[Congressional Record (Bound Edition), Volume 155 (2009), Part 1]
[Senate]
[Pages 1384-1402]
[From the U.S. Government Publishing Office, www.gpo.gov]




            LILLY LEDBETTER FAIR PAY ACT OF 2009--Continued

  Ms. MIKULSKI. Madam President, I ask unanimous consent that Senator 
Reed of Rhode Island be recognized for up to 5 minutes to speak on the 
bill; that following his remarks, the Senate resume consideration of 
the Isakson amendment No. 37, with up to 10 minutes equally divided 
between Senator Isakson and myself, or our designees; that upon the use 
or yielding back of time on the Isakson amendment, the Senate resume 
consideration of the DeMint amendment No. 31, with 20 minutes of 
debate, 10 minutes under the control of Senator DeMint or his designee, 
5 minutes each under the control of Senator Mikulski, me, and Senator 
Alexander or our designees; that following the use or yielding back of 
time on the DeMint amendment, the Senate proceed to vote in relation to 
the following amendments: DeMint No. 31, and Isakson No. 37; further, 
that no amendments be in order to the pending DeMint or Isakson 
amendments prior to the votes; and that there be 2 minutes of debate 
equally divided between the votes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Ms. MIKULSKI. Madam President, I will yield the floor to Senator 
Reed. I first thank Senator Harkin for managing the bill during the 
Lilly Ledbetter press conference. His devotion to this issue is well 
known.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. REED. Thank you, Madam President. And I thank Senator Mikulski.
  First, let me commend Senator Mikulski for her extraordinary 
leadership on this legislation, along with Senator Harkin and also 
Senator Kennedy, who have been a driving force to ensure this 
legislation came to the floor and is ready for passage.
  I strongly support the Lilly Ledbetter Fair Pay Act of 2009. This 
bill is about ensuring that all Americans are protected from pay 
discrimination and treated fairly in the workplace, particularly during 
these tough economic times. After 8 years of enduring an economy rigged 
to benefit only the wealthy few, it is about time we reached out to try 
to help those struggling paycheck to paycheck, and this legislation 
will do that.
  As an original cosponsor of this legislation, I am pleased this bill 
seeks to address and correct the Supreme Court's decision in Ledbetter 
v. Goodyear Tire & Rubber Co. It is a decision from 2007 that required 
employees to file a pay discrimination claim within 180 days of when 
their employer first began to discriminate, even if the discrimination 
continued after that 180-day period.
  Under the Ledbetter ruling, a worker could face longstanding pay 
discrimination and yet be shortchanged of a remedy simply because they 
did not discover the discrimination within 180 days of their initial 
discriminatory paycheck.

[[Page 1385]]

  The Ledbetter decision overturned established precedent in courts of 
appeals across the country and the policy of the Equal Employment 
Opportunity Commission under both Democratic and Republican 
administrations. In fact, it almost defies common sense and logic. Most 
employees, if they have a pay dispute, hope it will be resolved 
internally, and they will give their employer the benefit of the doubt 
probably for more than 180 days until it becomes readily apparent that 
this is systematic and discriminatory.
  The legislation we are considering today reverses this erroneous 
finding but also restores a sense of common sense into the workplace. 
It returns the law to the pre-Ledbetter precedent by clarifying that 
each discriminatory paycheck restarts that 180-day period. As such, 
this bill does not modify the time limit for filing a claim or the 2-
year limit on back pay but reestablishes when the statute of 
limitations begins to run.
  This allows workers to demonstrate and detect a pattern or cumulative 
series of employer decisions or acts showing ongoing pay discrimination 
rather than simply reacting to any perceived notion of discrimination 
to fall within this 180-day period. As Justice Ginsburg noted in her 
Ledbetter dissent, such a law is ``more in tune with the realities of 
the workplace.'' I entirely agree.
  The Supreme Court majority failed to recognize these commonsense 
realities, including that pay disparities typically occur incrementally 
and develop slowly over time, and they are not easily identifiable and 
are often kept hidden by employers. Many employees generally do not 
have knowledge of their fellow coworkers' salaries or how decisions on 
pay are made.
  Our Nation has certainly made progress on ensuring fairness, justice, 
and equality in the workplace. However, we know there are still 
significant barriers to overcome in closing the pay gap and making 
certain that an individual's gender, race, religion, national origin, 
disability, and age are not an impediment to their economic and 
employment growth and prosperity. The Lilly Ledbetter Fair Pay Act of 
2009 is one important step toward achieving this goal.
  Again, let me thank Senator Mikulski for leading the charge on this 
bill and, again, acknowledge the longstanding efforts of Chairman 
Kennedy to seek passage of this and other legislative efforts to help 
workers. One of the great dilemmas we face today ensuring that 
Americans who are working--particularly wage earners--have sufficient 
income so they can provide for their families and for their future.
  Because of the flat and, in some cases, the receding income of 
working Americans over the last 8 years, we have seen a situation where 
they have to resort to their credit cards, where they have to put off 
important purchases, deny themselves opportunities, scale down access 
to colleges for their children because their income has not grown.
  The great challenge--and it is not just an economic challenge but, I 
believe, it is a moral challenge--is to ensure that the income of every 
level of America grows; not just the very wealthy, but every level of 
Americans has a chance to use their talents and see those talents 
rewarded by increasing income, we hope, each year. This legislation is 
part of that effort. But much more must be done.
  I strongly urge my colleagues to support this bill and to oppose any 
amendments that seek to dilute its intent.
  Madam President, I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.
  Mr. ISAKSON. Madam President, is the distinguished chairman prepared 
to move forward?
  Ms. MIKULSKI. Yes.


                            Amendment No. 37

  Mr. ISAKSON. Madam President, I ask unanimous consent that Senator 
Saxby Chambliss be added as an original cosponsor of amendment No. 37.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ISAKSON. Madam President, I grew up in the South when the civil 
rights era came and the civil rights laws were passed. After the 
passage of the Civil Rights Act, I ran a real estate brokerage company 
and saw the transition to fair housing from housing discrimination. I 
understand the ramifications of the Civil Rights Act, and I am proud 
and appreciative of what it has helped us to accomplish.
  The 180 days in the statute of limitations applies to every facet of 
that act. It applies to housing discrimination and, obviously, in this 
case it applied to employment and pay discrimination. Obviously, with 
the votes that have taken place and the failure of the Hutchison 
amendment, it is pretty obvious which direction the bill is going.
  So it is time we ask ourselves one question: Is it fair to reach back 
to the 1960s, repeal a statute of limitations that applied for over 45 
years, and open the possibility of a plethora of cases that have not 
been filed to now being filed or, asked another way: Is it fair, after 
a game has been played, to change the rules in order to change the 
outcome?
  Practically speaking, I would submit to you that this bill should be 
prospective and not reach back. It should say in the future that all 
the provisions apply to any case that may be filed on a future incident 
of discrimination. But to reach back without limitation and repeal the 
180 days changes the rules of the game, changes the law under which 
people were trying to operate in running their business.
  But, most importantly of all, let me tell you what it specifically 
does. I ran a company for 22 years. I am very familiar with what 
lawyers can do in terms of bringing in an alleged case, filing a case, 
taking you into depositions, and then saying: We can put a stop to all 
this if you will settle for $5,000 or $10,000 or $15,000. It is using 
an opportunity open to them to intimidate or, in some cases, extort, in 
my judgment, a fee out of an unwitting and unwilling business.
  So I ask the fairness question: Is it right to go back to the 
inception of the civil rights laws, take an established principle that 
applied to housing, pay, and employment of 180 days, and change the 
rules so people can reach back after the passage of this legislation 
and create new litigation under changed rules?
  In the interest of fairness, I would submit it should be prospective, 
that all the applications of law should begin with the passage of the 
law and its enactment.
  Madam President, I will be glad to yield the floor to the 
distinguished chairman who is managing the bill and urge the adoption 
of the Isakson amendment.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Madam President, I oppose the Isakson amendment because 
it would create an arbitrary and unfair cutoff for who gets the benefit 
of this fair pay bill.
  The Isakson amendment No. 37 would limit application of the bill to 
only claims that arise out of discrimination that takes place after the 
bill passes.
  There is no principled reason for applying the bill only to future 
cases. The point of this bill is to correct a terrible wrong done to 
victims of pay discrimination. We should be seeking justice for as many 
people as possible.
  Applying this bill to pending cases would not be an unfair surprise 
for employers. This bill restores the law to where it was the day 
before the Supreme Court decided the Ledbetter case. There is nothing 
new in this bill.
  If this amendment passes, it would create a 20-month gap in the law. 
Let me repeat: If the Isakson amendment passes, it would create a 20-
month gap in the law. Those workers who were unfortunate enough to have 
been discriminated against during that 20-month period would be treated 
worse than those who came before them and those who came after them. 
That is arbitrary, and it is unfair.
  As we work on this wage discrimination bill, we cannot fix only part 
of the problem. We have not come this far to leave some victims out in 
the cold. Yet that is what I am concerned the Isakson amendment would 
do.
  Madam President, I will urge the rejection of the Isakson amendment, 
and when it comes time to call up the vote,

[[Page 1386]]

I will be making a motion to table. But I am not making that motion 
now.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. ISAKSON. Madam President, how much time do I have remaining?
  The PRESIDING OFFICER. Senator, you have 1 minute 50 seconds 
remaining.
  Mr. ISAKSON. Madam President, with deference and respect for the 
chairman, this amendment would do nothing to a pending case. This 
amendment will only apply to a case that has not been filed and could 
have reached back all the way to the civil rights era of the 1960s. 
Please be aware it would not in any way obliterate anybody's rights on 
any pending case that has been filed since May of 2007. It would only 
affect those cases that haven't been filed all the way back to the 
Civil Rights Act.
  So, again, I think it is a matter of fairness and equity. I 
appreciate the time that has been allotted. At the appropriate time I 
will ask my colleagues to vote against tabling if that is the motion.
  I yield the floor.
  Ms. MIKULSKI. Madam President, first I wish to say to my colleague 
from Georgia that I appreciate the tone of civility in which he has 
offered his amendment, and that has been characteristic of the whole 
day. I hope it signals a new tone.
  Although I appreciate the tone, I still disagree with the amendment. 
The Lilly Ledbetter Act does not go back to the inception of the Civil 
Rights Act. It goes back only to the Supreme Court decision of May 28, 
2007. So I continue to disagree with the Isakson amendment because I do 
believe it would create an arbitrary and unfair cutoff for those who 
would benefit from this bill.
  I yield the floor.
  The PRESIDING OFFICER. Do the Senators yield back their time on the 
pending amendment?
  Ms. MIKULSKI. Madam President, how much time do I have?
  The PRESIDING OFFICER. The Senator from Maryland has 1 minute 45 
seconds.
  Ms. MIKULSKI. And how much time does the Senator from Georgia have?
  The PRESIDING OFFICER. The Senator has 1 minute 10 seconds.
  Ms. MIKULSKI. I would just inquire if the Senator from Georgia wishes 
to yield back his time. I would be happy to cooperate and we could move 
to the DeMint amendment.
  Mr. ISAKSON. I yield back the remainder of my time.
  Ms. MIKULSKI. I thank him. I yield back the remainder of my time, and 
we can proceed to the DeMint amendment.


                            Amendment No. 31

  The PRESIDING OFFICER. The DeMint amendment is now pending.
  Mr. DeMINT. Madam President, I am afraid the Ledbetter bill is 
another example that the majority in the Senate doesn't understand the 
American economy or how businesses create jobs or how freedom works for 
all of us to create a better quality of life. Recessions are caused by 
uncertainty. This bill creates more uncertainty for the very businesses 
we need to create the jobs and to keep the jobs we have in our country 
today.
  Why would we pass a bill, or even be talking about it, in the middle 
of a recession, that many have said is the worst we have ever seen in 
our lifetime? This bill will also create a lot of unintended 
consequences that will do the exact opposite of what it is intended to 
do.
  I was in business for well over 20 years before I came to Congress. 
Once you create more liability for hiring a woman or know that 
liability is going to exist for years, employers are going to figure 
out a way to get around that. This is more likely to discourage the 
employment and the promotion of women because it creates an indefinite 
liability.
  It seems that a lot of my colleagues have never been in business 
themselves. I remember being in the advertising business, and I was 1 
of 15 account executives. I was about in the middle as far as salary. 
There were men and women who made less than I did. There were men and 
women who made more than I did. Some who made more than I did had less 
experience, but because of clients or some other factor--some other 
intangible--it made them worth more than I was, they were paid more. It 
was the same with those who made less. I was younger and in some cases 
less experienced than some of the men and women who made less, but I 
had demonstrated that I could help our company make a profit more than 
they had. The market was deciding our salaries. There is no way that 
anyone in this Senate or any government bureaucrat or Federal judge 
could come in and say that there was discrimination because I was paid 
less than someone who was making more money or the same with someone 
who was making less than I was.
  For us to intervene and create a permanent liability is only going to 
create more uncertainty. This is not what we need to do with our 
businesses. So this whole bill should not even be considered now.
  I have an amendment that gets at some of the issues that have been 
talked about with this bill, about fairness and about discrimination. 
One of the biggest forms of discrimination in this country today is 
when we force an American worker to join a union. My amendment is a 
right-to-work amendment. Right now in this country, we have a Federal 
law that forces American workers to join a union. States can pass a 
right-to-work law, as my State, South Carolina, has to protect their 
workers, but this has proved very difficult for many States with 
powerful union bosses and union lobbies. My amendment, which is a 
national right-to-work amendment, would restore the right of every 
American not to join a union. It would eliminate the Federal 
requirement that workers pay union dues.
  We are getting ready to hear from some opponents of this amendment 
that will use some very convoluted logic to defend their position. The 
same people who support Federal labor laws, including wage requirements 
that supersede State laws, will argue that my amendment violates States 
rights. Removing a Federal mandate on States could only violate States 
rights in the minds of politicians who have lost touch with our 
constitutional moorings. My amendment is not about States rights. It is 
not about Federal rights. It is not about business rights. My amendment 
restores basic unalienable, individual rights.
  No law--Federal or State--should force an American to join a union in 
order to get a job in this country. No law--State or Federal--should 
allow an American worker to be fired because he or she does not want to 
join a union. This is about individual rights. There should not be a 
Federal law that discriminates against workers who choose not to join a 
union. This is about fairness and about stopping basic discrimination 
that is sponsored by this Federal Government.
  I urge my colleagues to vote for this right-to-work amendment. It is 
very consistent with the theme of this Ledbetter bill. It is more 
likely to eliminate discrimination than the Ledbetter bill itself. I 
urge my colleagues to support it. I will reserve the remainder of my 
time and ask for a vote.
  The PRESIDING OFFICER. Who yields time?
  Ms. MIKULSKI. Under the consent agreement, the Senator from Tennessee 
has 5 minutes of his own time, and then I will have 5 minutes of mine.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. ALEXANDER. Madam President, I would appreciate being reminded 
when 4 minutes is up so that I may reserve the last 30 seconds of my 
time.
  The DeMint amendment would take away from States the right to decide 
whether they want to be a right-to-work State or a State that allows 
for an agency shop or a union shop. Now, on this very Senate floor, in 
1947, after World War II, Mr. Conservative, Robert A. Taft, the leader 
of the Republicans, stood before the American people and said the law 
that was passed in 1935--the National Labor Relations Act--was wrong 
because it took away from States the right to make that decision, and 
there was a tumultuous argument on the Senate floor.

