Title VII Fairness Act

Well, thank you very much, Mr. President. It was in my enthusiasm that I neglected a few parliamentary housekeeping tasks.

On April 23, when we had the vote in the Senate to vote on the Lilly Ledbetter Fair Pay Act, we lost it by two votes. On that day, I said we would continue our fight and that we needed to--we the women of America and the men who supported us--square our shoulders, suit up to fight for a new American revolution. I called upon the other women of America to put their lipstick on and be ready to go. Well, today is ``go day.'' And we are actively debating this amendment.

One of the arguments that is often made is that this Fair Pay Act we are advocating could trigger either needless and enormous volumes of lawsuits or it creates a shifting ball of the statute of limitations. Both of those criticisms are false.

First, the Lilly Ledbetter Fair Pay Act will not trigger more lawsuits. Because this bill the Democrats are advocating--and, oh, by the way, it is a bipartisan bill. We have over 54 cosponsors; Republicans are joining with us. It does not in any way trigger enormous lawsuits, because it simply restores the law, with greater clarity, that existed before the outrageous Supreme Court decision.

We were not flooded with volumes of lawsuits on wage discrimination. There was an orderly process that occurred.

The other is this floating statute of limitations argument. Well, that is a foggy term. But I tell you what is foggy is the Hutchison amendment.

Now, I so admire the gentlewoman from Texas. We have worked together, as I said, on many issues. I know her intentions are good, but her language is flawed. I should say, not her language, but the language of her amendment. It is foggy.

Let me go on to this a little bit. The amendment does not address the fundamental problem of the pay discrimination case, Ledbetter v. Goodyear, which created unreal and strict limitations for filing pay discrimination claims. It also fails to recognize that pay discrimination, unlike other kinds of discrimination, is repeated each time a worker receives an unfair paycheck.

I want to repeat that. The Hutchison amendment fails to recognize that pay or wage discrimination, unlike other forms of discrimination, is repeated each time someone receives an unfair paycheck. Instead, the Hutchison amendment creates a new confusing standard that requires workers to either be subject to the Ledbetter rule or prove they had no reasonable suspicion of discrimination when the employer first decided to pay them.

Well, you have to prove a negative. That is almost impossible. From the day you walk onto the job or the day your coworker who gets a raise, when the guys get it and the girls do not, you would have to be snooping around and creating a very hostile workplace, branded a troublemaker, because you were saying, well, you would have to every week say, well, what did you get paid, Mr. Udall? What did you get paid, Mr. Tester? What did you get paid?

Well, I know we get paid the same pay, and I know we are doing the same, equal work. But that is not true in the workplace. So we believe the Hutchison amendment actually creates more fog than solutions.

I want to continue the debate on this. I note that the gentlewoman from Texas has not come in, but I see the gentleman from South Carolina.

What I would recommend is kind of rotating back and forth every 5 minutes. That way everybody gets a chance to speak, everyone gets a chance to debate, and everyone will get a chance to vote at 11:30.

Mr. President, how much time remains in the debate?

Mr. President, I would like to comment on the arguments that have been made by the advocates for the Hutchison amendment. First, let me say this: If you are a business and you want to avoid a lawsuit, there is one clear remedy that does not require statutory action, and that is called give equal pay for equal or comparable work. If you don't want to end up in court, you don't want to end up at the EEOC, you don't want to end up with a tattered and tarred reputation, pay people equal pay. That is the way to avoid a lawsuit. Then you don't need a law.

But, no, there are those in our country who still think we are back in the 20th or 19th centuries, and we are not going to put up with it. We can talk about the 180-day rule and wage-setting decisions and so on. I am a pragmatic, pro-business, pro-fairness Senator. My grandmother ran a small bakery and was known as having the best doughnuts in Maryland--well, certainly in Baltimore. My father ran a small grocery store. We paid equal pay for equal work.

When we talk about small business, I know about small business.

I also know the Hutchison amendment would create more problems. For example, the discovery rule fails to hold employers fully accountable for ongoing discrimination. That is a very big deal. If workers suspect discrimination but delay filing the claim for fear of retaliation or hopes that things could be worked out without litigation, they should not be forced to suffer continued wage discrimination indefinitely. Wage discrimination continues with every new unfair paycheck. If harm is ongoing, the remedy should be as well, regardless of when a worker learned of it.

Doesn't this rule make things better for employers? No. The Hutchison amendment is very vague and foggy. The rule encourages premature claims which is going to increase litigation. Workers are going to feel compelled to file formal claims with the EEOC or take legal action for fear that they will be accused of delay. That is what the Supreme Court accused Lilly Ledbetter of. They didn't accuse Goodyear of discriminating in their paycheck. They accused Lilly Ledbetter of delay and Lilly Ledbetter lost out.

There is a new day coming, including on the Supreme Court. I can't wait for those votes. Workers will feel compelled, as I said, to file formal claims quickly.

The Hutchison amendment adopts an uncertain legal requirement that will increase litigation costs for workers and employers alike. It also creates an environment that is hostile. It means if you are a worker, you have to act on rumor or speculation. My gosh, this is like the French Revolution and letters of cachet, and it was rumored that they were not faithful to concepts of the Revolution. We can't have that in our workplace. We have to have a workplace that we are all in together. So the Hutchison amendment is well intentioned but deeply flawed in the very objective that it seeks to accomplish.

I hope we defeat the Hutchison amendment and move on with debating other amendments.

I also want to say to the Senator from Texas, if I may have her attention, we are going to have a vote, up or down, on her amendment. I will not move to table. I think she deserves a clear vote, the way we are talking about a new style of civility and openness and so on. At the conclusion, that would be the process, rather than going through a tabling motion. Is that agreeable with the Senator?

I yield the floor.

Withholding the right to object pending an inquiry, is it the Senator's purpose simply to call it up so we can consider it later today?

I have no objection.

Mr. President, I now yield 5 minutes to the Senator from Texas to speak on this issue. She has been an unabashed and----

Excuse me. The Senator from California. It is the big State, with big gals here.

The Senator from California has been such a longstanding and faithful advocate for those who have been left out and left behind and particularly an intrepid voice for women.

Mr. President, I control the time.

Mr. President, I now yield 5 minutes to the Senator from Montana, a very good friend on this issue.

Mr. President, how much time is remaining on my side?

Mr. President, while we are working this out, I suggest the absence of a quorum, with the time equally divided, while we establish our next steps forward.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, we are in the closing minutes of the debate on the Hutchison substitute. We know there is one more speaker besides the Senator from Mississippi. This is not going to be my last say for this bill, but I do wish to offer my concluding arguments on the Hutchison amendment.

First, I ask unanimous consent to submit for the record a Q&A on the question of the Hutchison amendment because when all is said and done, I wish for there to be a very clear record on congressional intent so we won't have the type of Supreme Court decisions that brought us here today.

So I ask unanimous consent to have a Q&A on the Hutchison amendment printed in the Record.

Now, let's get to the facts. The difference between the Hutchison alternative and the Lilly Ledbetter bill is this: The Lilly Ledbetter Fair Pay Act restores the law to the way it was before the Supreme Court decision, Ledbetter v. Goodyear. The Hutchison alternative creates a whole new legal standard which regrettably is very vague and I am concerned will trigger a tremendous amount of lawsuits and further add to hostility and suspicion in the workplace. The issue of triggering more lawsuits as an argument for the Hutchison alternative is flawed because the Hutchison substitute will create confusion in the courts and for employers trying to interpret when employees should have known they were being discriminated against. The Ledbetter Fair Pay Act establishes a legal framework that had been accepted by nine appellate courts and the EEOC, and it has been a standard that has stood essentially the test of time.

Let's go to the statute of limitations. The Lilly Ledbetter Fair Pay Act says it is 180 days from the last unequal paycheck, not from the initial point of hiring or the initial point of a discriminatory pay raise. The Hutchison alternative goes 180 days from when employees have or should have been expected to have knowledge that they were being discriminated against. This ``expected to have'' is really what is so foggy. Also, as long as employers are discriminating, employees can get justice. Under the Hutchison alternative, employees have no remedy if the claim is not brought when they should have known. I don't know when you should have known.

