Congressional Record, Volume 155 Issue 13 (Thursday, January 22, 2009)

[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

[[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.

____________________