[[Page 1387]]

  Section 14(b) of the Taft-Hartley Act was passed, and it gave the 
States the right to decide whether an employee would have to pay union 
dues or join a union in order to have a job. Since then, 22 States, 
including the State of Tennessee, have decided, yes; we want to be a 
right-to-work State under the principles supported by the distinguished 
Senator from South Carolina, but he wants to make that a national law.
  I don't trust Washington on this issue. What do you suppose would 
happen in the Senate if today we voted about whether to have a national 
right-to-work law or a national agency shop or a union shop? I think I 
know what the result would be, and I know what would happen.
  Thirty years ago I was the Governor of Tennessee and we were the 
third poorest State and we had no auto jobs. Nissan wanted to come 
somewhere in the United States, and they chose Tennessee because we had 
a right-to-work law. Tennessee had the right to make that decision, 
even though other States chose not to have a right-to-work law. Then 
Saturn built a plant, and the Saturn employees chose to belong to the 
UAW and the Nissan employees said, no; we don't want to be in a union. 
Since that time, 13 major companies have come to the States that have 
right-to-work laws, including South Carolina, Tennessee, Georgia, 
Alabama, and Mississippi.
  If we let the prevailing Washington view decide whether a State 
should have a right-to-work, union shop, open shop, or agency shop law, 
we wouldn't have had that advantage, and we might not even have had an 
auto industry in the United States today. That competition between the 
States brought the companies that came here, hired American workers, 
built cars in our country, and now build half of our cars. These 
companies are providing the competition that will help the Detroit part 
of our industry survive, I think, more so than Government bailouts.
  So I say to my Republican colleagues especially, be careful what you 
ask for. Do you want to ask the Congress to vote on whether States have 
the right to choose a right-to-work law? I do not. I don't think you 
get any smarter about that issue by coming to Washington, DC. 
Democratic and Republican Governors and legislatures in Tennessee for a 
long time have thought we were perfectly capable of making that 
decision.
  So I would urge my colleagues to say Robert Taft was right in 1947 
and 1948. We don't want Washington telling Tennessee, North Carolina, 
Minnesota, or Maryland what their labor laws ought to be. Let Tennessee 
decide whether it wants a right-to-work law. I can think of nothing 
more fundamental to the prosperity of my State than preserving the 
principle that States have the option to decide whether or not to have 
a right-to-work law. So I respectfully oppose the DeMint amendment.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. Madam President, I have a question for the Senator from 
Georgia. I just wish to clarify the sequence after we conclude our 
debate. Does the Isakson amendment come after the DeMint amendment? Is 
that his understanding?
  Mr. ISAKSON. It was my understanding of the UC agreement that the 
Isakson amendment will follow the DeMint amendment in terms of a vote.
  Ms. MIKULSKI. I thank the Senator. That clarifies it. I have a 
question of Senator DeMint. Is the DeMint amendment to Lilly Ledbetter 
or are you amending another piece of legislation? Could you clarify 
what your amendment amends?
  Mr. DeMINT. The Ledbetter bill.
  Ms. MIKULSKI. Does the DeMint amendment amend the Ledbetter bill or 
the National Labor Relations Act and the Railroad Act? The Ledbetter 
Act is the pending one.
  Mr. DeMINT. Right.
  Ms. MIKULSKI. But the consequences are--aren't you amending the 
National Labor Relations Act? The Ledbetter Act is strictly a wage 
discrimination bill.
  Mr. DeMINT. It is a discrimination and fairness bill, and my bill 
would change the National Labor Relations Act to remove a mandate on 
States.
  Ms. MIKULSKI. I still have the floor. Madam President, I have the 
floor.
  The PRESIDING OFFICER. The Senator from Maryland has the floor.
  Ms. MIKULSKI. I had a question for Senator DeMint, and if the Senator 
will withhold, after I make my remarks, he can address the Chair.
  The consequence of the DeMint amendment is that it amends the 
National Labor Relations Act. Let me tell my colleagues the 
consequences. First of all, let's go to the facts.
  The Lilly Ledbetter Fair Pay Act is about pay discrimination, about 
wage discrimination. That is what we have been debating on both sides 
of the aisle. The debate has been focused, it has been targeted, it has 
been precise and, I might add, quite civil. It has nothing to do with 
right-to-work laws. This is not the time nor the place to debate 
whether we should have a Federal right-to-work law. We need to restore 
the ability of victims of pay discrimination to pursue justice. If we 
want to have a debate on a Federal right-to-work law, then I suggest to 
the Senator from South Carolina that he offer his own bill, let's put 
it through the committee, and let's vote on it, but let's not bring 
right-to-work laws into the wage discrimination focus of the Lilly 
Ledbetter Fair Pay Act.
  So let's go now to the facts or the merits of the amendment being 
offered by Senator DeMint.
  No. 1, it reverses decades of established labor law and addresses the 
issues that have nothing to do with the Fair Pay Act. The DeMint 
amendment undermines States abilities to choose what labor laws work 
best for them. That is the point made by the Senator from Tennessee. It 
would also impose right-to-work laws on workers who do not want them. 
Federal labor policy has been neutral on right-to-work issues for over 
60 years. That means States are free to decide whether they want to 
impose right-to-work laws. The amendment would impose right-to-work 
laws on States that do not want them, and it would even impose such 
laws in the railroad and aviation industry, which has never been 
subjected to them.
  We have debated this issue before. A bipartisan majority of Congress 
rejected this approach in the 104th Congress, which was in 1996. We had 
a vote on a similar amendment, and it was defeated 31 to 68. I hope we 
defeat the DeMint amendment today.
  Let's stick strictly to the Lilly Ledbetter discussion. We have been 
having an excellent discussion all day long.
  Again, I urge defeat of the DeMint amendment.
  Madam President, how much time do I have remaining, and, of course, 
answer the questions of our colleagues as to time.
  The PRESIDING OFFICER. The Senator from Maryland has 36 seconds 
remaining. The other side has 4 minutes 36 seconds remaining.
  Ms. MIKULSKI. I reserve the remainder of my time.
  Mr. ALEXANDER. Madam President, how much time do I have remaining? I 
am supposed to have 30 seconds left.
  The PRESIDING OFFICER. The Senator from Tennessee has 1 minute 45 
seconds.
  The Senator from South Carolina.
  Mr. DeMINT. Madam President, I think I mentioned some convoluted 
logic. I appreciate my colleague's civil discussion on this issue, but 
it is interesting to hear that removing a Federal mandate on States 
somehow violates States rights.
  My colleague from Tennessee described a situation they have in their 
State--the same situation in South Carolina--where you can have a 
nonunion shop. People can choose to be in unions or unionize an 
organization. Workers can decide whether they belong to a union. What 
that is called is freedom. Those are basic rights of Americans. What my 
amendment would do is restore that freedom for people who live in every 
State, not just in States where State legislators have been able to 
overcome union pressure and reestablish that freedom.
  This is not about States rights, and this is not about the rights of 
the Federal Government. It is not about some

[[Page 1388]]

Federal bureaucrats or what judges decide. Every American should have a 
right to decide whether they are going to join a union. For us to have 
a law at the Federal level imposed on people around the country that 
they have to join a union, they have to pay union dues, that employers 
have a right to fire them if they don't join a union--this is not good 
for individuals, but it is not good for our country.
  A few weeks ago, we had a debate about the American auto industry. 
Just about every expert recognizes that forced unionization has 
essentially run them out of business. There is a reason companies are 
leaving the forced compulsory union States and moving to Tennessee and 
South Carolina. It is because there is more freedom there. That is what 
this amendment is about. It is removing a Federal mandate that imposes 
on the freedom of every American.
  It is very relevant to the discussion today. We are talking about 
fairness. We are talking about discrimination. We are talking about 
wages. But when we force an American to join a union, take part of 
their wages and give it to a union, that is not freedom. I cannot 
imagine anyone here who thinks through this issue saying it does not 
have something to do with fairness and discrimination and what we are 
about as a country. We should have a right to unionize, we should have 
a right not to unionize, but we should not force an American to join a 
union and make their job contingent on it. This is much greater 
discrimination than we are dealing with in this Ledbetter bill, and it 
is very appropriate, if we are going to talk about fairness in 
eliminating discrimination, that we include this amendment that would 
restore a basic freedom to every American. That is what this amendment 
is about, is doing exactly what my colleague from Tennessee said they 
enjoy there. Why shouldn't they enjoy those same freedoms in Michigan 
and other States?
  I encourage my colleagues to set aside old ways of thinking and 
partisan politics, payback to unions. This is not about us. It is not 
about States. It is about people. It is about basic American rights. No 
American should be forced to join a union.
  I urge my colleagues to support this amendment.
  Mr. ALEXANDER. Madam President, if I were speaking in Tennessee, I 
would give the Senator from South Carolina an A-plus for his statement 
because it is exactly the law I want Tennessee to have. But what we are 
talking about here today is whether we want Washington to tell each 
State whether it can have a right-to-work law or agency shop or a union 
shop law. If Washington were to do that, Tennessee would not have a 
right-to-work law. We would not have permission to do that. We would 
not have an auto industry which is one-third of all of our 
manufacturing jobs.
  So I want my Republican colleagues, if I may say so, to be very 
careful here. Do we really want Washington telling us that the 
principle is they are going to say whether we can have a right-to-work 
law? I don't want them telling me that.
  Does that mean 1 minute?
  The PRESIDING OFFICER. The Senator has 1 minute remaining.
  Mr. ALEXANDER. When I was Governor of Tennessee--and I see the former 
Governor of Missouri here--nothing used to make me madder, to be blunt 
about it, than some Washington Congressman or Senator holding a press 
conference and telling me what to do because usually they would tell me 
what to do and not send the money, and then I would have to send the 
money on to the mayor, raise taxes, lower taxes. I would have to do 
something myself. We are perfectly capable of deciding whether we need 
a right-to-work law.
  Last year, the Senator from New Jersey was trying to ship New 
Jersey's laws to Tennessee with a national law. I cannot stand up and 
say we want a national right-to-work law and then argue against having 
New Jersey's laws in Tennessee, for States and counties that don't want 
those laws. So we want to fit those to our own circumstances.
  I greatly respect my colleague and friend, the Senator from South 
Carolina. On principle, he is right. There is another principle--
federalism--that we can decide for ourselves. We would undermine that 
principle.
  I urge my colleagues to vote against the DeMint amendment.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Madam President, how much time remains?
  The PRESIDING OFFICER. The Senator has 38 seconds.
  Ms. MIKULSKI. The Senator from South Carolina has how much time 
remaining?
  The PRESIDING OFFICER. The Senator has 1 minute 12 seconds remaining.
  Ms. MIKULSKI. I don't know whether the Senator wants to yield back 
his time or use the time for further debate.
  Mr. DeMINT. Madam President, if I may continue, I will use the rest 
of my time. I want to make sure we are clear.
  Again, my good friend from Tennessee has said that somehow this 
amendment is going to take away the rights of States to have a right-
to-work law. This is a right-to-work law. Every State in the country 
would have a right to work, a right to choose to be union or not to be 
union. This is not to restrict a State in any way at all.
  Right now, if a State wants to be right-to-work, it has to override 
Federal legislation. Most of us continuously talk about protecting 
secret ballots of workers. It is Federal legislation, it imposes a law 
on everyone, but it is protecting the rights of individuals because it 
is not about unions and it is not about the businesses for which they 
work. The Secret Ballot Protection Act would protect the individual and 
their rights. That is what this amendment is about. It is respecting 
the rights of individuals not to join a union. It does not take away 
any right from a State; it actually removes a Federal mandate on 
States.
  I appreciate all the time that was given to this discussion. I, 
again, urge my colleagues to support my amendment.
  Ms. MIKULSKI. Madam President, this amendment reverses decades of 
established labor law and addresses issues that have nothing to do with 
the Lilly Ledbetter Fair Pay Act. While the Senator from South Carolina 
debated right to work, I want to keep on fighting for the right to get 
equal pay for equal work.
  I understand the DeMint amendment No. 31 is now the pending business. 
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 Massachusetts (Mr. 
Kennedy) is necessarily absent.
  The PRESIDING OFFICER (Mr. Whitehouse). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 66, nays 31, as follows:

                      [Rollcall Vote No. 11 Leg.]

                                YEAS--66

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

                                NAYS--31

     Barrasso
     Bennett
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lugar
     McCain
     McConnell
     Risch

[[Page 1389]]


     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Wicker

                             NOT VOTING--1

       
     Kennedy
       
  The motion was agreed to.


                             Change Of Vote

  Mr. CORKER. Mr. President, on rollcall vote No. 11, I voted ``aye.'' 
I ask unanimous consent that I be permitted to change my vote to 
``nay'' since it will not affect the outcome of the legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The foregoing tally has been changed to reflect the above order.)