Also, the Lilly Ledbetter Act gives workers a chance to figure out whether they are being discriminated against, approach the employer, and perhaps have an alternative dispute resolution on this before EEOC complaints, before going to court, and so on. I am concerned that the Hutchison amendment language ``should have known''--this ``should have known,'' where you would have to operate on rumor and speculation--will force many lawsuits as employees will sue before running out of time.

The Lilly Ledbetter Fair Pay Act also gives workers a chance to be able to resolve this. If an employer is currently paying women less than men, that is illegal. Under the Hutchison amendment, it forces employees to prove when they suspect discrimination. I have made that point over and over.

So in summary, I say to the private and nonprofit sector: If you don't want to be sued, don't discriminate. That is the best way to go. If you don't want to be sued, don't discriminate.

The other point I wish to make is that the Fair Pay Act doesn't only affect women, it affects anyone who might be discriminated against in wages. So that means yes for women, but this bill would cover you if you have been discriminated against on the basis of race, ethnicity, national origin, religion, and the traditional forms

of discrimination that regrettably we have dealt with. So this bill is not a women-only bill. We women certainly wouldn't discriminate against other people.

The Lilly Ledbetter Fair Pay Act takes us to where we need to be to fully implement the Civil Rights Act of 1964. If we have a dream, I have one too: that we pass the Lilly Ledbetter Fair Pay Act.

Mr. President, I yield the floor and reserve the remainder of my time.

Mr. President, we have now concluded the debate on the Hutchison amendment. It is time for change. It is time to turn the page rather than turn back the clock. It is time to defeat the Hutchison amendment and proceed with the bill. We have five pending amendments. We are fired up, and we are ready to go.

I yield back my time, and if the Senator does so, I will ask for the yeas and nays and then vote.

I move to reconsider the vote.

Mr. President, first of all, I wish to thank the Senator from Wyoming, Mr. Enzi, for his cooperation in moving this bill on the floor. He has been a big help working with this side of the aisle and working with us and the respective leadership to line up these amendments so that we can actually offer them and discuss them, and we are going to be voting on them. I thank him for doing that.

Also, the distinguished Senator from Wyoming had a very content-rich presentation. He covered his amendments, the Specter amendments, and other comments. He even discussed the Hutchison amendment. What I am going to do is respond to sections 3 and 4 of the bill and his concerns about the words ``affected by.''

I oppose Senator Enzi's amendments to the Lilly Ledbetter Fair Pay Act. Those amendments strike the words ``affected by'' from sections 3 and 4 of the bill. These amendments, I believe, are not necessary, and I am concerned that they could lead courts to mistakenly read this legislation in too narrow a framework.

The Senator from Wyoming argues that his amendments are necessary because the bill somehow expands the category of persons who may sue for discrimination under the civil rights laws referenced in the bill. His concern and his claim is that the Lilly Ledbetter Fair Pay Act would allow spouses and other relatives of the workers who suffer discrimination to file their own lawsuits, claiming that they have been affected by the discrimination of their relative.

I appreciate his concern. What we want, though, is to assure him, and I say to my colleagues that his concerns are not valid, that if you look at the legislation, this argument ignores the

plain language of the existing statutes and the actual language in the Ledbetter bill.

I am going to sound like a lawyer for a minute, but bear with me. The Ledbetter bill amends title VII of the Civil Rights Act of 1964 which outlaws job discrimination based on race, color, national origin, gender, and religion. The Ledbetter bill also amends the Age Discrimination in Employment Act of 1967 and applies those amendments also to the Americans with Disabilities Act and section 404 of the Rehabilitation Act.

These laws make crystal clear that the only persons who can file under the act are those who have suffered discrimination on the job or the Federal entities charged with enforcing the civil rights laws, not the relatives or friends of these workers.

I am going to make it crystal clear, I say unabashedly for legislative intent, that these laws make it crystal clear that the only persons who can file a suit under the act of discussion today are those who have suffered discrimination on the job or the Federal entities charged with enforcing these civil rights acts, not the relatives or friends of these workers. The citations are 42 U.S.C. 2000e-5(f)(1); 29 U.S.C. 626(c)(1); 29 U.S.C. 791(g), 794(d); and 42 U.S.C. 12117(a).

I also wish to elaborate that the bill amends only the provisions of the respective statutes regarding timeliness of job discrimination suits and leaves unchanged current law regarding who may file a suit.

So the only thing we are dealing with is timeliness. Nothing in the Ledbetter bill would change the basic requirements that job discrimination suits under title VII, the ADA, the ADEA, or the Rehabilitation Act must be filed by the workers personally affected by workplace discrimination or by the Federal Government on their behalf.

In addition, for further clarification, the House Education and Labor Committee's report on this legislation states that the language in sections 3 and 4 of the bill is modeled on the text of section 112 of the Civil Rights Act of 1991, which was adopted with overwhelming support in both Chambers of Congress to overturn the Supreme Court's decision in Lorance v. AT&T. I repeat that decision: Lorance v. AT&T Technologies.

The Lorance fix has been around for nearly two decades, and it has not expanded the category of persons who can sue for job discrimination. Our bill will not change who may file the suit under the civil rights law it amends.

Finally, the Enzi amendments should be rejected because omitting the words ``affected by'' from the bill might actually lead a court to conclude that we intend the fix adopted in this legislation to be more narrow than the Lorance fix. Although the Ledbetter bill uses the term ``affected by,'' where the Lorance fix used ``injured by,'' the House report makes clear that this is a distinction without a difference. This is a distinction without a difference. Accordingly, if we followed the Enzi amendment, if we remove ``affected by'' from the Ledbetter bill, we run the risk that the courts might erroneously read this legislation as less comprehensive than the parallel provision of the 1991 act.

I urge my colleagues to oppose the amendments offered by our colleague from Wyoming. In a nutshell, the Enzi amendment only fixes half the problem, it does not cover discrimination, it has a delayed impact on workers' wages, and we know that anyone would not be able to sue even though they were still affected by this job evaluation business.

I am going to say more about this, but my initial argument is to lay to rest the concern that persons other than the one who is actually discriminated against would have standing to file under this bill, and I think I have clarified that.

I note that Senator Specter is here and he has his amendments, and I also note that there are other Senators on the other side of the aisle who wish to speak. So for now, I will conclude my arguments, and I yield the floor so that we may proceed with other Members.

Mr. President, I suggest the absence of a quorum, and I ask unanimous consent that the time during the quorum be equally divided.

Mr. President, I just wanted to say a few words.

First of all, let's go to the remarks that were made that, somehow or another, by passing the Lilly Ledbetter Fair Pay Act, we are going to further undermine our economy and our ability to hire people. I find it surprising--first puzzling, then surprising--to say that the way we are going to get out of this economic mess is if we continue the status quo--or the stacking quo--which is that if you have discrimination in the workplace, don't pass the law to do greater clarification. I think that is a flawed argument.

First of all, women of America already subsidize our economy. And you know what. We are mad as hell, and we don't want to take it anymore. Everyone needs to hear that: We, the women of America, are mad as hell, and we don't want to take it anymore. Now, why do I say that? We are already paid 77 cents for every dollar that men make, so we are already subsidizing the economy in the workplace. Then when you go into the home, our work is often undervalued and it is certainly not compensated. So somehow or another women's work doesn't quite count in the same way.

Well, we want to be counted, and we want what we do to be counted. We want the world to know that if we are doing equal work, we want equal pay. We do not want to subsidize the economy. We don't want any subsidies. We want fairness, we want justice, we want the law on our side, and we want the courthouse doors open to us.

Now, if business thinks the only way they can succeed is by continuing these practices, then business has a lot of lessons to learn. And by God, when you look at what the banks did, you can certainly see that. If business doesn't want lawsuits, there is one clear, right way of avoiding a lawsuit: don't discriminate. If you are an employer and you are paying equal pay for equal or comparable work, you will not be sued, you will not be challenged, and you have no need to fear.

If you want to have some economic stimulus, give us that 23-cent raise--all those single mothers out there; as Senator Lincoln spoke about earlier, all those Norma Rays, all those Lilly Ledbetters, all those people who have lined up through the ages. So 23 cents might not sound like a lot, certainly in Washington where we give zillions to banks and they do not even say thank you. They don't even promise they will send out more or promise they will join with our President and work through this.

