January 22, 2009 CONGRESSIONAL RECORD — SENATE S759 out. That did not happen on this bill. Tester Udall (NM) Whitehouse ADMINISTRATION OF OATH OF So we are trying to get some clarifica- Udall (CO) Warner Wyden OFFICE tion done. NAYS—41 The VICE PRESIDENT. If the Sen- I appreciate that the Senator from Alexander DeMint McCain ator-designate will now present himself Maryland put some things in the Barrasso Ensign McConnell Bennett Enzi Murkowski at the desk, the Chair will administer RECORD that show legislative intent. I Bond Graham Risch the oath of office. prefer to have it in the bill. That is Brownback Grassley Roberts Mr. BENNET, escorted by Mr. why my amendment is in here. It is an Bunning Gregg Sessions Salazar and Mr. UDALL of Colorado, ad- Burr Hatch attempt to remove some of the legal Shelby vanced to the desk of the Vice Presi- Chambliss Hutchison Specter uncertainty this bill will create. It will Coburn Inhofe Thune dent; the oath prescribed by law was Cochran Isakson clarify who is able to sue under title Vitter administered to him by the Vice Presi- Collins Johanns VII. Voinovich Corker Kyl dent; and he subscribed to the oath in Under my amendment, only the per- Cornyn Lugar Webb the Official Oath Book. son who has experienced discrimina- Crapo Martinez Wicker (Applause, Members standing.) tion can bring a lawsuit. Without my NOT VOTING—1 f amendment the door is left open to any Kennedy affected individual. This is an unde- APPOINTMENT fined term in the statute. The motion was agreed to. The PRESIDING OFFICER (Ms. Senator MIKULSKI and I have had AMENDMENT NO. 29 KLOBUCHAR). Pursuant to the provi- some back and forth about what the The PRESIDING OFFICER. The sions of section 201(a)(2) of the Congres- language means. The truth is, without question is on amendment No. 29. sional Budget Act of 1974, the Speaker my amendment the courts will be able Ms. MIKULSKI. Mr. President, I un- of the House of Representatives and to define the term any way they want derstand amendment 29 is now the the President Pro Tempore of the Sen- to. If you want to ensure that only the pending business. I thank Senator ENZI ate hereby appoint Dr. Douglas W. El- person affected has standing to sue, for allowing us to dispose of his amend- mendorf as Director of the Congres- then support my amendment. ment through a voice vote. I move to sional Budget Office effective imme- The PRESIDING OFFICER. The Sen- table the Enzi amendment No. 29. diately for the remainder of the term ator from Maryland. The PRESIDING OFFICER. If all expiring January 3, 2011. Ms. MIKULSKI. Mr. President, the time is yielded back, the question is on The PRESIDING OFFICER. The ma- Enzi amendment is unnecessary. The agreeing to the motion to table amend- jority leader is recognized. ‘‘affected by’’ language is not vague. ment No. 29. Mr. REID. I suggest the absence of a Our bill only applies to workers and The motion was agreed to. quorum. their employers. Ms. MIKULSKI. I move to reconsider The PRESIDING OFFICER. The Other parts of title VII that our bill the vote and to lay that motion on the clerk will call the roll. does not change make this clear. The table. The legislative clerk proceeded to ‘‘affected’’ language is patterned after The motion to lay on the table was call the roll. the Civil Rights Act of 1991. It has been agreed to. Ms. MIKULSKI. Madam President, I around for 17 years and no one has ask unanimous consent that the order tried to interpret it to apply to grand- f for the quorum call be rescinded. The PRESIDING OFFICER. Without parents, spouses, or children, or anyone objection, it is so ordered. else other than the worker. CERTIFICATE OF APPOINTMENT f I understand the Enzi amendment The VICE PRESIDENT. The Chair No. 28 is now pending. I move to table lays before the Senate the certificate LILLY LEDBETTER FAIR PAY ACT the amendment and ask for the yeas of appointment to fill the vacancy cre- OF 2009—Continued and nays. ated by the resignation of former Sen- Ms. MIKULSKI. Madam President, I The PRESIDING OFFICER. Is there a ator Ken Salazar of Colorado. The cer- ask unanimous consent that Senator sufficient second? tificate, the Chair is advised, is in the REED of Rhode Island be recognized for There appears to be a sufficient sec- form suggested by the Senate. up to 5 minutes to speak on the bill; ond. Since there is no objection, the read- that following his remarks, the Senate The question is