[Congressional Record Volume 158, Number 94 (Wednesday, June 20, 2012)]
[Senate]
[Pages S4370-S4373]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
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.
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By Ms. LANDRIEU (for herself and Mr. Inhofe):
S. 3321. A bill to promote permanent families for children, privacy
and safety for unwed mothers, responsible fatherhood, and security for
adoptive parents by establishing a National Responsible Father Registry
and encouraging States to enter into agreements to contribute the
information contained in the State's Responsible Father Registry to the
National Responsible Father Registry, and for other purposes; to the
Committee on Finance.
Ms. LANDRIEU. Mr. President, I bring to the attention of the body a
bill called the Protecting Adoption and Promoting Responsible
Fatherhood Act of 2012. I introduced this bill on behalf of myself and
Senator Inhofe, with whom I have worked with so closely on many issues
involving adoption and the protection of children who are outside of
family care, both here in the United States and abroad. I thank Senator
Inhofe, the senior Senator from Oklahoma, for being an original
cosponsor of this legislation. I also thank Congresswoman Laura
Richardson for introducing a companion piece of this legislation in the
House today.
We just celebrated Father's Day this past weekend. I know my father
and my husband and men all over the country celebrated with their
children and their families. We honor the extraordinary fathers in the
world.
Parenthood is the ultimate gift. It is also an incredible
responsibility. Many of us have benefited from really wonderful fathers
who care for and support families and support children through their
young years, their adult years, and even into their older years. When
fathers are absent, when they abandon their responsibility to their
children, they can make the mothers of their children and their
children more vulnerable. Sometimes women will make a decision to place
a child for adoption if they are unmarried, unwilling, unable--just at
a vulnerable time in their life and not able to raise a child. Adoption
can be a very positive option. There are some Members of our Congress
who have adopted children and have adopted grandchildren, so we know
the blessings of adoption.
This bill will help to facilitate and clear up some legal quagmires
that occur until many States clear the way for women of any age to make
a decision for adoption. There are many of us, across party lines, who
have supported more domestic infant adoption, more domestic adoptions
for children of all ages, and particularly adoption of special-needs
children.
This bill really affects infant adoption. It sets up a voluntary
registry that tracks what 38 States have already done. Any person, any
male who has the intention of supporting and raising a child can
register on this registry, and their will and wishes will be taken into
consideration. But in the situation that often happens where this man
is not interested in being the kind of responsible father he should be,
then this registry helps to expedite, without a lot of legal quagmire
but with protection to both the father and the mother, to expedite
adoption.
It has gone through a vetting process with any number of outside
organizations. I thank the American Bar Association. I want to
particularly thank the Association of Adoption Attorneys, which helped
to draft this important piece of legislation.
I wanted to come to the floor to introduce it. We will, of course,
bring it up when the leadership allows us that opportunity. It may have
to go through a committee process. We may be able to clear it with the
support of both Republicans and Democrats, as is shown by the support
of Senator Inhofe and myself. Hopefully we can get it done in a short
period of time and provide a clear path to promote adoption in the
United States.
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By Mr. ROCKEFELLER (for himself and Mr. Cardin):
S. 3323. A bill to amend the Servicemembers Civil Relief Act to
improve the protections for servicemembers against mortgage
foreclosures, and for other purposes; to the Committee on Veterans'
Affairs.
Mr. ROCKEFELLER. Mr. President, today I introduce the Military Family
Home Protection Act, a bill to strengthen the legal protections our
military personnel are guaranteed under the Servicemembers Civil Relief
Act, SCRA.
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Entering military service can sometimes make it difficult or
impossible for our Soldiers, Sailors, Airmen, and Marines to meet their
civilian legal and financial obligations. In laws dating back to the
Civil War, Congress has given active-duty military personnel special
protections against legal actions that might be taken against them
while they are away from home because of military service. The purpose
of these laws, according to a 1943 Supreme Court decision, is ``to
protect those who have been obliged to drop their own affairs to take
up the burden of the nation.'' Congress re-wrote the World War II-era
``Soldiers and Sailor Relief Act'' in 2003, as full-time military,
Reservists, and National Guard personnel were deploying in large
numbers to Iraq and Afghanistan. This comprehensively updated statute
was re-named the ``Servicemembers Civil Relief Act.''
