, in that 5-to-4 decision, 
struck down her ability to get compensation, to get recompense for the 
injustice that had been bestowed upon her. But since we are a 
government of three separate branches, where there has been a mistake 
made, we have the opportunity to correct it. So we are going to do that 
today here in the Senate. I am certainly going to be a part of it 
because I will be voting for this legislation.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HARKIN. 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. HARKIN. Madam President, I ask unanimous consent that at 1 p.m. 
the Senate resume consideration concurrently of the pending Enzi 
amendments No. 28 and No. 29, that they be debated concurrently for 1 
hour, and that the time be equally divided between Senators Enzi and 
Mikulski or their designees; following the use or yielding back of time 
on the Enzi amendments, the Senate resume consideration concurrently of 
the Specter amendments No. 26 and No. 27; that they be debated 
concurrently for 1 hour, and that the time be equally divided between 
Senators Specter and Mikulski or their designees; following the use or 
yielding back of time on the Specter amendments, the Senate proceed to 
votes in relation to the Enzi and Specter amendments in the order 
listed below:
  Specter No. 26, Specter No. 27, Enzi No. 28, and Enzi No. 29; 
further, that no amendments be in order to the pending Enzi and Specter 
amendments prior to the votes; that there be 2 minutes of debate 
equally divided between the votes; and that all rollcall votes after 
the first vote be limited to 10 minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. HARKIN. I yield the floor.
  The PRESIDING OFFICER (Mr. Udall of Colorado). Who yields time?
  The Senator from Oklahoma.


                       Amendments Nos. 28 and 29

  Mr. INHOFE. Mr. President, I yield myself such time as I may consume 
from the Enzi time on the Enzi amendments.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. INHOFE. Mr. President, today, I have stated several times, and I 
again state, I am in opposition to S. 181, the Lilly Ledbetter Fair Pay 
Act, and reinforce my support for Senator Hutchison's alternative, S. 
166 and amendment No. 25, the title VII Fairness Act.
  What we are told by the other side of the aisle is that the Lilly 
Ledbetter Fair Pay Act is about protecting the right of employees who 
may not know they have been discriminated against. But in reality, this 
bill represents a tremendous burden on employers and a boon for trial 
lawyers across the country. It is an overly broad and cumbersome 
approach, essentially eliminating the statute of limitations.

  Senator Hutchison's alternative, on the other hand, takes a measured 
approach and applies a targeted remedy by allowing claimants to bring 
suit within the statute of limitations, which runs from the time they 
should be expected to have enough information to support a reasonable 
suspicion that they are being discriminated against. The rationale for 
statutes of limitation is to ensure fairness and balance--balance 
between access to the courts for aggrieved parties while allowing 
certainty for those who may be called to defend themselves. S. 181 
clearly steps beyond this, greatly reducing confidence in the civil 
discovery process and forcing businesses to stage a defense on 
decisions that were made years--perhaps dozens of years--before the 
action was brought.
  There have been a lot of amendments. I did vote in favor of the 
Hutchison amendment and feel that would be one that was a very 
reasonable compromise. Tomorrow in Oklahoma I will be meeting with 
voters in Clinton and Burns Flat and other areas in southern Oklahoma. 
It will be my unfortunate duty to tell them that this burden has been 
unfairly placed upon them and their businesses in this difficult 
economic time. But I will be proud to say that my vote did not 
contribute to the passage of S 181; rather, I stood with my colleague, 
Senator Hutchison, and we worked for a balanced approach that provides 
a remedy to those who have legitimate discrimination claims and at the 
same time allows employers, many of whom have never made a 
discriminatory compensation decision, to mount a defense based upon 
discovery of reliable evidence. I register my opposition to the Lilly 
Ledbetter Fair Pay Act because it is such a clear departure from 
previous legal principles.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas is recognized.
  Mrs. LINCOLN. Mr. President, I ask unanimous consent to speak for up 
to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. LINCOLN. Mr. President, I rise this afternoon to speak about the 
bill that is before us, which is the Lilly Ledbetter Fair Pay Act.
  It doesn't take a legal scholar to understand that the U.S. Supreme 
Court did get it wrong when they ruled against Lilly Ledbetter in 2007. 
In fact, I think the issue is rather simple. All I have to do is look 
out across my great State of Arkansas at the number of single mothers 
who are working hard to care for their families and who need equal pay 
and deserve equal pay.
  In today's business environment, where women make on average 78 cents 
for every dollar their male counterparts make for the same work, it can 
be impossible for someone to know that they have been discriminated 
against until long after the fact. Employees are not privy to pay data 
in the workplace, as we are. Our pay is published, as well as for our 
staff, but in the regular workforce it is not published. In many 
instances, they can actually be disciplined or fired if they share pay 
information with one another.
  In the case of Lilly Ledbetter, she was hired as a supervisor at a 
tire plant in Alabama nearly 30 years ago. For years, day upon day, she 
went to work next to her male counterparts working hard to do her job 
the best she could, doing the same job or an extremely similar job to 
what these gentlemen were doing. She received unequal pay for equal 
work to her male colleagues. She only discovered she was a subject of 
discrimination after she received an anonymous tip shortly before her 
retirement. Although an Alabama jury found in her favor, her employer 
appealed the decision and the U.S. Supreme Court ruled against her. In 
a 5-to-4 decision, they overturned years of precedent and said that she 
should have filed a complaint every time she received a smaller raise 
than the men she served alongside, even though she didn't know what 
they were making or if the pay was discriminatory. How could she know? 
She was not privy to that information, and she was prohibited from 
asking.

[[Page S749]]

  In her very spirited dissent, Justice Ruth Bader Ginsberg said that 
the majority clearly misinterpreted the law and that ``the ball is now 
in Congress's court'' to correct this inequity. It is in our court. It 
is in our court to ensure that the women of this country are going to 
receive the equal pay that is due to them for the job they do working 
alongside their male counterparts.
  So that is why we are here today, to pass the Lilly Ledbetter Fair 
Pay Act. It is a responsible and fair piece of legislation which 
ensures that all employees, regardless of their race, color, religion, 
sex, or national origin, are treated the same. That is what we have 
just celebrated in the inauguration of a new President: the values we 
hold dear as a part of this great country, the blessing of being 
American, and that we would have the same opportunity to reach our 
potential--each of us as individuals--whether we are men or whether we 
are women.
  I know in some of the business communities they are concerned that 
this bill will extend the statute of limitations and expose employers 
to numerous lawsuits. However, I reject those arguments, because this 
bill provides little incentive for employees to sit on claims with only 
a 2-year limit on back pay. In addition, it does not create new grounds 
for filing lawsuits. In fact, the Congressional Budget Office expects 
that it would not significantly affect the number of filings within the 
EEOC. So I encourage my colleagues to support this important piece of 
legislation.
  When I first came to the Congress in 1992, I came to the House 
representing the eastern district of Arkansas, and I remember my 
campaign vividly. I was a young single woman at the time. People 
thought I was crazy, not only because of my age and my gender, but 
because of the fact that I was unmarried, and it was unheard of for a 
young single woman to be out there running for the Congress.
  I remember sitting next to a distinguished banker in one of my 
hometown communities. He looked quite conservative, and sitting next to 
him I got a little nervous. He started asking me about some women's 
issues that would probably be before me at one time or another if I 
were elected to the Congress. He started to quiz me pretty heavily. I 
got nervous, but I came back with what I felt were strong and concise 
and well thought out answers. At the end of our conversation, he looked 
at me and he said: I have kind of been a little hard on you, but I 
wanted to know how you felt about these issues. I wanted to know how 
you truly, deep down felt about these issues, because I have three 
daughters who are in the workforce and one of them is a single mom. I 
want to know that you are going to be fighting for them and for their 
children.
  So it is not just the women who are interested in what happens here; 
it is the fathers and grandfathers, it is the brothers of women who are 
out in the workforce doing their best, working hard to make a living 
for their families, to care for their children, or to help their aging 
parent. I found, when I came to the House and then to the Senate, my 
colleagues were always ready to work with me regardless of my gender or 
my age, if I came to the table prepared and ready to work hard, and if 
I was honest in where I was coming from on those issues and wanted to 
work hard to bring about results for the betterment of my 
constituencies in Arkansas. So I hope as we look at this, we will 
realize that is what we are talking about here: for American women 
across this great land who are working hard--many of them in the same 
job as a man; maybe supporting a family by themselves or taking care of 
an aging parent, financially and otherwise--that we would do the right 
thing, the thing this country is based on, which is equity and fairness 
and justice, and that we would provide for those women the reassurance 
that the principles we stand for are not lost in them or in their 
paycheck, but that we do see the importance of standing up and saying 
how important it is to who we are and what we stand for that they 
deserve to have that equal pay. It is a fair and responsible bill that 
restores the congressional intent and ensures that those responsible 
for discrimination are held accountable.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. ENZI. Mr. President, can you tell me what the time agreement is?
  The PRESIDING OFFICER. There is 1 hour equally divided for debate. 
The Senator from Wyoming has 26\1/2\ minutes remaining.
  Mr. ENZI. Mr. President, I wish to call up amendment No. 28 and ask 
unanimous consent that as soon as we have disposed of amendment No. 28, 
that we will voice vote amendment No. 29 based on the decision of 
amendment No. 28, because there are two different sections of the law 
that say the same thing. So we have to have both pieces, but if one is 
acceptable, the other one ought to be acceptable. If one is not 
acceptable, the other one should not be acceptable. So I know it is a 
change in parliamentary procedure, but I am trying to speed things up 
by having as few votes as possible but still get the decisions made.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Amendment No. 28 is now pending.
  Mr. ENZI. Mr. President, I have offered amendments Nos. 28 and 29 and 
they respond to the question many have asked about the underlying bill. 
Those of us who have looked at the bill have wondered what a particular 
provision means. This provision appears to greatly expand the number of 
people who can bring a Title VII lawsuit beyond those who have directly 
experienced discrimination.
  As drafted, the bill extends the right to sue for employment 
discrimination, not only to the person who is discriminated against but 
also to any individual who is affected by application of a 
discriminatory compensation decision or other practice. This can 
clearly be read to include spouses, family members, and other 
individuals, depending on the employee's income or pension, or even 
more broadly. There is a lack of definition in this part of the bill. 
In this part of the bill that we are debating, I am trying to amend to 
add some clarity, and Senator Specter will be trying to amend if mine 
fails to again bring some clarity to this issue. These are steps to see 
how expansive we can make the trial lawyer bailout.
  So S. 181 would not only allow decades-old claims to be suddenly 
revived, it doesn't even require that they be revived by the person who 
was discriminated against, even if that person won't bring the action 
or even if that person is no longer around. The language is so broad 
that the claim could be brought by virtually anyone. It is nothing more 
than an invitation to trial lawyers to litigate a situation compounded 
by the fact that such claims would be largely indefensible because of 
the passage of time, maybe not even having the person around who was 
discriminated against.
  Do we really want to see employers forced to expend resources 
defending decades-old, stale claims that are not even being brought by 
the individuals who are the supposed objects of the discrimination?
  What we are looking at here could be an exponential increase in 
lawsuits at a time when many employers are struggling to make their 
payroll and avoid laying people off. It was reported this week that a 
certain type of employment-related class of lawsuits have increased 99 
percent over the last 4 years--just the last 4 years, a 99-percent 
increase. If enacted as drafted, this bill could make that increase 
seem minuscule.
  Our new President has made some proposals intended to stimulate the 
economy. One proposal he made at one point was to offer a $3,000 tax 
credit to employers who create new jobs. Perhaps that was a great idea, 
but if you couple that with increased litigation liability such as that 
included in this bill, it will not only cancel each other out, it would 
make that tax credit seem minuscule, very small, particularly when you 
compare it to the cost of a lawsuit. A small businessman faced with a 
lawsuit that is going to cost him $20,000, $25,000, $100,000 to defend 
cannot afford the time or the money to do that and may work harder at a 
settlement and encourage people to do lawsuits that may not have the 
same merit we are trying to achieve in this bill. I can tell you as a 
former small businessman, I would rather not have the tax credit and 
not get sued any day--not that the two are even related.