on agreeing to the ing of the certificate will be waived resume consideration of the Isakson motion. and will be printed in full in the amendment No. 37, with up to 10 min- The clerk will call the roll. RECORD. utes equally divided between Senator The legislative clerk called the roll. There being no objection, the mate- ISAKSON and myself, or our designees; Mr. DURBIN. I announce that the rial was ordered to be printed in the that upon the use or yielding back of Senator from Massachusetts (Mr. KEN- RECORD, as follows: time on the Isakson amendment, the NEDY) is necessarily absent. STATE OF COLORADO Senate resume consideration of the The PRESIDING OFFICER. Are there CERTIFICATE OF APPOINTMENT DeMint amendment No. 31, with 20 any other Senators in the Chamber de- To the President of the Senate of the United minutes of debate, 10 minutes under siring to vote? States: the control of Senator DEMINT or his The result was announced—yeas 55, This is to certify that, pursuant to the designee, 5 minutes each under the con- nays 41, as follows: power vested in me by the Constitution of trol of Senator MIKULSKI, me, and Sen- the United States and the laws of the State [Rollcall Vote No. 10 Leg.] ator ALEXANDER or our designees; that of Colorado, I, Bill Ritter, Jr., the governor YEAS—55 following the use or yielding back of of said State, do hereby appoint Michael F. time on the DeMint amendment, the Akaka Feingold Menendez Bennet a Senator from said State to rep- Baucus Feinstein Merkley resent said State in the Senate of the United Senate proceed to vote in relation to Bayh Hagan Mikulski States until the vacancy therein caused by the following amendments: DeMint No. Begich Harkin Murray the resignation of Ken Salazar, is filled by 31, and Isakson No. 37; further, that no Bingaman Inouye Nelson (FL) election as provided by law. amendments be in order to the pending Boxer Johnson Nelson (NE) Brown Kaufman Witness: His Excellency our Governor Bill DeMint or Isakson amendments prior Pryor Ritter, Jr., and our seal hereto affixed at Burris Kerry Reed to the votes; and that there be 2 min- Byrd Klobuchar Denver, Colorado this 21st day of January, in Reid utes of debate equally divided between Cantwell Kohl Rockefeller the year of our Lord 2009. Cardin Landrieu the votes. Sanders By the Governor: Carper Lautenberg The PRESIDING OFFICER. Is there BILL RITTER, Jr., Casey Leahy Schumer Shaheen Governor. objection? Conrad Levin Without objection, it is so ordered. Dodd Lieberman Snowe BERNIE BUESCHER, Dorgan Lincoln Stabenow Secretary of State. Ms. MIKULSKI. Madam President, I Durbin McCaskill [State Seal Affixed] will yield the floor to Senator REED. I

VerDate Aug 31 2005 10:48 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\PICKUP\S22JA9.REC S22JA9 cprice-sewell on PROD1PC72 with SENATE S760 CONGRESSIONAL RECORD — SENATE January 22, 2009 first thank Senator HARKIN for man- burg noted in her Ledbetter dissent, rights era came and the civil rights aging the bill during the Lilly such a law is ‘‘more in tune with the laws were passed. After the passage of Ledbetter press conference. His devo- realities of the workplace.’’ I entirely the Civil Rights Act, I ran a real estate tion to this issue is well known. agree. brokerage company and saw the transi- The PRESIDING OFFICER. The Sen- The Supreme Court majority failed tion to fair housing from housing dis- ator from Rhode Island is recognized. to recognize these commonsense reali- crimination. I understand the ramifica- Mr. REED. Thank you, Madam Presi- ties, including that pay disparities tions of the Civil Rights Act, and I am dent. And I thank Senator MIKULSKI. typically occur incrementally and de- proud and appreciative of what it has First, let me commend Senator MI- velop slowly over time, and they are helped us to accomplish. KULSKI for her extraordinary leadership not easily identifiable and are often The 180 days in the statute of limita- on this legislation, along with Senator kept hidden by employers. Many em- tions applies to every facet of that act. HARKIN and also Senator KENNEDY, who ployees generally do not have knowl- It applies to housing discrimination have been a driving force to ensure this edge of their fellow coworkers’ salaries and, obviously, in this case it applied legislation came to the floor and is or how decisions on pay are made. to employment and pay discrimination. ready for passage. Our Nation has