Lilly Ledbetter Fair Pay Act of 2009--Resumed

Floor Speech

LILLY LEDBETTER FAIR PAY ACT OF 2009--Resumed -- (Senate - January 21, 2009)

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Ms. MIKULSKI. Before the Senator from Ohio speaks as agreed upon, I thank the chairman of the Judiciary Committee for his compelling remarks and steadfast support for women generally and certainly for his longstanding advocacy that women should be paid equal pay for equal or comparable work. Thank you very much.

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Ms. MIKULSKI. Mr. President, I thank my colleague for his eloquent and persuasive argument.

I rise to debate with my colleague from Texas her amendment. Before I go into the Hutchison substitute amendment, I wish to clear up two misconceptions. The first misconception is that there have been no hearings on this bill; somehow or another this is a fast-track, jerry-rigged, gerrymandered process. That couldn't be further from the truth.

In 2008, we held two hearings on Ledbetter, one in January of 2008--just about this time--in the Senate Health, Education and Labor Committee, which was a very active committee. Second, we also held a hearing in the Senate Judiciary Committee to get the extensive legal commentary. That hearing was held on September 23. There are those who would say, But that was the last Congress. Well, that was last year, but the relevant facts are the same. So there have been extensive hearings in the Senate and in the House. I believe we are following a framework for getting views through the regular process.

Now, our new President, President Barack Obama, has said very clearly that he wants to create jobs in this country. If you don't have a job, you get a chance to get one, and if you do have a job, you get a chance to hold on to it. Additionally, he said that if you have a job or you are going to get a job, you will not face wage discrimination in the United States of America. That is why he wants not only in his first 100 days, but in his first 10 days, to pass legislation that closes a loophole on wage discrimination.

That takes me to the second misconception. The Lilly Ledbetter Fair Pay Act, which I am the lead sponsor of--but I wish to acknowledge the role of Senator Kennedy as the lead sponsor, and I am carrying this responsibility as a member of the committee. Now, the second misconception is that somehow or another the Fair Pay Act only deals with wage discrimination affecting women. Oh, no. It deals with wage discrimination affecting all people. So if you are discriminated against in your paycheck because of your race, ethnicity, religion, natural origin, or gender, this legislation will protect you. This loophole was created by the Supreme Court, and I will elaborate on that as well.

So we followed hearings. This bill, as part of President Obama's hope for America, makes sure that when you get a job or you keep your job, you will never be discriminated against in your wages. So I wanted to clear up those two misconceptions.

Now I wish to go to the Hutchison substitute. First, I wish to acknowledge the Senator from Texas, my truly very good friend, for her long-standing advocacy for women. We have worked together on a bipartisan basis for women. Her advocacy has been steadfast. She has been of particular help. We have worked together on the women's health agenda. We have mammogram standards in this country because of the Hutchison-Mikulski amendment. We have helped with breast cancer research funding because we have worked together, and I could give example after example.

I also wish to acknowledge that the Senator from Texas herself was discriminated against in the workplace. Maybe later on in the debate she will share her own very compelling personal story. So I wish to acknowledge that.

I also wish to acknowledge that we--the women of the Senate--can disagree, which she and I do tonight, without being disagreeable. There is no doubt that the Senator from Texas and I agree that we do not want wage discrimination against women. Where we disagree is not on the goal but on the means. She has her substitute, and I have, which I think is the superior framework, the Lilly Ledbetter Fair Pay Act. I wish to be clear that in this new Senate, we can offer amendments, we can have our shared goals, and we can do it in a way that is not prickly or rancorous and so on. So I wish to be able to say that. Although I disagree with her, my bill--the Kennedy-Mikulski bill--which has 54 cosponsors, simply restores the law before the Supreme Court decision. It is a legal standard that nine separate decisions in front of courts of appeal agreed with.

Let me elaborate. The Hutchison amendment acknowledges that the Supreme Court Ledbetter decision is unfair and it has closed the courthouse door for legitimate claimants. Unfortunately, Senator Hutchison's effort to fix Ledbetter's problem is flawed. I think it is a well-intentioned but misguided attempt. Her amendment will not fix the problem caused by the Ledbetter decision. In fact, review of her amendment leaves the core of the Ledbetter's harsh ruling intact, creating only a very narrow and vague exception. Moreover, the exception creates significant legal hurdles for those workers who try to take advantage of it.

In the Ledbetter decision, the Supreme Court said an employee must challenge pay discrimination within 180 days of the employer's initial decision to discriminate or the employee will be forever barred from enforcing her rights. This decision gave employers a free pass to continue discrimination. By keeping in place the heart of the Ledbetter decision, the Hutchison amendment would allow such injustice to continue.