                            Amendment No. 37

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate equally divided prior to the vote on amendment No. 
37, offered by the Senator from Georgia, Mr. Isakson.
  The Senator will be in order.
  Who yields time?
  The Senator from Georgia is recognized.
  Mr. ISAKSON. Mr. President, the bill as it is written applies to any 
claim back to May 28. But the way it is worded, it appears to me it is 
a claim filed and leaves it open for any past claim to be brought up 
that wasn't previously filed. The amendment simply ensures that the act 
couldn't be used for new claims to be filed retroactively all the way 
back to the passage of title VII of the Civil Rights Act. It is a mere 
matter of being clear that it doesn't retroactively open the 
opportunity to file new cases all the way back to the inception of the 
act.
  Mr. ENZI. Mr. President, I would also like to speak in support of 
Senator Isakson's amendment No. 37. This amendment is about basic 
fairness. We have been talking a lot about fairness during 
consideration of this bill--fairness for employees who suffer 
discrimination and don't realize it before a legal deadline passes, and 
fairness for an employer who may have done nothing wrong but becomes a 
target of an ambitious trial lawyer eager to test new legal theories.
  The question many people ask when looking at what the underlying bill 
would do is how is it fair to sue a businessperson over something that 
may or may not have happened in his or her company decades earlier? 
What is a businessperson to do if the person who is alleged to have 
committed the discriminatory act no longer works there or, perhaps, is 
deceased? Anyone can recognize the difficult position this creates. How 
do you prove something didn't happen years ago when the only witness 
other than the accuser is absent?
  Senator Isakson has come up with a very equitable solution to this 
riddle. He recognizes that, if this bill is enacted, employers will 
have to keep a far more detailed record of every employment decision, 
every performance review, every personnel action, and more. The bill 
retroactively re-opens liability for dozens of years of employment 
decisions. Upon enactment of this bill, employers will be on notice 
that the statute of limitations for title VII cases virtually never 
expires. But it simply isn't fair to apply this new open-ended statute 
of limitations to employment decisions that occurred decades ago.
  Senator Isakson's amendment resolves this inequity by applying the 
new law on a prospective basis. As a former small business person 
myself, I believe this is the only fair way to apply a new and 
burdensome standard.
  I urge my colleagues to support this amendment.
  Ms. MIKULSKI. Mr. President, I object to the Isakson amendment. It 
would create an arbitrary and unfair cutoff for those who get the 
benefits of this bill. If the Isakson amendment is agreed to, it would 
create a 20-month gap in the law. Those workers who were unfortunate 
enough to have been discriminated against during that 20-month period 
would be treated worse than those who came before them or after them. 
It is arbitrary and it is unfair.
  I understand that the Isakson amendment is now the pending business.
  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 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 59, nays 38, as follows:

                      [Rollcall Vote No. 12 Leg.]

                                YEAS--59

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     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
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--38

     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
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--1

       
     Kennedy
       
  The motion was agreed to.
  Ms. MIKULSKI. Mr. President, I move to reconsider the vote.
  Mr. REID. Mr. President, 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, I ask unanimous consent that when the Vitter 
amendment is offered, which will be very quickly, there be 15 minutes 
for debate, 10 minutes for Senator Vitter, 5 minutes for Senator 
Mikulski; that upon the use or yielding back of time, the Senate 
proceed to vote in relation to the amendment; that no amendment be in 
order to the amendment prior to the vote; that upon disposition of the 
Vitter amendment, no further amendments be in order, the bill be read a 
third time, and the Senate proceed to vote on passage of the bill; that 
the vote on passage would be as if it were a cloture vote, and that if 
the threshold is achieved, the bill is passed, with no intervening 
action or debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I, on behalf of all Senate leadership, 
appreciate the way we have moved through this legislation. Now, were 
all of these votes easy? No, they were not easy. Some of them were 
difficult votes for a number of my Senators, I am sure on the other 
side of the aisle as well. But this is the way we need to operate as a 
Senate.
  Were all of these amendments offered germane? No. But the people have 
a right to offer amendments. So I appreciate everyone's cooperation to 
this point. We are going to move forward, we hope, to work out, and we 
are going to clear, some of the nominations of President Obama tonight 
or tomorrow.
  We also hope we can arrange to have, Monday night, a vote on Treasury 
Secretary-designee Geithner. We will try to do that at a time 
convenient. It has been suggested to me that time would be about 6 
o'clock. We will probably come in sometime in the afternoon. It is my 
understanding that people who are for and against him want 2 hours of 
debate equally divided. But if people want to talk more, we can come in 
earlier in the afternoon and do some morning business, and people can 
talk about whatever they want during that time.
  We also understand we are going to be able to move to the SCHIP bill 
without filing cloture. I was going to file

[[Page 1390]]

cloture on that tonight, but it is my understanding that we can start 
that Monday night and work through the amendments on that next week. We 
are going to finish that next week. I understand there will be a lot of 
amendments. I am sure that is the case.
  The reason we have to complete work on it next week is that we must 
move to the economic recovery package. We only have 2 weeks to finish 
that. I want to spend a good, long, hard week finishing what we are 
doing before we send our product to the House because we need that 
final week to make sure we do conferences and messages and work out 
whatever differences we have between the two bills.
  We are not going to be able to take our recess for Presidents Day 
unless we finish that legislation. I think everyone agrees, Democrats 
and Republicans agree, we need to get this done. The imperative of 
doing this every day becomes more pronounced, in my mind. We had our 
Democratic policy committee today where we had Alan Blinder, who is a 
Democrat; Martin Feldstein is a Republican; and Mark Zandi, who I think 
is a Republican. I am pretty sure he is. He was one of Senator McCain's 
chief advisers. They all agreed and, in fact, Mark Zandi said to me 
before the presentation: You are going to be hearing from dark, darker, 
to darkest. We have economic problems that have never been seen in this 
country or the world before and we have to work to see what we can do 
to help alleviate the problems that exist out in that difficult 
financial world in which we find ourselves.
  So that is why people should not plan on next weekend going home. You 
should plan on being here. If there is a way we can work our way around 
that, I will be happy to do that. But I think the chances are quite 
slim that we would be able to do that.
  Mr. SCHUMER. Mr. President, today we get a second chance to do the 
right thing.
  Millions of American women and men understand that it is wrong for a 
woman to work, year after year, alongside a man and make less money 
simply because she is a woman.
  Millions of American women understand--unfortunately many know first 
hand--that you don't always know when you are being discriminated 
against. Proof that you have been a victim of discrimination rarely 
boils down to one magic moment where the curtain is raised and it is 
all made clear. And of course, the curtain hardly ever comes up within 
180 days of the actual ``act'' of discrimination.
  All too often, discrimination based on gender happens exactly the way 
it happened to Lilly Ledbetter. Paycheck after paycheck, a woman 
receives lower pay than her male colleagues. But only after years does 
she discover that this was even happening. Only after years does she 
discover that it has been the result of discrimination.
  It is just as demeaning, and in many ways even more frustrating, than 
a single, concrete episode of bias.
  Justice Ruth Bader Ginsburg, who took the unusual step of reading her 
dissent in Lilly Ledbetter's case from the bench, was outraged by her 
compatriots on the Supreme Court who held the passage of time against 
Lilly Ledbetter. You see, Justice Ginsburg understands what so many 
Americans also understand--that it is often a series of small and 
hidden decisions that add up to a lifetime of unequal pay. This kind of 
discrimination can't be tied to one definitive act. Instead, it comes 
from the cumulative effect of weeks, months, and sometimes years of 
bigotry and injustice.
  Many of us have daughters and granddaughters who need us to vote for 
the Lilly Ledbetter Fair Pay Act. What will you say if your daughter or 
granddaughter calls you tonight and said, ``Hey, I need some advice. I 
have had this job for 5 years. I have been working really hard and I 
have always had good reviews, my colleagues like me, and I love my job. 
I need this job to support my family. But I just found out that all 
along, I have been getting paid about 75 percent of what the guys here 
get paid for doing the same thing. I have been asking around and it 
turns out our supervisors have been doing this for a while--paying men 
more, and saying things about women that are negative. One guy even 
said that our workplace doesn't need women. What should I do?''
  Do you want to tell your daughter or granddaughter, ``Well, if the 
decision to discriminate against you was made more than 180 days ago, 
that is too bad, you should have complained earlier''?
  I don't want to do that, and I don't intend to. I want to be able to 
say to my daughter, and all American daughters, wives, sisters, and 
granddaughters: There is something you can do about this. This behavior 
is wrong, and Congress gave you a way to make it right. Plain and 
simple.
  It is un-American to work your whole life for a fraction of what your 
colleagues make, solely because you are a woman. It is un-American to 
tell a woman who just wants a fair shake in exchange for 20 years of 
work that she should have known what was going on, and now it is too 
late--that she should have filed a new claim after every paycheck.
  Congress did not pass Title VII, not to mention the Equal Pay Act, 46 
years ago only to lace it with traps and trip wires for the unwary 
worker.
  Some critics of the Lilly Ledbetter Fair Pay Act have said that it 
will lead to an onslaught of lawsuits. But the Congressional Budget 
Office has said that this isn't true. I believe that is based on the 
obvious proposition that most women don't want to sue their employers. 
They don't go out of their way to ruin their own lives with lawsuits. 
They didn't do it before the Ledbetter decision, and there is no reason 
to believe that they will do it after we restore the import of the law.
  Lilly Ledbetter didn't want to sue. In fact she has said that she 
wouldn't have bothered if she thought the case was close, or the result 
of an oversight, or based on poor reviews. But, as all of the evidence 
showed, it wasn't. Lilly Ledbetter said: ``It wasn't even close to 
being fair. I had no choice. I had to go to court. I had to stand up 
for what was right.''
  This bill isn't some windfall for women to sit on their hands without 
bringing claims during years of discrimination. All of an employer's 
normal defenses are untouched by this bill. We have discussed the legal 
defenses and the operation of various parts of this bill ad nauseum, 
but overlawyering this isn't going to change the fact that women make 
78 cents on the dollar compared to similarly situated men.
  The right to make a fair wage to support your family, regardless of 
gender, is not something that should be doubted in America. The right 
to equal paychecks is something that Congress thought it guaranteed 46 
years ago, and which was not in doubt until Lilly Ledbetter's case 
reached the Supreme Court.
  We must take the very simple step of restoring this right so that 
women in America can be assured that their hard work for their families 
and their country will be compensated on the same basis as men.
  Mrs. BOXER. Mr. President, I rise in strong support of the Lilly 
Ledbetter Fair Pay Act.
  As we begin our work this Congress to address the greatest economic 
challenge our nation has faced in a generation, the solutions we 
consider must focus on strengthening the middle class.
  Last month the economy lost 524,000 jobs, and in 2008, 2.6 million 
jobs were lost--the most in one year since 1945.
  Unemployment continues to climb--in some areas of my State of 
California, the unemployment rate is over twelve percent. Wages for 
many in the middle class have actually decreased over the last 8 years.
  And 46 years after passage of the Equal Pay Act, workers throughout 
the nation still suffer pay discrimination based on gender, race, 
religion, national origin, disability and age.
  When it comes to achieving the principle of equal pay for equal work, 
we still have a long way to go.
  Women workers today earn only 78 cents for every dollar men earn. The 
pay disparity is still so great that it takes a woman 16 months to earn 
what a man earns in 12 months.

[[Page 1391]]

