[Congressional Record (Bound Edition), Volume 155 (2009), Part 1]
[Senate]
[Pages 1082-1085]
[From the U.S. Government Publishing Office, www.gpo.gov]




                  LILLY LEDBETTER FAIR PAY ACT OF 2009

  Mr. REID. Madam President, I ask unanimous consent that all 
postcloture time be yielded back and the Senate adopt the motion to 
proceed; that upon adoption of the motion, the Senate then proceed to 
the consideration of S. 181; that once the bill is reported, Senator 
Hutchison be recognized to offer an amendment; that no amendments be in 
order to the Hutchison amendment prior to a vote in relation to the 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report the bill by title.
  The legislative clerk read as follows:


[[Page 1083]]

       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.


                            Amendment No. 25

  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. Madam President, I send an amendment to the desk and 
ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Texas [Mrs. Hutchison] proposes an 
     amendment numbered 25.

  Mrs. HUTCHISON. 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: In the nature of substitute)

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Title VII Fairness Act''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Filing limitations periods serve important functions. 
     They ensure that all claims are promptly raised and 
     investigated, and, when remediation is warranted, that the 
     violations involved are promptly remediated.
       (2) Limitations periods are particularly important in 
     employment situations, where unresolved grievances have a 
     singularly corrosive and disruptive effect.
       (3) Limitations periods are also particularly important for 
     a statutory process that favors the voluntary resolution of 
     claims through mediation and conciliation. Promptly raised 
     issues are invariably more susceptible to such forms of 
     voluntary resolution.
       (4) In instances in which that voluntary resolution is not 
     possible, a limitations period ensures that claims will be 
     adjudicated on the basis of evidence that is available, 
     reliable, and from a date that is proximate in time to the 
     adjudication.
       (5) Limitations periods, however, should not be construed 
     to foreclose the filing of a claim by a reasonable person who 
     exercises due diligence regarding the person's rights but who 
     did not have, and should not have been expected to have, a 
     reasonable suspicion that the person was the object of 
     unlawful discrimination. Such a person should be afforded the 
     full applicable limitation period to commence a claim from 
     the time the person has, or should be expected to have, a 
     reasonable suspicion of discrimination.

     SEC. 3. FILING PERIOD FOR CHARGES ALLEGING UNLAWFUL 
                   EMPLOYMENT PRACTICES.

       Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e-5(e)) is amended by adding at the end the following:
       ``(3)(A) This paragraph shall apply to a charge if--
       ``(i) the charge alleges an unlawful employment practice 
     involving discrimination in violation of this title; and
       ``(ii) the person aggrieved demonstrates that the person 
     did not have, and should not have been expected to have, 
     enough information to support a reasonable suspicion of such 
     discrimination, on the date on which the alleged unlawful 
     employment practice occurred.
       ``(B) In the case of such a charge, the applicable 180-day 
     or 300-day filing period described in paragraph (1) shall 
     commence on the date when the person aggrieved has, or should 
     be expected to have, enough information to support a 
     reasonable suspicion of such discrimination.
       ``(C) Nothing in this paragraph shall be construed to 
     change or modify the provisions of subsection (g)(1).
       ``(D) Nothing in this paragraph shall be construed to apply 
     to a charge alleging an unlawful employment practice relating 
     to the provision of a pension or a pension benefit.''.

     SEC. 4. FILING PERIOD FOR CHARGES ALLEGING UNLAWFUL PRACTICES 
                   BASED ON AGE.

       Section 7(d) of the Age Discrimination in Employment Act of 
     1967 (29 U.S.C. 626(d)) is amended--
       (1) by redesignating paragraphs (1) and (2) as 
     subparagraphs (A) and (B), respectively;
       (2) by striking ``(d)'' and inserting ``(d)(1)'';
       (3) in the third sentence, by striking ``Upon'' and 
     inserting the following:
       ``(2) Upon''; and
       (4) by adding at the end the following:
       ``(3)(A) This paragraph shall apply to a charge if--
       ``(i) the charge alleges an unlawful practice involving 
     discrimination in violation of this Act; and
       ``(ii) the person aggrieved demonstrates that the person 
     did not have, and should not have been expected to have, 
     enough information to support a reasonable suspicion of such 
     discrimination, on the date on which the alleged unlawful 
     practice occurred.
       ``(B) In the case of such a charge, the applicable 180-day 
     or 300-day filing period described in paragraph (1) shall 
     commence on the date when the person aggrieved has, or should 
     be expected to have, enough information to support a 
     reasonable suspicion of such discrimination.
       ``(C) Nothing in this paragraph shall be construed to 
     change or modify any remedial provision of this Act.
       ``(D) Nothing in this paragraph shall be construed to apply 
     to a charge alleging an unlawful practice relating to the 
     provision of a pension or a pension benefit.''.

     SEC. 5. APPLICATION TO OTHER LAWS.