So we are very clear that we want to be paid equal pay for equal work, and we want it in our checkbooks. But we know we have to get to that by having the Ledbetter bill in the Federal lawbooks.

I can understand some of the fine points, the concerns raised by Senator Enzi. I think I have presented a sound legal argument that shows that the only thing we mean by the ``affected party'' is that person who is actually discriminated against, or if a Federal entity sues on their behalf. I think we have clarified it. But I believe we also need to be clear why we are doing this legislation. We are righting a wrong, we are addressing a grievance, and we are ensuring those fundamental principles of our society, which are fairness, equality, and justice.

Mr. President, I am going to yield the floor, and I yield back my time.

Did I yield back my time?

I said, did I yield back my time?

At that time I was unaware that Senator McCaskill was coming to the floor. I ask unanimous consent for 5 minutes for Senator McCaskill to be able to speak.

Mr. President, what is the regular order?

Mr. President, I yield back my time. I know Senator Specter is waiting. He is also dealing with the nomination of Mr. Holder. We would like to move Mr. Specter along.

I yield my 1 minute back, if the Republicans yield back their minute.

First, let me say to my good friend from Pennsylvania, one, I wish to thank you for your cooperation on this bill. I wish to thank you for your cosponsorship in a previous Congress. We hope we do have the Senator's support at the conclusion of the amendment process.

I wish to say to my friend the bill does not change the law on the topics he has raised. But in all fairness, he is a superior lawyer. I am not a lawyer. Rather than me responding, kind of shooting from the lip, I would like to have a proper colloquy with the Senator at such time that I know we are on firm ground so we can clearly establish the legislative intent.

Could I suggest the absence of a quorum while the Senator and I discuss this and see how we can proceed?

Mr. President, I suggest the absence of a quorum.

Mr. President, earlier, I asked for a quorum call while the distinguished Senator from Pennsylvania and I had a discussion on what is the best way forward to clarify some of his questions on waivers, estoppels, and laches in this bill. We were looking, trying to have colloquies or amendments and so on. What we concluded was that the clearest way to do this so legislative intent is firmly established in the Record is for him to offer his amendments, present his arguments, and I would offer rebuttal to that on that matter.

He also raised another issue on striking the phrase ``other practices.'' I would like to now talk about both of those amendments, but sequence them.

First, I will discuss the Specter amendment on adding a rule of construction on the equitable defense of waiver, estoppel, and laches.

Mr. President, I strongly oppose Senator Specter's amendment to add a rule of construction to the Lilly Ledbetter Fair Pay Act regarding employers' equitable defenses on just what I said--waivers, estoppels, and laches. This amendment is unnecessary and unfair. These are technical legal terms, and I am going to be very clear that the language is unnecessary because nothing in the bill changes the availability of these longstanding equitable defenses. Parties have been able to raise equitable claims in employment discrimination cases, and nothing in the pending legislation would change that. Courts will be able to decide equitable claims under the same circumstances as they do now. I am going to repeat that. Courts will be able to decide equitable claims under the same circumstances as they do now, regardless of whether this legislation is passed. The bill does not mention equitable doctrines, and nothing in its language could fairly be implied to suggest that parties may not raise equitable claims.

In enacting legislation, Congress does not normally list all the things the bill does or does not or could or could not do. Doing so here could give courts the mistaken impression that Congress intended courts to look more favorably on equitable defenses than they currently do, thereby putting a thumb on the scale in favor of employers who raise such arguments.

Adopting the Specter rule of construction could also lead courts to conclude that Congress wanted to prevent assertions of equitable claims in other contexts not addressed in the bill, such as challenges to promotion, termination, or other benefits decisions. That result would hurt both employers and employees.

Neither of those interpretations is intended in this bill. The purpose of this legislation is not to upset the longstanding balance that courts have established regarding these equitable defenses. As explained in the findings, the bill's purpose is to overturn the Ledbetter Court decision--a decision that had nothing to do with equitable defenses.

This amendment is also unfair because it is one-sided. It mentions only equitable doctrines raised as defenses by employers, but ignores the arguments workers may raise based on equitable doctrines. Plaintiffs have always had the ability to raise equitable claims such as waiver, equitable tolling, and estoppel. The Supreme Court ruled long ago that the time limit in job discrimination cases is subject to equitable doctrines, and this legislation does not upset that ruling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 1982. Courts have ruled that employees may raise claims of equitable tolling when they were excusably ignorant of their duty to file a discrimination claim by a particular date.

In addition, courts have held that employers are estopped from asserting that a worker's job discrimination claim is untimely if the employer's conduct reasonably can be concluded to have induced the employee to miss the filing deadline. For instance, when workers fail to timely file a charge of discrimination because their employer's misrepresentations caused them to believe they had waived their claims, the employer is estopped from arguing the charge was untimely. See Tyler v. Unocal Oil Co. of California, 304 F.3d 379, 5th Cir. 2002. Likewise, if the employer induces a worker to delay filing a charge by falsely stating that the employee was fired because his or her position would be eliminated, the employer may be estopped from complaining that the worker missed the filing deadline. See Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 5th Cir. 1991, holding that employer was estopped from arguing that worker's ADEA charge was untimely, where employer concealed facts and misled employee into believing he had been discharged because his position was being eliminated or combined with another position, and that he might be rehired.

Yet the Specter amendment ignores this history and does not say that equitable claims also may be raised by plaintiffs alleging discrimination. This could lead to the perverse result that courts would look less favorably on workers' equitable claims in pay discrimination cases than they do now. This legislation intends to restore workers' ability to fight unfair pay discrimination, and we must avoid erecting new hurdles by adopting an amendment that could undermine workers' arguments based on equitable doctrines.

For decades, the courts have been considering these and other equitable claims by plaintiffs in job discrimination cases, as well as equitable claims raised by defendants. We should do nothing in this legislation to upset the balance courts have established in this area.

So when we do have our votes, I will urge my colleagues to join me in defeating the amendment by the Senator from Pennsylvania, Mr. Specter.

Now, Mr. President, he also raises another issue related to ``other practices.'' I also strongly oppose that. I strongly oppose the amendment offered by Senator Specter to strike the words ``other practices'' from section 3 of the Lilly Ledbetter Fair Pay Act. This amendment is unnecessary and would seriously undermine the bill's goal of protecting employees who, like Lilly Ledbetter, were denied a fair chance to challenge pay discrimination in the workplace.

This issue, too, involves a rather complex and detailed legal argument, complete with references and citations.

To summarize in somewhat plain English--because this issue is complicated, and the Senator from Pennsylvania has raised very important and solid questions, and I want to further clarify why we oppose the amendment--Senator Specter's proposal to eliminate the term ``other practices'' from section 3 of the bill would defeat our legislation's purpose of overturning the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 2007. Lilly Ledbetter, the

plaintiff in that case, was paid significantly less than her male colleagues. This difference in pay came about because Lilly's employer based her pay on a bad evaluation they gave her because she was a woman. Now, I am going to repeat that. The difference in pay came about because her employer based her pay on a bad evaluation, but the bad evaluation they gave her was because she was a woman. And this has been established. The discrimination continued every time Ms. Ledbetter received a paycheck, and the difference in pay between her and her male coworkers grew more severe over time. If you listen to her speak, you can see how it affected her pay, her pension, her 410(k), and her Social Security.

If we adopt the Specter amendment, this legislation will no longer cover situations like Ms. Ledbetter's, where a discriminatory difference in pay is tied to a practice like job evaluations that contributes to the employer's decision to set a worker's pay at a certain level. That result is simply unacceptable.

The rule we enact in this bill must be workable and it must accurately reflect how job discrimination occurs in the workplace. Ms. Ledbetter's case--and many others--show that salary determinations often rely on other discriminatory actions.

Unfair differences in pay may be brought about not only be discriminatory job evaluations, but also by discriminatory decisions to classify a job in a particular way, or by discriminatory assignments to a particular location. See, e.g., Parra v. Basha's, Inc., 536 F. 3d 975, 9th Cir. 2008, Latino workers were paid up to $6,000 less annually than other employees performing the same duties based on their assignment to a store location with a predominately Latino workforce; Moorehead v. UPS, 2008 WL 4951407, employer claimed that differences in starting salaries for men and women were due to its evaluation system.