  In 2006, an average college-educated woman working full time earned 
$15,000 less than a college-educated male.
  According to the American Association of University Women, working 
families lose $200 billion in income per year due to the wage gap 
between men and women.
  To put it simply, pay discrimination is hurting our middle class 
families and hurting our economy.
  Unfortunately there is no easy solution that will eliminate all pay 
discrimination.
  But what this bill will do is ensure that when an employer 
discriminates based on gender or race or other factors, the employee 
can have his or her day in court.
  With its 2007 Ledbetter v. Goodyear decision, the Supreme Court 
reversed decades of legal precedent in the courts of appeals and long-
standing Equal Employment Opportunity Commission policies, and 
effectively undercut a commonsense, fundamental protection against pay 
discrimination.
  With its decision, the Court imposed significant obstacles for 
workers by requiring them to file a pay discrimination claim within 180 
days of when their employer FIRST starts discriminating--an almost 
impossible standard.
  This bill simply restores the law to what it was prior to the Court's 
decision in a workable and fair way that will protect people like Lilly 
Ledbetter from discrimination.
  Mr. President, the story of Lilly Ledbetter makes it clear why this 
legislation is necessary.
  The discrimination she suffered is not unfamiliar to many female and 
minority employees in manufacturing plants and office parks across the 
country.
  Ms. Ledbetter was a female manager at an Alabama Goodyear Tire plant 
when she discovered after 19 years of service that she was earning 20 
to 40 percent less than her male counterparts for doing the exact same 
job.
  As Justice Ginsburg noted in her dissenting opinion, ``the pay 
discrepancy between Ledbetter and her 15 male counterparts was stark.''
  In 1997, her last year of employment at Goodyear, after 19 years of 
service, Ms. Ledbetter earned $5,608 less than her lowest-paid male 
coworker. She earned over $18,000 less than her highest-paid male 
coworker.
  Evidence submitted in her trial showed that Ms. Ledbetter was denied 
raises despite receiving performance awards, her supervisors were 
biased against female employees, and that in some cases, female 
supervisors at the plant were paid less than the male employees they 
supervised.
  When Ms. Ledbetter discovered this, she took Goodyear to court and a 
jury awarded her full damages.
  But Goodyear appealed the jury's decision, and in 2007, the Supreme 
Court overturned the verdict and said that Ms. Ledbetter could not sue 
for back pay despite overwhelming evidence that her employer had 
intentionally discriminated against her because of her gender.
  The Supreme Court threw out the case because it took her longer than 
six months to determine that she had been the victim of years of pay 
discrimination.
  This is an unfair standard.
  In most situations, if an employee suspects pay discrimination, it 
takes significant time to determine the facts.
  As Justice Ginsburg pointed out, ``compensation disparities are often 
hidden from sight for a number of reasons.''
  Ginsburg's point underscores the unreasonableness of the standard 
created by the Supreme Court.
  Many employers do not publish employee salaries and employees are 
often not eager to discuss their wages with other employees.
  Earlier this month the New York Times reported that ``in the last 19 
months, Federal judges have cited the Ledbetter decision in more than 
300 cases . . .''
  This decision has had significant impacts on the employees alleging 
pay discrimination, severely limiting their rights to equal pay. Some 
courts are also using the decision to limit rights in other areas of 
the law, like equal housing, equal education, and civil rights cases.
  The Ledbetter decision was a giant step backward in the fight for 
equal opportunities and equal rights.
  Goodyear engaged in chronic discrimination against female employees, 
but because of this decision, the courts must treat intentional, 
ongoing pay discrimination as lawful conduct.
  Employers who can conceal their pay discrimination for 180 days are 
free to continue to discriminate with no redress for the employee.
  We must ask ourselves: Is this a standard that Congress should 
support?
  This bill simply restores the law to what it was in almost every 
state in the country before the Ledbetter case was decided. That law 
basically said you had 180 days to seek justice on equal pay for equal 
work each time that you were discriminated against.
  It does so by eliminating the unreasonable barrier created by the 
Supreme Court and allows workers to file a pay discrimination claim 
within 180 days of each discriminatory paycheck.
  For the Nation's working families and middle class to succeed and 
grow, the principle of equal pay for equal work must have teeth, it 
must have meaning, and this bill restores meaning to the equal pay 
principle.
  Justice Ginsburg told us, ``Congress, the ball is in your court.''
  The time is now to restore decades of legal precedent and prevent the 
narrow Ledbetter decision from impacting more Americans facing 
discrimination.
  We must restore this important protection and return the law to its 
intended meaning.
  I urge my colleagues to vote for this bill.
  Mr. DODD. Mr. President, I rise today to speak about an issue of 
fundamental economic fairness--an issue that affects the dignity and 
the security of millions of Americans: the right to equal pay for equal 
work.
  Before I begin, let me thank Senator Kennedy, the chairman of the 
HELP Committee, and Senator Mikulski, for their tireless work on this 
important issue.
  The Lilly Ledbetter Fair Pay Act goes a long way toward ensuring that 
right to equal pay. In a perfect world, of course, we could take that 
right for granted--we could take it for granted that the value of work 
lies not in the race or gender of the person who is doing it but in a 
job well done.
  Unfortunately, we don't live in that world. We know that, even now, 
some employers cheat their employees out of equal pay for equal work.
  That's what happened to Lilly Ledbetter. For almost two decades, from 
1979 to 1998, she was a hardworking supervisor at a Goodyear tire plant 
in Gadsden, AL.
  And it is telling that she suffered from two types of discrimination 
at the same time. On the one hand, there was sexual harassment, from 
the manager who said to her face that women shouldn't work in a tire 
factory, to the supervisor who tried to use performance evaluations to 
extort sex.
  And on the other hand, there was pay discrimination: by the end of 
her career, as the salaries of her male coworkers were raised higher 
and faster than hers, she was making some $6,700 less per year than the 
lowest paid man in the same position.
  Now, the two kinds of discrimination faced by Ms. Ledbetter have a 
good deal in common. Morally, each amounts to a kind of theft--the 
theft of dignity in work and the theft of the wages fairly earned.
  Both send a clear message as well--that women don't belong in the 
workplace.
  But there is a clear difference between sexual harassment and pay 
discrimination. The former is blatant. The latter far too often stays 
insidiously hidden.
  In fact, Lilly Ledbetter didn't even know she was being paid unfairly 
until long after the discrimination began. Absent an anonymous coworker 
giving her proof, she might be in the dark to this very day.
  And that is hardly surprising. How many Americans know exactly how 
much their coworkers make? What would happen if they asked? At some 
companies, you could be fired.

[[Page 1392]]

  Armed with proof of pay discrimination, Ms. Ledbetter asked the 
courts for her fair share. And they agreed with her: she had been 
discriminated against.
  She had been cheated.
  And she was entitled to her back pay.
  Unfortunately, the Supreme Court ruled against her, and took it all 
away. Yes, she had been discriminated against--but she had missed a 
very important technicality.
  She only had 180 days--6 months--to file her lawsuit--and the clock 
started running on the day Goodyear chose to discriminate against her.
  Never mind that she had no idea she was even the victim of pay 
discrimination until years later. Figure it out in 180 days, the Court 
said or you are out of luck for a lifetime.
  It is not hard to see how this ruling harms so many Americans beyond 
Ms. Ledbetter. In setting an extremely difficult, arbitrary, and unfair 
hurdle, it stands in the way of many, many Americans fighting against 
discrimination.
  It also flatly contradicts what had been the standard practice of the 
Equal Employment Opportunity Commission, flies in the face of decades 
of legal precedent, and ignores clear congressional intent.
  As Justice Ginsburg put it in her vehement dissent, the Court's 
Ledbetter ruling ignores the facts of discrimination in the real world. 
She writes:

       Pay disparities often occur . . . in small increments; 
     cause to suspect that discrimination is at work develops only 
     over time. Comparative pay information, moreover, is often 
     hidden from the employee's view . . . Small initial 
     discrepancies may not be seen as meet for a federal case, 
     particularly when the employee, trying to succeed in a 
     nontraditional environment, is averse to making waves.

  ``The ball,'' Ginsburg concluded, ``is in Congress's court . . . The 
legislature may act to correct this Court's parsimonious reading.''
  That is precisely what we are here to do today. With today's passage 
of the Lilly Ledbetter Fair Pay Act, employees will have a fair time 
limit to sue for pay discrimination. They will still have 180 days, but 
the clock will start with each discriminatory paycheck, not with the 
original decision to discriminate. After all, each unfair paycheck is 
in itself a decision to discriminate--it is ongoing discrimination. 
Employees like Ms. Ledbetter will no longer be blocked from seeking 
redress, through no fault of their own, except a failure to be more 
suspicious.
  This is an important moment and important bill. I do wish we were 
also strengthening the remedies available to victims of pay 
discrimination under the Equal Pay Act.
  For this reason we must also pass into law the Paycheck Fairness Act, 
authored by my friend and colleague in the Connecticut delegation, 
Congresswoman Rosa DeLauro, and championed in the Senate by Senator 
Hillary Clinton. Had paycheck fairness been law when Lilly Ledbetter 
decided to go to court, she may well have received just compensation 
for the discriminatory practices she endured. She certainly would have 
had a stronger case to make and a greater array of tools. So, as 
critical as the Lilly Ledbetter Fair Pay Act is, we certainly have more 
work to do.
  Millions of Americans depend on the right to equal pay for equal 
work: to earn a livelihood, to feed their families, and to uphold their 
basic dignity. We ought to make it easier for Americans to exercise 
that right, not harder. We ought to get unfair roadblocks, hurdles, and 
technicalities out of their way. With passage of the Lilly Ledbetter 
Fair Pay Act, we take an important step toward eliminating these 
discriminatory roadblocks once and for all.
  Ms. MURKOWSKI. Mr. President, I rise to speak about my vote on final 
passage of the Lilly Ledbetter Fair Pay Act.
  I want to first reiterate a most important statement of the entire 
debate on this bill, with which we all agree. As I said yesterday, 
during debate on Senator Hutchison's substitute amendment, 
discrimination because of an individual's gender, ethnicity, religion, 
age, or disability cannot be tolerated. No Americans should be subject 
to discrimination, and if they are, they have the right to the law's 
full protection.
  Having said that, I am pleased that we have had the opportunity to 
offer and vote on amendments that Members of the Senate believe would 
have perfected this legislation. I would also note that this 
opportunity is a welcome reversal from last year, when we did not have 
an opportunity to offer amendments, and it was for that reason that I 
voted against cloture last year.
  As you know, I have had concerns about the Fair Pay Act's deletion of 
the statute of limitations. In my view, once an employee knows, or has 
a reasonable suspicion, that he or she has been the subject of 
discrimination, the employee has the responsibility to file a complaint 
within a reasonable amount of time. That responsibility benefits the 
employee first of all, but also benefits the employer, if a claim is 
pursued while records are available and memories are fresh. In 
addition, the employee is more likely to be able to recover the full 
amount of his or her lost wages rather than just the previous 2 years' 
wages.
  For these reasons, I supported Senator Hutchison's substitute 
amendment. Her amendment recognized the important point that many 
employees do not know that their rate of pay is discriminatory. It 
would also have restored beneficial timeliness to the process once the 
employee suspected or knew of discrimination. I am disappointed that 
this amendment failed.
  At the end of the day, however, after the amendment process has 
concluded--a process that was not available to us last year--I believe 
it is more important to vote for legislation that will improve every 
American's ability to access full redress for any act of wage 
discrimination.
  The Fair Pay Act provides that vital protection. For that reason, I 
will vote for this legislation.
  Mr. LEVIN. Mr. President, I support the Lilly Ledbetter Fair Pay Act. 
This legislation is important to ensure that Americans from all walks 
of life have a realistic opportunity for recourse if they are victims 
of pay discrimination. We are considering this bill because of the 
Supreme Court's interpretation, in Ledbetter vs. Goodyear Tire & Rubber 
Co., of title VII of the Civil Rights Act of 1964. The Court's 5 to 4 
ruling makes it almost impossible for many victims of pay 
discrimination to find an adequate legal remedy under the Civil Rights 
Act. The legislation we are considering today will correct that.
  The Civil Rights Act established the Equal Employment Opportunity 
Commission, EEOC, to enforce title VII. The EEOC is empowered to 
protect against employment discrimination based on sex, race, national 
origin, religion and disability by receiving complaints of 
discrimination, investigating discrimination, conducting mediations to 
settle complaints and filing law suits on behalf of employees.
  Despite the efforts of the EEOC, the United States still suffers from 
significant pay iniquities. Numerous studies using census data and 
controlling for work patterns and socioeconomic factors found that half 
or more of the wage gap between males and females is due to gender 
alone, demonstrating that discrimination based on gender is all too 
common in American work places. Over the past decade, the EEOC has 
averaged more than 24,400 complaints of sex-based discrimination each 
year.
  One of those complaints was filed in 1998 by a woman named Lilly 
Ledbetter. She alleged that she was the victim of a sex-based pay 
disparity during her nearly 20-year career at Goodyear. Ledbetter sued 
Goodyear, and a jury awarded her back pay and damages after finding, 
among other things, that Ledbetter was being paid $550 to $1550 less 
per month than her male counterparts who were doing the same work. For 
almost her entire tenure at Goodyear, Letbetter was not aware that she 
was being discriminated against because the pay levels of her coworkers 
were kept strictly confidential. In fact, she only learned that she was 
making less than males doing the same job as her because of an 
anonymous tip that she received shortly before her retirement.

[[Page 1393]]

  Congress's intent in passing the Civil Rights Act and in passing 
subsequent updates to the Civil Rights Act in 1991 a bill which I 
supported was to help remedy the sort of discrimination that Lilly 
Ledbetter fell victim to. Although the validity of claims of pay 
discrimination filed within 180 days of receiving a paycheck reflecting 
discriminatory policies has been recognized by countless lower courts 
and was explicitly accepted under EEOC guidelines and by previous EEOC 
administrative decisions, the Supreme Court ruled that Ledbetter's 
claim of discrimination was not actionable under title VII. Their 
opinion stated that Ledbetter's claim was not filed within 180 days of 
the discriminatory act against her.
  In ruling against Ledbetter, the majority's opinion stated that ``it 
is not [the Supreme Court's] prerogative to change the way in which 
title VII balances the interests of the aggrieved employees against the 
interest in encouraging the prompt processing of all charges of 
employment discrimination.''' The majority concluded that ``Ledbetter's 
policy arguments for giving special treatment to pay claims find no 
support in the statute'' and that the Supreme Court must apply ``the 
statute as written, and this means that any unlawful employment 
practice including those involving compensation, must be presented to 
the EEOC within the period prescribed in the statute.''
  The dissenters rightly characterize the majority opinion as 
``parsimonious.'' I believe that the majority put forth a misguided 
interpretation of unlawful employment practices, and in doing so 
incorrectly found that Lilly Ledbetter's claim did not fall within 
title VII of the Civil Rights Act. I also believe that the opinion of 
the Court required an unreasonable interpretation of Congress's intent 
in title VII. Their finding would make it next to impossible to file a 
successful claim of discriminatory pay, given the challenges in 
detecting such discrimination. The Supreme Court interpreted 
Congressional intent in a civil rights law in a way that is restrictive 
of peoples' civil rights and available remedies.
  But the issue for us to decide is not what a previous Congress 
intended. We are to decide what the law should be, and what is right. 
This legislation determines that each discriminatory paycheck will 
qualify as an unlawful employment practice under title VII. Equitable 
remedies defendants can raise, including laches, are not disturbed by 
this bill.
  The Lilly Ledbetter Fair Pay Act will restore the protections against 
discriminatory pay that Congress and the courts have previously 
endorsed, and provide a reasonable route through the EEOC and the court 
system for people like Lilly Ledbetter to have pay discrimination 
corrected and remedied.
  Mrs. FEINSTEIN. Mr. President, I rise today in support of the Lilly 
Ledbetter Fair Pay Act of 2009.
  This bill is about equality, and it is about fairness. Although our 
country has made many important strides toward equality, when it comes 
to the week-to-week question of paychecks, or the day-to-day issue of 
financial security, women continue to lag behind.
  Women simply are not paid as much as men, even when they do the exact 
same job.
  Last summer, the U.S. Census Bureau reported that women who work full 
time earn, on average, only 78 cents for every dollar that men earn.
  This is not an insignificant difference. It means that when a man is 
paid $50,000 a year for a certain kind of work, a woman may receive 
only $39,000. That is $11,000, or 22 percent less.
  But when women go to pay their bills, to buy groceries, or to try to 
find health care, they are not charged 22 percent less. They are 
charged the same and must stretch their finances as best they can to 
make ends meet.
  Women's financial struggles do not affect them alone. They affect 
countless families across the country. According to the U.S. Census, as 
of 2007, approximately 20 percent of American households were headed by 
women, and other surveys of households have revealed that a majority of 
women report providing more than half of their household incomes, with 
over a third totally responsible for paying the bills.
  Ensuring equality in pay is absolutely essential right now. While all 
Americans are concerned about downturns, layoffs, stagnant wages, and 
pay cuts, it is also true that in an economic downturn, women suffer 
disproportionately under almost every economic measure. Women lose 
their jobs more quickly than men, and in December 2008, 9.5 percent of 
women who were the heads of their households were unemployed. Women's 
wages fall more rapidly. Women are disproportionately at risk for 
foreclosure, and as of last year, 32 percent more likely to receive 
subprime mortgages than men. And women have fewer savings on average.
  The Lilly Ledbetter Fair Pay Act takes an important step forward in 
protecting working American women's financial well-being. The bill 
reverses the Supreme Court's parsimonious reading of pay discrimination 
law in Ledbetter v. Goodyear Tire & Rubber Co. so that women will not 
be turned away twice--first by their employers when they seek equal pay 
for equal work, and second by the courts when they go to file claims of 
unfair treatment.
  The bill is a necessary correction to a Supreme Court decision that 
was incorrect. The bill ensures that when employers unlawfully pay 
women less for performing the same job, they can seek recourse in the 
Federal courts.
  I also want to say a word about the amendments offered today. The 
Lilly Ledbetter Fair Pay Act does not change the substance of title VII 
discrimination law. What it does is make sure that women who have 
meritorious discrimination claims under that law are not unfairly 
denied the right to go to Federal court and recover compensation.
  The bill says that women can file their claims within 180 days of 
their last discriminatory paycheck and can recover up to 2 years' back 
pay from that date. Any stricter timing requirement is simply out of 
touch with the realities of the workplace.
  As Justice Ginsburg explained in her dissent in the Ledbetter case:

       [I]nsistence on immediate contest overlooks common 
     characteristics of pay discrimination. . . . Pay disparities 
     often occur, as they did in Ledbetter's case, in small 
     increments; cause to suspect that discrimination is at work 
     develops only over time. . . . [A worker's] initial readiness 
     to give her employer the benefit of the doubt should not 
     preclude her from later challenging the then current and 
     continuing payment of a wage depressed on account of her sex.