       (a) Americans With Disabilities Act of 1990.--Section 
     706(e)(3) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-
     5(e)(3)) shall apply (in the same manner as such section 
     applies to a charge described in subparagraph (A)(i) of such 
     section) to claims of discrimination brought under title I 
     and section 503 of the Americans with Disabilities Act of 
     1990 (42 U.S.C. 12111 et seq., 12203), pursuant to section 
     107(a) of such Act (42 U.S.C. 12117(a)), which adopts the 
     powers, remedies, and procedures set forth in section 706 of 
     the Civil Rights Act of 1964 (42 U.S.C. 2000e-5).
       (b) Conforming Amendments.--
       (1) Civil rights act of 1964.--Section 717 of the Civil 
     Rights Act of 1964 (42 U.S.C. 2000e-16) is amended by adding 
     at the end the following:
       ``(f)(1) Subject to paragraph (2), section 706(e)(3) shall 
     apply (in the same manner as such section applies to a charge 
     described in subparagraph (A)(i) of such section) to 
     complaints of discrimination under this section.
       ``(2) For purposes of applying section 706(e)(3) to a 
     complaint under this section, a reference in section 
     706(e)(3)(B) to a filing period shall be considered to be a 
     reference to the applicable filing period under this 
     section.''.
       (2) Age discrimination in employment act of 1967.--
       (A) In general.--Section 15(f) of the Age Discrimination in 
     Employment Act of 1967 (29 U.S.C. 633a(f)) is amended by 
     striking ``of section'' and inserting ``of sections 7(d)(3) 
     and''.
       (B) Application.--For purposes of applying section 7(d)(3) 
     of the Age Discrimination in Employment Act of 1967 (29 
     U.S.C. 626(d)(3)) to a complaint under section 15 of that Act 
     (29 U.S.C. 633a), a reference in section 7(d)(3)(B) of that 
     Act to a filing period shall be considered to be a reference 
     to the applicable filing period under section 15 of that Act.

  Mrs. HUTCHISON. Madam President, my amendment, which I offer along 
with Senators Voinovich, Martinez, Grassley, Enzi, Corker, Alexander, 
Cornyn, Burr, Murkowski, and Thune, is a substitute for the underlying 
bill that is before us, S. 181. I hope we will, now that we have taken 
up the bill, fully discuss and hopefully have some amendments that will 
make the Fair Pay Act a bill that will serve all of the needs of our 
country. Paramount is the right of an employee to have redress, if that 
employee is experiencing discrimination. We also need to make sure that 
our small businesses and medium-sized businesses know what their 
underlying liabilities might be. That is part of business planning.
  I have certainly been a person who has known discrimination. I want 
everyone who believes they have a cause of action to have that right.
  I have also been a business owner. I know how important it is that 
our businesses know what their potential liabilities are. That is why 
statutes of limitation were put into the laws of the country, so that 
one could have a defense, so that there would be timely filings of 
claims, so that there would be witnesses who would have the memory or 
the records or the documents to defend against a claim.
  My substitute amendment allows the person who is aggrieved, when that 
person knows or should have known that there was discrimination, to 
have 180 days, approximately 6 months, to file that claim so that there 
will be records, there will be notice, and there will be the ability 
for a defense and for the person to have the fair trial with the people 
who would be relevant to her or his case.
  To do that, we have to have that time limit that the Supreme Court 
has said is a reasonable time limit, if it is 6 months after the person 
knew or should have known. We are putting back in or we are actually 
codifying for all of the districts of the country that standard.
  It is also important that we have the ability for that person to get 
into

[[Page 1084]]