[[Page S750]]

  I hope the bill's sponsor can explain why this provision should be 
included in the bill. It is the sort of question that might have been 
sorted out more easily if the bill had gone through the proper 
committee process. But the majority has opted to circumvent that 
process again. My amendments would strike the provision entirely.
  I understand there might be some, and I am sure we will hear some 
explanation of it, where there might be some instances where there were 
special circumstances. But this bill goes well beyond just special 
circumstances. It opens it up dramatically.
  I look forward to a debate and vote on my amendment later today.
  We also will be voting on two amendments that Senator Specter has 
offered to improve the underlying bill. I will use some of my time to 
speak in favor of those amendments as well.
  Senator Specter's amendment No. 26 shows there is justifiable concern 
among many Members that allowing individuals to go far back in time and 
claim that pay decisions made years ago were discriminatory does place 
unfair burdens on employers.
  Senator Specter's amendment No. 26 provides a small measure of 
potential relief to employers who must face the daunting task of trying 
to defend decisions made in the distant past by individuals who may not 
be available and based on documentation that no longer exists. We will 
have to increase the amount of time that we expect people to keep all 
of their records if this bill goes through the way that it is.
  Senator Specter's amendment makes it clear that an employer in those 
circumstances may still raise traditional equitable defenses to those 
claims, such as the defense of laches. For example, if an employer can 
demonstrate an employee knew or should have known the allegedly 
discriminatory nature of a pay decision made years ago, but lets the 
claim slip, then it may be barred if the employer is hindered in 
mounting a fair defense because of the passage of time.
  The proponents of S. 181 have said repeatedly that it is not their 
intent to limit employers in their use of equitable defenses. 
Accordingly, they too should support Senator Specter's amendment. It 
would restore a small measure of fairness in employment discrimination 
litigation. I commend Senator Specter for offering it. I support the 
amendment in full. I urge my colleagues on both sides of the aisle to 
look at it and support it.
  Senator Specter's amendment No. 27 has also offered another amendment 
to improve the underlying bill which deserves full and fair 
consideration from colleagues on both sides of the aisle. We know 
Senator Specter has been very involved in judiciary work and that he 
does reasonable amendments and is concerned about some of the 
implications of the bill.
  He has offered another amendment to improve the underlying bill. I 
hope we will give that a careful look. I have been clear that I am 
troubled by the fact that this bill effectively eliminates the statute 
of limitations from employment discrimination claims since I believe 
that statutes of limitations do serve an important function. They speed 
recovery to the victims of discrimination, as well as ensure fairness 
in our legal process and accuracy in the resolution of disputed claims. 
The important role they play demands that any effort to change or 
eliminate the statute of limitations be carefully defined and clearly 
targeted at the precise problem the legislation purports to address. As 
presently drafted, S. 181 does not come close to achieving this 
standard. Senator Specter's amendment does much to correct this very 
problematic lack of precision.
  The proponents of S. 181 have been careful to note that the concern 
which they seek to address by this legislation relates to 
``discriminatory pay decisions.'' The language of the bill, however, is 
much broader. The bill would not only eliminate the statute of 
limitations with regard to discriminatory pay decisions, it would also 
do so with respect to any ``other practice.'' However, this legislation 
nowhere defines what is meant by ``other practice.''
  Virtually all personnel decisions--promotions, transfers, work 
assignments, training, sales territory assignments--affect an 
individual's compensation, benefits, or their pay. It appears that the 
other undefined ``other practices'' language would extend liability far 
beyond simple pay decisions to include anything that might conceivably 
affect compensation. This would include claims of denied promotions, 
demotions, transfers, reassignments, tenure decisions, suspensions, and 
other discipline, all of which could be brought years after they 
occurred and years after the employee left employment, and, without my 
amendments, be brought by other people. The phrase could also 
potentially embrace employment decisions with no discriminatory intent 
or effect.
  This result is plainly an overreach and goes far beyond the publicly 
stated aims of this legislation's proponents. Defending a claim based 
upon a pay decision made years and years earlier is a heavy burden. 
Reaching back years and years to defend the dozens of other personnel 
actions an employer takes every day is an impossible burden. Senator 
Specter's amendment limits the reach of S. 181 solely to discrete pay 
decisions and makes clear that S. 181 does not apply to any other 
personnel decisions. While I believe it does not cure all the ills 
which S. 181 creates, it does put this very problematic interpretation 
to rest, and I support his effort and amendment.
  I heard many on the other side of the aisle state that S. 181 has 
been fully vetted because two hearings were held on it last year. I 
point out that the HELP Committee hearing was held before Senator 
Hutchison offered her alternative legislation, her ``better 
Ledbetter.'' Neither hearing covered this or any other alternative 
means to accomplish the goal on which we all agreed. If we had been 
able to explore alternatives in a hearing and have a markup--and a 
markup is a point I keep emphasizing--I believe we might have come to a 
change in the legislation that would more clearly state what is trying 
to be done and wind up with an agreement on both sides which would 
greatly reduce the amount of time that it takes to do amendments. The 
amendments, again, are done up or down rather than having slight 
revisions that could perhaps make them palatable to both sides.
  Our side has turned in amendments that are relevant, that are 
designed to hopefully improve the bill, and do it in a way that it does 
not eliminate the purpose of the bill. There could have been a lot of 
constructive work in a committee markup, but that is not the choice, so 
we will continue to proceed and we have been proceeding with 
amendments.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, first of all, I wish to thank the 
Senator from Wyoming, Mr. Enzi, for his cooperation in moving this bill 
on the floor. He has been a big help working with this side of the 
aisle and working with us and the respective leadership to line up 
these amendments so that we can actually offer them and discuss them, 
and we are going to be voting on them. I thank him for doing that.
  Also, the distinguished Senator from Wyoming had a very content-rich 
presentation. He covered his amendments, the Specter amendments, and 
other comments. He even discussed the Hutchison amendment. What I am 
going to do is respond to sections 3 and 4 of the bill and his concerns 
about the words ``affected by.''
  I oppose Senator Enzi's amendments to the Lilly Ledbetter Fair Pay 
Act. Those amendments strike the words ``affected by'' from sections 3 
and 4 of the bill. These amendments, I believe, are not necessary, and 
I am concerned that they could lead courts to mistakenly read this 
legislation in too narrow a framework.
  The Senator from Wyoming argues that his amendments are necessary 
because the bill somehow expands the category of persons who may sue 
for discrimination under the civil rights laws referenced in the bill. 
His concern and his claim is that the Lilly Ledbetter Fair Pay Act 
would allow spouses and other relatives of the workers who suffer 
discrimination to file their own lawsuits, claiming that they have been 
affected by the discrimination of their relative.
  I appreciate his concern. What we want, though, is to assure him, and 
I say to my colleagues that his concerns are not valid, that if you 
look at the legislation, this argument ignores the