  When women work the same jobs as men with the same skill, they should 
be paid the same amount. If they are not paid the same amount because 
of discrimination, they should be able to seek recourse in Federal 
courts. I urge my colleagues to support this bill and restore American 
fair pay law.
  Mr. SANDERS. Mr. President, soon we will be voting on the Lilly 
Ledbetter Fair Pay Act, S. 181. The House of Representatives has 
already passed this legislation by a vote of 247 to 171. Passing this 
bill today will send a clear message that our country will not tolerate 
unequal pay for equal work.
  As astonishing as it is, in the year 2009, women earn, on average, 
only 77 cents for every dollar earned by men in comparable jobs. What a 
truly unthinkable, and frankly disgraceful, circumstance--one that we 
must do everything within our power to change. Today we have the 
opportunity to take a small but very significant step in making sure 
that Americans have the legal opportunity to challenge pay 
discrimination.
  Lilly Ledbetter was a loyal employee at Goodyear Tire and Rubber 
Company for 19 years. At first, her salary was in line with that of her 
male colleagues, but over time she got smaller raises creating a 
significant pay gap. Ms. Ledbetter was not aware of this pay 
discrimination until she received an anonymous note detailing the 
salaries of three male coworkers. After filing a complaint with the 
Equal Employment and Opportunity Commission, her case went to trial and 
the jury awarded her

[[Page 1394]]

$3.3 million in compensatory and punitive damages due to the extreme 
pay discrimination she endured.
  The Court of Appeals for the Eleventh Circuit reversed this verdict, 
arguing that Ms. Ledbetter filed her complaint too late. If you asked 
anyone on the street, they would tell you that this decision goes 
against the citizens of this country's sense of right and wrong. How 
was she to know that this discrimination was happening? Ms. Ledbetter 
was already facing sexual harassment at Goodyear Tire and Rubber Co. 
and told by her boss that he didn't think a woman should be working 
there. To argue that Ms. Ledbetter should have asked her male 
counterparts what their salaries were at the moment she suspected 
discrimination defies common sense. This topic was off limits, as it is 
in most work places. It is clearly not her fault she didn't discover 
this inequity sooner.
  In 2007, the Supreme Court upheld the Eleventh Circuit ruling in 
Ledbetter v. Goodyear Tire and Rubber Co. and, as a result, took us a 
step back in time. It gutted a key part of the Civil Rights Act of 1964 
that has protected hardworking Americans from pay discrimination for 45 
years by making it extraordinarily difficult for victims of pay 
discrimination to sue their employers.
  The bill before us overturns the Court's 5-4 decision and reinstates 
prior law. It ensures that victims of pay discrimination will not be 
penalized if they are unaware of wage disparities. I am happy to say 
that we will have the opportunity today to protect millions of 
hardworking Americans and reverse the unreasonable and unfair Ledbetter 
decision. I call on all of my Senate colleagues to vote in favor of 
this bill, which will send a clear signal that pay discrimination is 
unacceptable and will not be tolerated.
  Ms. SNOWE. Mr. President, I come to the floor today to thank my 
Senate colleagues--particularly the persistent efforts of Senator 
Mikulski, but also to commend Senators Kennedy and Specter for their 
willingness to address a controversial Supreme Court decision head-on. 
I am proud to see the Senate taking up an issue that is so fundamental 
to America--to the way we see ourselves, to the way we are perceived 
around the world, to the core principles by which our country abides. 
Equality. Fairness. Justice.
  I believe everyone in this body is familiar with the story of Lilly 
Ledbetter. She spent 20 years diligently working at the same company, 
at the same facility in suburban Alabama, striving alongside her 
coworkers, both male and female. Unknown to her at the time, from her 
earliest days at the facility she had become a victim of gender 
discrimination. How? Over time, those male colleagues who rose through 
the ranks at the same rate as Ms. Ledbetter were receiving considerably 
more compensation.
  Then, one day in June of 1998, her eyes were opened by an anonymous 
individual who provided her with documentation finally alerting her to 
the discrepancy in wages. From there, her legal odyssey began. She 
filed a complaint with the Equal Employment Opportunity Commission, 
EEOC, in July, filed a discrimination lawsuit 4 months later and found 
herself at what she expected to be the end of her journey, the U.S. 
Supreme Court, 8 years later. But this was not the end of the journey.
  As Justice Ginsburg indicated in her dissenting opinion, the majority 
did not sufficiently consider the broad array of case law that would 
have resulted in a decision in favor of Ms. Ledbetter. Yet we are here 
today not to argue the validity of the May 2007 Supreme Court decision. 
Rather, we are here to address the root of the problem, a role Congress 
must fulfill when the law clearly is lacking. In fact, in that same 
dissent, Justice Ginsburg urged Congress to act expeditiously to repair 
this inequity. Today, we are one step closer to doing just that.
  The existing statute plainly indicates the discrimination must have 
occurred within 180 days of filing the complaint in order for the 
complaint to be considered timely. But as Ms. Ledbetter's case proves, 
this provision, now codified in title VII of U.S. law, is fundamentally 
flawed. With respect to a situation like that experienced by Ms. 
Ledbetter, and thousands of American women every day, the statute is 
not tailored in such a way to recognize long-term workplace 
discrimination. If a woman is terminated solely because of her gender--
or perhaps passed over for promotions or increased compensation 
irrespective of merit, but instead based solely on the fact she is a 
woman, she typically would have the ability to meet the 180-day 
requirement.
  But the kind of mistreatment we are attempting to rectify with this 
legislation is both subtle and longstanding, it is almost impossible to 
comply with the statute as written. Generally, women like Ms. Ledbetter 
enter a company on a lower pay scale than their peers, and starting 
with such a handicap continues to plague them throughout their careers. 
Over time, that gulf between her compensation and that of her male 
colleagues only widens. But why should they be penalized in law simply 
because they didn't have the information necessary to know they were 
being discriminated against? Do we really wish to say that justice 
should be arbitrarily decided merely by a date and time?
  Now, opponents of the legislation have indicated the Ledbetter bill 
before us today will cost jobs, that it is a radical departure from the 
intent of the law, that it will impose massive costs on employers, and 
encourage a deluge of lawsuits. But nothing could be further from the 
truth.
  This bipartisan bill would simply restore the law of the land prior 
to the Supreme Court's 2007 decision. Nine courts of appeals followed 
the approach we endorse in this bill, and the EEOC used the same 
underpinnings included in the Ledbetter bill under both Democratic and 
Republican administrations. In fact, the legislation mimics language 
that Congress employed in the Civil Rights Act of 1991 to mitigate a 
Supreme Court decision that all but eliminated employees' opportunity 
to challenge seniority systems in the workplace.
  Indeed, after 17 years, this language has not resulted in even a 
minimal spike in claims through the kind of broad interpretation we 
were warned against. That's why the nonpartisan Congressional Budget 
Office, CBO, has specifically stated it will not significantly increase 
the number of pay discrimination claims. What it will do is give 
workers who have reasonable claims a fair chance to have them heard.
  In addition, this legislation does nothing to alter current limits on 
the amount employers owe. Under Senator Mikulski's bill, employers 
would not have to make up for salary differences that occurred decades 
ago. Current law limits back pay awards to 2 years before the worker 
filed a job discrimination claim under title VII of the Civil Right Act 
of 1964. The bill would do nothing to change this 2-year limit on back 
pay.
  Some view this as a unique circumstance specific to Ms. Ledbetter. I 
wholeheartedly disagree. According to a Government Accountability 
Office presentation based on the 2000 Census data, 7 of the 10 
industries that hire the majority of women in this country experienced 
a widening of the wage gap between male and female managers. In 1963, 
when Congress passed the Equal Pay Act, a woman working full-time was 
paid 59 cents on average for every dollar paid to male employees, while 
in 2005 women were paid 77 cents for every dollar received by men. Over 
the last 42 years, despite our best efforts, the wage gap has only 
narrowed by less than half of a penny per year.
  In my home State of Maine, the situation is even harsher for women in 
the workplace. For women in Maine, the concern about equal pay is 
especially acute. In 2007, on average, women in my State working full-
time year-round earned only 76 percent of what men working full-time, 
year-round earned. This is 2 percentage points below the nationwide 
average of 78 percent. Over recent years, the gender wage gap has 
plateaued--we are not making progress. The following point is 
particularly illustrative--the wage gap in

[[Page 1395]]

Maine persists, like it does across America, at all levels of 
education. Women in the State with a high school diploma earned only 62 
percent of what men with a high school diploma earned. In fact, as is 
true nationwide, the average woman in Maine must receive a bachelor's 
degree before she earns as much as the average male high school 
graduate.
  So, today, we have come here only to ensure that women who have been 
treated unfairly in the workplace have the opportunity to seek redress. 
In conclusion, Lilly Ledbetter's journey--indeed, the journey of all 
working women--continues. Like Ms. Ledbetter, many of us who followed 
the case all the way to the chambers of the Supreme Court considered it 
the final step. We were wrong--but now we have the opportunity to right 
that injustice. I urge my colleagues to support final passage for this 
legislation, and guarantee that the Senate's support for this 
legislation is indeed her final step on a decade-long journey.
  Mr. FEINGOLD. Mr. President, I am pleased to support the Lilly 
Ledbetter Fair Pay Act of 2009, legislation that I have cosponsored for 
the past 2 years. This legislation simply seeks to protect American 
workers from pay discrimination based on factors such as race, gender, 
religion, and national origin. I am pleased that the Senate is on the 
verge of finally passing this important bill after we came so close to 
passing it last year. For over 2 years, Lilly Ledbetter, the victim of 
discriminatory pay based on gender, has worked tirelessly to move this 
legislation forward and today's Senate passage of the Ledbetter bill 
marks an important victory for her and the many advocates around the 
country who joined with her.
  These are challenging economic times for many families in Wisconsin 
and around the country. Too many workers are struggling to hang onto 
their jobs, their homes, and provide for their children. We in Congress 
need to do all we can this year to help create solid family-supporting 
jobs, but we also need to make sure that people who already have jobs 
can support their families. We need to pass legislation like the 
Ledbetter bill to help ensure that workers are treated fairly and earn 
what they deserve.
  I know many of my colleagues in the Senate share my disappointment 
and frustration that, despite all the gains women have made since 
gaining the right to vote 100 years ago, they still make 77 cents on 
the dollar compared to their male counterparts. It is hard to believe 
that this pay disparity continues to exist in the 21st century. 
Unfortunately, the pay disparity not only exists but is even larger in 
my State of Wisconsin. According to data gathered by the Institute for 
Women's Policy Research, IPWR, women's salaries were only approximately 
72 percent of men's salaries in Wisconsin. The wage gap gets even 
larger when you look at the earnings of minority women throughout 
Wisconsin. In 1999, African-American women's salaries were only around 
63 percent of White men's salaries; while Hispanic women's salaries 
were only 59 percent of White men's salaries according to an analysis 
of Wisconsinites' wages by IWPR.
  These troubling wage gaps exist throughout the country and, thanks to 
the flawed Supreme Court decision in Ms. Ledbetter's case, it is now 
even more difficult for hard-working Americans to seek legal redress 
for this inequity in the workplace.
  As we heard in testimony before the Judiciary Committee last year, 
Lilly Ledbetter's experience ``typifies the uphill battle that American 
workers face'' in efforts to ``right the wrong of pay discrimination.'' 
After she found out that she was being paid less than her male 
counterparts, she filed a complaint with the EEOC and then brought a 
lawsuit in Federal court in Alabama. The Federal district court ruled 
in her favor, but 2 years ago, the Supreme Court ruled that Ms. 
Ledbetter had filed her lawsuit too long after her employer originally 
decided to give her unequal pay. Under title VII of the Civil Rights 
Act of 1964, an individual must file a complaint of wage discrimination 
within 180 days of the alleged unlawful employment practice. Before the 
Ledbetter decision, the courts had held that each time an employee 
received a new paycheck, the 180-day clock was restarted because every 
paycheck was considered a new unlawful practice.
  The Supreme Court changed this longstanding rule. It held that an 
employee must file a complaint within 180 days from when the original 
pay decision was made. Ms. Ledbetter found out about the decision to 
pay her less than her male colleagues well after 180 days from when the 
company had made the decision. Under the Supreme Court's decision, it 
was just too late for Ms. Ledbetter to get back what she had worked 
for. It did not matter that she only discovered that she was being paid 
less than her male counterparts many years after the inequality in pay 
had begun. And it did not matter that there was no way for her to find 
out she was being paid less until someone told her that was the case.
  In Ms. Ledbetter's case, to put it simply, the Supreme Court got it 
wrong. It ignored the position of the Equal Employment Opportunity 
Commission and the decisions of the vast majority of lower courts that 
the issuance of each new paycheck constitutes a new act of 
discrimination. It ignored the fact that Congress had not sought to 
change this longstanding interpretation of the law.
  The Court's decision also ignores realities of the American 
workplace. Perhaps we lose sight of this in Congress, since our own 
salaries are a matter of public record, but the average American has no 
way of knowing the salary of his or her peers. As Ms. Ledbetter noted, 
there are many places across the country where even asking your 
coworkers about their salary would be grounds for dismissal.
  The Lilly Ledbetter Fair Pay Act, which has been pending in the 
Senate since shortly after the Supreme Court's erroneous decision, 
reestablishes a reasonable timeframe for filing pay discrimination 
claims. It returns the law to where it was before the Court's decision, 
with the time limit for filing pay discrimination claims beginning when 
a new paycheck is received, rather than when an employer first decides 
to discriminate. Under this legislation, as long as workers file their 
claims within 180 days of a discriminatory paycheck, their complaints 
will be considered.
  This bill also maintains the current limits on the amount employers 
owe once they have been found to have committed a discriminatory act. 
Current law limits back pay awards to 2 years before the worker filed a 
job discrimination claim. This bill retains this 2-year limit, and 
therefore does not make employers pay for salary inequalities that 
occurred many years ago. Workers thus have no reason to delay filing a 
claim. Doing so would only make proving their cases harder, especially 
because the burden of proof is on the employee, not the employer.
  Opponents say that this bill will burden employers by requiring them 
to defend themselves in costly litigation. This is simply not the case. 
Most employers want to do right by their employees and most employers 
pay their employees fair and equal wages. This legislation is targeted 
at those employers who underpay and discriminate against their workers, 
hoping that employees, like Ms. Ledbetter, won't find out in time. The 
Congressional Budget Office has also reported that restoring the law to 
where it was before the Ledbetter decision will not significantly 
affect the number of filings made with the EEOC, nor will it 
significantly increase the costs to the Commission or to the Federal 
courts.
  The impact of pay discrimination continues throughout a person's 
life, lowering not only wages, but also Social Security and other wage-
based retirement benefits. This places a heavy burden on spouses and 
children who rely on these wages and benefits for life's basic 
necessities like housing, education, healthcare, and food. This 
discrimination can add up to thousands, even hundreds of thousands, of 
dollars in lost income and retirement benefits. In these challenging 
economic times, Congress must do all it can to ensure that the wages 
and retirement savings of American men and women are protected and not 
subject to attack