court, because that is the person who has the grievance. It is that 
person who should be testifying rather than someone who might have had 
an effect but is not the person who knows if they believe they were 
discriminated against. These are the things that my amendment 
addresses.
  We are not going to debate, although I know the distinguished Senator 
from Maryland is going to rebut, but I hope to have the time for us to 
fully debate this amendment when we take it up and when all of our 
Members are here.
  There will be Members on my side who want to speak, I am sure Members 
on her side who want to speak, so I wanted to lay the amendment down so 
everyone is on notice and has the document and can read the amendment. 
Then I look forward to discussing it when the majority leader decides 
we will take this bill up, hopefully, next week.
  Thank you, Madam President.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Madam President, I want to acknowledge that we will not 
be debating this amendment this evening. Senator Hutchison has laid 
down her substitute. What I am so excited about is that we are actually 
going to be debating the Lilly Ledbetter Act and also amendments and 
substitutes therein.
  I know the Senator from Texas has a plane she is going to try to 
make; otherwise, we would have had a more amplified debate tonight. But 
I am so excited this moment has finally come, that we are actually 
going to debate what is the most effective way we can end wage 
discrimination in our country and keep the courthouse door open to 
legitimate claimants.
  I am also excited that, once again, the Senate will return to a 
regular order. What do I mean by ``a regular order''? We are actually 
going to bring up bills. We are not going to get lost in some quagmire 
of parliamentary procedure where we entangle ourselves and strangle 
ourselves. This debate, that actually begins tonight, is the signal of 
a new day returning to some of the old ways the Senate operated, which 
was a regular order where we could offer amendments, debate amendments, 
and vote on amendments.
  This is what doing legislation is all about. Before I actually, 
briefly, comment on the merits, to affirm the process: We said to our 
colleagues on the other side of the aisle, we are going to give you the 
opportunity to offer amendments and to debate them. We are keeping that 
promise. In the way Hutchison and Mikulski are kicking it off now, we 
are showing we are keeping our promise.
  Second, this affirms the way we, the women of the Senate, want to 
operate. Senator Hutchison and I agree on the goal: ending wage 
discrimination and keeping the courthouse door open. Senator Hutchison 
and I absolutely disagree on what is the best way to achieve that goal. 
I have our legislation. She has her substitute. But though we disagree, 
you will see on Wednesday, as we pick up an amplified discussion, we 
can disagree without being disagreeable.
  It is time to return to civility. It is time to show that good 
manners produce good legislation. We look forward to a robust and 
amplified way of discussing this issue.
  So we are going to debate Lilly Ledbetter and also the Hutchison 
substitute and other amendments. We will do it, if there is more 
tonight, and we will also do it tomorrow, if there are Senators who 
wish to offer it. I will be here. But we will be able to do it.
  We strongly disagree with the Hutchison amendment. But rather than 
debate it, without her being here, I am going to reserve my remarks for 
when she is here, and we are going to show that good politics starts 
with good manners and a good process.
  I thank the Republican leader for being so cooperative to help us set 
the stage for doing it.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Nelson of Florida). The Republican leader 
is recognized.
  Mr. McCONNELL. Mr. President, I want to proceed for a few minutes as 
in morning business. I know Senator Murray is then anxious to be 
recognized. I ask unanimous consent that she be recognized at the 
conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              TARP Funding

  Mr. McCONNELL. Mr. President, with regard to the TARP issue we just 
dealt with on the floor, I voted for the disapproval resolution.
  Three months ago, I voted in favor of Government action to rescue the 
Nation's financial system. The early indications suggest that our 
actions did have a stabilizing effect. But the problems persist. And 
based on what we know about our current financial situation, it is 
clear the full $700 billion we voted for in October is still needed.
  Republicans have insisted from the beginning that the outgoing 
administration agree to strict oversight and taxpayer protections 
related to the Troubled Asset Relief Program, the TARP. And we asked 
for similar assurances from the incoming administration this week when 
it requested the second round of TARP funds.
  In response, the incoming administration graciously agreed to meet 
with Senators, and spent a good deal of time explaining to Republicans 
last night how they plan to use these funds. I want to express publicly 
our appreciation for their time and for their efforts.
  After last night's conversation, Republicans asked for one more 
thing: a public assurance from the incoming administration that these 
funds would be used in a manner consistent with the original purpose of 
the TARP. And, today, the incoming administration again graciously 
responded to our request by providing a letter of intent for the second 
round of TARP funds.
  I want to be very clear that I appreciate the incoming 
administration's assurance in that letter that these funds for the 
original purpose of stabilizing the economy and preventing a systemic 
economic collapse--they agree that is what the funds were for. However, 
the incoming administration also indicated it would use the money in 
ways I cannot support.
  The letter explicitly states that they will pursue a policy of ``cram 
down,'' both by amending the bankruptcy laws and by forcing banks that 
receive TARP funds to write down mortgages. This will result in higher 
mortgage rates for everyone who seeks a home loan.
  The letter states that the Federal Government will require banks that 
receive TARP funds to make loans--require banks to make loans. And 
while we want banks to resume lending, forcing them to make loans is 
exactly how this crisis started in the first place. We need to show 
that we have learned from past mistakes.
  The letter also states that participating firms will need Federal 
approval before issuing dividends. I fear this will hamstring their 
ability to raise capital and thus perpetuate their dependence on 
Federal funds. We should encourage firms to raise private money, but 
that will be impossible if they cannot promise investors a return on 
investment.
  Again, I do want to express my appreciation to the incoming 
administration for its responsiveness to Republican concerns. Every 
time we asked a question, it was promptly answered. So far, Republican 
interactions with the incoming administration have been quite 
encouraging and appreciated. While I voted on the losing side, I hope 
the new administration will consider some of my concerns and our 
concerns on this side. We hope their stewardship of these funds is 
successful in stabilizing the markets according to the original purpose 
of the TARP, and we will continue to work with them to strengthen our 
Nation's economy.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that I be allowed 
to speak as in morning business for 12 minutes, and that following my 
remarks the Senator from Georgia be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Mr. President, I also ask unanimous consent that my 
statement be printed in the Record prior to the previous vote.

[[Page 1085]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mrs. MURRAY and Mr. ISAKSON are printed in today's 
Record during the consideration of S.J. Res. 5.)
  Mr. ISAKSON. I yield the floor and note the absence of a quorum.
  The PRESIDING OFFICER (Mr. Whitehouse). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER (Mr. Sanders). Without objection, it is so 
ordered.

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