certainly made Obviously, with the votes that have I strongly support the Lilly progress on ensuring fairness, justice, taken place and the failure of the Ledbetter Fair Pay Act of 2009. This and equality in the workplace. How- Hutchison amendment, it is pretty ob- bill is about ensuring that all Ameri- ever, we know there are still signifi- vious which direction the bill is going. cans are protected from pay discrimi- cant barriers to overcome in closing So it is time we ask ourselves one nation and treated fairly in the work- the pay gap and making certain that question: Is it fair to reach back to the place, particularly during these tough an individual’s gender, race, religion, 1960s, repeal a statute of limitations economic times. After 8 years of endur- national origin, disability, and age are that applied for over 45 years, and open ing an economy rigged to benefit only not an impediment to their economic the possibility of a plethora of cases the wealthy few, it is about time we and employment growth and pros- that have not been filed to now being reached out to try to help those strug- perity. The Lilly Ledbetter Fair Pay filed or, asked another way: Is it fair, gling paycheck to paycheck, and this Act of 2009 is one important step to- after a game has been played, to legislation will do that. ward achieving this goal. change the rules in order to change the As an original cosponsor of this legis- Again, let me thank Senator MIKUL- outcome? lation, I am pleased this bill seeks to SKI for leading the charge on this bill Practically speaking, I would submit address and correct the Supreme and, again, acknowledge the long- to you that this bill should be prospec- Court’s decision in Ledbetter v. Good- standing efforts of Chairman KENNEDY tive and not reach back. It should say year Tire & Rubber Co. It is a decision to seek passage of this and other legis- in the future that all the provisions from 2007 that required employees to lative efforts to help workers. One of apply to any case that may be filed on file a pay discrimination claim within the great dilemmas we face today en- a future incident of discrimination. suring that Americans who are work- 180 days of when their employer first But to reach back without limitation ing—particularly wage earners—have began to discriminate, even if the dis- and repeal the 180 days changes the sufficient income so they can provide crimination continued after that 180- rules of the game, changes the law for their families and for their future. day period. under which people were trying to op- Under the Ledbetter ruling, a worker Because of the flat and, in some cases, the receding income of working erate in running their business. could face longstanding pay discrimi- But, most importantly of all, let me Americans over the last 8 years, we nation and yet be shortchanged of a tell you what it specifically does. I ran have seen a situation where they have remedy simply because they did not to resort to their credit cards, where a company for 22 years. I am very fa- discover the discrimination within 180 they have to put off important pur- miliar with what lawyers can do in days of their initial discriminatory chases, deny themselves opportunities, terms of bringing in an alleged case, paycheck. filing a case, taking you into deposi- The Ledbetter decision overturned scale down access to colleges for their children because their income has not tions, and then saying: We can put a established precedent in courts of ap- stop to all this if you will settle for peals across the country and the policy grown. The great challenge—and it is not $5,000 or $10,000 or $15,000. It is using an of the Equal Employment Opportunity just an economic challenge but, I be- opportunity open to them to intimi- Commission under both Democratic lieve, it is a moral challenge—is to en- date or, in some cases, extort, in my and Republican administrations. In sure that the income of every level of judgment, a fee out of an unwitting fact, it almost defies common sense America grows; not just the very and unwilling business. and logic. Most employees, if they have wealthy, but every level of Americans So I ask the fairness question: Is it a pay dispute, hope it will be resolved has a chance to use their talents and right to go back to the inception of the internally, and they will give their em- see those talents rewarded by increas- civil rights