[[Page 1396]]

by flawed court decisions or legislative inaction.
  On matters of pay discrimination, this bill simply returns the law to 
where it was before the Supreme Court issued its misguided decision in 
2007. We need to do more than just correct past mistakes, however we 
also need to examine the challenges facing working Americans and 
address those challenges in a constructive and thoughtful way. I look 
forward to working with my colleagues to strengthen and improve laws 
that help working families, including creating jobs, expanding access 
to health care, and improving educational opportunities for all 
Americans.
  Mr. President, I am pleased that the Senate was finally able to 
prevent a filibuster of this important legislation and that we are now 
on the verge of passing this bill. I am a proud cosponsor of the Lilly 
Ledbetter Fair Pay Act, and I was disappointed when it failed in the 
Senate by just four votes last year. This is a significant victory for 
working families in Wisconsin and around the country. Of course, pay 
discrimination is not the only issue that women, minorities, people 
with disabilities, and other protected groups of workers confront, and 
we need to do more to strengthen and improve other employment 
conditions, like worker safety, as well. As this new Congress gets 
underway, I stand ready to work with my colleagues in the Senate to 
advance legislation that protects employment rights and strengthens job 
opportunities for all Americans.
  Mr. GRASSLEY. Mr. President, let me first say, I adamantly oppose and 
abhor discrimination of any kind, whether it is based on gender, age, 
religion, disability or race. I am a father to two daughters. I have 
five granddaughters and two great-granddaughters. I want all of my 
granddaughters to know that their goals and achievements will only be 
limited by their own ambition rather than a despicable act of gender 
discrimination. There is no place for discrimination in our country, 
and all of my colleagues share this belief. No side in this debate is 
in favor of gender discrimination.
  The matter before the Senate is the Lilly Ledbetter Fair Pay Act. The 
Lilly Ledbetter Fair Pay Act seeks to overturn a Supreme Court decision 
that the sponsors contend has removed statutory protections against 
discrimination, in this case, pay discrimination. The Court's decision 
in Ledbetter v. Goodyear Tire held that a plaintiff alleging pay 
discrimination under title VII must file a claim within the statutory 
filing period of the alleged discrimination.
  It is unfair to individuals who were unknowingly discriminated 
against to have a strict statute of limitations that prevent them from 
bringing suit once they discover the discrimination. I could not agree 
more. An individual should not be precluded from seeking justice simply 
because they were not aware of the discrimination. This is the 
situation that the proponents of the Ledbetter bill seek to address.
  However, we must also ensure that the remedy to this injustice does 
not lead to allegations of discrimination that are years and, perhaps, 
decades old. A reasonable statute of limitations ensures that the 
discrimination is identified and reported and the employee receives a 
timely resolution if there is discrimination. Statutes of limitation 
have been part of our legal history for hundreds of years and further 
the interest of justice by ensuring claims are brought in a timely 
manner while evidence is still available. These limitations have long 
been recognized by courts as a way to balance the rights of plaintiffs 
against the rights of defendants. In the case of employment 
discrimination suits, the statute of limitations provides employers 
protection from having to defend allegations where records no longer 
exist or employees have moved on or passed away.
  Statutes of limitations have always stood in some tension, and it is 
our job as the elected representatives of plaintiffs and defendants 
across this country to strike the necessary balance. We need to ensure 
that law does not sanction hidden discrimination nor effectively 
eliminate the statute of limitations.
  The supporters of this bill have offered their version of a solution 
to this problem. The underlying bill would essentially reset the clock 
on the statute of limitations every time a new paycheck was received by 
an individual who was discriminated against in the past. They believe 
this is necessary regardless of how long in the past the claim of 
discrimination occurred. It would effectively eliminate the statute of 
limitations for discrimination claims.
  The underlying bill also goes far beyond the stated objective of 
providing justice to those who have been subject to concealed 
discrimination. Instead, it could have the exact opposite effect of 
hindering efforts to quickly resolve discrimination claims. By pushing 
claims off indefinitely into the future, the bill creates a separation 
between the discriminatory act and the filing of a claim making cases 
harder to prove and more costly to defend. Simply put, the bill offered 
by Senator Mikulski greatly expands the existing statute further than 
it was before the Supreme Court decided the Ledbetter case.
  While I believe the Mikulski bill goes too far, I do believe Congress 
should act to ensure discrimination claims are not simply ignored. As I 
said before, we need to find the right balance. I believe that balance 
is found with the alternative bill offered by my colleague, Senator Kay 
Bailey Hutchison. Her amendment essentially codifies a discretionary 
approach that courts and the Equal Employment Opportunity Commission 
have applied in these cases for years.
  The fact is, the Supreme Court and the EEOC have long recognized that 
statutes of limitation or charge-filing periods can be extended or 
``tolled'' in circumstances where the discrimination is hidden or 
concealed. Simply put, defendants shouldn't be able to run out the 
clock just because they hide the discrimination or it is unknown to the 
victim.
  The Hutchison alternative simply codifies this doctrine of equitable 
tolling. The Hutchison amendment provides that the clock on the charge-
filing deadline does not start running until an employee discovers the 
discrimination or should have discovered the discrimination. This 
thoughtful, balanced approach protects the rights of the employee if 
the discrimination was concealed, but also ensures that the claim can 
be resolved timely. The Hutchison amendment codifies the flexibility of 
the claim-filing deadline when the discrimination is concealed, rather 
than effectively eliminating the deadline outright. It is the type of 
balanced, measured approach we as legislators are elected to find.
  While it is my sincere hope that in this day and age no employer 
treats individuals differently based on gender, I am a cosponsor and 
strongly support the Hutchison amendment and believe it is the best 
possible way to ensure that the rights of all individuals are protected 
from discrimination.
  Unfortunately, this balanced amendment was rejected by the majority, 
as were a number of other thoughtful, balanced, and needed amendments 
offered by colleagues on my side of the aisle. Because those efforts to 
improve the bill and minimize unintended consequences were rejected, I 
must vote against the bill. I regret that the Senate was unable to work 
in a more bipartisan manner to address the serious issue of gender 
discrimination.
  Mr. MARTINEZ. Mr. President, lawyers have a saying: ``Bad facts make 
bad law.'' In my opinion, bad facts make even worse legislation. The 
proposal before the Senate, S. 181, assumes a number of erroneous facts 
directly related to the case of Ms. Lilly Ledbetter and how current law 
treats those wishing to file discrimination claims. I believe 
improvements are in order to the current law, but S. 181 goes well 
beyond what is reasonable and equitable.
  Ms. Ledbetter was not prevented from asserting claims because she 
wasn't aware of her employer's alleged discrimination. She was 
prevented from asserting her claims because, as Ms. Ledbetter testified 
under oath in the case, she knew about the alleged discrimination for 
nearly 6 years before bringing her lawsuit.

[[Page 1397]]

  While it is essential that employees be given an adequate period of 
time to press a discrimination claim, employers must also be protected 
from endless litigation.
  Statutes of limitation serve an important function in our judicial 
system. By effectively eliminating the statute of limitation in 
employment discrimination cases, S. 181 would make it very difficult 
for an employer to mount a credible defense to a discrimination claim. 
Both small business owners and employees deserve a fair process. 
Although I support fair pay for equal work and oppose workplace 
discrimination of any kind, I oppose S. 181 and I am hopeful a balance 
can be reached before it becomes law.
  (At the request of Mr. REID, the following statement was ordered to 
be printed in the Record.)
 Mr. KENNEDY. Mr. President, equal pay for equal work is a 
fundamental civil right. This principle is at the heart of our Nation's 
commitment to fairness. When President Kennedy signed the Equal Pay Act 
in 1963, he reminded us that protection against pay discrimination is 
``basic to democracy.'' Those words ring even truer today. When we 
inaugurated Barack Obama as our new President this week, our country 
strongly reaffirmed its commitment to a fairer, more just American 
society.
  My good friend Senator Mikulski has taken an important step toward 
achieving this fairer, more just society by leading the debate in the 
Senate on the Lilly Ledbetter Fair Pay Act, and I thank her for her 
inspired leadership. She has truly been a passionate advocate for women 
and others who have suffered the injustice of discrimination. I also 
commend Senator Harkin for the work he has done on this bill and on the 
Fair Pay Act. Senator Clinton has also been a champion for pay equity, 
and we pledge to continue her good work.
  We must pass the Lilly Ledbetter Fair Pay Act. It will give American 
workers who are victims of pay discrimination based on race, age, 
gender, national origin, religion, or disability a fair chance to 
enforce their rights.
  As a nation, we have often acted in recent years to expand and 
strengthen our civil rights laws in order to end discrimination, and we 
have always done so with bipartisan support. The result has been great 
progress towards increasing equal opportunity and equal justice for all 
our people, and we will never abandon this basic goal.
  Despite our past efforts to end pay discrimination, too many of our 
citizens still put in a fair day's work, but go home with less than a 
fair day's pay. Women, for example, bring home only 78 cents for each 
dollar earned by men. African American workers make only 80 percent of 
what White workers make and Latino workers make only 68 percent. Many 
qualified older workers and workers with disabilities also bear the 
burden of an unlawful pay gap. They are paid less than their coworkers 
for reasons that have nothing to do with their performance on the job.
  Confronting pay discrimination is about addressing the real 
challenges faced by real Americans to make ends meet. These challenges 
have been mounting in recent months, as millions of American workers 
struggle even harder each day to provide for their families in this 
troubled economy.
  Pay discrimination makes their struggle even harder. In these dire 
economic times, workers and their families can't afford to lose more 
economic ground--but that is just what is happening to thousands of 
Americans who still face pay discrimination.
  With the economy in a severe recession, we cannot afford to wait to 
fix this problem. With women and minorities still making less than 
White men for the same work, we can't be complacent. With thousands of 
workers facing discrimination because of their race, their sex, their 
national origin, their age, their religion, and their disability every 
year, we must continue the battle to end this national disgrace.
  Lilly Ledbetter's own case demonstrates the financial toll that pay 
discrimination can take. Lilly made 20 percent less than her lowest 
paid, least experienced male colleague and almost 40 percent less than 
her highest paid male colleague. For Lilly and other victims like her, 
the cost of pay discrimination over time is large. A recent study 
estimates that women lose an average of $434,000 over the course of 
their career because of the pay gap. Not only that, but their lower 
wages also mean their pension benefits and their Social Security 
benefits are lower as well. Unless we act, thousands of American 
workers will continue to face the same injustice that Lilly Ledbetter 
has endured.
  It is our common responsibility to attack this problem with every 
tool at our disposal. Unfortunately, the challenge has been made more 
difficult because of the Supreme Court's decision last May that pulled 
the rug out from under victims of pay discrimination by making it 
harder for them to stand up for their rights.
  In Ledbetter v. Goodyear Tire & Rubber Company, the Supreme Court 
reversed decades of established law by reinterpreting existing law on 
equal pay and ruling that workers must file claims of pay 
discrimination within 180 days after an employer first acts to 
discriminate. Never mind that many workers, such as Ms. Ledbetter, do 
not know at first that they are being discriminated against. Never mind 
that workers often have no way to learn of the discrimination against 
them or gather evidence to support their suspicions because employers 
keep salary information confidential. Never mind that the 
discrimination continues each and every time an employee receives an 
unfair paycheck.
  The Ledbetter decision means that many workers across our country 
will be forced to live without any reasonable way to hold employers 
accountable when they violate the law. Employers will have free rein to 
continue their illegal activity, and the workers who are unfairly 
discriminated against will have no remedy. This result defies both 
justice and common sense.
  The American people have made clear that they are yearning for a 
government that promotes, not defies, justice and common sense. We can 
answer this call for change by quickly passing the Lilly Ledbetter Fair 
Pay Act and restoring a clear and reasonable rule addressing how pay 
discrimination actually occurs in the workplace. The 180-day time 
period for filing a pay discrimination claim begins again on each date 
when a worker receives a discriminatory paycheck.
  By doing so, the Lilly Ledbetter Fair Pay Act ensures that employers 
can actually be held accountable when they break the law. Under this 
bill, workers can challenge ongoing discrimination as long as it 
continues. As long as the injustice and the damage of the 
discrimination continue, the right to challenge it should continue too.
  The bill before us restores the rules that employers and workers had 
lived with for decades, until the Supreme Court upended the law in the 
Ledbetter case. We know these rules are fair and workable. They were 
the law in most of the land and had the support of the EEOC under both 
Democratic and Republican administrations until the Ledbetter decision. 
There won't be any surprises after this bill passes. As the 
Congressional Budget Office has stated, the bill will not increase 
litigation costs.
  Congress must stand with American workers to reverse the Supreme 
Court's Ledbetter decision. Civil rights groups, labor unions, 
disability advocates, and religious groups from across the country 
support this legislation. Many responsible business owners also support 
it, especially, the members of the U.S. Women's Chamber of Commerce. 
The American people want us to act.
  In her stirring dissent in the Ledbetter case, Justice Ruth Bader 
Ginsburg wrote that ``Once again, the ball is in Congress's court.'' 
Nearly 2 years after she wrote those words, the ball is still in 
Congress's court. The House passed this important legislation last 
year, but the Senate dropped the ball. Now we have a new Congress and a 
new opportunity to master the challenge that Justice Ginsburg put to 
us, and we have a new President who is strongly committed to equal pay 
and to ending pay discrimination. I ask my

[[Page 1398]]

colleagues to enable the march of progress on civil rights to continue. 
Together, let us stand with working people. Let us pass the Lilly 
Ledbetter Fair Pay Act.