[[Page S751]]

plain language of the existing statutes and the actual language in the 
Ledbetter bill.
  I am going to sound like a lawyer for a minute, but bear with me. The 
Ledbetter bill amends title VII of the Civil Rights Act of 1964 which 
outlaws job discrimination based on race, color, national origin, 
gender, and religion. The Ledbetter bill also amends the Age 
Discrimination in Employment Act of 1967 and applies those amendments 
also to the Americans with Disabilities Act and section 404 of the 
Rehabilitation Act.
  These laws make crystal clear that the only persons who can file 
under the act are those who have suffered discrimination on the job or 
the Federal entities charged with enforcing the civil rights laws, not 
the relatives or friends of these workers.
  I am going to make it crystal clear, I say unabashedly for 
legislative intent, that these laws make it crystal clear that the only 
persons who can file a suit under the act of discussion today are those 
who have suffered discrimination on the job or the Federal entities 
charged with enforcing these civil rights acts, not the relatives or 
friends of these workers. The citations are 42 U.S.C. 2000e-5(f)(1); 29 
U.S.C. 626(c)(1); 29 U.S.C. 791(g), 794(d); and 42 U.S.C. 12117(a).
  I also wish to elaborate that the bill amends only the provisions of 
the respective statutes regarding timeliness of job discrimination 
suits and leaves unchanged current law regarding who may file a suit.
  So the only thing we are dealing with is timeliness. Nothing in the 
Ledbetter bill would change the basic requirements that job 
discrimination suits under title VII, the ADA, the ADEA, or the 
Rehabilitation Act must be filed by the workers personally affected by 
workplace discrimination or by the Federal Government on their behalf.
  In addition, for further clarification, the House Education and Labor 
Committee's report on this legislation states that the language in 
sections 3 and 4 of the bill is modeled on the text of section 112 of 
the Civil Rights Act of 1991, which was adopted with overwhelming 
support in both Chambers of Congress to overturn the Supreme Court's 
decision in Lorance v. AT&T. I repeat that decision: Lorance v. AT&T 
Technologies.
  The Lorance fix has been around for nearly two decades, and it has 
not expanded the category of persons who can sue for job 
discrimination. Our bill will not change who may file the suit under 
the civil rights law it amends.

  Finally, the Enzi amendments should be rejected because omitting the 
words ``affected by'' from the bill might actually lead a court to 
conclude that we intend the fix adopted in this legislation to be more 
narrow than the Lorance fix. Although the Ledbetter bill uses the term 
``affected by,'' where the Lorance fix used ``injured by,'' the House 
report makes clear that this is a distinction without a difference. 
This is a distinction without a difference. Accordingly, if we followed 
the Enzi amendment, if we remove ``affected by'' from the Ledbetter 
bill, we run the risk that the courts might erroneously read this 
legislation as less comprehensive than the parallel provision of the 
1991 act.
  I urge my colleagues to oppose the amendments offered by our 
colleague from Wyoming. In a nutshell, the Enzi amendment only fixes 
half the problem, it does not cover discrimination, it has a delayed 
impact on workers' wages, and we know that anyone would not be able to 
sue even though they were still affected by this job evaluation 
business.
  I am going to say more about this, but my initial argument is to lay 
to rest the concern that persons other than the one who is actually 
discriminated against would have standing to file under this bill, and 
I think I have clarified that.
  I note that Senator Specter is here and he has his amendments, and I 
also note that there are other Senators on the other side of the aisle 
who wish to speak. So for now, I will conclude my arguments, and I 
yield the floor so that we may proceed with other Members.
  The PRESIDING OFFICER. Who yields time?
  Mr. ENZI. Mr. President, I yield such time as the Senator from 
Georgia needs, but first I wish to make a very brief comment.
  The Senator from Maryland kind of makes the point I have been trying 
to make through all of this. If there is wording that more clearly 
states the Senate's intention or Congress's intention, and since there 
is disagreement over how widely this affects people, had we gone 
through a committee markup, we would have already covered this and 
would have found more careful wording that would have done what I think 
both of us are talking about. So again, that is why we should send them 
to committee.
  I yield time to the Senator from Georgia.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.
  Mr. CHAMBLISS. I thank the distinguished Senator from Wyoming for 
yielding me this time, and I rise in opposition to the Lilly Ledbetter 
bill.
  I oppose, just like everybody else, discrimination in the workplace, 
and I believe any worker who experiences discrimination should have 
their claim handled in a fair and timely way. But I would like to 
reiterate what several of my colleagues have already mentioned, which 
is that discrimination in the workplace has been outlawed since 1963.
  This legislation, S. 181, the Lilly Ledbetter Fair Pay Act of 2009, 
did not go through the normal process. I think the Senator from Wyoming 
has just said that the issue we are talking about now is that this 
amendment might have clarified something that is not clear in the bill 
had it gone through the regular process.
  This bill is not about supporting or opposing discrimination. This 
debate is strictly focused on when the statute of limitations on pay 
discrimination suits should begin. As a first-year law student, you 
learn the critical importance of the statute of limitations in our 
judicial system. Our judicial system is the envy of the free world, and 
one of the basic fundamental rights or issues involved in our judicial 
system is the accruing of a right and a point in time when that right 
dissipates. That is what we call the statute of limitations, and it 
truly is fundamental and should not be tinkered with in any way 
whatsoever.
  What this bill would do would be to undermine fair and timely 
resolution of employment discrimination allegations.
  We are facing difficult economic times today. According to the U.S. 
Department of Labor, 984 Georgians lost their jobs last week. This 
bill, should it become law, will have a devastating financial impact on 
already hindered employers and business owners. Businesses around the 
country are on the defense. They need more incentives to hire and 
retain employees. What this will do is to create incentives to take 
money that would ordinarily be used to either increase pay or to hire 
more employees and put that money aside because at some point in time 
they are going to have to defend litigation as a result of this piece 
of legislation. I believe the legislation would undermine the fair and 
timely resolution of employment discrimination suits.
  I strongly support the amendment of my colleague, Senator Isakson. 
His amendment would make the legislation, should it pass, prospective 
only and would deny any rights on a retroactive basis. If we go to 
making bills such as this retroactive, what will we do to the business 
community?
  I also rise in support of the amendment of Senator Enzi. What it says 
is that an action accrues only to an affected employee.
  Those two amendments are commonsense amendments. Anybody who has ever 
been in the business world and who has hired employees knows and 
understands that there are certain guarantees you have to have if you 
are going to be successful in the business world. One of them is to 
know your exposure to litigation. What we are looking at here, unless 
the Isakson amendment is adopted, is that people who have been 
operating their businesses for years, in a way that they thought 
limited their exposure, all of a sudden may be exposed to what will 
amount to frivolous lawsuits that can be filed against them.
  Again, the Enzi amendment makes such common sense that oftentimes 
people in this town have a difficult time understanding it. As I have 
heard the Senator from Maryland discuss this issue a minute ago, I 
think we agree

[[Page S752]]

that only ``affected'' employees are covered by this, and we ought to 
clarify that. I think Senator Enzi's amendment does that, and therefore 
I am in strong support of his amendment.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Ms. MIKULSKI. Mr. President, I suggest the absence of a quorum, and I 
ask unanimous consent that the time during the quorum be equally 
divided.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, how much time is remaining on my side?
  The PRESIDING OFFICER. The Senator from Maryland has 13\1/2\ minutes 
remaining; the Senator from Wyoming has 8\1/2\ minutes remaining.
  Ms. MIKULSKI. Mr. President, I just wanted to say a few words.
  First of all, let's go to the remarks that were made that, somehow or 
another, by passing the Lilly Ledbetter Fair Pay Act, we are going to 
further undermine our economy and our ability to hire people. I find it 
surprising--first puzzling, then surprising--to say that the way we are 
going to get out of this economic mess is if we continue the status 
quo--or the stacking quo--which is that if you have discrimination in 
the workplace, don't pass the law to do greater clarification. I think 
that is a flawed argument.
  First of all, women of America already subsidize our economy. And you 
know what. We are mad as hell, and we don't want to take it anymore. 
Everyone needs to hear that: We, the women of America, are mad as hell, 
and we don't want to take it anymore. Now, why do I say that? We are 
already paid 77 cents for every dollar that men make, so we are already 
subsidizing the economy in the workplace. Then when you go into the 
home, our work is often undervalued and it is certainly not 
compensated. So somehow or another women's work doesn't quite count in 
the same way.

