Lilly Ledbetter Fair Pay Act Of 2009 - Resumed

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Mrs. HUTCHISON. Mr. President, I thank the Senator from Alaska for her support of my amendment.

I wish to lay out my amendment one more time, and then the long-suffering and ever-patient Senator from Maryland will have the chance to rebut. She has been so wonderful about making sure everyone got a chance to speak and knowing we would still be here to debate this amendment, and then setting a time agreement for the vote tomorrow, when the leaders have made that decision.

This is such an important issue. As the Senator from Alaska has said, and really everyone has said, we all want to make sure we give every opportunity to a person who has faced discrimination in the workplace to be able to have a redress of that discrimination.

The law, as it is today, gives 6 months for a person to be able to go forward to the EEOC, and then later to the courts, to say there has been an act of discrimination. Now, most of the time it is easy for an employee to know when a cause of action occurs. If it is age discrimination and someone has been demoted; if it is a firing, of course; any lessening of duties or responsibilities, that is a signal that perhaps there is some discrimination of some kind--whether it be based on age or gender or whatever might be alleged.

The harder issue is pay, there is no question because most people do not talk about what they make around the water cooler or in the break room. Most people hold that close because there are many factors that go into pay. Because of that, it is harder to do the fair thing. That is what I am trying to do with my amendment, to make sure there is a fair opportunity for an employee to have the right of redress and also a fair opportunity for the person in business to know if there is a liability or a mistake.

If the Mikulski bill passes, one would be able to sit on a claim because it would not matter if the person should have known of the alleged discrimination. They can pick their time, and it could be months, years, decades after a discrimination has occurred. This is a problem because the employer has to be able to have an opportunity to mount a legitimate defense with records that would be kept, with witnesses who would come forward, with memories that would be fresh, to give the employer the right to know what the liability is and be able to have witnesses or the person who is accused there to make the other side of the case.

In pay discrimination, what we are doing in my substitute is basically setting a standard that will be uniform across the country, in all courts. It is what the Supreme Court has said should be the test. In some districts, the court will say: Well, let's hear from the employee why she did not know or why he did not know. If the court says: Well, I think that is reasonable--maybe there is a policy in the company that if you talk about your salary, that is grounds for firing. Now, that would be a very strong presumption for the employee that maybe they were in the dark. So we want that employee to have the right to say there is no way I could have known. There was a policy against it. But we need to have that standard across the board in every district. Some courts will do it, but not every court will do it, which is why my substitute amendment is needed, because we need every employee to have the ability to make the case that person could not have known.

Now, the distinguished assistant majority leader said that puts the employee with the burden of proof. Well, the employee is the plaintiff. The plaintiff always has the burden of proof in our legal system. We would certainly--if it were something that would make a difference to the Senator from Maryland or the Senator from Illinois; if it would make a difference that we would establish a rebuttable presumption that would favor the employee but be allowed to be rebutted by the employer--we could talk about that, and I would be open to that suggestion.

But the plaintiff bringing the case in our system does have the burden of proof. What we want is to assure that responsibility is codified in the law, that it is codified so that person has the right, but also the responsibility to press a claim. This is the important part of the substitute that says we want the right of the employee to be able to say they did not know, and why, and give courts the chance to apply a standard that would be set for everyone in this country to have the right to press the claim if they did not know.

On the other hand, the reason we have statutes of limitations--and we have had since the beginning of law in this country, and in other civil law countries--is that the defendant does have a right to be able to make the defense and be able to anticipate what the liability might be. A small business that has a person come forward who has a claim from 10 years ago, and they did not know the employer did not know this right was accumulating and could result in a catastrophic effect on a small business--when if the employee, when he or she suspected, brought forward this claim, perhaps it could be settled right then and there so everyone wins.

So I hope we can work on this bill so we do give fairness to both sides in a legal case. We wish to have the right of the employee to come forward when that person knew or should have known within 6 months of that right accruing; and we need to have the right for the business to be able to have evidence, records, witnesses, and fresh memories to mount an effective case in defense if they are going to rebut the charge. That is one part of the substitute.