Because the factors that contribute to pay scales are solely within employers' discretion, we must not adopt a rule that encourages employers to link pay setting decisions to other personnel actions, such as evaluations, in order to avoid the civil rights laws. That would create an unacceptable loophole in what is intended to be a comprehensive solution of the problems created by the Ledbetter case.

If we adopt the Specter amendment, we would only help some victims of pay discrimination--and leave countless workers such as Lilly Ledbetter without justice.

Senator Specter has said that his amendment is necessary because the bill, as drafted, is overbroad and could apply to discrete personnel decisions, like promotions and discharges. That's not true. The bill specifically says that it is addressing ``discrimination in compensation.'' That limiting language means that it already only covers such claims--nothing more, nothing less.

Mr. President, I am going to yield the floor in order to recognize our colleague from North Dakota, Senator Dorgan.

Mr. President, before the Senator leaves the floor, first, he certainly knows his women's history and today he is going to help us write new history. We thank him for recalling--although it is a melancholy thing to recall--how brutal the retaliation was against women. Every time we have had to stand up, whether to exercise our right to vote or as is the case now--the brutal retaliation that occurs in the workplace, often sexual harassment, further discrimination and so on, simply because we pursue being paid equal pay for equal work. So we thank the Senator from North Dakota for his eloquence.

Mr. President, I note the absence of a quorum, and I ask unanimous consent that the time be equally divided.

Mr. President, I ask unanimous consent that Senator Kaufman of Delaware be added as a cosponsor of the Lilly Ledbetter Fair Pay Act.

I thank the Chair, and I note the absence of a quorum, with the time to be equally divided.

Mr. President, an inquiry: Has all time expired on the debate on the Enzi-Specter amendments?

Mr. President, I call up the Specter amendment on ``other practices'' and move that it be tabled. The amendment that I wish to call up is amendment No. 26, Mr. Specter's amendment.

I call up the amendment.

I move to table, and I ask for the yeas and nays.

Mr. President, I move to reconsider the vote, and to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I ask unanimous consent that all the following votes be limited to 10 minutes in the agreed-upon sequence.

Mr. President, the Senator from Pennsylvania is a great lawyer, but his amendment is not. It only fixes half the problem. It does not cover personnel actions that still result in discriminatory wages. It strikes other practices which include job evaluations and classifications.

If we drop ``other practices,'' we leave out Lilly Ledbetter from getting the justice she deserves and all like her. I understand the Specter amendment is now pending.

I move to table the amendment and ask for the yeas and nays.

Mr. President, the Enzi amendment is unnecessary. The ``affected by'' language is not vague. Our bill only applies to workers and their employers.

Other parts of title VII that our bill does not change make this clear. The ``affected'' language is patterned after the Civil Rights Act of 1991. It has been around for 17 years and no one has tried to interpret it to apply to grandparents, spouses, or children, or anyone else other than the worker.

I understand the Enzi amendment No. 28 is now pending. I move to table the amendment and ask for the yeas and nays.

Mr. President, I understand amendment 29 is now the pending business. I thank Senator Enzi for allowing us to dispose of his amendment through a voice vote. I move to table the Enzi amendment No. 29.

I move to reconsider the vote and to lay that motion on the table.

The motion to lay on the table was agreed to.

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.

Mr. President, I thank the Senator. We wish to follow the recommendations of our mutual leadership, which was to debate the Hutchison substitute tonight but to get as many amendments laid down tonight as we can. The Senator from Pennsylvania has two amendments he wants to offer. So I agree with the plan of laying aside the Hutchison substitute, having the Senator from Pennsylvania, Mr. Specter, offer his amendment, and at such time we will return to our robust debate on the Hutchison substitute and, hopefully, we can get a regular order going back and forth.

Reserving the right to object.

I believe that clarifies it. I concur. I withdraw my reservation of objection.

Mr. President, I yield the floor to the Senator from Maryland for such time as he may consume. He has been a longstanding advocate for women. He is a current member of the Judiciary Committee. He was the Speaker of the House in Maryland. He was a member of the House of Representatives, and now is a member of the Senate Judiciary Committee. He is a real leader and I think we can look forward to a thoughtful presentation.

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.

Madam President, I know the Senator from Minnesota wishes to speak, and I also know the Senator from New Jersey is here. I believe we are going to turn next to the Senator from New Jersey.

Madam President, while the Senator from New Jersey, who just arrived, is still organizing, I suggest the absence of a quorum.

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.

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.

Exhibit 1

[From the National Women's Law Center]

The Title VII ``Fairness'' Act, S. 3209, Allows Pay Discrimination To

Continue

On May 20, 2007, in Ledbetter v. Goodyear Tire & Rubber

Co., the Supreme Court held that employees must file claims

with the government for compensation discrimination within

180 days of an employer's initial decision to discriminate or

be barred from future challenges--no matter how long the

discrimination has continued. The Court's decision upends

decades of prior precedent and is fundamentally unfair to

those subject to pay discrimination. Under the Ledbetter

rule, employees have no recourse--and employers have no

accountability--for continuing discrimination once 180 days

have passed from the initial pay decision.

In July, 2007, the House of Representatives passed the

Lilly Ledbetter Fair Pay Act to overturn the Ledbetter

ruling. The Act would restore the law that applied virtually

everywhere in the country before the Supreme Court's

decision--that each discriminatory paycheck constitutes an

act of discrimination that can be challenged. The Senate's

vote on a motion to advance the Ledbetter Fair Pay Act fell

just three votes short of passage in April of 2008.

In June, Senator Hutchison (together with other Senators

who voted against advancing the Ledbetter Fair Pay Act)

introduced S. 3209, an alternative titled the Title VII

Fairness Act. But unlike the Ledbetter Fair Pay Act, the

Hutchison bill fails to restore prior law or solve the

problems created by the Ledbetter decision; it instead

creates damaging new legal hurdles for people receiving

discriminatory pay to overcome. Indeed, the Hutchison bill

stands to set back basic anti-discrimination protections in

the workplace even beyond equal pay.

The Hutchison bill allows clear pay discrimination to

continue without a remedy.

The Hutchison bill prevents employees from challenging

discrimination to which they continue to be subject. The

Hutchison bill perpetuates the basic problem created by the

Ledbetter decision. Under the bill, employees are left

without any remedy against present, 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.

The Hutchison bill permits employers to escape

accountability for continuing pay discrimination. Like the

Ledbetter decision, the Hutchison bill 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 that is

not immediately challenged when the employee first ``should

have'' suspected it.

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.

The Hutchison bill forces employees to forfeit their claims

if they take the time to work out disputes amicably.

Particularly because pay disparities may start small and grow

only over time, employees may want to give their employers

the benefit of the doubt, hoping that the employers will

voluntarily remedy the pay gap--or may want to work

actively with their employers to resolve the dispute over

time. This is especially true if an employee is new on the

job. But the Hutchison bill denies employees this

opportunity, forcing them to file adversarial government

complaints immediately upon suspecting discrimination or

risk losing the right to any relief.

The Hutchison bill denies employees adequate time to assess

the merits of their claims. Particularly because employees

subject to pay discrimination may be in an ongoing

relationship with an employer, they are likely to want to be

sure that they have meritorious claims before filing a

government challenge to their employers' practices. But the

Hutchison bill limits employees' ability to take the time

necessary to confirm their suspicions of discrimination or

act when the problem reaches serious proportions.

The Hutchison bill creates burdensome, expensive and time-

consuming distractions from the fundamental issue of whether

an employee has been subject to pay discrimination.

The Hutchison bill will increase the number of lawsuits

that are filed against employers. Employees who suspect

discrimination will be forced to file preemptive claims to

avoid forfeiting their rights. The Hutchison bill will thus

increase the amount of litigation that occurs.

The Hutchison bill will result in protracted and expensive

mini-trials in the cases that are brought. Employers and

employees will be forced to engage in costly battles before

even getting to the merits of a discrimination dispute--that

is, whether a pay decision was, in fact, based on sex, race,

disability or another prohibited ground. A court will have to

resolve multiple threshold issues, including what the

employee suspected about pay discrimination and when s/he

suspected it. On top of that, even if an employee in fact had

no suspicion of discrimination, she will have to prove that

her failure to suspect was reasonable. These time-consuming

battles will only add to the cost and burdensomeness of

litigation--and will increase the difficulty employees denied

equal pay will have in getting the wages they have earned.