  Well, we want to be counted, and we want what we do to be counted. We 
want the world to know that if we are doing equal work, we want equal 
pay. We do not want to subsidize the economy. We don't want any 
subsidies. We want fairness, we want justice, we want the law on our 
side, and we want the courthouse doors open to us.
  Now, if business thinks the only way they can succeed is by 
continuing these practices, then business has a lot of lessons to 
learn. And by God, when you look at what the banks did, you can 
certainly see that. If business doesn't want lawsuits, there is one 
clear, right way of avoiding a lawsuit: don't discriminate. If you are 
an employer and you are paying equal pay for equal or comparable work, 
you will not be sued, you will not be challenged, and you have no need 
to fear.
  If you want to have some economic stimulus, give us that 23-cent 
raise--all those single mothers out there; as Senator Lincoln spoke 
about earlier, all those Norma Rays, all those Lilly Ledbetters, all 
those people who have lined up through the ages. So 23 cents might not 
sound like a lot, certainly in Washington where we give zillions to 
banks and they do not even say thank you. They don't even promise they 
will send out more or promise they will join with our President and 
work through this.
  So we are very clear that we want to be paid equal pay for equal 
work, and we want it in our checkbooks. But we know we have to get to 
that by having the Ledbetter bill in the Federal lawbooks.
  I can understand some of the fine points, the concerns raised by 
Senator Enzi. I think I have presented a sound legal argument that 
shows that the only thing we mean by the ``affected party'' is that 
person who is actually discriminated against, or if a Federal entity 
sues on their behalf. I think we have clarified it. But I believe we 
also need to be clear why we are doing this legislation. We are 
righting a wrong, we are addressing a grievance, and we are ensuring 
those fundamental principles of our society, which are fairness, 
equality, and justice.
  Mr. President, I am going to yield the floor, and I yield back my 
time.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. ENZI. Mr. President, I thank the Senator from Maryland. I have 
always appreciated working with her on issues. We probably wouldn't 
have completed the Higher Education Act if it had not been for her 
diligence and expertise and ability, and this is a bill on which she 
has expertise and ability. It hasn't gotten all of the viewpoints of 
all of the people on the committee, let alone all the people in this 
Chamber, and that is what we are trying to get to.
  There isn't anybody in this Chamber or probably on the other end of 
the building who isn't for equal pay. That is the law. If anybody knows 
of a situation where that is not occurring, let any one of us know, and 
I bet you we would help to right the wrong. We are against 
discrimination.

  But we are also against discrimination against the small businessmen 
who have to sometimes interpret our laws, figure out what we are 
saying, and become some of the precedent setters on some of the fine 
points that we don't even address. That should not happen. It is very 
expensive for them. What they are trying to do is put out a product or 
service and get compensated for it so they can compensate their 
employees. There are a lot of decisions they have to make to be able to 
do that. Fairness is one of them.
  This 23-cent pay differential that keeps coming up--and that is 
wrong--is why we had a fantastic hearing in our committee about why 
that happens. That is because different jobs--not the same job, 
different jobs--pay different amounts. The ones with more risk 
apparently pay more. The ones with more risk are nontraditional jobs 
for women.
  One of the people who testified had taken a course to become a mason, 
a rock mason, to do rock work. Her first rock work was, of course, at 
ground level. Later, she was installing big sheets of marble on the 
outside of skyscrapers. She went through how her compensation changed 
as she did these different jobs. That is a nontraditional job for a 
woman, but she is being paid more than most men in this country now.
  That is what we have to do. We have to provide the encouragement, the 
skills, and the training to be able to perhaps do nontraditional jobs. 
I have tried to get this Workforce Investment Act through for the last 
5 years. We passed it through the Senate once unanimously and were 
never able to get a conference committee on it with the House. Since 
that time, it has just languished. That would provide skills training 
to 900,000 people a year. It is criminal we do not pass that. That 
would solve a lot of the 23-cent gap we are talking about. That is not 
equal pay for equal work, that is higher pay for different work. But we 
need to have people trained to do that work, and we need to provide the 
training to do that work. That will solve a lot of the 23-cent gap.
  But as long as we are encouraging people to do the traditional jobs, 
and we are not providing them with the training, we are relegating them 
to a gap. I guarantee it is bigger than 23 cents. That is the average. 
That is the way it works out across this country, which means some are 
making more and some are making a whole lot less. We do not want that 
to happen. I want everybody to be clear. Nobody wants to have unequal 
pay for equal work.
  What we have tried to do, since we can't, as in a markup, sit down 
with the people who have the common interests in some of the parts of 
this that we have questions about and work out something that everybody 
agrees with that, from the perspective of those people in the room, 
solves the problem we are talking about--we have been doing that in the 
HELP Committee. We have been doing that on a frequent basis. We have 
even been so agreeable in the committee that a lot of times we will 
have some amendments that people are concerned about, and we haven't 
been able to reach an answer by the time we get to markup, but we know 
that is a problem, and we say we will get that solved by the time it 
gets to the floor, and we do and it doesn't take much floor time.
  The reason I brought up this amendment is that I think it is far too 
broad. I have not had a chance to review the

[[Page S753]]

specific cites that the chairman has brought up. I would like to be 
able to do that, but we are not going to have that time either which we 
would if we had a normal amendment markup--but S. 181 adds a new 
undefined term to title VII, and that is ``individual''--this 
``affected individual'' will be permitted to sue under S. 181. But we 
do not know what the term means. Does it include spouses, et cetera? 
Why didn't the bill's sponsor use a defined term such as ``person.''
  This bill, as drafted, leaves the door open to lawsuits from people 
other than the employee. My amendment shuts that door. Maybe it is not 
the most effective way, but we have not had the opportunity to sit down 
and look at these different perspectives, look at these words, make 
sure we have it defined right, make sure we have the right ones in the 
bill.
  That always disturbs me. We are trying to solve a problem, a problem 
that is real, and we are trying to do it in a way that is fair to 
everybody. ``Everybody'' means all the employees and the employers and 
do it in a way that we will get the right information. If this opens 
the door to other people, even without the permission of the person who 
was affected in some cases--families take things much more personally 
than the individuals do usually. I know in campaigns it is the families 
who get upset when they see one of these terrible ads on television and 
they hold the grudge longer. They do not understand it the same way the 
candidate does. The same thing happens in the workplace--and I am sure 
it does. If a person comes home from work, and they are upset and they 
complain, the family takes it personally. That is a help to the 
employee. They need to be able to voice these things and have somebody 
who acts as a sounding board on it. But the family always continues the 
grudge longer.
  I can tell you this bill allows those people to go ahead and open the 
door and sue on behalf of the person who came home with the grudge, 
even if that person is not willing to sue because they can be affected. 
There are ways to fix this, but I contend that just doing it through 
these votes on the floor probably is not going to do it.
  I yield the floor.
  The PRESIDING OFFICER. Is there further debate on the Enzi amendment? 
The Senator from Maryland is recognized.
  Ms. MIKULSKI. Did I yield back my time?
  The PRESIDING OFFICER. The Senator yielded back her time, but we know 
how much time she had remaining.
  Ms. MIKULSKI. I said, did I yield back my time?
  The PRESIDING OFFICER. The Senator did yield back her time.
  Ms. MIKULSKI. At that time I was unaware that Senator McCaskill was 
coming to the floor. I ask unanimous consent for 5 minutes for Senator 
McCaskill to be able to speak.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered. The Senator from Missouri is recognized.
  Mrs. McCASKILL. Mr. President, there are certain things that just 
reflect common sense. One is the reality of the workplace, who has 
power and who does not. Generally, the people who are being subjected 
to unfair treatment--doesn't it make sense they are not the powerful 
ones? Doesn't it make sense they have the least information about what 
is going on in terms of policies and procedures?
  The thing about the Ledbetter case that just defies common sense is 
that we are asking the least powerful people in the workplace to be all 
seeing and all knowing. We are asking them to know what clearly they 
cannot know because they are being discriminated against. How unfair is 
it that we are saying to a woman: You must know when they start denying 
you a promotion. It is not just about equal pay. With all due respect 
to my friend and colleague from Pennsylvania, it is not just about pay. 
It is about promotions. It is about whether you are considered for the 
big job not just whether you are making the same amount when you get 
the big job. We cannot ask those people who have been kept in the dark 
because they are not considered as worthy as others to be the ones to 
know what the policies and procedures have been in the workplace.
  I think it is important we defeat these amendments. I think it is 
important that we restore common sense to allow someone to take action 
when they have, in fact, been kicked to the curb in the workplace--not 
because of their job but because of who they are, because of whether 
they are a man or a woman, whether they are old or young, whether they 
are Black or White.
  The secrecy in the workplace sometimes invades other places. There 
are so many rules around here that I respect, but I tell you, I do not 
get anonymous holds. I do not get anonymous holds. I do not understand 
why any Member of the Senate would not be proud to explain why they 
were willing to hold up someone's nomination.
  Imagine my frustration when I look at the nominations that are being 
held now in secret. Do you know what is amazing about it? They are 
women, the same women who have suffered in the workplace because they 
do not get enough information. There are now four women who are 
secretly being held from doing their jobs: Lisa Jackson at EPA, Nancy 
Sutley at White House Environmental Council, Hilda Solis for the 
Department of Labor, and Susan Rice for the Ambassador to the U.N. Just 
like Lilly Ledbetter, they are being kept in the dark as to why they 
are not being allowed to step up to service.
  I implore the Senators who are secretly holding these women--by the 
way, those are almost all the women who have been nominated. 
Proportionally, almost every woman who is being nominated is being 
secretly held, compared to the men who are nominated.
  I urge everyone to defeat the amendments on Lilly Ledbetter. I urge 
its passage.


              unanimous consent request--executive session

  I ask unanimous consent the nominations of Lisa Jackson, Nancy 
Sutley, Hilda Solis, and Susan Rice be moved forward.
  The PRESIDING OFFICER. Is there objection?
  Mr. SPECTER. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. On behalf of those women, I am disappointed at the 
objection. I look forward to the passage of Ledbetter and the 
confirmation of those women so they can serve.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Ms. MIKULSKI. Mr. President, what is the regular order?
  The PRESIDING OFFICER. One minute remains for each side in debate.
  Ms. MIKULSKI. Mr. President, I yield back my time. I know Senator 
Specter is waiting. He is also dealing with the nomination of Mr. 
Holder. We would like to move Mr. Specter along.
  I yield my 1 minute back, if the Republicans yield back their minute.
  The PRESIDING OFFICER. The time is yielded back. The Senate will now 
debate the Specter amendment.
  The Senator from Pennsylvania is recognized.