laws, take an established ployer the benefit of the doubt prob- ing income, we hope, each year. This principle that applied to housing, pay, ably for more than 180 days until it be- legislation is part of that effort. But and employment of 180 days, and comes readily apparent that this is sys- much more must be done. change the rules so people can reach tematic and discriminatory. I strongly urge my colleagues to sup- back after the passage of this legisla- The legislation we are considering port this bill and to oppose any amend- tion and create new litigation under today reverses this erroneous finding ments that seek to dilute its intent. changed rules? but also restores a sense of common Madam President, I yield the remain- In the interest of fairness, I would sense into the workplace. It returns der of my time. submit it should be prospective, that the law to the pre-Ledbetter precedent The PRESIDING OFFICER. The Sen- all the applications of law should begin by clarifying that each discriminatory ator from Georgia is recognized. with the passage of the law and its en- paycheck restarts that 180-day period. Mr. ISAKSON. Madam President, is actment. As such, this bill does not modify the the distinguished chairman prepared to Madam President, I will be glad to time limit for filing a claim or the 2- move forward? yield the floor to the distinguished year limit on back pay but reestab- Ms. MIKULSKI. Yes. chairman who is managing the bill and lishes when the statute of limitations AMENDMENT NO. 37 urge the adoption of the Isakson begins to run. Mr. ISAKSON. Madam President, I amendment. This allows workers to demonstrate ask unanimous consent that Senator The PRESIDING OFFICER. The Sen- and detect a pattern or cumulative se- SAXBY CHAMBLISS be added as an origi- ator from Maryland. ries of employer decisions or acts show- nal cosponsor of amendment No. 37. Ms. MIKULSKI. Madam President, I ing ongoing pay discrimination rather The PRESIDING OFFICER. Without oppose the Isakson amendment because than simply reacting to any perceived objection, it is so ordered. it would create an arbitrary and unfair notion of discrimination to fall within Mr. ISAKSON. Madam President, I cutoff for who gets the benefit of this this 180-day period. As Justice Gins- grew up in the South when the civil fair pay bill.

VerDate Nov 24 2008 01:55 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G22JA6.060 S22JAPT1 wwoods2 on PRODPC68 with SENATE January 22, 2009 CONGRESSIONAL RECORD — SENATE S761 The Isakson amendment No. 37 would decision of May 28, 2007. So I continue but I had demonstrated that I could limit application of the bill to only to disagree with the Isakson amend- help our company make a profit more claims that arise out of discrimination ment because I do believe it would cre- than they had. The market was decid- that takes place after the bill passes. ate an arbitrary and unfair cutoff for ing our salaries. There is no way that There is no principled reason for ap- those who would benefit from this bill. anyone in this Senate or any govern- plying the bill only to future cases. I yield the floor. ment bureaucrat or Federal judge The point of this bill is to correct a The PRESIDING OFFICER. Do the could come in and say that there was terrible wrong done to victims of pay Senators yield back their time on the discrimination because I was paid less discrimination. We should be seeking pending amendment? than someone who was making more justice for as many people as possible. Ms. MIKULSKI. Madam President, money or the same with someone who Applying this bill to pending cases how much time do I have? was making less than I was. would not be an unfair surprise for em- The PRESIDING OFFICER. The Sen- For us to intervene and create a per- ployers. This bill restores the law to ator from Maryland has 1 minute 45 manent liability is only going to create where it was the day before the Su- seconds. more uncertainty. This is not what we preme Court decided the Ledbetter Ms. MIKULSKI. And how much time need to do with our businesses. So this case. There is nothing new in this bill. does the Senator from Georgia have? whole bill should not even be consid- If this amendment passes, it would The PRESIDING OFFICER. The Sen- ered now. create a 20-month gap in the law. Let ator has 1 minute 10 seconds. I have an amendment that gets at me repeat: If the Isakson amendment Ms. MIKULSKI. I would just