The Senator from Texas says her amendment would bring balance to our antidiscrimination laws, but in reality it imposes a very unreasonable standard on workers--a standard that would be almost impossible for someone to meet.

Under the Hutchison framework, a worker would have to prove not only that she did not know she was being discriminated against but also she ``should not have been expected to have had enough information to support a reasonable suspicion of discrimination.''

How can workers prove what someone else expects of them? How does a worker prove a negative, that she didn't suspect that something in the workplace wasn't quite right? And--again quoting the Hutchison recommendation--what is a ``reasonable suspicion of discrimination''? That phrase, ``reasonable suspicion of discrimination,'' is vague, and fuzzy, and I am concerned would even add to the already legal burdens. There is no similar standard in any other discrimination law.

Workers would have to prove they could meet this vague standard before they could even raise their allegations of discrimination. This means time and resources spent on what workers knew and when they knew it instead of on the conduct of unscrupulous employers.

Even conservative commentators are worried about the Hutchison amendment. Andrew Grossman of the Heritage Foundation noted that the Hutchison amendment would fail to provide the certainty of a hard statute of limitations.

By contrast, the Lilly Ledbetter Fair Pay Act would restore a bright line for determining the timeliness of pay discrimination claims. We know employers and workers can understand this rule and live with it because it was the law of the land in most of the country for decades prior to the Ledbetter decision. Our bill would simply put the law back to what it was before the Supreme Court upended the law.

Although Senator Hutchison claims her amendment would protect employers from unreasonable lawsuits, it could cause an explosion in the number of lawsuits. If this amendment was adopted, workers would feel compelled to file claims quickly for fear that they would miss their statute of limitations. So the only way you can protect yourself is to file a claim because you might have a reasonable suspicion. Given the way women are treated in the workplace, you could have a reasonable suspicion every time you walk in somewhere. Workers have to run to the EEOC even if the only evidence of discrimination is rumor or speculation. This could create a very nasty and hostile work environment. Without any guidance of what constitutes a ``reasonable expectation'' or a ``reasonable suspicion'' of discrimination, workers will file a tremendous number of claims. That is just what we don't want to do. We want to return to the law.

They say the Lilly Ledbetter Fair Pay Act is only going to cause an explosion of lawsuits, but it didn't before the Supreme Court decision. In fact, we now know the Lilly Ledbetter Fair Pay Act would not cause an increase in lawsuits because it gives the workers the time they need to consider how they have been treated and try to work out solutions with employers before they get into filing complaints and also lawsuits.

You don't have to take my word for this. History proves it. The rule that workers can file claims within 180 days of receiving a discriminatory paycheck did not encourage any unreasonable number of lawsuits in the decade before the Ledbetter Supreme Court decision.

We turned to CBO, again, a pretty cut-and-dry, button-down crowd. They said this bill would not increase claims filed with the EEOC or lawsuits filed in court, meaning the Lilly Ledbetter Fair Pay Act, not the Hutchison amendment.

The best evidence the Hutchison amendment does not solve the problems caused by the Ledbetter decision is that the amendment would not have helped Lilly Ledbetter herself. Isn't that something. Under the Hutchison framework, this amendment would have tipped the scales of justice against her in favor of her law-breaking employer because it is virtually impossible to meet the reasonable expectation of a reasonable suspicion standard. Ms. Ledbetter would have been forced to spend all of her time and all of her money trying to prove that she had no reason to suspect discrimination before the EEOC or the courts could have even considered Goodyear's illegal and unfair treatment of her. Discrimination claimants face enough difficult hurdles. Brave workers, such as Lilly Ledbetter, do not need more disincentives to stand up for themselves and their rights.

The Lilly Ledbetter Fair Pay Act is a bipartisan solution. It responds to the basic injustice of the Supreme Court Ledbetter v. Goodyear decision. I urge my colleagues to vote against the Hutchison amendment and vote for the Lilly Ledbetter Fair Pay Act.

I yield the floor.

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Ms. MIKULSKI. Madam President, we are awaiting the arrival of the distinguished ranking member of the Health, Education, Labor, and Pensions Committee because he wishes to offer an amendment this evening. We wish to accommodate him. The Senator from Wyoming has been the soul of civility on this issue and has helped us to move the bill thus far. But it is our intention to ask all speakers to come now because the Senator from Texas and I would like to be able to conclude this debate for this evening--not to conclude the debate, but for this evening--around 7. I am not making a unanimous consent request, I just wish to put a few things out there.

While we are waiting for the arrival of our colleague from Wyoming, I would like to have printed in the Record an excellent monograph put out by the National Women's Law Center on the Hutchison amendment. It is a very lawyer-like paper, but it is also done in plain English. That outlines some of the real issues the Hutchison substitute could present.

I ask unanimous consent that this paper in its entirety be printed in the Record.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 1.)

