In the Senate, the Ledbetter Sue Business Act

Prologue: The NAM’s Key Vote letter to U.S. Senators opposing S. 181, the Lilly Ledbetter Fair Pay Act.

Now, from the Daily Digest in today’s Congressional Record, yesterday’s summary of Senate action of S. 181, the Lilly Ledbetter Fair Pay Act, and the program for today’s debate (fixed broken links):

Lilly Ledbetter Fair Pay Act: Senate resumed consideration of S. 181, to amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, taking action on the following amendments proposed thereto:

Pages S693-S712

Hutchison Amendment No. 25, in the nature of a substitute.
Pages S693-96, S698-S712

Specter Amendment No. 26, to provide a rule of construction.
Pages S696-97

Specter Amendment No. 27, to limit the application of the bill to discriminatory compensation decisions.
Page S697

Enzi Amendment No. 28, to clarify standing.
Page S710

Enzi Amendment No. 29, to clarify standing.
Page S711

A unanimous-consent-time agreement was reached providing for further consideration of the bill at approximately 10:30 a.m., on Thursday, January 22, 2009, and that there be up to 60 minutes of debate equally divided and controlled between Senators Hutchison and Mikulski, or their designees, relative to Hutchison Amendment No. 25 (listed above), prior to a vote on or in relation to the amendment; provided further, that there be no amendments in order to Hutchison Amendment No. 25 prior to the vote.

Page S732.

We’ll put Sen. Hutchison’s explanation of her substitute amendment in the extended entry below. Short version: It retains a 180-day statute of limitations for filing pay discrimination complaints, started when the employee actually discovers the incident of alleged discrimination.

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

[Page: S700]

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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