The other part is, I think, also very important; and that is that in the bill before us there is a major change in common law and in tort law that has also been a part of our legal system and our case law since the beginning of law in our country and in other countries that have the types of laws we do; and that is that a tort accrues a right to the person who is offended or damaged or hurt by another action. It does not accrue to another person who is affected by or might be considered affected by this claim.

Now, there are exceptions to that. But in the main, it is, I think, essential, if we are going to have a statute of limitations that goes beyond the act itself--and in this case it would be 6 months, which is the law today--that it accrue to the person actually injured, the employee, and not some other person on behalf of the person who did not bring the case.

Under the Mikulski bill, the Ledbetter Act, a new right has been given to a person who may not be the person with the injury. So it could be a case where the person dies after working at a place of employment, a business. The person dies, and within 6 months of that person's last paycheck and subsequent death, some other person--an heir, a child, a mother, a father--could bring a case, which the person who has allegedly been discriminated against chose not to bring or did not bring. In such an absurd case, possible under the Ledbetter bill, you do not even have the person discriminated against to testify.

I think this is a very big hole in the concept of fair play that our legal system tries to provide. By saying ``other affected parties,'' I think we have opened up a whole new right and possible class of plaintiffs that has not been contemplated before and could achieve an inequitable result.

So I hope very much that people will look at my substitute and try to get to the same end Senator Mikulski and I both want, by trying to shape the legislation so that it keeps the fairness in the process for a person who claims a discrimination and a person in the business that has hired this person to have a fair right for a defense. That should be our goal. I think my substitute does achieve that balance. I hope very much we can work this into a bill that all of us can support for people who have certainly known discrimination, as I have, and for people who want to make sure their children and grandchildren don't face discrimination, as well as for those who wish to make sure we don't discriminate against that small business owner who is all of a sudden, after 10 or 15 years, maybe looking at a liability that they didn't know about, couldn't prepare for because they don't know about it; maybe it is a mistake and maybe it could be corrected if we keep that statute of limitations that would say a person knew or should have known can have 6 months to file a claim so there can be an equitable, judicial remedy for this potential claim.

Mr. President, I yield the floor.

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Mrs. HUTCHISON. Madam President, I wish to talk about a couple of points that were made by the Senator from Maryland.

First, I want to say how much I appreciate her talking about how much we have done together in the Senate for women. We have made significant legislation that has improved the lives of women. She mentioned many of the bills we cosponsored.

The other one I want on the record, because I think it is so important for the homemakers of our country, is the homemaker IRA, which was the Hutchison-Mikulski bill that allows stay-at-home spouses, those who work inside the home, to put aside the same amount for retirement security that will accrue without being taxed as someone who works outside the home, which was not the case before Senator Mikulski and I passed our bill. It is one of the singular achievements, I think, in helping especially women who usually go in and out of the workplace to save, without being taxed every year, in a retirement account the same amount as if they work outside the home.

We have worked together, and I know we will work together on many other issues. And I hope we will end up working together on this issue because we do have the same goal, and that is to provide a fair legal process for people to have the right to sue for discrimination and the employer that is accused to have the right of defense.

I ask unanimous consent to print in the Record the report of the Heritage Foundation that was mentioned earlier.

There being no objection, the material was ordered to be printed in the Record

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Mrs. HUTCHISON. Madam President, it is very important that we have the whole legal memorandum on the Ledbetter Act and my substitute amendment. I want to read a couple of paragraphs from it. The Heritage Foundation report says:

Another option was proposed in the last Congress--

My bill--

as the ``Title VII Fairness Act.'' This legislation would maintain the current limitations period but augment it with a ``discovery rule'' so that the period begins running only when the employee reasonably suspects, or should reasonably suspect, that he or she has been discriminated against. This approach has the benefit of encouraging employees to investigate and take action on worthwhile claims, while keeping many stale claims out of court. Some courts, however, might twist the looser rule to allow stale claims brought by sympathetic plaintiffs, such as Lilly Ledbetter, who learned about the possible discrimination fully six years before filing a charge. It would also undermine, somewhat, the clear bright-line rule that a hard statute of limitations provides. Nonetheless, this approach would provide far more certainty, and prove far less disruptive, than eliminating the limitations period.