The Hutchison bill will result in confusion in the courts

and for employers.

The Hutchison 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. Unlike the Ledbetter Fair Pay Act, which simply

restores the familiar rule for assessing the timeliness of

pay discrimination claims that prevailed in virtually every

court in the country prior to the Ledbetter decision, the

Hutchison bill creates an entirely new legal regimen. The

bill raises innumerable questions, including when an employee

can be found to have a ``reasonable suspicion of

discrimination.''

The Hutchison bill will result in inconsistent standards

for employers in different parts of the country for years to

come. Because courts will likely reach different conclusions

on the many legal and factual questions raised by the bill,

employers in different parts of the country will likely be

subject to conflicting rules, making it difficult, if not

impossible, to understand their legal obligations. It will be

years, if not decades, before these questions are

authoritatively resolved by the Supreme Court.

The Hutchison bill could limit protections for employees in

contexts beyond pay discrimination.

The Hutchison bill is not restricted to pay discrimination.

The so-called Title VII Fairness Act applies to any unlawful

employment practice under the anti-discrimination laws. As a

result, it goes well beyond the targeted, restorative

approach of the Ledbetter Fair Pay Act.

The Hutchison bill could have particularly troubling impact

on harassment claims. Under current law, employees can bring

harassment claims as long as any incident of ongoing

harassment occurs within 180 days prior to the complaint--

regardless of how many incidents have occurred previously. It

is predictable that some employers would use this bill's

broad scope to try to escape their responsibility for sexual

harassment and other types of discrimination.

The Hutchison bill responds to a purported ``problem'' that

is, in fact, wholly invented.

Employees have no incentive to delay filing pay

discrimination claims. Because employees typically cannot

afford to struggle without pay to which they are legally

entitled, it is simply a red herring to suggest that they

will delay filing pay discrimination for years, or even

decades. Furthermore, because Title VII has a two-year limit

on the back pay that any plaintiff can receive, that means

that if they delay they will lose compensation for all but

the last two years of pay discrimination they suffer.

Therefore, there is every incentive for an employee to file a

pay discrimination complaint as soon as reasonably possible.

It is the employer, not the employee, who benefits from any

delay.

Employers were satisfied with the rules in place before the

Ledbetter decision. Prior to the Ledbetter decision,

employers were not asking for a change to the longstanding

rules relating to the timeliness of pay discrimination claims

that the Ledbetter Fair Pay Act restores. There is no

evidence that the operation of the rule prejudiced employers

or resulted in the success of non-meritorious claims. In

fact, employers benefited from the certainty of the rule in

place before Ledbetter.

The Lilly Ledbetter Fair Pay Act is the only bill that will

address the basic pay discrimination that Lilly Ledbetter,

and others like her, suffer.

The Ledbetter Fair Pay Act is the only bill that would have

helped Lilly Ledbetter. Under the Hutchison bill, Lilly

Ledbetter--to whom a jury awarded more than $3 million in

damages for the egregious discrimination she endured--would

have been embroiled in protracted arguments about what she

knew about her workplace and when. A court would have had to

decide, for example, whether idle gossip and boasting by her

coworkers--who had harassed and lied to her in the past--were

sufficient to give Ms. Ledbetter a ``reasonable suspicion''

of discrimination. By contrast, the Ledbetter Fair Pay Act

creates a bright line rule that would ensure the timeliness

of claims like Ms. Ledbetter's, when the pay continues into

the present.

The Ledbetter Fair Pay Act is the only bill that corrects

the problems with the Supreme Court opinion. Unlike the

Hutchison bill, the Ledbetter Fair Pay Act would:

Give employees the time to evaluate their suspicions of

discrimination and work toward solutions with their

employers;

Ensure that employers are held accountable for continued

discrimination;

Provide certainty in assessing the timeliness of pay

discrimination claims;

Restore the law.

Congress should reject the approach of the Hutchison bill

and should instead act expeditiously to enact the Lilly

Ledbetter Fair Pay Act.

Madam President, I ask unanimous consent the order for the quorum call be rescinded.

Madam President, it is unbelievable to me that more than four decades after the passage of the Equal Pay Act and the Civil Rights Act women are only making 78 cents on the dollar for every dollar a man makes. Discrimination takes many forms. Sometimes it is brazen and in your face, like Jim Crow and apartheid, and sometimes it is silent and insidious. That is what is happening in workplaces all across America today.

Millions of female-dominated jobs--social workers, teachers, childcare workers, nurses, and so many more--are equivalent in effort, responsibility, education, et cetera, to male-dominated jobs, but they pay dramatically less. The Census Bureau has compiled data on hundreds of job categories, but it found only five job categories where women typically earn as much as men, five out of hundreds.

Defenders of this status quo offer all manner of bogus explanations as to why women make less. How many times have I heard the fairy tale that women work for fulfillment but men work to support their families? This ignores, first of all, so many single women who work to support themselves and their families, and married

women whose paycheck is all that allows their families to make ends meet and educate their kids. It also ignores the harsh reality that so many women face in the workplace that they have to work twice as hard to be taken seriously or they get pushed into being a cashier instead of a more lucrative sales job. These acts of discrimination deny women fair pay, but they also deny women basic dignity.

Let me cite one example of what I am talking about. Last year, in a hearing before our Health, Education, Labor and Pensions Committee, we heard testimony from Dr. Philip Cohen of the University of North Carolina. Dr. Cohen compared nurses' aides, who are overwhelmingly women, and truckdrivers, who are overwhelmingly men. In both groups the average age is 43. Both require ``medium amounts of strength,'' and in some cases nurses' aides have to be stronger than truckdrivers. Truckdrivers now have power steering and power brakes and stuff like that. Nurses' aides have to pick up patients and turn them over and stuff like that. Nurses' aides on average have more education and more training than truckdrivers. But nurses' aides make less than 60 percent of what a truckdriver makes.

Given that this discrimination is so obvious and pervasive, you would expect that women would have no trouble obtaining simple justice through our court system, but in a major decision in June of 2007 in the case of Ledbetter v. Goodyear Tire & Rubber Company, the Supreme Court took us back. In a 5-to-4 ruling, the Court made it extremely difficult for women to go to court to pursue claims of pay discrimination, even in cases where the discrimination is flagrant. A jury acknowledged that Lilly Ledbetter, a former supervisor at Goodyear, had been paid $6,000 a year less than her lowest paid male counterpart. But the Supreme Court rejected her discrimination claim. Why? The Court held that women workers must file a discrimination claim within 180 days of their pay being set when they were first hired, even if they were not aware at the time their pay was significantly lower than their male counterparts.

That is important to note. The Court said you have to file your discrimination claim within 180 days of your pay being set when you are hired, even if you don't know, even if you did not know that your pay was significantly lower than your male counterparts.

As Justice Ginsburg said in a forceful dissent, this is totally out of touch with the real world of the workplace. In the real world, pay scales are often kept secret, employees are often kept in the dark about coworkers' salaries. Lacking such information, how can you determine when your pay discrimination begins? Furthermore, the vast discrepancies are often a function of time. If your original pay was just a little bit lower than your colleagues' pay, but you worked there for 20 years and you all get pay raises, you can see over 20 years that gap widens and widens and widens.

So what started out to be a small gap winds up being a big gap over a period of time. Now, in the case of Lilly Ledbetter, not only was she discriminated against for all of her lifetime of work at Goodyear because she started out at a lower pay scale, that gap widened over time, but she is also now going to be discriminated against for the rest of her life in terms of her pension. Because she is making so much less than her male counterparts, her pension is going to be less.

But Lilly Ledbetter did not get discriminated against once, she got discriminated against for over 20 years, and now for the rest of her lifetime in terms of the pension she gets. So what the Supreme Court decision means is that once that 180-day window for bringing a lawsuit is passed, this discrimination gets grandfathered in. This creates a free harbor for employers who have paid female workers less than men over a long period of time. Basically, it gives the worst offenders a free pass to continue their gender discrimination.

Think about it. Once the 180 days has passed, the employer is home free. So you hire women, you pay them a little bit less than their male counterparts, but they do not know that because you do not publish the coworkers' salaries. After 180 days, you are home free. You can continue that discrimination for the next 10, 15, 20, 25 years, and there is not a darn thing a woman can do about it under that Supreme Court 5-to-4 decision.