inquire some of the issues that have been passes, it would create a 20-month gap if the Senator from Georgia wishes to talked about with this bill, about fair- in the law. Those workers who were un- yield back his time. I would be happy ness and about discrimination. One of fortunate enough to have been dis- to cooperate and we could move to the the biggest forms of discrimination in criminated against during that 20- DeMint amendment. this country today is when we force an month period would be treated worse Mr. ISAKSON. I yield back the re- American worker to join a union. My than those who came before them and mainder of my time. amendment is a right-to-work amend- those who came after them. That is ar- Ms. MIKULSKI. I thank him. I yield ment. Right now in this country, we bitrary, and it is unfair. back the remainder of my time, and we have a Federal law that forces Amer- As we work on this wage discrimina- can proceed to the DeMint amendment. ican workers to join a union. States tion bill, we cannot fix only part of the AMENDMENT NO. 31 can pass a right-to-work law, as my problem. We have not come this far to The PRESIDING OFFICER. The State, South Carolina, has to protect leave some victims out in the cold. Yet DeMint amendment is now pending. their workers, but this has proved very that is what I am concerned the Mr. DEMINT. Madam President, I am difficult for many States with powerful Isakson amendment would do. afraid the Ledbetter bill is another ex- union bosses and union lobbies. My Madam President, I will urge the re- ample that the majority in the Senate amendment, which is a national right- jection of the Isakson amendment, and doesn’t understand the American econ- to-work amendment, would restore the when it comes time to call up the vote, omy or how businesses create jobs or right of every American not to join a I will be making a motion to table. But how freedom works for all of us to cre- union. It would eliminate the Federal I am not making that motion now. ate a better quality of life. Recessions requirement that workers pay union The PRESIDING OFFICER. The Sen- are caused by uncertainty. This bill dues. ator from Georgia. creates more uncertainty for the very We are getting ready to hear from Mr. ISAKSON. Madam President, businesses we need to create the jobs some opponents of this amendment how much time do I have remaining? and to keep the jobs we have in our that will use some very convoluted The PRESIDING OFFICER. Senator, country today. logic to defend their position. The you have 1 minute 50 seconds remain- Why would we pass a bill, or even be same people who support Federal labor ing. talking about it, in the middle of a re- laws, including wage requirements that Mr. ISAKSON. Madam President, cession, that many have said is the supersede State laws, will argue that with deference and respect for the worst we have ever seen in our life- my amendment violates States rights. chairman, this amendment would do time? This bill will also create a lot of Removing a Federal mandate on States nothing to a pending case. This amend- unintended consequences that will do could only violate States rights in the ment will only apply to a case that has the exact opposite of what it is in- minds of politicians who have lost not been filed and could have reached tended to do. touch with our constitutional moor- back all the way to the civil rights era I was in business for well over 20 ings. My amendment is not about of the 1960s. Please be aware it would years before I came to Congress. Once States rights. It is not about Federal not in any way obliterate anybody’s you create more liability for hiring a rights. It is not about business rights. rights on any pending case that has woman or know that liability is going My amendment restores basic been filed since May of 2007. It would to exist for years, employers are going unalienable, individual rights. only affect those cases that haven’t to figure out a way to get around that. No law—Federal or State—should been filed all the way back to the Civil This is more likely to discourage the force an American to join a union in Rights Act. employment and the promotion of order to get a job in this country. No So, again, I think it is a matter of women because it creates an indefinite law—State or Federal—should allow an fairness and equity. I appreciate the liability. American worker to be fired because he time