Ms. MIKULSKI. Just to give a few highlights, they advise us that the Hutchison bill allows clear pay discrimination to continue without a remedy. That is why we are doing this Lilly Ledbetter Fair Pay Act in the beginning. They make that point because they say:

The Hutchison bill prevents employees from challenging discrimination to which they continue to be subject. [It] perpetuates the basic problem created by the Ledbetter decision.

That is what I argued earlier in the evening.

Under the bill, employers are left without any remedy against present and continuing pay discrimination if they do not file a government complaint within 180 days of the first day when they ``have or should be expected to have'' enough information to suspect discrimination.

One of the main arguments, the differences we have with our colleague from Texas, is the should have, we should have, we should have known--how should you have known?

When you go into a workplace, one of the few things that is not discussed is pay. I commented in an earlier debate, you can talk about anything in the workplace. You can talk about religion at the water cooler. You can talk about politics at the Xerox machine. But you cannot talk about pay. This could have, should have--we don't want to have a framework where everyone who has been discriminated against by our culture and by our practice in the workplace goes into a new job with a chip on their shoulder. We are going to presume people are fair-minded. That is the way most people show up every day. This Hutchison amendment, could have, would have, should have, I think is going to create a nightmare. It is going to do exactly what the Senator doesn't want. I think it is going to generate more lawsuits and not only more lawsuits but more lawyers arguing about could have or should have suspected.

The Hutchison bill permits employers to escape accountability for continuing pay discrimination. Like the Ledbetter decision, the Hutchison substitute immunizes an employer from any challenge to pay discrimination, even where the employer continues to profit from it. Under the Hutchison bill, an employer is off the hook for, and can continue to gain a windfall from, continued pay discrimination. .....

You know, when you discriminate, you don't usually just discriminate against one person in the company. It is usually more than one--others. Again, we are back to this would have, should have, could have.

The Hutchison bill deprives employees of the chance to assess the extent of the discrimination and work voluntarily with their employers to address any disparities.

[It] forces employees to forfeit their claims if they take the time to work out disputes amicably.

That is exactly what we want. We want to be able to work out disputes amicably, to go to maybe some alternative dispute resolution mechanism, have time to find out the facts: What is the situation? Particularly because pay disparity may start small and grow over time. Employees may want to give their employers the benefit of the doubt hoping the employers will voluntarily remedy that gap or may want to work actively with the employer to resolve the dispute. This is especially true for employees new on the job. The Hutchison amendment denies employees this opportunity, forcing them from the get-go to file adversarial Government complaints immediately upon suspecting discrimination or risk losing the right to any relief.

Now, not only is this bad law, it is bad policy, and it is going to be bad budget. I chair the Appropriations Committee which funds the EEOC. Under the administration that left town, they were revenue starved. They have a tremendous backlog right this minute of a variety of discrimination cases. Some were wages, some dealing with gender or race or ethnicity or religion. Many of those workers really feel under siege with the workload they are going to carry. Under the Hutchison amendment, as soon as you walk into your workplace and you have a whiff, a rumor, gossip, or, oh, gee, wonder what is going on, then you have to run right to the EEOC and file a complaint.

I do not think that is good common sense. It sure is not good money sense from the strain it is going to put already on an overburdened EEOC. I think we are headed in the wrong direction.

This Hutchison bill creates burdensome and expensive, time-consuming distractions from the fundamental issue of whether an employee has been subject to pay discrimination. I fear that the Hutchison bill will increase the number of lawsuits filed against employers, and it is going to result in very protracted and very expensive minitrials in those cases that are brought.

We want to get into making sure we end wage discrimination. This bill will result in confusion for the courts and for employers. This bill rejects the bright-line familiar rule in effect before the Ledbetter decision in favor of a standard that raises numerous thorny legal and factual issues.

I like the Ledbetter Fair Pay Act, which is my bill, and also is sponsored by 54 other Members of the Senate which simply restores the familiar role for assessing the timeliness of discrimination claims that prevailed in virtually every court in this country prior to the Ledbetter decision. The Hutchison bill creates an entirely new legal regime.

The bill raises innumerable questions, including when an employee could have been found to have a ``reasonable suspicion of discrimination.''

Madam President, I have more arguments to make, but at the end of the day, why is the Lilly Ledbetter Fair Pay Act so excellent? Well, the bill from the viewpoint that I am advocating and the legislation that I am sponsoring would give employees the time to evaluate their suspicions of discrimination and work toward solutions with their employers, including voluntarily.

It would ensure that employers are held accountable for continued discrimination and, most of all, it would provide certainty in assessing the timeliness of pay discrimination claims and restore the law before the outrageous Supreme Court decision.

Congress should reject the approach of the Hutchison bill and instead act expeditiously to enact the Lilly Ledbetter Fair Pay Act.

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