Well, now, I also heard several businesses were complaining that if we peg, if we peg the 180-day limit to the continued payment of discriminatory paychecks, which is what this bill before us does, they will keep accruing liability. So the companies will continue to accrue liability.

Well, there is a simple answer to that. They can stop the clock anytime they want. Go through the books one day, make sure all the women are being paid fairly. On that day, you stop sending everyone discriminatory paychecks. On that day, everyone gets a fair deal. On that day, you stop accruing liability.

The very thought that an employer would say: Well, we cannot have this bill, the Lilly Ledbetter bill we are talking about, because, gee, you know, after 180 days I keep accruing liability. Well, stop it. Stop paying the discriminatory pay. Go through your books, find out what the discrimination is, if it exists, and pay everyone fairly.

Ledbetter was a bad decision. As Justice Ginsburg says, it ignores the reality of today's workplace. I am glad to work together with Senator Kennedy and Senator Mikulski, champions of this effort, to reverse the damage done by that decision.

This bill would establish that the unlawful employment practice under the Civil Rights Act is the payment, is the payment, of a discriminatory salary, not the original setting of the pay level.

It would be a great miscarriage of justice for this Senate to tell Lilly Ledbetter that her 20 years of discrimination, and the resulting loss of income in retirement, in her pensions should go unchecked because she did not have a crystal ball telling her what her coworkers were making at the time her pay was set. She had no way of knowing that.

While the need for the passage of this legislation is critical and immediate, it is not enough. It is not good enough to go back to the way the law worked 2 years ago, because at that time, women were still making only 78 cents on the dollar as compared to men. That should be intolerable in our society.

Moreover, if pay scales are kept secret, if there is not some transparency, how can women know if they are being discriminated against? That is why we need to pass the Fair Pay Act, which I have introduced in every Congress starting in 1996, the Fair Pay Act. Not only does that act require that employers provide equal pay for equivalent jobs, my bill also requires the disclosure of pay scales and rates for all job categories at a given company.

This will give women the information they need to identify discriminatory pay practices. This could reduce the need for costly litigation in the first place. Now, I am not saying a company has to publish the salary of every single person. That is not what I am saying. What our bill says, the Fair Pay Act says, is you have to make transparent what the pay scales are in categories, certain categories.

Now, I asked Lilly Ledbetter, when she appeared before our committee a year ago, I think it was, I asked her about the Fair Pay Act. I said: If you had had this kind of information when you first went to work, could you have negotiated for better pay and avoided the litigation? And she said: Yes. But she did not have that information. Well, there are countless more Lilly Ledbetters out there who are paid less than their male coworkers but will never know about it unless they have this kind of information. My Fair Pay Act amends the Fair Labor Standards Act of 1938 to prohibit discrimination in the payment of wages on the basis of sex, race, national origin. Most importantly, it requires each individual employer to provide equal pay for jobs that are comparable in skill, effort, responsibility, and working conditions.

We know about the Paycheck Fairness Act. I support that also. But we have the Equal Pay Act that was passed in, I think, 1963--1963--which says that, if a woman has the same job as a man, equal pay for equal jobs, you have to pay them the same. That has been in law since 1963. To be sure, it has not been enforced enough, and that is why we need the paycheck fairness bill that is here, to enforce it more.

But the fact is, it has been the law since 1963, equal pay for the same job. What we now need to address 45, 49, 46 years later is equal pay for equivalent work because so many jobs in our society are kind of denoted as ``women's jobs.'' Are they crucial to our society? You bet they are.

But for some reason, because they are ``women's jobs,'' they get paid less. I used the example of a truckdriver. Philip Cohen, from the University of North Carolina, testified before our committee, and he gave this example. They did a large study. I will repeat it again for emphasis sake of truckdrivers and nurses' aides.

Truckdrivers, overwhelmingly men; nurses' aides, overwhelmingly women; medium age for all of them, 43. They both require median levels of strength. Truckdrivers do not need a lot of strength anymore; they have power steering and power brakes and everything else. Nurses' aides still have to lift people and duties such as that. So a median amount of strength is required. Nurses' aides actually have more education and more training than truckdrivers. Yet nurses' aides are paid less than 60 percent of what a truckdriver makes.

Why is that? Is it somehow nurses' aides are not as important as a truckdriver? I will be glad to debate that any day of the week. When you are ill or when you need long-term care, do you want a truck driver or a nurses' aide? Answer me that question. I think a truckdriver is important, I do not mean to denigrate them, but I am saying nurses' aides are every bit as important.

Childcare workers. What could be more important to our country than taking care of our country's youngest children? Mostly women, grossly underpaid, compared to male workers in terms of skill, effort, responsibility, and working conditions.

A lot of people say: Well, you know, we cannot--this is all nice pie- in-the-sky stuff. We cannot do it. But 20 States, 20 States have fair pay policies in place for their State employees, including my State of Iowa. I would point out the State of Iowa passed a fair pay bill for all State employees in 1985, when we had a Republican governor and a Republican legislature.

Oh, the sky was going to fall. This was going to cost our taxpayers enormous sums of money. Well, the sky did not fall. Women are making more money, and our State is better for it. I might point out that our neighbor to the north, Minnesota, not only has fair pay policies for their State employees, they have it for their municipal and local workers also.

Twenty States have done this for State employees. So, again, this should not be any kind of partisan issue. Some people say: We do not need any more laws, that market forces will take care of the wage gap. But experience shows there are some injustices the market simply will not rectify. That is why we did pass the Equal Pay Act in 1963, why we passed the Civil Rights Act, the Family and Medical Leave Act, and the bill that has my name on it, the Americans with Disabilities Act.

Were there market forces out there pushing to end discrimination against people with disabilities? No. But we did it. We are better off. That is the same way market forces are not going to take care of this, this issue of unequal pay for women in so many jobs in our country.

I guess now that we are on the Enzi amendment, which would eliminate the language saying that those affected by discriminatory pay practices can sue--well, I am glad about one thing, that my colleagues are acknowledging discrimination hurts everyone because it does. It hurts everyone in two ways. First, an injury to one is an injury to all. But, second, I defy you to find a person in America who does not have a woman in their family, a person of color, someone with a disability, someone who observes a different or any religious practice. That is the point we have been trying to make all along.

But this bill, as written, does not allow all those very indirectly affected parties to bring suit. This is patterned after language in the 1991 Civil Rights Act, and that legislation has not resulted in all the people who are hurt by discrimination to bring suit.

It has been interpreted all those years to mean the party directly injured by the discriminatory practice. However, if we strike this language, we risk failing to fix the full extent of the problem caused by the Ledbetter decision.

It is important to use precise language to make sure all the employees affected by discriminatory pay decisions by their employer are covered, not just the one who was discriminated against but all those employees affected.

I would like to close with a story from a woman from my State, Angie. She was employed as a field office manager at a temp firm, temporary workers firm. The employees there were not allowed to talk about pay with their coworkers. Only inadvertently did Angie find out that a male office manager at a similar branch who had less education, less experience, was earning more than she was.

Well, in this case, the story has a happy ending. She cited this information in negotiations with her employer, and she was able then to get a raise. But the experience left her feeling bewildered and betrayed, and this ultimately led her to quit her job. Had she not inadvertently found this out, she would have continued to have been discriminated against.

So I think there is a twofold lesson in this true story. The first lesson is that if we give women information about what their male colleagues are getting, they can negotiate a better deal for themselves in the workplace.

The second lesson is that pay discrimination is a harsh reality in the workplace. Not only is it unfair, it is also demeaning and demoralizing, and it should cease its existence in our society.

Individual women should not have to do battle in order to win equal pay. We need more inclusive national laws to make equal pay for equal work a basic standard and a legal right but also equal pay for equivalent work so that we don't discriminate against whole classes of people just because of the job they do. Childcare workers, social service workers, nurses aides, nurses, homemakers--why should people who are cleaning houses make less than janitors? People who clean houses are generally women and janitors happen to be men, but they are both doing the same kind of work.