Which the underlying bill does. I added for emphasis those last words.

It goes on to say:

Far beyond reversing the result of a single Supreme Court decision--one that, viewed fairly, was consistent with precedent and fairly represented Congress's intentions--the Lilly Ledbetter Fair Pay Act would open the door to a flood of lawsuits, some frivolous, that employers would find difficult or impossible to defend against, no matter their ultimate merit. Rather than help employees, the bill could end up hurting them by reducing wages and job opportunities--at a time when unemployment is rising and many are nervous about their job prospects. Instead, Congress should recognize that statutes of limitations serve many important and legitimate purposes and reject proposals that would allow litigants to evade them.

The full reading of this legal memorandum by the Heritage Foundation, I think, makes the case for my substitute as the right approach, giving more rights to the plaintiff but not eliminating or discriminating against the business to defend itself.

Let me make two points. My amendment codifies the employee's right to establish what he or she didn't know. It is so necessary that we have this right, and it is necessary to know when the person should have known and make that part of the record. Otherwise, it would allow a person to knowingly sit on a claim, to run up the amount that might be added to the discriminatory act in punitive damages. That should not be a part of our legal system.

There is one other point I want to make about the Supreme Court case that the Mikulski bill will overturn.

The Supreme Court separated a discriminatory pay policy from a single discriminatory act. That was their intention. It is the law today, and it would be the law under my substitute, that if there is a policy of discriminatory pay, every paycheck would be a discriminatory act. So it would continue if it were a policy. That is the law, and it should be the law, and it will be the law if my substitute is adopted.

What the Supreme Court did in the Ledbetter case was say when it is a single act of discrimination, not one that is discriminatory in policy, that should have a statute of limitations. But perhaps we could have a reasonable rebuttable presumption that the person should have known, and when the person brings the claim, that person can establish: I could not have known because we weren't allowed to talk about our pay. That could be a reason the court would say is legitimate, and it would uphold the statute of limitations.

The Senator from Pennsylvania was here earlier. He has several amendments. The Senator from Wyoming, Mr. Enzi, has an amendment. I think we can make this a good bill that everyone will think is fair, that will give more rights to the plaintiff but does not keep the defense from having a fair chance to defend the business.

And I believe that is the right approach.

I hope we can pass my substitute. I hope we can continue to work on this bill so that everyone will feel good about voting for it and our businesses won't be subject to a lawsuit 10 years after an act is alleged to have occurred and have a bill run up, when maybe if we have a statute of limitations that is reasonable and you have the ability to bring it, it could even be settled right then and there so that the employer is not going to have a big expense that might even close the business and lay off more people, which is not a result any of us would want. So I hope we can write the law carefully to avoid that eventuality.

Madam President, I yield the floor.

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Mrs. HUTCHISON. Madam President, I know the Senator from Rhode Island wants to speak. I will take a minute and say a couple of things.

We are going to codify a right that is not in the law today. It is sometimes applied by judges and sometimes not. We do clarify so that there is fairness for the employee as well as for the small business owner to know if something is occurring.

Our standard is, should have known, and that is what the person can show, that they had no way to know that a discrimination was occurring. We are clarifying and trying to make it more fair and more clear and more uniform across all the districts in our country.

That is our goal, and I do hope we will be able to have this amendment that will make it a law that is better for employees who might have been discriminated against, but also give the fair right to an employer not to have a right sat on and built up so that it becomes something that could hurt the small business and be unexpected.

I yield the floor.

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