                                Lost Pay

  Mr. LEVIN. Assume that on January 1, 2007, a new employee is hired 
and knows that she will be paid less because she is a woman. She also 
knows that she is receiving less pay than a male who was hired on the 
same day for the same job, but she needs the job and is afraid to file 
suit. Two years go by and on January 15, 2009, she decides to fight the 
discrimination and files a complaint. Under current law, can she 
recover the lost 2007-2008 pay?
  Ms. MIKULSKI. Under current law, as interpreted by the Supreme Court, 
she is not able to recover any lost pay because a claimant has 180 days 
to file a claim from the time that the employer first decided to 
discriminate, i.e. she had to file by July 1, 2007.
  Mr. LEVIN. Under S. 181, would she be able to recover the 2007-2008 
lost wages?
  Ms. MIKULSKI. Under S. 181 she would be able to recover lost wages 
for the previous 2 years from her January 15, 2009, paycheck. This is 
because every paycheck is considered an act of discrimination and a 
claimant has 180 days to file a claim for that act of discrimination, 
and go back 2 years in determining damages.
  Mr. LEVIN. Who has the burden of proof in intentional discrimination 
cases as to whether and when an act of discrimination occurred?
  Ms. MIKULSKI. The claimant has the burden of proof.
  The PRESIDING OFFICER. The Senator from Louisiana.


                            Amendment No. 34

  Mr. VITTER. Mr. President, I call up amendment No. 34.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Louisiana [Mr. Vitter] proposes an 
     amendment numbered 34.

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

     (Purpose: To preserve open competition and Federal Government 
     neutrality towards the labor relations of Federal Government 
   contractors on Federal and federally funded construction projects)

       At the appropriate place, insert the following:

     SEC. __. GOVERNMENT NEUTRALITY IN CONTRACTING.

       (a) Purposes.--It is the purpose of this section to--
       (1) promote and ensure open competition on Federal and 
     federally funded or assisted construction projects;
       (2) maintain Federal Government neutrality towards the 
     labor relations of Federal Government contractors on Federal 
     and federally funded or assisted construction projects;
       (3) reduce construction costs to the Federal Government and 
     to the taxpayers;
       (4) expand job opportunities, especially for small and 
     disadvantaged businesses; and
       (5) prevent discrimination against Federal Government 
     contractors or their employees based upon labor affiliation 
     or the lack thereof, thereby promoting the economical, 
     nondiscriminatory, and efficient administration and 
     completion of Federal and federally funded or assisted 
     construction projects.
       (b) Preservation of Open Competition and Federal Government 
     Neutrality.--
       (1) Prohibition.--
       (A) General rule.--The head of each executive agency that 
     awards any construction contract after the date of enactment 
     of this Act, or that obligates funds pursuant to such a 
     contract, shall ensure that the agency, and any construction 
     manager acting on behalf of the Federal Government with 
     respect to such contract, in its bid specifications, project 
     agreements, or other controlling documents does not--
       (i) require or prohibit a bidder, offeror, contractor, or 
     subcontractor from entering into, or adhering to, agreements 
     with 1 or more labor organizations, with respect to that 
     construction project or another related construction project; 
     or
       (ii) otherwise discriminate against a bidder, offeror, 
     contractor, or subcontractor because such bidder, offeror, 
     contractor, or subcontractor--

       (I) became a signatory, or otherwise adhered to, an 
     agreement with 1 or more labor organization with respect to 
     that construction project or another related construction 
     project; or
       (II) refuse to become a signatory, or otherwise adhere to, 
     an agreement with 1 or more labor organization with respect 
     to that construction project or another related construction 
     project.

       (B) Application of prohibition.--The provisions of this 
     subsection shall not apply to contracts awarded prior to the 
     date of enactment of this Act, and subcontracts awarded 
     pursuant to such contracts regardless of the date of such 
     subcontracts.
       (C) Rule of construction.--Nothing in subparagraph (A) 
     shall be construed to prohibit a contractor or subcontractor 
     from voluntarily entering into an agreement described in such 
     subparagraph.
       (2) Recipients of grants and other assistance.--The head of 
     each executive agency that awards grants, provides financial 
     assistance, or enters into cooperative agreements for 
     construction projects after the date of enactment of this 
     Act, shall ensure that--
       (A) the bid specifications, project agreements, or other 
     controlling documents for such construction projects of a 
     recipient of a grant or financial assistance, or by the 
     parties to a cooperative agreement, do not contain any of the 
     requirements or prohibitions described in clause (i) or (ii) 
     of paragraph (1)(A); or
       (B) the bid specifications, project agreements, or other 
     controlling documents for such construction projects of a 
     construction manager acting on behalf of a recipient or party 
     described in subparagraph (A) do not contain any of the 
     requirements or prohibitions described in clause (i) or (ii) 
     of paragraph (1)(A).
       (3) Failure to comply.--If an executive agency, a recipient 
     of a grant or financial assistance from an executive agency, 
     a party to a cooperative agreement with an executive agency, 
     or a construction manager acting on behalf of such an agency, 
     recipient, or party, fails to comply with paragraph (1) or 
     (2), the head of the executive agency awarding the contract, 
     grant, or assistance, or entering into the agreement, 
     involved shall take such action, consistent with law, as the 
     head of the agency determines to be appropriate.
       (4) Exemptions.--
       (A) In general.--The head of an executive agency may exempt 
     a particular project, contract, subcontract, grant, or 
     cooperative agreement from the requirements of 1 or more of 
     the provisions of paragraphs (1) and (2) if the head of such 
     agency determines that special circumstances exist that 
     require an exemption in order to avert an imminent threat to 
     public health or safety or to serve the national security.
       (B) Special circumstances.--For purposes of subparagraph 
     (A), a finding of ``special circumstances'' may not be based 
     on the possibility or existence of a labor dispute concerning 
     contractors or subcontractors that are nonsignatories to, or 
     that otherwise do not adhere to, agreements with 1 or more 
     labor organization, or labor disputes concerning employees on 
     the project who are not members of, or affiliated with, a 
     labor organization.
       (C) Additional exemption for certain projects.--The head of 
     an executive agency, upon application of an awarding 
     authority, a recipient of grants or financial assistance, a 
     party to a cooperative agreement, or a construction manager 
     acting on behalf of any of such entities, may exempt a 
     particular project from the requirements of any or all of the 
     provisions of paragraphs (1) or (2) if the agency head 
     finds--
       (i) that the awarding authority, recipient of grants or 
     financial assistance, party to a cooperative agreement, or 
     construction manager acting on behalf of any of such entities 
     had issued or was a party to, as of the date of the enactment 
     of this Act, bid specifications, project agreements, 
     agreements with one or more labor organizations, or other 
     controlling documents with respect to that particular 
     project, which contained any of the requirements or 
     prohibitions set forth in paragraph (1)(A); and
       (ii) that one or more construction contracts subject to 
     such requirements or prohibitions had been awarded as of the 
     date of the enactment of this Act.
       (5) Federal acquisition regulatory council.--With respect 
     to Federal contracts to which this subsection applies, not 
     later than 60 days after the date of enactment of this Act, 
     the Federal Acquisition Regulatory Council shall take 
     appropriate action to amend the Federal Acquisition 
     Regulation to implement the provisions of this subsection.
       (6) Definitions.--In this subsection:
       (A) Construction contract.--The term ``construction 
     contract'' means any contract for the construction, 
     rehabilitation, alteration, conversion, extension, or repair 
     of buildings, highways, or other improvements to real 
     property.
       (B) Executive agency.--The term ``executive agency'' has 
     the meaning given such term in section 105 of title 5, United 
     States Code, except that such term shall not include the 
     Government Accountability Office.
       (C) Labor organization.--The term ``labor organization'' 
     has the meaning given such term in section 701(d) of the 
     Civil Rights Act of 1964 (42 U.S.C. 2000e(d)).

  Mr. VITTER. Mr. President, this is my amendment, No. 34 the 
Government

[[Page 1399]]

neutrality in contracting amendment. It is very simple; it is very 
straight forward. It would provide true equal opportunity and open 
competition in national contracting.
  Congress has a duty to ensure that infrastructure projects paid for 
by taxpayers are free from favoritism, and these interests would not be 
served if Congress were to require union-only Project Labor Agreements 
or PLAs for construction projects in the 111th Congress.
  According to a January 2008 report issued by the Bureau of Labor 
Statistics, only 13.9 percent of America's private construction work 
force belongs to a labor union. So this means that union-only PLAs 
discriminate against well over 8 out of 10 construction workers in 
America who would otherwise be able to work on those projects.
  Given the debate on the current legislation, I believe this amendment 
is particularly important for the following reasons: Minorities are 
particularly negatively impacted by union-only PLAs. This 
discrimination is harmful to women and minority-owned construction 
businesses whose workers have traditionally been underrepresented in 
unions, mainly due to artificial and societal barriers to union 
apprenticeship and training programs.
  Requirements under a PLA can be so burdensome that many women and 
minority-owned businesses are deterred from even bidding on 
construction projects. A PLA could force these employers to have to 
abandon their own employees in favor of union workers, to pay into 
union and pension health plans, even if they already have their own 
plans.
  Not being able to bid on a public project because of a PLA is very 
detrimental to small disadvantaged companies who rely on these 
contracts for much of their growth.
  Again, this amendment would provide equal opportunity and open 
competition in Federal contracting. It would codify the status quo 
right now, which is to bar Federal agencies from requiring union-only 
PLAs on Federal construction projects. This sort of equal opportunity 
nondiscrimination is important and certainly is consistent with the 
spirit of this underlying bill.
  Let me also mention in closing that this amendment has the full 
support of many national groups such as Associated Builders and 
Contractors, The Associated General Contractors of America, the 
National Association of Minority Contractors, Independent Electrical 
Contractors, the National Association of Disadvantaged Businesses, the 
National Black Chamber of Commerce, the National Federation of 
Independent Business, Women Construction Owners and Executives, and 
others.
  I ask unanimous consent to have printed in the Record a letter making 
clear that support from a broad-based group of organizations.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 January 21, 2009.
     U.S. Senate,
     Washington, DC.
       Dear Senator: The undersigned organizations call on you to 
     support an amendment offered today by Senator David Vitter 
     (S.A. 34) to the ``Ledbetter Fair Pay Act of 2009'' (S. 181) 
     that eliminates discrimination and ensures fairness in 
     federal procurement by forbidding union-only project labor 
     agreements (PLAs) on federal and federally funded 
     construction projects. In addition, this amendment protects 
     taxpayers and ensures fair and open competition on contracts 
     for all federal infrastructure projects. We urge you to 
     support the Vitter Amendment to the ``Ledbetter Fair Pay Act 
     of 2009'' (S. 181) when it comes up for a vote in the U.S. 
     Senate.
       Equal opportunity and open competition in federal 
     contracting are critical issues to consider as the federal 
     government explores various solutions, including significant 
     infrastructure spending, to stimulate our ailing economy. 
     Congress must ensure federal and federally funded 
     infrastructure projects paid for by taxpayers are 
     administered in a manner that is free from favoritism and 
     discrimination while efficiently spending federal tax 
     dollars. These interests would not be served if Congress were 
     to require union-only requirements, commonly known as union-
     only PLAs, on federal construction projects. The Vitter 
     Amendment would protect taxpayers from costly and 
     discriminatory union-only PLA requirements on federal 
     construction contracts.
       A union-only PLA is a contract that requires a construction 
     project to be awarded to contractors and subcontractors that 
     agree to: recognize unions as the representatives of their 
     employees on that jobsite; use the union hiring hall to 
     obtain workers; pay union wages and benefits; obtain 
     apprentices through union apprenticeship programs; and obey 
     the union's restrictive work rules, job classifications and 
     arbitration procedures.
       Construction contracts subject to union-only PLAs almost 
     always are awarded exclusively to unionized contractors and 
     their all-union workforces. According to the most recent data 
     from the U.S. Department of Labor's Bureau of Labor 
     Statistics, only 13.9 percent of America's construction 
     workforce belongs to a union. This means union-only PLAs 
     would discriminate against almost nine out of 10 construction 
     workers who would otherwise work on construction projects if 
     not for a union-only PLA.
       This discrimination is particularly harmful to women and 
     minority-owned construction businesses whose workers 
     traditionally have been under-represented in unions, mainly 
     due to artificial and societal barriers in union membership 
     and union apprenticeship and training programs.
       In closing, we strongly urge you to eliminate 
     discrimination and guarantee equal opportunity and open 
     competition in federal construction procurement by supporting 
     the Vitter Amendment (S.A. 34) to the ``Ledbetter Fair Pay 
     Act of 2009' (S. 181).
           Sincerely,
       Associated Builders and Contractors; Independent Electrical 
     Contractors; National Association of Minority Contractors--
     Northeast Region; National Association of Small Disadvantaged 
     Businesses; National Black Chamber of Commerce; National 
     Federation of Independent Business; Women Construction Owners 
     and Executives, USA.