                            Amendment No. 26

  Mr. SPECTER. Mr. President, I call up amendment No. 26.
  The PRESIDING OFFICER (Mr. Brown). The amendment is pending.
  Mr. SPECTER. Mr. President, this amendment provides that:

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

  This amendment goes to the issue of giving the employers a fair 
opportunity for offering a defense. I have long supported equal pay for 
women. I have long supported breaking the glass ceiling as a matter of 
equitable fairness. In my book, ``Passion For Truth,'' I wrote almost a 
decade ago:

       The majority in a democracy can take care of itself while 
     individuals and minorities often cannot. Moreover, our 
     history has demonstrated that the majority benefits when 
     equality helps minorities become part of the majority.

  Last Congress I cosponsored two bills dealing with equal pay. I 
cosponsored the Fair Pay Restoration Act with Senator Kennedy and the 
title VII Fairness Act with Senator Hutchison. Earlier today I voted 
with Senator Hutchison, which would have started the tolling of the 
statute of limitations when the employee knew or should have known.
  The availability of the defense is very important. What the amendment

[[Page S754]]

does is to incorporate the language in the dissent of Justice Ginsburg 
in the Ledbetter case, where Justice Ginsburg pointed out that:

       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 we have, essentially, are equitable defenses. If you have 
waiver, where there is an affirmative act to give up a right, or where 
you have estoppel or laches, that means the party has waited an 
unreasonable period of time, so those defenses may be asserted.
  Now, it is my legal judgment that these defenses would be available 
without this amendment, but you never can tell what a court will do. 
One of the objectives of legislation is to cure any potential 
ambiguity, so it is plain what will happen in court. That is what this 
amendment does.
  If I may have the attention of the distinguished senior Senator from 
Maryland, we had discussed first, if it is agreeable to the Senator 
from Maryland, who is managing the bill, I compliment her on her 
outstanding work and again repeat, I cosponsored her bill in the last 
Congress. I did not do so this year, not that I am opposed to the 
principle of equal pay, but I tried to work out these matters to make 
what I consider to be improvements.
  The question I would ask of the Senator from Maryland, is: Do you 
believe that the defenses of waiver, estoppel, laches, and equitable 
tolling are available now or would be available if this bill were 
enacted, even without such a specific amendment such as I have offered?
  I raise that question because there has been some discussion that we 
could have a colloquy. I think it is preferable to having it firmly in 
the statute. But I begin with the form of a colloquy. Do you agree the 
defenses of laches, waiver, equitable tolling----
  Ms. MIKULSKI. First, let me say to my good friend from Pennsylvania, 
one, I wish to thank you for your cooperation on this bill. I wish to 
thank you for your cosponsorship in a previous Congress. We hope we do 
have the Senator's support at the conclusion of the amendment process.
  I wish to say to my friend the bill does not change the law on the 
topics he has raised. But in all fairness, he is a superior lawyer. I 
am not a lawyer. Rather than me responding, kind of shooting from the 
lip, I would like to have a proper colloquy with the Senator at such 
time that I know we are on firm ground so we can clearly establish the 
legislative intent.
  Could I suggest the absence of a quorum while the Senator and I 
discuss this and see how we can proceed?
  Mr. SPECTER. Certainly.
  Ms. MIKULSKI. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, after a brief discussion with the 
distinguished Senator from Maryland and the distinguished majority 
leader, we decided to go ahead with the debate and a vote on the 
amendment.
  At this time, I call up amendment No. 27.
  The PRESIDING OFFICER. The amendment is pending.
  Mr. SPECTER. This amendment would strike the language of ``other 
practices.'' In the statute, the language reads: ``pay or other 
practices.'' And this amendment would strike the language ``other 
practices,'' focusing on the pay.
  As I said before, I believe there ought to be equal pay for women. 
The glass ceiling ought to be broken and they ought to be treated 
fairly and equally.
  But I am concerned about the language of ``other practices,'' which 
might well engage and promote an enormous amount of litigation, as to 
whether ``other practices'' included such items as promotion, hiring, 
firing, training, tenure, demotion, reassignment, discipline, temporary 
reassignment or transfer and all those items.
  That is not intended to be a dispositive list. There could be more 
items that someone might say ``other practices'' encompass. There have 
been objections to this legislation, that it is going to promote 
extensive litigation. I think the best way to approach this issue is to 
provide equal pay. If somebody wants to include one of those other 
items, such as promotion or hiring or firing or any of them, I would 
certainly be willing to consider them in the legislation.
  But what I would like not to see is the language ``other practices'' 
with the vagueness and the ambiguity that is present in that kind of 
language. That is the essence of the argument.
  In an extensive floor statement, I have set forth my general approach 
and my reasons for offering these two amendments. I ask unanimous 
consent that it appear at the conclusion of my extemporaneous remarks.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  Lilly Ledbetter Fair Pay Act of 2009

       Mr. Specter. Mr. President, I seek recognition today to 
     discuss a very important issue facing American workers--pay 
     discrimination.
       I have long been an ardent supporter of civil rights and 
     have consistently supported legislation aimed at rooting out 
     discrimination based on race, gender, disability, and 
     economic disadvantage. ``The majority in a democracy can take 
     care of itself, while individuals and minorities often 
     cannot. Moreover, our history has demonstrated that the 
     majority benefits when equality helps minorities become a 
     part of the majority.''
       We all agree that pay discrimination is insidious and 
     unacceptable. Last Congress, I cosponsored two bills dealing 
     with the Supreme Court's decision in Ledbetter v. Goodyear 
     Tire & Rubber Co., 127 S. Ct. 2162 (2007)--the ``Fair Pay 
     Restoration Act'' with Senator Kennedy and the ``Title VII 
     Fairness Act'' with Senator Hutchison. I cosponsored both of 
     these bills because I believed that the only way for a 
     substantively fair bill to pass was to find a bipartisan 
     compromise. I still believe that, and so in this Congress, I 
     have declined to cosponsor any legislation on this issue in 
     an effort to foster a compromise.
       I agree with Senators Mikulski and Hutchison that women 
     should not be expected to challenge pay practices that they 
     do not know about. I also agree with Senator Hutchison that 
     no one--regardless of sex, race, age, or disability should be 
     expected to challenge a decision or practice they do not know 
     about. However, it was Congress' intent in passing Title VII 
     and other anti-discrimination statutes that if employees know 
     about such practices, they should file suit within a 
     reasonable time; they should not sit on their rights. This is 
     what Justice Ginsburg noted in her dissent in Ledbetter--that 
     Title VII has a remedial purpose. Moreover, the notion that a 
     statute of limitations begins to run from the time a person 
     knows that they have been harmed is consistent with every 
     other area of the law and is the reason for statutes of 
     limitations.
       This is not an easy issue, and there is no doubt this 
     statute will lead to more litigation--some of which will have 
     merit, and some of which will not. For small employers in 
     particular, more litigation can cause serious economic 
     hardship. But my view has always been that we should give 
     maximum protection to women in the workplace. We all know the 
     proverbial ``glass ceiling'' is more than just a catch 
     phrase. It exists. And where there is discrimination, we must 
     ensure that a technicality on an especially short statute of 
     limitations does not preclude ending a discriminatory 
     practice or recovery. A 180-day deadline may be a reasonable 
     time period for filing claims challenging overt acts of 
     discrimination, such as a termination or denial of 
     promotion based on gender. Pay discrimination, however, is 
     more subtle, and often goes unnoticed by an employee for a 
     long time.
       I voted for cloture on the motion to proceed to this bill. 
     But that does not mean I believe that we as Senators should 
     rubberstamp legislation, especially legislation that has 
     bypassed the committee process. There is a great deal to be 
     said for regular order, where we have the text of a bill, 
     amendments are proposed, there is debate, there are votes, 
     and the process moves ahead through the committee system. I 
     believe that the bypassing of the committee process has, in 
     the past, contributed to the ultimate failure of legislation.
       It is imperative that, as the world's greatest deliberative 
     body, we have an open debate on every issue that comes before 
     us. Each Member should have the opportunity to offer 
     amendments. Before today, it had been over 120 days since 
     Republicans had an opportunity to offer an amendment to any 
     bill on the floor. I am pleased that the Majority and 
     Minority Leaders have reached an agreement to permit Members 
     to offer amendments to this bill.
       As Senator Hutchison said on the floor this week, a bill 
     should be carefully drafted so that it does what the sponsors 
     intend for it to do and so courts are not left trying to sort

