Lilly Ledbetter Fair Pay Act of 2009 - Resumed

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Mr. ENZI. Mr. President, I rise to speak in support of the Hutchison amendment. Before I do that, I want to voice some concern, again, about the process we have gone through on this bill and that we might be going through on others. I just came from a health care meeting where we are, in a bipartisan way, trying to reform health care. That is being done the right way. We have a task force and the task force has set down principles and questions. Those of us on the task force are returning to Members of our side of the aisle and gathering their input, answers, and additional questions. We will keep going through this process until we have hammered out the principles. Then we will start putting substance in it. Then it will go to the two committees of jurisdiction. That makes it a lot more difficult than most bills. It will go to both the HELP Committee for the health policy portion, and then it will go at the same time to the Finance Committee for the way to finance what we are talking about in the policy.

We did this on the pension bill. That was a 1,000-page bill that only took up an hour of floor time while we debated two amendments, had those two votes, and a final vote. That is the simpler way of doing bipartisan work that winds up with an actual result. So often here we spend all of our time debating the 20 percent we don't agree on and fail to look for any kind of a third way of doing something that solves the problem we started out on originally. This is not a very conducive atmosphere to negotiate anything. It is not a negotiation. It is a lay down your amendment, have it voted up or down, and because there can't be any nuances in it, the hundred voices are not heard. The voices of the constituents of the 100 people who serve here are not heard. We vote down a lot of things. Occasionally, we vote for something. But usually, what is brought to the floor is done so without any kind of a real set of principles, let alone consensus, and thus, never makes it through the body.

I know there have been some changes in majority and minority. That will still hold true, and I appreciate the majority agreeing that there will be amendments and that I got to offer two amendments that we will be debating and voting on later, I hope. This is kind of a test to see if we are going to do anything in a bipartisan way, and to see if we can do it from the floor of the Senate rather than in committee. This has not had a committee markup. This has not had the voice of the 23 people working, in some detail probably, through a couple hundred very detailed amendments, and that would be resolved between the Members. That is the most effective way to address the issue and to get it resolved.

The issue that was raised is, what if an employer discriminated against an employee because she was female and paid her less than male colleagues doing the same job with the same skills and experience? That is terrible. Such conduct by an employer has been illegal for 45 years under one statute and 46 under another. But like virtually all rights of action, it has to be exercised within a statute of limitations. So this bill's supporters ask: What if the employer hid the information the employee needed to realize she was the victim of discrimination and she missed the deadline to sue? We don't want that to happen, and courts have dealt with that issue by extending the statute of limitations on a case-by-case basis through the use of estoppel and equitable tolling. The reason this was not applied in the Lilly Ledbetter case was because there she stated in court proceedings that she was aware of the pay disparity many years before she brought the lawsuit. But putting her case aside, I can certainly agree that the statute of limitations should be extended, particularly in cases where an employer has deliberately hidden the fact of discrimination.

Senator Hutchison's amendment does just that. It codifies the discretion courts have applied for years. Under the Hutchison amendment, individuals who, because of conscious concealment or simple lack of information, are not aware of discrimination are not prevented from filing and pursuing their discrimination claim, even if it is well beyond the statute of limitations. Here we have an amendment that would provide some statute of limitations but takes care of that case where somebody illegally hides information or where it isn't the normal course of business to get that information.

I wish to review what the Hutchison amendment does not do. It does not eliminate the statute of limitations for all employment discrimination cases and thereby create a litigation bonanza. It does not eliminate the incentive for employees to air and resolve concerns about whether they are being treated fairly in the workplace. It does not open up standing to bring employment discrimination cases to individuals other than the affected employee. That is an important part right there. In the bill we are talking about, I know we would have extensive committee discussion about other affected parties. Who would they be? How long could they make a claim? Can it be generations later? Does it have to be at the time of death, while the person is still working there? We can't tell from the bill, but other affected persons is anybody the person may or may not be related to who could be affected by the decision.

Can you think of anything broader than that? Don't you think that ought to be pulled back a little bit? Again, we didn't talk about principles. We didn't go through committee. We didn't put in multiple amendments that could have brought up some of these points, so here we are on the floor of the Senate kind of doing up-or-down amendments and I am sure arriving at things that, even if they pass, will come to raise a lot of questions in a very short period of time. That is not what we are supposed to be getting done for the American people.

The Hutchison amendment does not present a direct threat to our already struggling defined benefit pension system. The more strain we put on that, the less people are going to do it, and we want people to have pensions. So for all of those reasons, I will support Senator Hutchison's wise and effective approach, one that could probably be negotiated finer and done more carefully, but that would be committee work. I will support it because I think it is a wise and effective approach that will ensure that no one loses the right to sue because they didn't have the information to realize they were being mistreated. That is our goal.

While I am expressing strong support of S. 166, which is the Hutchison alternative, and I spoke on this matter earlier, I continue to express my deep concern shared by most of my colleagues about the way the bill has been handled. I will keep bringing that up on this and every bill that skips the process.

By circumventing the regular order and not subjecting this legislation to the committee amendment process, I believe it has inadequate review and debate and no opportunity for a measured consideration of other means of achieving its same stated legislative goals. That is a process which should be done in committee, not attempted to be done on the floor. However, that is the route that is being forced on us, the minority, so that is the route we will have to follow now. We hope this is not a precedent-setting bill--or precedent-setting process. It definitely will be a precedent-setting bill regardless of whether it is S. 181 or S. 166. Yet when we compare the substance of S. 181 with that of the Hutchison bill, it should be clear the legislation has suffered from a lack of process and the review and scrutiny it needs and could bring.