  Mr. VITTER. I retain the remainder of my time.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I want to be clear that I object to the 
Vitter amendment. I do it on both policy and procedural grounds.
  First, on procedure, this amendment has nothing to do with the Lilly 
Ledbetter Fair Pay Act. The Lilly Ledbetter Fair Pay Act focuses on 
wage discrimination. The Vitter amendment focuses on project labor 
agreements by Federal agencies. It deals with contracting. It deals 
with construction work. It does not deal with wages in that category.
  The great thing about today is that we have not become locked in a 
debate on process. I thank my colleagues on the other side of the aisle 
for the amendments they offered. They were focused. They were clear. It 
was primarily about wage discrimination.
  When we look at the Vitter amendment, it would prohibit Federal 
dollars from being used for something called project labor agreements. 
These agreements, which contractors and labor organizations establish 
to set the terms of employment for large construction projects, benefit 
both the Government and workers. History has shown they produce high-
quality jobs, high-quality work that is completed efficiently and 
effectively, on time, and meeting the bottom line of the bid.
  When we talk about project labor agreements, it is not true that PLAs 
require union-only labor. Project labor agreements have been used for 
years to help construction companies run effectively and efficiently. 
State and local governments often use these agreements because they 
know they are going to get a good job at the price that has been bid. 
These agreements help keep costs predictable and under control. That is 
critical for large Federal projects.
  It is also a preventive strategy. Often, they prevent labor disputes 
and assure a steady supply of high-quality workers.
  Project labor agreements benefit workers and communities. Now more 
than ever, we need to be creating high-quality jobs. Project labor 
agreements ensure that wages and benefits and working conditions are 
simply fair. Instead of embracing these benefits, the Vitter amendment 
would prohibit the use of it.
  Then there is another issue--executive authority. This would take 
away longstanding executive authority. It would tie the hands of a 
President. I certainly don't want to tie the hands of our new 
President, but I don't want to tie the hands of any President under the 
Executive authority to do PLAs. Our Nation's Executive has always had 
the authority over Federal contracting. There is no reason to shift

[[Page 1400]]

the balance of power. That could result in all kinds of lawsuits, et 
cetera.
  Senator Vitter says that project labor agreements restrict 
competition, but that is not true. Under President Clinton, both union 
and nonunion contractors were able to win bids. Nonunion workers were 
not excluded. All construction workers could work on projects governed 
by project labor agreements. That is what I am going to repeat: Project 
labor agreements do not require union-only labor. That is a myth. It 
has no basis in reality. It has no basis in statute.
  I know the time is growing late. I also thank the Senator from 
Louisiana for agreeing to a time agreement. I think I have made the 
essence of our argument. I will reserve the remainder of my time for a 
wrap-up statement and some individuals I would like to acknowledge, 
some of the people who have worked so hard on this bill.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. VITTER. How much time remains on both sides?
  The PRESIDING OFFICER. The Senator from Louisiana has just under 6\1/
2\ minutes. The Senator from Maryland has 30 seconds.
  Mr. VITTER. Mr. President, let me again underscore that it has been 
clearly demonstrated that project labor agreements, union-only project 
labor agreements, do hurt women and minorities and also hurt women- and 
minority-owned businesses. They are often shut out or disadvantaged 
through those agreements because of historical factors. That is one 
reason, among many, why all of those organizations I cited, including 
organizations representing minority- and women-owned businesses, 
strongly support my stand-alone bill and strongly support my amendment.
  In addition, the distinguished Senator from Maryland talked about 
cost. PLAs do impact cost. They push up cost. If they make cost 
reliable, they only make them reliably high. A good example is the $2.4 
billion project right here to replace the Wilson Bridge between 
suburban Maryland and Virginia. When a union-only PLA requirement was 
pushed by former Maryland Governor Glendening, that threw a wrench into 
the project and drove costs up 78 percent. After that, President Bush 
issued an Executive order to do away with those PLAs, and phase 1 of 
the bridge project was rebid. Multiple bids were received, and the 
winning bids came in significantly below engineering estimates. Today, 
with that rule against the PLA requirement, the project is almost 
complete and substantially under budget. I have example after example 
such as that, where union-only PLAs do jack up the cost to the 
taxpayer.
  In addition, since we are talking about discrimination issues, PLAs 
do cut out and harm and put at a disadvantage many women and 
minorities, certainly including women- and minority-owned businesses.
  With that, I urge all of my colleagues to support this amendment.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that my remarks 
be extended by 1 minute for the purpose of acknowledgment and thanking 
people.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, I thank someone who is not with us 
tonight for his steadfast work on this bill, our beloved Senator 
Kennedy. We can't wait to have him back. I thank the distinguished 
ranking member, Senator Enzi, for his wonderful cooperation in enabling 
us to move this bill and to proceed with civility and focus and, I 
might add, timeliness. I thank all of my colleagues, Judiciary 
Committee as well as HELP Committee members. I thank the Kennedy staff 
who worked with me on doing this--Sharon Block, Portia Wu, and 
Charlotte Burrows--and my own staff: Ben Gruenbaum and Priya Ghosh 
Ahola.
  I want to, then, proceed to the first bill the Senate will actually 
vote on since the inauguration of our new President. I think this 
debate shows we can change the tone. Let's keep that up.
  I move to table the Vitter 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 amendment No. 34. The clerk will call 
the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  The PRESIDING OFFICER (Mr. Begich). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 59, nays 38, as follows:

                      [Rollcall Vote No. 13 Leg.]

                                YEAS--59

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     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
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--38

     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
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Wicker

                             NOT VOTING--1

       
     Kennedy
       
  The motion was agreed to.
  Mrs. MURRAY. Mr. President, I move to reconsider the vote.
  Mr. CARDIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Under the previous order, the clerk will read 
the title of the bill for the third time.
  The bill was read the third time.
  Mr. MENENDEZ. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The bill having been read the third time, the question is, Shall the 
bill pass?
  The clerk will call the roll.
  The legislative clerk proceeded to call 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 61, nays 36, as follows:

                      [Rollcall Vote No. 14 Leg.]

                                YEAS--61

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

                                NAYS--36

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley

[[Page 1401]]


     Gregg
     Hatch
     Inhofe
     Isakson
     Johanns
     Kyl
     Lugar
     Martinez
     McCain
     McConnell
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--1

       
     Kennedy
       
  The PRESIDING OFFICER. Under the previous order, three-fifths of the 
Senators duly chosen and sworn having voted in the affirmative, the 
bill is passed.
  The bill (S. 181) was passed, as follows:

                                 S. 181

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Lilly Ledbetter Fair Pay Act 
     of 2009''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) The Supreme Court in Ledbetter v. Goodyear Tire & 
     Rubber Co., 550 U.S. 618 (2007), significantly impairs 
     statutory protections against discrimination in compensation 
     that Congress established and that have been bedrock 
     principles of American law for decades. The Ledbetter 
     decision undermines those statutory protections by unduly 
     restricting the time period in which victims of 
     discrimination can challenge and recover for discriminatory 
     compensation decisions or other practices, contrary to the 
     intent of Congress.
       (2) The limitation imposed by the Court on the filing of 
     discriminatory compensation claims ignores the reality of 
     wage discrimination and is at odds with the robust 
     application of the civil rights laws that Congress intended.
       (3) With regard to any charge of discrimination under any 
     law, nothing in this Act is intended to preclude or limit an 
     aggrieved person's right to introduce evidence of an unlawful 
     employment practice that has occurred outside the time for 
     filing a charge of discrimination.
       (4) Nothing in this Act is intended to change current law 
     treatment of when pension distributions are considered paid.

     SEC. 3. DISCRIMINATION IN COMPENSATION BECAUSE OF RACE, 
                   COLOR, RELIGION, SEX, OR NATIONAL ORIGIN.

       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) For purposes of this section, an unlawful 
     employment practice occurs, with respect to discrimination in 
     compensation in violation of this title, when a 
     discriminatory compensation decision or other practice is 
     adopted, when an individual becomes subject to a 
     discriminatory compensation decision or other practice, or 
     when an individual is affected by application of a 
     discriminatory compensation decision or other practice, 
     including each time wages, benefits, or other compensation is 
     paid, resulting in whole or in part from such a decision or 
     other practice.
       ``(B) In addition to any relief authorized by section 1977A 
     of the Revised Statutes (42 U.S.C. 1981a), liability may 
     accrue and an aggrieved person may obtain relief as provided 
     in subsection (g)(1), including recovery of back pay for up 
     to two years preceding the filing of the charge, where the 
     unlawful employment practices that have occurred during the 
     charge filing period are similar or related to unlawful 
     employment practices with regard to discrimination in 
     compensation that occurred outside the time for filing a 
     charge.''.

     SEC. 4. DISCRIMINATION IN COMPENSATION BECAUSE OF AGE.

       Section 7(d) of the Age Discrimination in Employment Act of 
     1967 (29 U.S.C. 626(d)) is amended--
       (1) in the first sentence--
       (A) by redesignating paragraphs (1) and (2) as 
     subparagraphs (A) and (B), respectively; and
       (B) by striking ``(d)'' and inserting ``(d)(1)'';
       (2) in the third sentence, by striking ``Upon'' and 
     inserting the following:
       ``(2) Upon''; and
       (3) by adding at the end the following:
       ``(3) For purposes of this section, an unlawful practice 
     occurs, with respect to discrimination in compensation in 
     violation of this Act, when a discriminatory compensation 
     decision or other practice is adopted, when a person becomes 
     subject to a discriminatory compensation decision or other 
     practice, or when a person is affected by application of a 
     discriminatory compensation decision or other practice, 
     including each time wages, benefits, or other compensation is 
     paid, resulting in whole or in part from such a decision or 
     other practice.''.

     SEC. 5. APPLICATION TO OTHER LAWS.

       (a) Americans With Disabilities Act of 1990.--The 
     amendments made by section 3 shall apply to claims of 
     discrimination in compensation 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) Rehabilitation Act of 1973.--The amendments made by 
     section 3 shall apply to claims of discrimination in 
     compensation brought under sections 501 and 504 of the 
     Rehabilitation Act of 1973 (29 U.S.C. 791, 794), pursuant 
     to--
       (1) sections 501(g) and 504(d) of such Act (29 U.S.C. 
     791(g), 794(d)), respectively, which adopt the standards 
     applied under title I of the Americans with Disabilities Act 
     of 1990 for determining whether a violation has occurred in a 
     complaint alleging employment discrimination; and
       (2) paragraphs (1) and (2) of section 505(a) of such Act 
     (29 U.S.C. 794a(a)) (as amended by subsection (c)).
       (c) Conforming Amendments.--
       (1) Rehabilitation act of 1973.--Section 505(a) of the 
     Rehabilitation Act of 1973 (29 U.S.C. 794a(a)) is amended--
       (A) in paragraph (1), by inserting after ``(42 U.S.C. 
     2000e-5 (f) through (k))'' the following: ``(and the 
     application of section 706(e)(3) (42 U.S.C. 2000e-5(e)(3)) to 
     claims of discrimination in compensation)''; and
       (B) in paragraph (2), by inserting after ``1964'' the 
     following: ``(42 U.S.C. 2000d et seq.) (and in subsection 
     (e)(3) of section 706 of such Act (42 U.S.C. 2000e-5), 
     applied to claims of discrimination in compensation)''.
       (2) 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) Section 706(e)(3) shall apply to complaints of 
     discrimination in compensation under this section.''.
       (3) Age discrimination in employment act of 1967.--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''.

     SEC. 6. EFFECTIVE DATE.

       This Act, and the amendments made by this Act, take effect 
     as if enacted on May 28, 2007 and apply to all claims 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, that are pending on or after that 
     date.

  Mrs. MURRAY. I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Ms. MIKULSKI. Mr. President, today is a great day in the Senate. We 
have now overwhelmingly passed a bipartisan bill to correct an 
injustice that has been prevailing among people--women, minorities, and 
people with disabilities--in the area of wage discrimination.
  What is so great about today is not only our overwhelming legislative 
victory, but we showed, No. 1, that we can change the tone. I thank 
Leader Reid for the leadership he provided in creating the legislative 
framework where we can move ahead with open debate.
  Notice that we did this bill in a well-measured, well-modulated, 
well-paced way. There was no need for cloture motions. There was no 
need for parliamentary quagmires. What it showed, though, is there is a 
need for civility and cooperation. We, as Americans, have to know, 
given this economic situation, that we are all in it together. When we 
work together, we now know each and every one of us makes a difference. 
But when we truly work together, we can make change.
  Today we changed the law, we changed direction, we change history, 
and I thank all my colleagues and all the staff who have made this 
possible.
  I also wish to say a special thanks to Senator Ted Kennedy. I hope he 
is watching tonight because, Ted, we miss you. We know you are not on 
the floor; you are with us in spirit. There is more to be done. We 
cannot wait for you to be back. Let's go and get the job done.
  America is counting on us to do the kinds of things we have done 
today and act the way we did, the way we got the business done.


                            vote explanation

  Mr. HARKIN. Mr. President, while I was necessarily absent for 
rollcall vote No. 7 on amendment No. 25, had I been present I would 
have voted ``nay.''
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. GRASSLEY. I thank the Chair.
  (The remarks of Mr. Grassley pertaining to the introduction of S. 301 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. GRASSLEY. I thank the Chair for the time, and I yield the floor.

[[Page 1402]]

  The PRESIDING OFFICER. The Senator from Alaska is recognized.

                          ____________________