[Congressional Record Volume 158, Number 94 (Wednesday, June 20, 2012)]
[Senate]
[Pages S4370-S4372]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FRANKEN (for himself, Mr. Leahy, Mrs. Murray, Mr. Harkin, 
        Mr. Whitehouse, Mr. Blumenthal, Ms. Mikulski, Mr. Sanders, Mrs. 
        Boxer, Mr. Akaka, Mr. Coons, Mr. Inouye, Mr. Kerry, Mrs. 
        Shaheen, Mr. Bingaman, Mr. Brown of Ohio, Mrs. Gillibrand, Mr. 
        Udall of New Mexico, Mr. Durbin, Mr. Wyden, Mr. Merkley, Ms. 
        Cantwell, Mr. Udall of Colorado, and Mr. Lautenberg):
  S. 3317. A bill to restore the effective use of group actions for 
claims arising under title VII of the Civil Rights Act of 1964, title I 
of the Americans with Disabilities Act of 1990, title V of the 
Rehabilitation Act of 1973, section 1977 of the Revised Statutes, and 
the Genetic Information Nondiscrimination Act of 2008, and for other 
purposes; to the Committee on the Judiciary.
  Mr. FRANKEN. Mr. President, our daughters' futures will be as bright 
as our sons'. That is the American promise. It is the American ideal--
that one's opportunity to prosper--one's economic security--depends not 
on one's gender but instead on one's work ethic--one's character--one's 
God-given talents.
  That men and women will be treated equally in America is a promise 
that was a made by Susan B. Anthony, who dedicated her life to women's 
suffrage and who famously said, shortly before her passing, that 
``failure is impossible.'' History proved her right: 15

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years later, women finally were given access to the ballot.
  That men and women will be treated equally in America is a promise 
that was made a generation later, by thousands of women who--under the 
banner of Rosie the Riveter--took to the factories and carried our 
national economy through a period of world war.
  That men and women will be treated equally in America is a promise 
that was made by Ruth Bader Ginsburg, who, in 1960, was passed over for 
a Supreme Court clerkship because she was a woman. Undeterred, she went 
on to start the Women's Rights Project at the ACLU, a platform from 
which she argued several landmark cases. In 1993, she was selected to 
serve as a justice on the very court that, years before, turned her 
away.
  That men and women will be treated equally in America is a promise 
that is made today--by women like Senator Barbara Mikulski and Senator 
Patty Murray and Congresswoman Rosa DeLauro--women who have settled not 
for a mere presence in the halls of Congress but who instead have 
become among its most influential leaders.
  Generations of women have rejected inferiority. Because of these 
pioneers, the promise of gender equality in America has become more 
than just a promise. It has become our law. It is enshrined in the 
documents by which we are governed.
  This week, we celebrate the 40th anniversary of Title 9, a statute 
that guarantees equal educational opportunities for boys and girls--for 
men and women. In just a couple of years, we will mark the 50th 
anniversary of the Civil Rights Act of 1964, a landmark legislative 
achievement that codified our national commitment to ending 
discrimination in the workplace.
  So, yes, in America we have made a promise that one's gender will not 
be the deciding factor between having opportunities and being denied 
opportunities--between getting a job and being denied one--between 
getting a promotion and being denied one. We have made that promise. 
And we've come a long way toward fulfilling it.
  But we are not there yet. Even though women have been working outside 
the home for generations, they continue to face barriers in the 
workplace: Even though about half of all workers are women, only 12 
Fortune 500 companies have female CEOs. The Equal Employment 
Opportunity Commission reports that, in 2011, it received nearly 
100,000 complaints of discrimination. Statistics show that women still 
receive unequal pay for equal work.
  Although this week marks the 40th anniversary of Title 9, it also 
marks the one year anniversary of the Supreme Court's decision in Wal-
Mart v. Dukes, a decision that has had an enormous impact on workplace 
rights across the country. On its face, that case was about civil 
procedure--it was about litigation rules and legal technicalities. But, 
in a larger sense, the Dukes case was about the current state of our 
equal employment laws.