We have to come to grips with this before we will ever really end discriminatory pay. The Lilly Ledbetter bill before us is a step in the right direction. But unless and until we pass the Fair Pay Act, which has been supported by the business and professional women of America since we first introduced it in 1996, until we pass that, discrimination against women will continue wholesale in America. We will continue to demean the kinds of jobs so important to us-- childcare, nurses, nurses' aides, teachers, Head Start workers, the women who clean our homes, take care of our elderly in long-term care facilities. Go into any long-term care facility, go where your grandparents are or maybe your parents. Who is taking care of them? Nine times out of ten, it will be a woman. Their responsibilities are immense. Their effort, the training they need is important. They have to have all that. Yet they are making much less than their male counterparts in other parts of society.

The Lilly Ledbetter bill is important. We have to pass it, but we have to get the Fair Pay Act passed one of these years. As I said, I have been introducing it since 1996. Then they get the paycheck fairness bill up. We have to do that. That is important. Don't get me wrong, that is important. But the biggest discrimination in our society is the discrimination that occurs against women who have what has been denoted as ``women's jobs'' in our society. It is time to end that discrimination.

I yield the floor and suggest the absence of a quorum.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I ask unanimous consent that at 1 p.m. the Senate resume consideration concurrently of the pending Enzi amendments No. 28 and No. 29, that they be debated concurrently for 1 hour, and that the time be equally divided between Senators Enzi and Mikulski or their designees; following the use or yielding back of time on the Enzi amendments, the Senate resume consideration concurrently of the Specter amendments No. 26 and No. 27; that they be debated concurrently for 1 hour, and that the time be equally divided between Senators Specter and Mikulski or their designees; following the use or yielding back of time on the Specter amendments, the Senate proceed to votes in relation to the Enzi and Specter amendments in the order listed below:

Specter No. 26, Specter No. 27, Enzi No. 28, and Enzi No. 29; further, that no amendments be in order to the pending Enzi and Specter amendments prior to the votes; that there be 2 minutes of debate equally divided between the votes; and that all rollcall votes after the first vote be limited to 10 minutes.

I yield the floor.

Mr. President, can you tell me what the time agreement is?

Mr. President, I wish to call up amendment No. 28 and ask unanimous consent that as soon as we have disposed of amendment No. 28, that we will voice vote amendment No. 29 based on the decision of amendment No. 28, because there are two different sections of the law that say the same thing. So we have to have both pieces, but if one is acceptable, the other one ought to be acceptable. If one is not acceptable, the other one should not be acceptable. So I know it is a change in parliamentary procedure, but I am trying to speed things up by having as few votes as possible but still get the decisions made.

Mr. President, I have offered amendments Nos. 28 and 29 and they respond to the question many have asked about the underlying bill. Those of us who have looked at the bill have wondered what a particular provision means. This provision appears to greatly expand the number of people who can bring a Title VII lawsuit beyond those who have directly experienced discrimination.

As drafted, the bill extends the right to sue for employment discrimination, not only to the person who is discriminated against but also to any individual who is affected by application of a discriminatory compensation decision or other practice. This can clearly be read to include spouses, family members, and other individuals, depending on the employee's income or pension, or even more broadly. There is a lack of definition in this part of the bill. In this part of the bill that we are debating, I am trying to amend to add some clarity, and Senator Specter will be trying to amend if mine fails to again bring some clarity to this issue. These are steps to see how expansive we can make the trial lawyer bailout.

So S. 181 would not only allow decades-old claims to be suddenly revived, it doesn't even require that they be revived by the person who was discriminated against, even if that person won't bring the action or even if that person is no longer around. The language is so broad that the claim could be brought by virtually anyone. It is nothing more than an invitation to trial lawyers to litigate a situation compounded by the fact that such claims would be largely indefensible because of the passage of time, maybe not even having the person around who was discriminated against.

Do we really want to see employers forced to expend resources defending decades-old, stale claims that are not even being brought by the individuals who are the supposed objects of the discrimination?

What we are looking at here could be an exponential increase in lawsuits at a time when many employers are struggling to make their payroll and avoid laying people off. It was reported this week that a certain type of employment-related class of lawsuits have increased 99 percent over the last 4 years--just the last 4 years, a 99-percent increase. If enacted as drafted, this bill could make that increase seem minuscule.

Our new President has made some proposals intended to stimulate the economy. One proposal he made at one point was to offer a $3,000 tax credit to employers who create new jobs. Perhaps that was a great idea, but if you couple that with increased litigation liability such as that included in this bill, it will not only cancel each other out, it would make that tax credit seem minuscule, very small, particularly when you compare it to the cost of a lawsuit. A small businessman faced with a lawsuit that is going to cost him $20,000, $25,000, $100,000 to defend cannot afford the time or the money to do that and may work harder at a settlement and encourage people to do lawsuits that may not have the same merit we are trying to achieve in this bill. I can tell you as a former small businessman, I would rather not have the tax credit and not get sued any day--not that the two are even related.

I hope the bill's sponsor can explain why this provision should be included in the bill. It is the sort of question that might have been sorted out more easily if the bill had gone through the proper committee process. But the majority has opted to circumvent that process again. My amendments would strike the provision entirely.

I understand there might be some, and I am sure we will hear some explanation of it, where there might be some instances where there were special circumstances. But this bill goes well beyond just special circumstances. It opens it up dramatically.

I look forward to a debate and vote on my amendment later today.

We also will be voting on two amendments that Senator Specter has offered to improve the underlying bill. I will use some of my time to speak in favor of those amendments as well.

Senator Specter's amendment No. 26 shows there is justifiable concern among many Members that allowing individuals to go far back in time and claim that pay decisions made years ago were discriminatory does place unfair burdens on employers.

Senator Specter's amendment No. 26 provides a small measure of potential relief to employers who must face the daunting task of trying to defend decisions made in the distant past by individuals who may not be available and based on documentation that no longer exists. We will have to increase the amount of time that we expect people to keep all of their records if this bill goes through the way that it is.

Senator Specter's amendment makes it clear that an employer in those circumstances may still raise traditional equitable defenses to those claims, such as the defense of laches. For example, if an employer can demonstrate an employee knew or should have known the allegedly discriminatory nature of a pay decision made years ago, but lets the claim slip, then it may be barred if the employer is hindered in mounting a fair defense because of the passage of time.

The proponents of S. 181 have said repeatedly that it is not their intent to limit employers in their use of equitable defenses. Accordingly, they too should support Senator Specter's amendment. It would restore a small measure of fairness in employment discrimination litigation. I commend Senator Specter for offering it. I support the amendment in full. I urge my colleagues on both sides of the aisle to look at it and support it.

Senator Specter's amendment No. 27 has also offered another amendment to improve the underlying bill which deserves full and fair consideration from colleagues on both sides of the aisle. We know Senator Specter has been very involved in judiciary work and that he does reasonable amendments and is concerned about some of the implications of the bill.

He has offered another amendment to improve the underlying bill. I hope we will give that a careful look. I have been clear that I am troubled by the fact that this bill effectively eliminates the statute of limitations from employment discrimination claims since I believe that statutes of limitations do serve an important function. They speed recovery to the victims of discrimination, as well as ensure fairness in our legal process and accuracy in the resolution of disputed claims. The important role they play demands that any effort to change or eliminate the statute of limitations be carefully defined and clearly targeted at the precise problem the legislation purports to address. As presently drafted, S. 181 does not come close to achieving this standard. Senator Specter's amendment does much to correct this very problematic lack of precision.

The proponents of S. 181 have been careful to note that the concern which they seek to address by this legislation relates to ``discriminatory pay decisions.'' The language of the bill, however, is much broader. The bill would not only eliminate the statute of limitations with regard to discriminatory pay decisions, it would also do so with respect to any ``other practice.'' However, this legislation nowhere defines what is meant by ``other practice.''

Virtually all personnel decisions--promotions, transfers, work assignments, training, sales territory assignments--affect an individual's compensation, benefits, or their pay. It appears that the other undefined ``other practices'' language would extend liability far beyond simple pay decisions to include anything that might conceivably affect compensation. This would include claims of denied promotions, demotions, transfers, reassignments, tenure decisions, suspensions, and other discipline, all of which could be brought years after they occurred and years after the employee left employment, and, without my amendments, be brought by other people. The phrase could also potentially embrace employment decisions with no discriminatory intent or effect.