Since the September 11 attacks, we have asked our military
personnel--both our active-duty and reserve components--for
unprecedented service and sacrifice. We have asked them to deploy
multiple times to Iraq and Afghanistan, and we have asked their
families to live without their loved ones for long periods of time. We
have asked our National Guard and Reserve personnel--not just once, but
sometimes two or three times--to leave their jobs, put their civilian
lives on hold, and answer their country's call to service. The promise
the SCRA makes to these Americans is that while they are engaged in the
defense of our country, we will protect them and their families from
adverse financial actions on the home front. One important way the SCRA
protects these servicemembers is by lowering their mortgage interest
rates while they are on active duty, and by prohibiting banks from
foreclosing on their homes without first getting court approval.
Unfortunately, as I learned during a joint House-Senate forum I held
in the Senate Commerce Committee hearing room in July 2011, not all
banks have been following the law. In May 2011, for example, the
Department of Justice settled lawsuits with the former Countrywide Home
Loans, now a subsidiary of Bank of America, and Saxon Mortgage, a
subsidiary of Morgan Stanley, for $22 million. In these lawsuits, DOJ
alleged that the companies violated the SCRA by foreclosing on more
than 170 servicemembers without court orders. At the House-Senate
forum, which I organized with Representative Elijah Cummings, the
Ranking Member of the House Oversight and Government Reform Committee,
we heard from two members of the military and other experts about how
these SCRA violations can devastate military families. Mrs. Holly
Petraeus, who is the Director of Servicemember Affairs at the Consumer
Financial Protection Bureau, as well as the wife of General David
Petraeus, told us that:
. . . [W]hile a foreclosure is devastating for any American
family, it can be especially painful for military families.
Both the family back home and the deployed servicemember, who
feels helpless to take action to prevent the foreclosure, are
put in a terrible situation. It is vital that servicemembers
receive all the protections afforded to them by the SCRA.
At the time we held this forum, legislators in both houses were
already hard at work on legislation to strengthen the SCRA and improve
banks' compliance with the SCRA. In late 2010, Congress passed a new
law, P.L. 111 275, that allowed deploying soldiers to terminate their
cell phone contracts without penalties, and that gave the United States
Attorney General new powers to enforce the SCRA against creditors. In
June 2011, the Senate Veterans' Affairs Committee, on which I serve,
approved a bill sponsored by Senator Begich, S. 941, which included a
provision to extend the period of SCRA mortgage protections from nine
months to twelve months after a servicemember leaves military duty. The
Senate Veterans' Affairs Committee is also actively considering other
proposals to improve the SCRA.
The legislation I am introducing today with Senator Cardin was
introduced in the House of Representatives as H.R. 5747 on May 15,
2012, by Ranking Member Cummings, along with the Ranking Member of the
House Armed Services Committee, Representative Adam Smith, and the
Ranking Member of the House Veterans' Affairs Committee, Representative
Bob Filner. Two days later, it was adopted as an amendment to the
National Defense Authorization Act by an overwhelming vote of 394 27.
Now that the House has expressed its bipartisan support for this
legislation, I am introducing it in the Senate for consideration. The
recent House vote shows that this is an issue that should rise above
partisan politics. I hope that the House's recent action will give the
Senate new momentum to look at what we can do to strengthen the SCRA
and protect our military personnel and their families. A short summary
of the bill is provided below.
The Military Family Home Protection Act expands the class of covered
individuals under the SCRA's mortgage provisions to include: All
servicemembers serving on the battlefield, regardless of when they
bought their home. Servicemembers retiring 100 percent disabled due to
service-connected injuries and surviving spouses of servicemembers who
died in military service.
The act stays mortgage foreclosure proceedings against SCRA-covered
persons for 1 year following their service; it also eliminates a
current sunset provision that will reduce this protection to 90 days
beginning January 1, 2013.
The Act doubles the civil penalty for SCRA mortgage violations to
$110,000 for the first offense and $220,000 for subsequent violations.
The act protects servicemembers and their families against
discrimination by banks and lenders on account of servicemembers'
eligibility for SCRA protections. It also requires banks and lenders to
take further steps to ensure SCRA compliance. These steps include:
Designating an SCRA compliance officer. Requiring SCRA compliance
officers to distribute information to servicemembers about their SCRA
protections, and providing a toll-free telephone number and website to
help servicemembers better understand their SCRA protections.
____________________