[[Page S755]]

     things out in a way that may contravene Congressional intent. 
     That is my reason for offering amendments to this bill. My 
     amendments will not alter the legislation significantly, but 
     rather will clarify what I perceive to be two ambiguous 
     aspects of the bill.
       My first amendment would strike the phrase ``or other 
     practices'' where it appears in the bill. The bill does not 
     define the phrase and thus could be interpreted to mean that 
     an employee is excused from filing a timely challenge to any 
     employment decision that ultimately affects compensation, not 
     simply pay decisions. This could include promotions that the 
     employee knows he or she did not receive, transfers, work 
     assignments, or training. Such an interpretation would 
     arguably expand the definition of liability under Title VII 
     in a way that the authors of this bill did not intend. It 
     could also potentially embrace employment decisions with no 
     discriminatory intent or effect.
       This phrase could also be interpreted as effectively 
     vitiating the statute of limitations. An unfair employment 
     decision, such as a failure to promote, could still affect an 
     employee's pay decades later. Thus, an employee could 
     potentially sit on his or her claim for years, regardless of 
     the fact that he or she was on notice when the unfair 
     employment decision was made. We want employees to challenge 
     those decisions when they are aware of the unfair decision. 
     And we want employers to have the opportunity to take prompt 
     remedial action.
       My second amendment would add a rule of construction to 
     provide that nothing in the Act shall be construed to 
     prohibit any party from asserting waiver, estoppel, or 
     laches. These equitable doctrines allow courts to consider 
     whether an employee had notice of discriminatory treatment 
     but chose to do nothing for a long period of time. In her 
     dissent in Ledbetter, Justice Ginsburg reasoned that 
     ``[a]llowing employees to challenge discrimination that 
     extends over long periods of time .  . . 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.'' 
     Ledbetter, 127 S. Ct. at 2186 (Ginsburg, J., dissenting) 
     (internal quotations and citations omitted). This amendment 
     makes clear that, under this bill, employers retain their 
     right to assert those affirmative defenses.
       I have voted against cloture in the past as a matter of 
     principle. I do not think we ought to end a debate before a 
     debate has even begun or before Members have had an 
     opportunity to offer amendments. That has resulted, as I see 
     it, in gridlock on the Senate floor and dysfunction. I am 
     hopeful that this practice has ended with the new Congress.
       I urge my colleagues to support this amendment. I thank the 
     Chair and yield the floor.

  Mr. SPECTER. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I would like to share a few thoughts 
about this subject. The need to ensure that women are not discriminated 
against in the workplace is very real. Congress has acted on that more 
than once.
  In fact, this litigation and legislation has arisen from statutory 
actions to make sure discrimination does not occur. The Supreme Court 
held that one woman lost her suit because she brought it too late. 
Because of this her allies, friends and others have promoted the idea 
that we should change the statute of limitations in a historic way; in 
ways we should not in order to deal with this problem.
  I think that is a mistake. I practiced law for a lot of years. I have 
seen the power of the statute of limitations. Clarity in that issue is 
important to me in the practice of law and for every American citizen.
  For example, I was a federal prosecutor for many years. A lot of 
Americans may not know that a burglar, a robber or a thief can get away 
with his crime if, after 5 years, they are not arrested or charged. 
They are home free and cannot be prosecuted because of a statute of 
limitation.
  There are only a few crimes, such as treason and murder, that have 
extended statutes of limitations. The entire legal system we have 
inherited, this magnificent legal system that began in England and we 
have worked with here serving us so well, has always recognized, as a 
matter of policy, that people ought not to sit on their claims.
  If someone has a claim they have a responsibility to come forward and 
make it. Sometimes that makes for difficult choices. There was a case 
recently in Alabama where an individual who had a claim went to the 
local probate judge. In Alabama, the probate judge is more of a 
ministerial office. Some are not lawyers; most are. I am not sure if 
this probate was a lawyer. He told the individual they could file a 
lawsuit next Wednesday. He filed it next Wednesday, and the person who 
was sued went to court and moved to dismiss it, saying the man filing 
the suit waited too late. In truth, he was 1 day late. The Alabama 
Supreme Court said: The law says this much time. You file it late, you 
are out.
  This is the nub of the matter. The statute of limitations means 
something. Before the Ledbetter case arose I had on more than one 
occasion objected to a special piece of legislation in this Senate. I 
think they finally got it passed through the House, but not the Senate. 
I was the only one who objected. It would give a law firm in one of the 
Nation's big cities a special law, a bailout, that would excuse them 
for missing the statute of limitations on a big, expensive matter. They 
said: ``Well, you know, this is a lot of money. It is millions of 
dollars. We only missed it by 1 day.'' I think it was a 1-day thing. 
``Give us a new law that allows us to get in there and get around our 
mistake.''
  One time I suggested, well, would that law firm from hereafter commit 
to every client they have in their law firm, that if somebody files a 
lawsuit too late they will waive the statute of limitations defense; 
they won't raise that defense, and let the other party go ahead and 
file a case? Of course not.
  A statute of limitations is a part of the law. Every lawyer knows the 
best way to get sued for malpractice is to miss a deadline, which is 
what I said of this big law firm and its mistake. That is why you have 
malpractice insurance and why it exists in the first place. If you miss 
a statute of limitations or you advise your client wrong on the statute 
of limitations and filing deadlines, your client can sue you for 
malpractice. You better have insurance or a lot of money to pay for 
your mistake.
  I want to say to my colleagues how deeply embedded in our legal 
system is the concept of the statute of limitations, the length of time 
in which you are entitled before you sue somebody.
  Then there came another situation that is more difficult. Courts have 
worked their way through it, which is how these issues are resolved. 
Well, what if you are an average American citizen working and somebody 
cheats you or somebody mistreats you in the workplace and discriminates 
against you in the workplace. What if you are unaware? What if you had 
no evidence, you didn't know the true facts and you didn't know they 
had cheated you? What about that? Well, basically the courts have had 
an equitable relief that says you have a certain amount of time from 
the time you discover you have been mistreated in order to file a 
lawsuit. In other words, the statute of limitation is extended from the 
point of discovery to allow you to seek relief.
  In the Ledbetter case the Supreme Court concluded that the person 
complaining about the mistreatment, the discrimination in the 
workplace, had known about it for years, several years, 4 or 5 years. 
They said: You can't wait that long. One of the key witnesses involved 
in the alleged discrimination had died. So the argument was: Well, I 
get a percentage of my wages in pension benefits from the company. And 
because I didn't get promoted, my pension benefits are not as much as 
they should be. And every time I get a check from the company I worked 
for, it is somewhat less than what I would have otherwise been entitled 
to and, therefore, that is a new cause of action that begins to run 
every time I get a new check.
  This is not the way the law has been interpreted. Let me say with 
more clarity, the philosophy and the history of limitations on actions 
has never operated in this proposed fashion. If you head down that path 
of dealing with the issue there is virtually no limit on the statute of 
limitations. For this class of cases--and it goes beyond employment 
cases--a very broad piece of legislation here today, it provides an 
extension of the statute of limitations, a tolling of the statute of 
limitations to an almost indefinite time. That is not good.

[[Page S756]]