that has been allotted. At the ap- It seems that a lot of my colleagues or she does not want to join a union. propriate time I will ask my colleagues have never been in business them- This is about individual rights. There to vote against tabling if that is the selves. I remember being in the adver- should not be a Federal law that dis- motion. tising business, and I was 1 of 15 ac- criminates against workers who choose I yield the floor. count executives. I was about in the not to join a union. This is about fair- Ms. MIKULSKI. Madam President, middle as far as salary. There were ness and about stopping basic discrimi- first I wish to say to my colleague from men and women who made less than I nation that is sponsored by this Fed- Georgia that I appreciate the tone of did. There were men and women who eral Government. civility in which he has offered his made more than I did. Some who made I urge my colleagues to vote for this amendment, and that has been char- more than I did had less experience, right-to-work amendment. It is very acteristic of the whole day. I hope it but because of clients or some other consistent with the theme of this signals a new tone. factor—some other intangible—it made Ledbetter bill. It is more likely to Although I appreciate the tone, I still them worth more than I was, they were eliminate discrimination than the disagree with the amendment. The paid more. It was the same with those Ledbetter bill itself. I urge my col- Lilly Ledbetter Act does not go back to who made less. I was younger and in leagues to support it. I will reserve the the inception of the Civil Rights Act. It some cases less experienced than some remainder of my time and ask for a goes back only to the Supreme Court of the men and women who made less, vote.

VerDate Nov 24 2008 01:55 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G22JA6.061 S22JAPT1 wwoods2 on PRODPC68 with SENATE S762 CONGRESSIONAL RECORD — SENATE January 22, 2009 The PRESIDING OFFICER. Who our industry survive, I think, more so discrimination. That is what we have yields time? than Government bailouts. been debating on both sides of the Ms. MIKULSKI. Under the consent So I say to my Republican colleagues aisle. The debate has been focused, it agreement, the Senator from Ten- especially, be careful what you ask for. has been targeted, it has been precise nessee has 5 minutes of his own time, Do you want to ask the Congress to and, I might add, quite civil. It has and then I will have 5 minutes of mine. vote on whether States have the right nothing to do with right-to-work laws. The PRESIDING OFFICER. The Sen- to choose a right-to-work law? I do not. This is not the time nor the place to ator from Tennessee is recognized. I don’t think you get any smarter debate whether we should have a Fed- Mr. ALEXANDER. Madam President, about that issue by coming to Wash- eral right-to-work law. We need to re- I would appreciate being reminded ington, DC. Democratic and Republican store the ability of victims of pay dis- when 4 minutes is up so that I may re- Governors and legislatures in Ten- crimination to pursue justice. If we serve the last 30 seconds of my time. nessee for a long time have thought we want to have a debate on a Federal The DeMint amendment would take were perfectly capable of making that right-to-work law, then I suggest to away from States the right to decide decision. the Senator from South Carolina that whether they want to be a right-to- So I would urge my colleagues to say he offer his own bill, let’s put it work State or a State that allows for Robert Taft was right in 1947 and 1948. through the committee, and let’s vote an agency shop or a union shop. Now, We don’t want Washington telling Ten- on it, but let’s not bring right-to-work on this very Senate floor, in 1947, after nessee, North Carolina, Minnesota, or laws into the wage discrimination World War II, Mr. Conservative, Robert Maryland what their labor laws ought focus of the Lilly Ledbetter Fair Pay A. Taft, the leader of the Republicans, to be. Let Tennessee decide whether it Act. stood before the American people and wants a right-to-work law. I can think So let’s go now to the facts or the said the law that was passed in 1935— of nothing more fundamental to the merits of the amendment being offered the National Labor Relations Act—was prosperity of my State than preserving by Senator DEMINT. wrong because it took away from