This result is plainly an overreach and goes far beyond the publicly stated aims of this legislation's proponents. Defending a claim based upon a pay decision made years and years earlier is a heavy burden. Reaching back years and years to defend the dozens of other personnel actions an employer takes every day is an impossible burden. Senator Specter's amendment limits the reach of S. 181 solely to discrete pay decisions and makes clear that S. 181 does not apply to any other personnel decisions. While I believe it does not cure all the ills which S. 181 creates, it does put this very problematic interpretation to rest, and I support his effort and amendment.

I heard many on the other side of the aisle state that S. 181 has been fully vetted because two hearings were held on it last year. I point out that the HELP Committee hearing was held before Senator Hutchison offered her alternative legislation, her ``better Ledbetter.'' Neither hearing covered this or any other alternative means to accomplish the goal on which we all agreed. If we had been able to explore alternatives in a hearing and have a markup--and a markup is a point I keep emphasizing--I believe we might have come to a change in the legislation that would more clearly state what is trying to be done and wind up with an agreement on both sides which would greatly reduce the amount of time that it takes to do amendments. The amendments, again, are done up or down rather than having slight revisions that could perhaps make them palatable to both sides.

Our side has turned in amendments that are relevant, that are designed to hopefully improve the bill, and do it in a way that it does not eliminate the purpose of the bill. There could have been a lot of constructive work in a committee markup, but that is not the choice, so we will continue to proceed and we have been proceeding with amendments.

I yield the floor.

Mr. President, I yield such time as the Senator from Georgia needs, but first I wish to make a very brief comment.

The Senator from Maryland kind of makes the point I have been trying to make through all of this. If there is wording that more clearly states the Senate's intention or Congress's intention, and since there is disagreement over how widely this affects people, had we gone through a committee markup, we would have already covered this and would have found more careful wording that would have done what I think both of us are talking about. So again, that is why we should send them to committee.

I yield time to the Senator from Georgia.

Mr. President, I thank the Senator from Maryland. I have always appreciated working with her on issues. We probably wouldn't have completed the Higher Education Act if it had not been for her diligence and expertise and ability, and this is a bill on which she has expertise and ability. It hasn't gotten all of the viewpoints of all of the people on the committee, let alone all the people in this Chamber, and that is what we are trying to get to.

There isn't anybody in this Chamber or probably on the other end of the building who isn't for equal pay. That is the law. If anybody knows of a situation where that is not occurring, let any one of us know, and I bet you we would help to right the wrong. We are against discrimination.

But we are also against discrimination against the small businessmen who have to sometimes interpret our laws, figure out what we are saying, and become some of the precedent setters on some of the fine points that we don't even address. That should not happen. It is very expensive for them. What they are trying to do is put out a product or service and get compensated for it so they can compensate their employees. There are a lot of decisions they have to make to be able to do that. Fairness is one of them.

This 23-cent pay differential that keeps coming up--and that is wrong--is why we had a fantastic hearing in our committee about why that happens. That is because different jobs--not the same job, different jobs--pay different amounts. The ones with more risk apparently pay more. The ones with more risk are nontraditional jobs for women.

One of the people who testified had taken a course to become a mason, a rock mason, to do rock work. Her first rock work was, of course, at ground level. Later, she was installing big sheets of marble on the outside of skyscrapers. She went through how her compensation changed as she did these different jobs. That is a nontraditional job for a woman, but she is being paid more than most men in this country now.

That is what we have to do. We have to provide the encouragement, the skills, and the training to be able to perhaps do nontraditional jobs. I have tried to get this Workforce Investment Act through for the last 5 years. We passed it through the Senate once unanimously and were never able to get a conference committee on it with the House. Since that time, it has just languished. That would provide skills training to 900,000 people a year. It is criminal we do not pass that. That would solve a lot of the 23-cent gap we are talking about. That is not equal pay for equal work, that is higher pay for different work. But we need to have people trained to do that work, and we need to provide the training to do that work. That will solve a lot of the 23-cent gap.

But as long as we are encouraging people to do the traditional jobs, and we are not providing them with the training, we are relegating them to a gap. I guarantee it is bigger than 23 cents. That is the average. That is the way it works out across this country, which means some are making more and some are making a whole lot less. We do not want that to happen. I want everybody to be clear. Nobody wants to have unequal pay for equal work.

What we have tried to do, since we can't, as in a markup, sit down with the people who have the common interests in some of the parts of this that we have questions about and work out something that everybody agrees with that, from the perspective of those people in the room, solves the problem we are talking about--we have been doing that in the HELP Committee. We have been doing that on a frequent basis. We have even been so agreeable in the committee that a lot of times we will have some amendments that people are concerned about, and we haven't been able to reach an answer by the time we get to markup, but we know that is a problem, and we say we will get that solved by the time it gets to the floor, and we do and it doesn't take much floor time.

The reason I brought up this amendment is that I think it is far too broad. I have not had a chance to review the

specific cites that the chairman has brought up. I would like to be able to do that, but we are not going to have that time either which we would if we had a normal amendment markup--but S. 181 adds a new undefined term to title VII, and that is ``individual''--this ``affected individual'' will be permitted to sue under S. 181. But we do not know what the term means. Does it include spouses, et cetera? Why didn't the bill's sponsor use a defined term such as ``person.''

This bill, as drafted, leaves the door open to lawsuits from people other than the employee. My amendment shuts that door. Maybe it is not the most effective way, but we have not had the opportunity to sit down and look at these different perspectives, look at these words, make sure we have it defined right, make sure we have the right ones in the bill.

That always disturbs me. We are trying to solve a problem, a problem that is real, and we are trying to do it in a way that is fair to everybody. ``Everybody'' means all the employees and the employers and do it in a way that we will get the right information. If this opens the door to other people, even without the permission of the person who was affected in some cases--families take things much more personally than the individuals do usually. I know in campaigns it is the families who get upset when they see one of these terrible ads on television and they hold the grudge longer. They do not understand it the same way the candidate does. The same thing happens in the workplace--and I am sure it does. If a person comes home from work, and they are upset and they complain, the family takes it personally. That is a help to the employee. They need to be able to voice these things and have somebody who acts as a sounding board on it. But the family always continues the grudge longer.

I can tell you this bill allows those people to go ahead and open the door and sue on behalf of the person who came home with the grudge, even if that person is not willing to sue because they can be affected. There are ways to fix this, but I contend that just doing it through these votes on the floor probably is not going to do it.

I yield the floor.

Mr. President, I have made this point a number of times, that bills that go through committees have a markup and the amendments give us direction. We often get them worked

out. That did not happen on this bill. So we are trying to get some clarification done.

I appreciate that the Senator from Maryland put some things in the Record that show legislative intent. I prefer to have it in the bill. That is why my amendment is in here. It is an attempt to remove some of the legal uncertainty this bill will create. It will clarify who is able to sue under title VII.

Under my amendment, only the person who has experienced discrimination can bring a lawsuit. Without my amendment the door is left open to any affected individual. This is an undefined term in the statute.

Senator Mikulski and I have had some back and forth about what the language means. The truth is, without my amendment the courts will be able to define the term any way they want to. If you want to ensure that only the person affected has standing to sue, then support my amendment.

Mr. President, I appreciate very much the remarks of the Senator from Ohio who has much the same feeling about this I do. He wants to protect the employee who has known discrimination but also knowing that a business or small business needs to know what the liability might be and, hopefully, correct it if the notification is given in a timely way.

So I would look forward to talking about my amendment. At this time, I ask unanimous consent that my amendment be set aside in order for Senator Specter to be able to offer amendments, after which then Senator Mikulski will have the floor. Then when we get back to my amendment, I would like to debate my amendment.

Mr. President, I think that is a good plan. I appreciate the accommodation of the Senator from Maryland.

Mr. President, is the pending legislation my substitute for the Mikulski bill?

Mr. President, I ask unanimous consent that the Hutchison substitute be laid on the table and be the pending business.

Mr. President, it was my understanding that when Senator Specter laid aside my amendment, we would return to my amendment, my substitute, after his two amendments had been offered. That was what we intended and that is what I was trying to restore.

I yield 10 minutes to the Senator from Alaska.

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.

Madam President, I was going to engage in a discussion with the Senator from Maryland. I see the Senator from Minnesota is in the Chamber. Is it OK to proceed?

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.

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.

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.