  We need to understand what we are doing. I know politically this has 
been ginned up into a big issue. It is complex and technical in some 
senses. A lot of people haven't taken the time to grasp what we are 
doing. But I urge my colleagues to consider the legislation moving 
forward and some of these amendments; that there are sound reasons that 
limit the time for which a party can file a lawsuit against you. And 
they are legitimate reasons. It has been a part of every action since 
the founding of the Republic, to my knowledge, unless it was an 
oversight. They all provide for a statute of limitations, even criminal 
cases. Criminals can walk free totally, if they cannot be charged for 5 
years, usually. I say 5. Alabama and most States still have 5 years for 
burglary and larceny and assaults.
  I support equal pay for equal work. I urge my colleagues to recognize 
that this evisceration of an historic principle of limitation of 
actions is not a way to fix it. It has ramifications far beyond these 
cases that have been discussed.
  I urge my colleagues to spend some time in reviewing this, making 
sure that we realize what kind of hole we are knocking through the 
historic principle of the Anglo-American rule of law. If we do that, 
this legislation will not become law in its final form.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Maryland may proceed.
  Ms. MIKULSKI. Mr. President, earlier, I asked for a quorum call while 
the distinguished Senator from Pennsylvania and I had a discussion on 
what is the best way forward to clarify some of his questions on 
waivers, estoppels, and laches in this bill. We were looking, trying to 
have colloquies or amendments and so on. What we concluded was that the 
clearest way to do this so legislative intent is firmly established in 
the Record is for him to offer his amendments, present his arguments, 
and I would offer rebuttal to that on that matter.
  He also raised another issue on striking the phrase ``other 
practices.'' I would like to now talk about both of those amendments, 
but sequence them.
  First, I will discuss the Specter amendment on adding a rule of 
construction on the equitable defense of waiver, estoppel, and laches.
  Mr. President, I strongly oppose Senator Specter's amendment to add a 
rule of construction to the Lilly Ledbetter Fair Pay Act regarding 
employers' equitable defenses on just what I said--waivers, estoppels, 
and laches. This amendment is unnecessary and unfair. These are 
technical legal terms, and I am going to be very clear that the 
language is unnecessary because nothing in the bill changes the 
availability of these longstanding equitable defenses. Parties have 
been able to raise equitable claims in employment discrimination cases, 
and nothing in the pending legislation would change that. Courts will 
be able to decide equitable claims under the same circumstances as they 
do now. I am going to repeat that. Courts will be able to decide 
equitable claims under the same circumstances as they do now, 
regardless of whether this legislation is passed. The bill does not 
mention equitable doctrines, and nothing in its language could fairly 
be implied to suggest that parties may not raise equitable claims.
  In enacting legislation, Congress does not normally list all the 
things the bill does or does not or could or could not do. Doing so 
here could give courts the mistaken impression that Congress intended 
courts to look more favorably on equitable defenses than they currently 
do, thereby putting a thumb on the scale in favor of employers who 
raise such arguments.
  Adopting the Specter rule of construction could also lead courts to 
conclude that Congress wanted to prevent assertions of equitable claims 
in other contexts not addressed in the bill, such as challenges to 
promotion, termination, or other benefits decisions. That result would 
hurt both employers and employees.
  Neither of those interpretations is intended in this bill. The 
purpose of this legislation is not to upset the longstanding balance 
that courts have established regarding these equitable defenses. As 
explained in the findings, the bill's purpose is to overturn the 
Ledbetter Court decision--a decision that had nothing to do with 
equitable defenses.
  This amendment is also unfair because it is one-sided. It mentions 
only equitable doctrines raised as defenses by employers, but ignores 
the arguments workers may raise based on equitable doctrines. 
Plaintiffs have always had the ability to raise equitable claims such 
as waiver, equitable tolling, and estoppel. The Supreme Court ruled 
long ago that the time limit in job discrimination cases is subject to 
equitable doctrines, and this legislation does not upset that ruling. 
See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 1982. 
Courts have ruled that employees may raise claims of equitable tolling 
when they were excusably ignorant of their duty to file a 
discrimination claim by a particular date.
  In addition, courts have held that employers are estopped from 
asserting that a worker's job discrimination claim is untimely if the 
employer's conduct reasonably can be concluded to have induced the 
employee to miss the filing deadline. For instance, when workers fail 
to timely file a charge of discrimination because their employer's 
misrepresentations caused them to believe they had waived their claims, 
the employer is estopped from arguing the charge was untimely. See 
Tyler v. Unocal Oil Co. of California, 304 F.3d 379, 5th Cir. 2002. 
Likewise, if the employer induces a worker to delay filing a charge by 
falsely stating that the employee was fired because his or her position 
would be eliminated, the employer may be estopped from complaining that 
the worker missed the filing deadline. See Rhodes v. Guiberson Oil 
Tools Div., 927 F.2d 876, 5th Cir. 1991, holding that employer was 
estopped from arguing that worker's ADEA charge was untimely, where 
employer concealed facts and misled employee into believing he had been 
discharged because his position was being eliminated or combined with 
another position, and that he might be rehired.
  Yet the Specter amendment ignores this history and does not say that 
equitable claims also may be raised by plaintiffs alleging 
discrimination. This could lead to the perverse result that courts 
would look less favorably on workers' equitable claims in pay 
discrimination cases than they do now. This legislation intends to 
restore workers' ability to fight unfair pay discrimination, and we 
must avoid erecting new hurdles by adopting an amendment that could 
undermine workers' arguments based on equitable doctrines.
  For decades, the courts have been considering these and other 
equitable claims by plaintiffs in job discrimination cases, as well as 
equitable claims raised by defendants. We should do nothing in this 
legislation to upset the balance courts have established in this area.
  So when we do have our votes, I will urge my colleagues to join me in 
defeating the amendment by the Senator from Pennsylvania, Mr. Specter.
  Now, Mr. President, he also raises another issue related to ``other 
practices.'' I also strongly oppose that. I strongly oppose the 
amendment offered by Senator Specter to strike the words ``other 
practices'' from section 3 of the Lilly Ledbetter Fair Pay Act. This 
amendment is unnecessary and would seriously undermine the bill's goal 
of protecting employees who, like Lilly Ledbetter, were denied a fair 
chance to challenge pay discrimination in the workplace.
  This issue, too, involves a rather complex and detailed legal 
argument, complete with references and citations.
  To summarize in somewhat plain English--because this issue is 
complicated, and the Senator from Pennsylvania has raised very 
important and solid questions, and I want to further clarify why we 
oppose the amendment--Senator Specter's proposal to eliminate the term 
``other practices'' from section 3 of the bill would defeat our 
legislation's purpose of overturning the Supreme Court's decision in 
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 2007. Lilly 
Ledbetter, the

[[Page S757]]

plaintiff in that case, was paid significantly less than her male 
colleagues. This difference in pay came about because Lilly's employer 
based her pay on a bad evaluation they gave her because she was a 
woman. Now, I am going to repeat that. The difference in pay came about 
because her employer based her pay on a bad evaluation, but the bad 
evaluation they gave her was because she was a woman. And this has been 
established. The discrimination continued every time Ms. Ledbetter 
received a paycheck, and the difference in pay between her and her male 
coworkers grew more severe over time. If you listen to her speak, you 
can see how it affected her pay, her pension, her 410(k), and her 
Social Security.

  If we adopt the Specter amendment, this legislation will no longer 
cover situations like Ms. Ledbetter's, where a discriminatory 
difference in pay is tied to a practice like job evaluations that 
contributes to the employer's decision to set a worker's pay at a 
certain level. That result is simply unacceptable.
  The rule we enact in this bill must be workable and it must 
accurately reflect how job discrimination occurs in the workplace. Ms. 
Ledbetter's case--and many others--show that salary determinations 
often rely on other discriminatory actions.
  Unfair differences in pay may be brought about not only be 
discriminatory job evaluations, but also by discriminatory decisions to 
classify a job in a particular way, or by discriminatory assignments to 
a particular location. See, e.g., Parra v. Basha's, Inc., 536 F. 3d 
975, 9th Cir. 2008, Latino workers were paid up to $6,000 less annually 
than other employees performing the same duties based on their 
assignment to a store location with a predominately Latino workforce; 
Moorehead v. UPS, 2008 WL 4951407, employer claimed that differences in 
starting salaries for men and women were due to its evaluation system.