  In that case, a group of women tried to band together to enforce 
their rights to be free from discrimination--rights afforded them by 
Title 7 of the Civil Rights Act. The women alleged that their 
employer's policies allowed bias--rather than performance and merit--to 
determine who would be promoted or given raises.
  The evidence in the case indicated that women comprised 70 percent of 
the employer's hourly workforce but only 33 percent of its management 
team. The evidence indicated that women were paid less than men in each 
of the employer's 41 regions. It indicated that managers around the 
country relied on outdated stereotypes when making employment 
decisions. Both the trial court and the appellate court agreed that the 
women should be permitted to try their case as a group.
  The trial court's and the appellate court's decisions were consistent 
with precedent. Governing rules said that a group of workers could band 
together if they first showed, among other things, that their cases 
shared a common issue of law or fact. This is known as the 
``commonality'' requirement. The idea here is that if lots of workers 
raise a common issue, it's easier for the court to resolve that issue 
in one case than to resolve it over and over and over again in 
thousands of different cases.
  In Dukes, the common, central issue was whether the employer's policy 
of giving managers unfettered discretion to make pay and promotion 
decisions resulted in a disparate impact on women. In other words, all 
of the workers alleged that the employer's policy allowed bias to 
determine conditions of employment. Because the workers had presented 
that common question, ``Is the employer's policy discriminatory''; the 
lower courts concluded that the group could proceed together.
  But the Supreme Court concluded otherwise. Its rationale was 
unprecedented. In a 5 to 4 decision, the Court said that, to proceed as 
a group, the women had to show not only that they were united by a 
common issue, but also that they ultimately would prevail on that issue 
at trial. That is, to present their case, the women first had to prove 
their case. As Justice Ginsburg explained in her dissenting opinion, 
the Court's decision ``disqualifies the class from the starting gate.''
  Since Dukes was decided, dozens of employment discrimination cases 
effectively have been stopped before they even started. This is a 
problem. When Congress passed the Civil Rights Act of 1964, the 
Committee responsible for the bill issued a report in which it said 
that ``[t]he Committee agrees with the courts that Title 7 actions are 
by their very nature class complaints, and that any restriction on such 
actions would greatly undermine the effectiveness of Title 7.''
  But it doesn't take a Congressional Committee report to understand 
the effect of the Dukes decision. Betty Dukes, the lead plaintiff in 
the case, put it well when she testified before the Senate Judiciary 
Committee. She said that, quote, ``[o]ur civil rights are only as 
valuable as the means that exist to enforce them.'' It is one thing to 
pass a law saying that men and women should be treated equally. It is 
another thing to give that law some teeth--to say that we really mean 
it.
  The Dukes decision makes it harder for women--for any group of 
workers, for that matter--to band together to enforce the Civil Rights 
Act. Unable to band together, many workers may not have access to legal 
representation. Unable to band together, many workers will choose not 
to challenge workplace discrimination at all, concluding that the 
personal costs of doing so--the potential for retaliatory actions--
outweigh any possible benefits. Unable to band together, workers will 
be less able to use the courts to address employers' discriminatory 
policies on a company-wide basis.
  So, today, on the one year anniversary of the Court's decision in 
Dukes, I rise to introduce the Equal Employment Opportunity Restoration 
Act. This bill will restore workers' ability to enforce effectively our 
Nation's antidiscrimination laws. Perhaps as importantly, this bill 
reaffirms the American promise of workplace equality.
  The bill creates a new judicial procedure--called a ``group 
action''--which mirrors the class action procedures that were available 
to workers before Dukes was decided. Instead of disqualifying workers' 
cases at the starting gate, this bill says that workers can proceed 
together if they create a reasonable inference that they were subjected 
to a discriminatory employment policy or practice. It will be--as it 
always has been--left to a trial to determine the merits of the 
workers' allegations and the viability of the employers' defenses.
  I am proud to introduce this bill with Congresswoman DeLauro and with 
my Senate colleagues, including Senators Leahy, Mikulski, Murray, and 
Harkin.