Now, we should begin by first keeping clearly in mind the harm which S. 181 was purportedly designed to address. The problem is a simple one. Title VII requires that the victims of employment discrimination must commence a legal claim within 180 days of the act of discrimination, or in the case of a series of discriminatory acts, within 180 days of the last act in the series.

I should note that in most States the limitations period is actually 300 days. But in Mrs. Ledbetter's home State of Alabama, it is 180 days, so I will use that number in my statement today.

When title VII was drafted, Congress consciously used the 180-day period because they wanted to ensure that all claims of employment discrimination were raised immediately and remedied quickly--get the relief to the person right away. However, what happens if the victim does not know he or she has been discriminated against? There are a lot of possible examples of this. Suppose an individual who is a member of a racial minority applies but is not selected for a job bid or a promotion yet learns, more than 180 days after being denied the job, that it was awarded to a White applicant with the same or lesser qualifications? Or suppose a female worker receives a wage increase but does not learn until well beyond 180 days from when she gets the wage increase that she has received less than her male peers? She may not know she is being compensated less because her employer has intentionally hidden those facts or simply because employees may simply not know such information. In either case, the result is the same--the employee, through no fault of his or her own, simply does not know they may be the victim of discrimination until well beyond the 180 days from the time they received their wage increase or lose their job bid.

Let us be completely clear. I do not believe there is anyone who believes an employee in any of those or similar circumstances should lose the right to file a discrimination claim because they did not have the necessary facts and did not have any reason to know they were being discriminated against before the 180 days passed. This was precisely the problem that S. 181, the Ledbetter bill, was allegedly designed to address. If that were actually the case, I would vote for the Ledbetter bill. But the Ledbetter bill goes way beyond addressing the kind of situations I have outlined here--so far beyond that it creates new problems that make supporting it impossible for me and many other fair-minded Members.

By contrast, the Hutchison bill directly addresses and solves the very problems I have outlined. Under the Hutchison bill, the denied job applicant who did not learn the facts until long after his bid was denied or the female worker who did not know her wage differential compared to her male peers, either because of conscious concealment or simple lack of information, are not prevented from filing and pursuing their discrimination claim, even if it is well beyond the 180 days from when they got the raise or did not get the job. The Hutchison bill does this by making the 180-day period a flexible one that can be readily extended in the kind of cases I have mentioned.

On the other hand, the Ledbetter bill does this by eliminating the 180-day limitation period completely. The Hutchison bill is a rifle shot to solve a problem that everyone agrees must be solved. The Ledbetter bill is a shotgun blast that causes collateral damage to important safeguards in our system of laws.

Limitation periods, such as the 180-day period for Title VII employment discrimination claims, are a feature in every law that grants the right to someone to bring a legal action against someone else. They are universal because such limitations serve two very important purposes.

First, the existence of a limitations period is an inducement to those who have claims to seek redress promptly. All of us have an interest in a society where the laws are promptly enforced and, where the beneficiaries of those laws are promptly protected and promptly compensated. This is particularly true in the area of discrimination where society benefits best when discrimination is immediately exposed and immediately remedied. It may affect more than just the one person.

Second, limitations periods serve to ensure fairness in our litigation process. The simple truth is that the more removed in time an event is, the less likely anyone is to remember it clearly or accurately. In a work setting, those who made compensation decisions 5, 10, 20 years ago, may no longer be around. And even if they are around, how could they possibly remember with any accuracy the basis for the decisions? Under our Tax Code, records are not kept nearly that long for individuals or for businesses.

The inability to fairly defend against a claim and the inability to develop reliable evidence are the exact reasons why laws invariably contain a limitations period. Limitations periods are why someone cannot come along and try to sue you over an automobile accident that took place 20 years ago, or commence a legal action to take your house away because of a claimed defect in the title that is decades old, and why the Government cannot pursue actions against citizens that have become stale with time.

But S. 181 would do away with such limitation periods in employment discrimination cases and allow individuals to reach back in time to raise claims about which there is no fair chance to defend, no evidence of any value, and possibly nobody who was even there. We do not have to do this to address the concerns raised by the proponents of S. 181. Senator Hutchison's bill addresses those concerns completely.

S. 181 has a number of other problems which will be explained by my colleagues as we proceed to this bill, such as the potential to severely destabilize defined benefit pension plans and the expansion of individuals with standing to sue under civil rights laws. These are normally the kind of discussions we would have in the committee of jurisdiction, which in this case would be the Health, Education, Labor, and Pensions Committee, where our members and staff are well-versed in employment laws. However, the majority's actions will require us to have those discussions on this floor. It is not the way I want to do it, and it is not the way the American people expect us to do business, and it is not the way we will get things done.

Now, on this bill a vast number of people voted to proceed to the bill, and we all waived the 30 hours that could have been required before we could even make the first amendment. It was a nice concession on both sides; speeds up the process. But there are a number of opportunities--if the process were to get jammed--that huge hours can be added to the deliberations on this bill that do not need to be, that would not have been, probably, had it gone through the committee amendment process.

I just cannot emphasize enough how important that is to me. I made sure it happened when we were in the majority. I am hoping it will happen on future bills while I am in the minority. Cooperation around here gets a lot more done, and that is what the American people expect of us.

I yield the floor.

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