  Because the factors that contribute to pay scales are solely within 
employers' discretion, we must not adopt a rule that encourages 
employers to link pay setting decisions to other personnel actions, 
such as evaluations, in order to avoid the civil rights laws. That 
would create an unacceptable loophole in what is intended to be a 
comprehensive solution of the problems created by the Ledbetter case.
  If we adopt the Specter amendment, we would only help some victims of 
pay discrimination--and leave countless workers such as Lilly Ledbetter 
without justice.
  Senator Specter has said that his amendment is necessary because the 
bill, as drafted, is overbroad and could apply to discrete personnel 
decisions, like promotions and discharges. That's not true. The bill 
specifically says that it is addressing ``discrimination in 
compensation.'' That limiting language means that it already only 
covers such claims--nothing more, nothing less.
  Mr. President, I am going to yield the floor in order to recognize 
our colleague from North Dakota, Senator Dorgan.
  Mr. DORGAN. Mr. President, I thank my colleague from Maryland for her 
leadership. It has been a long struggle and she continues that struggle 
on the floor of the Senate today. I was thinking that the struggle for 
women's rights has been ongoing for a long time. It was 150 years in 
this country before women had the right to vote. Think of it. This has 
been a long and tortured struggle.
  I say to my colleagues that I think this is the easiest vote to cast. 
We come to this floor sometimes to cast wrenching, difficult, 
controversial votes. This is not one of them. This cannot be one of 
them. Requiring women who have been discriminated against to bring a 
lawsuit against their employer before they knew they were discriminated 
against is absurd, and yet that is what the Supreme Court said. It 
seems to me it is time to correct that Supreme Court decision.
  Women have been fighting for equality and especially equal pay for a 
long time. In this Ledbetter case, she was discriminated against by 
being paid substantially less than a coworker working right beside her, 
doing exactly the same thing, and they underpaid her for years and 
years and years. Finally, in the disposition of the Supreme Court, she 
was told that her case didn't stand because she didn't file that claim 
within 180 days. She didn't know for 20-some years, let alone 180 days. 
Why should she not have been able to have the right to continue 
redressing that wrong? So we must, it seems to me, do the work of the 
committee here today and pass this legislation.
  This struggle, as I said, has gone on for so long. Abigail Adams was 
urging her husband John Adams to protect the rights of women as early 
as 1776. This struggle has gone on since before the Constitution was 
written in this country. I was reading some while ago about the 
struggle of the woman's right to vote. This is about equal pay, but the 
so-called ``night of terror'' happened in Occoquan Prison. On November 
15, 1917, 33 women were severely beaten by over 40 guards in Occoquan 
Prison. Why? What had they done? They were arrested for obstructing 
sidewalk traffic in front of the White House. Why were they there? 
Because they believed that women ought to have the right to vote in 
this country. So they were arrested and hauled off to prison. Lucy 
Burn, one of the 33, they say was shackled around both arms and the 
chain between the shackles was hung on the top of a cell door and that 
was her position throughout the night as blood ran down her arms. Alice 
Paul finally went on a hunger strike and they shoved a tube down her 
throat and her vomit nearly killed her.
  These women were tortured during the night of terror in Occoquan 
Prison because they obstructed traffic on a sidewalk? Why did they do 
that? They demanded, after 150 years, the right to vote. That is what 
they risked. They nearly died, some of them, to get this right to vote. 
Think of that struggle and how unbelievable that struggle was, and what 
heroes they were. But as always, there was push-back, people saying no.
  My colleague from Maryland brings to us today an issue of fair play--
another long struggle, and it is not even nearly over--but at least 
today we can take a step in the right direction with respect to the 
Lilly Ledbetter case. A Supreme Court that says a woman has no right to 
bring a pay discrimination case before the Court because she didn't 
know she was being discriminated against? That is an absurdity and one 
that must be corrected.
  This long struggle for fairness for American women will not end on 
the floor of the Senate today, but this should not be a difficult vote 
at all. I can't conceive of someone who would say the Supreme Court 
decision has any sort of fairness attached to it. A woman who is 
working for 25 years or more, beside someone who is doing the same job 
but paid much more because of that person's gender, that woman doesn't 
have a right to seek redress? What an unbelievable injustice.
  Lilly Ledbetter, by the way, was here this week attending the 
inaugural of a new President. We have tried to solve this problem 
before in the last Congress, but couldn't. We will solve it now, 
because it is right, it is fair, it is just, and this struggle ought to 
continue until we win. This is one right step in the direction of this 
struggle of fair pay, and it is a step we ought to take today.
  Again, I thank my colleague from Maryland for being such a leader on 
this issue. My hope is at the end of this day--this day--we will have 
passed this legislation and taken a very large step in the direction of 
justice for women.
  Mr. President, I yield the floor.
  Ms. MIKULSKI. Mr. President, before the Senator leaves the floor, 
first, he certainly knows his women's history and today he is going to 
help us write new history. We thank him for recalling--although it is a 
melancholy thing to recall--how brutal the retaliation was against 
women. Every time we have had to stand up, whether to exercise our 
right to vote or as is the case now--the brutal retaliation that occurs 
in the workplace, often sexual harassment, further discrimination and 
so on, simply because we pursue being paid equal pay for equal work. So 
we thank the Senator from North Dakota for his eloquence.
  Mr. DORGAN. Mr. President, if the Senator will yield for a moment, 
this issue is about discrimination, but it goes far beyond this case or 
discrimination in these circumstances. It goes to the fair pay issue 
which the Senator from Maryland has been fighting for here in this 
Chamber for months and years. Obviously, we are going to do

[[Page S758]]

much more, but today is the first step in the direction of justice for 
women, and I think it will be a good day today if we are able to pass 
this legislation.
  Ms. MIKULSKI. Mr. President, I note the absence of a quorum, and I 
ask unanimous consent that the time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The legislative clerk proceeded to call the roll.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that Senator 
Kaufman of Delaware be added as a cosponsor of the Lilly Ledbetter Fair 
Pay Act.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. I thank the Chair, and I note the absence of a quorum, 
with the time to be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so 
ordered.


                            Amendment No. 26

  Ms. MIKULSKI. Mr. President, an inquiry: Has all time expired on the 
debate on the Enzi-Specter amendments?
  The PRESIDING OFFICER. All time has expired.
  Ms. MIKULSKI. Mr. President, I call up the Specter amendment on 
``other practices'' and move that it be tabled. The amendment that I 
wish to call up is amendment No. 26, Mr. Specter's amendment.
  The PRESIDING OFFICER. That is the regular order.
  Ms. MIKULSKI. I call up the amendment.
  The PRESIDING OFFICER. The amendment is pending.
  Ms. MIKULSKI. I move to table, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 53, nays 43, as follows:

                       [Rollcall Vote No. 8 Leg.]

                                YEAS--53

     Akaka
     Baucus
     Bayh
     Begich
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Whitehouse
     Wyden

                                NAYS--43

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     Landrieu
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Risch
     Roberts
     Sessions
     Shelby
     Specter
     Thune
     Vitter
     Voinovich
     Webb
     Wicker

                             NOT VOTING--1

       
     Kennedy
       
  The motion was agreed to.
  Ms. MIKULSKI. Mr. President, I move to reconsider the vote, and to 
lay that motion on the table.
  The motion to lay on the table was agreed to.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that all the 
following votes be limited to 10 minutes in the agreed-upon sequence.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Amendment No. 27

  The PRESIDING OFFICER. The question is on amendment 27. Who yields 
time?
  The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, this amendment strikes the language ``or 
other practices.'' I believe there ought to be equal pay, and the 
legislation would provide for equality of pay for women, break the 
glass ceiling, but would eliminate the surplusage language of ``or 
other practices'' because it is vague and ambiguous. It could include 
promotion, demotion, hiring, transfer, tenure, training, layoffs, or 
many other items. It may be some of these other items ought to be 
included, and I, for one, would be glad to consider them, but they 
ought to be specified so we do not have the vague and ambiguous term, 
``other practices,'' which would lead to tremendous litigation. Let's 
be specific, what we are looking for. We are looking for pay. If 
somebody wants to add something, fine, but ``other practices'' ought 
not to be part of the legislation which would just stimulate 
litigation.
  The PRESIDING OFFICER. The Senator's minute has expired. The Senator 
from Maryland is recognized.
  Ms. MIKULSKI. Mr. President, the Senator from Pennsylvania is a great 
lawyer, but his amendment is not. It only fixes half the problem. It 
does not cover personnel actions that still result in discriminatory 
wages. It strikes other practices which include job evaluations and 
classifications.
  If we drop ``other practices,'' we leave out Lilly Ledbetter from 
getting the justice she deserves and all like her. I understand the 
Specter amendment is now pending.
  I move to table the amendment and ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the motion. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. 
Feinstein), the Senator from Hawaii (Mr. Inouye), and the Senator from 
Massachusetts (Mr. Kennedy) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 55, nays 39, as follows:

                       [Rollcall Vote No. 9 Leg.]

                                YEAS--55

     Akaka
     Baucus
     Bayh
     Begich
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Hagan
     Harkin
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--39

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Specter
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--3

     Feinstein
     Inouye
     Kennedy
  The motion was agreed to.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. We have scheduled at 4 o'clock the swearing in of the new 
Senator from Colorado. We are going to complete this vote before we do 
that.
  The PRESIDING OFFICER. The Senator from Wyoming.


                            Amendment No. 28

  Mr. ENZI. Mr. President, I have made this point a number of times, 
that bills that go through committees have a markup and the amendments 
give us direction. We often get them worked

[[Page S759]]

out. That did not happen on this bill. So we are trying to get some 
clarification done.
  I appreciate that the Senator from Maryland put some things in the 
Record that show legislative intent. I prefer to have it in the bill. 
That is why my amendment is in here. It is an attempt to remove some of 
the legal uncertainty this bill will create. It will clarify who is 
able to sue under title VII.
  Under my amendment, only the person who has experienced 
discrimination can bring a lawsuit. Without my amendment the door is 
left open to any affected individual. This is an undefined term in the 
statute.
  Senator Mikulski and I have had some back and forth about what the 
language means. The truth is, without my amendment the courts will be 
able to define the term any way they want to. If you want to ensure 
that only the person affected has standing to sue, then support my 
amendment.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, the Enzi amendment is unnecessary. The 
``affected by'' language is not vague. Our bill only applies to workers 
and their employers.
  Other parts of title VII that our bill does not change make this 
clear. The ``affected'' language is patterned after the Civil Rights 
Act of 1991. It has been around for 17 years and no one has tried to 
interpret it to apply to grandparents, spouses, or children, or anyone 
else other than the worker.
  I understand the Enzi amendment No. 28 is now pending. I move to 
table the amendment and ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 55, nays 41, as follows:

                      [Rollcall Vote No. 10 Leg.]

                                YEAS--55

     Akaka
     Baucus
     Bayh
     Begich
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Whitehouse
     Wyden

                                NAYS--41

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Specter
     Thune
     Vitter
     Voinovich
     Webb
     Wicker

                             NOT VOTING--1

       
     Kennedy
       
  The motion was agreed to.


                            Amendment No. 29

  The PRESIDING OFFICER. The question is on amendment No. 29.
  Ms. MIKULSKI. Mr. President, I understand amendment 29 is now the 
pending business. I thank Senator Enzi for allowing us to dispose of 
his amendment through a voice vote. I move to table the Enzi amendment 
No. 29.
  The PRESIDING OFFICER. If all time is yielded back, the question is 
on agreeing to the motion to table amendment No. 29.
  The motion was agreed to.
  Ms. MIKULSKI. I move to reconsider the vote and to lay that motion on 
the table.
  The motion to lay on the table was agreed to.

                          ____________________