  I am grateful to the many wonderful organizations in Minnesota and 
Washington that have worked with me on this bill. They include the 
National Partnership on Women and Families, the ACLU, the Leadership 
Conference on Civil and Human Rights, the National Women's Law Center, 
the American Association of University Women, and the Lawyers' 
Committee for Civil Rights Under Law.
  Our daughters' futures will be as bright as our sons'. For more than 
a century, we have followed a path toward gender equality. The trail 
has been blazed by generations of women--women whose names are found in 
the history books, yes, but also by those whose names are not--the 
working mother who rises before dawn and punches a clock every day so 
she can

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support her family--the young woman, fresh out of college, who defies 
stereotypes and pursues an engineering career--the small business-owner 
who hires dozens of people in her community.
  We should continue along the path toward equality in the workplace. 
We should not stop now. We should not turn back now. The bill that we 
introduce today says that we won't.
  Mr. LEAHY. Today, I am pleased to join Senator Franken to introduce 
the Equal Employment Opportunity Restoration Act of 2012. This 
important legislation will respond to the Supreme Court's decision in 
Wal-Mart v. Dukes, and restore women's ability to challenge 
discrimination in the workplace.
  Today marks the 1 year anniversary of that case--where just five 
Justices disqualified the claims of 1.5 million women who had spent 
nearly a decade seeking justice for sex discrimination by their 
employer, Wal-Mart. By a 5 4 decision, the Supreme Court ruled that the 
women did not share enough in common to support bringing a class 
action. Perhaps more troubling, just five Justices said that Wal-Mart 
could not have had a discriminatory policy against all of them, because 
it left its payment decisions to the local branches of its stores. In 
reaching this conclusion, the Supreme Court provided a clear path for 
corporations to avoid company-wide sex discrimination suits, and made 
it harder to hold corporations accountable under our historic civil 
rights laws.
  Betty Dukes has worked for Wal-Mart, where she started as a part-time 
cashier in Pittsburg, California, for almost 20 years. Throughout her 
years at Wal-Mart, Betty expressed an interest in advancement and in 
the management track. Unfortunately, she was continually overlooked for 
promotions, receiving only one in her lengthy career there. Betty Dukes 
then learned of the pay disparities between the male and female 
employees at a Pittsburg Wal-Mart store. She decided to take a stand, 
and filed a class action lawsuit against Wal-Mart in 2001. Betty Dukes 
and the other women were appalled to learn that the pay disparities did 
not stop at the Pittsburg store. In fact, there was widespread gender 
discrimination occurring at Wal-Mart stores across the country.
  Last year, I chaired a hearing on how Supreme Court rulings affect 
Americans' access to their courts. Betty Dukes came and shared her 
story at that hearing. She made it clear that she did not plan on 
giving up. In these tough economic times, American consumers and 
employees rely on the law to protect them from fraud and 
discrimination. They rely on the courts to enforce laws intended to 
protect them. Unfortunately, these protections are being eroded by what 
appears to be the most business-friendly Supreme Court in the last 75 
years.
  The Supreme Court's recent decisions make some wonder whether it has 
now decided that some corporations are too big to be held accountable. 
Whether it is Lilly Ledbetter suing her employer for gender 
discrimination, or a group of consumers suing their phone company for 
deceptive practices, an activist majority of the Supreme Court is 
making it more and more difficult for Americans to have their day in 
court.
  We cannot ignore the fact that gender discrimination in the workplace 
persists. Earlier this month, I urged the Senate to pass the Paycheck 
Fairness Act, a bill that would have set a clear path to address the 
systemic problems that result from pay disparities. Unfortunately, the 
Senate could not overcome a partisan filibuster, and was not able to 
even debate the measure.
  I believe that the ability of Americans to band together to hold 
corporations accountable, especially when it comes to workplace 
discrimination, has been seriously undermined by the Supreme Court. All 
people should be evaluated on the basis of their contribution to the 
workplace, not irrelevant factors like sex, gender, race, ethnicity, or 
disability. These decisions have been praised on Wall Street, but will 
no doubt hurt hardworking Americans on Main Street. I thank Senator 
Franken for introducing this important bill, and urge all Senators to 
come together and support this effort to restore hardworking Americans' 
access to their courts.
                                 ______