the principle that States have the op- No. 1, it reverses decades of estab- States the right to make that decision, tion to decide whether or not to have a lished labor law and addresses the and there was a tumultuous argument right-to-work law. So I respectfully op- issues that have nothing to do with the on the Senate floor. pose the DeMint amendment. Fair Pay Act. The DeMint amendment Section 14(b) of the Taft-Hartley Act The PRESIDING OFFICER. The Sen- undermines States abilities to choose was passed, and it gave the States the ator from Maryland is recognized. what labor laws work best for them. right to decide whether an employee Ms. MIKULSKI. Madam President, I That is the point made by the Senator would have to pay union dues or join a have a question for the Senator from from Tennessee. It would also impose union in order to have a job. Since Georgia. I just wish to clarify the se- right-to-work laws on workers who do then, 22 States, including the State of quence after we conclude our debate. not want them. Federal labor policy Tennessee, have decided, yes; we want Does the Isakson amendment come has been neutral on right-to-work to be a right-to-work State under the after the DeMint amendment? Is that issues for over 60 years. That means principles supported by the distin- his understanding? States are free to decide whether they guished Senator from South Carolina, Mr. ISAKSON. It was my under- want to impose right-to-work laws. but he wants to make that a national standing of the UC agreement that the The amendment would impose right-to- law. Isakson amendment will follow the work laws on States that do not want I don’t trust Washington on this DeMint amendment in terms of a vote. them, and it would even impose such issue. What do you suppose would hap- Ms. MIKULSKI. I thank the Senator. laws in the railroad and aviation indus- pen in the Senate if today we voted That clarifies it. I have a question of try, which has never been subjected to about whether to have a national Senator DEMINT. Is the DeMint amend- them. right-to-work law or a national agency ment to Lilly Ledbetter or are you We have debated this issue before. A shop or a union shop? I think I know amending another piece of legislation? bipartisan majority of Congress re- what the result would be, and I know Could you clarify what your amend- jected this approach in the 104th Con- what would happen. ment amends? gress, which was in 1996. We had a vote Thirty years ago I was the Governor Mr. DEMINT. The Ledbetter bill. on a similar amendment, and it was de- of Tennessee and we were the third Ms. MIKULSKI. Does the DeMint feated 31 to 68. I hope we defeat the poorest State and we had no auto jobs. amendment amend the Ledbetter bill DeMint amendment today. Nissan wanted to come somewhere in or the National Labor Relations Act Let’s stick strictly to the Lilly the United States, and they chose Ten- and the Railroad Act? The Ledbetter Ledbetter discussion. We have been nessee because we had a right-to-work Act is the pending one. having an excellent discussion all day law. Tennessee had the right to make Mr. DEMINT. Right. long. that decision, even though other States Ms. MIKULSKI. But the con- Again, I urge defeat of the DeMint chose not to have a right-to-work law. sequences are—aren’t you amending amendment. Then Saturn built a plant, and the Sat- the National Labor Relations Act? The Madam President, how much time do urn employees chose to belong to the Ledbetter Act is strictly a wage dis- I have remaining, and, of course, an- UAW and the Nissan employees said, crimination bill. swer the questions of our colleagues as no; we don’t want to be in a union. Mr. DEMINT. It is a discrimination to time. Since that time, 13 major companies and fairness bill, and my bill would The PRESIDING OFFICER. The Sen- have come to the States that have change the National Labor Relations ator from Maryland has 36 seconds re- right-to-work laws, including South Act to remove a mandate on States. maining. The other side has 4 minutes Carolina, Tennessee, Georgia, Ala- Ms. MIKULSKI. I still have the floor. 36 seconds remaining. bama, and Mississippi. Madam President, I have the floor. Ms. MIKULSKI. I reserve the remain- If we let the prevailing Washington The PRESIDING OFFICER. The Sen- der of my time. view decide whether a State should ator from Maryland has the floor. Mr. ALEXANDER. Madam President, have a right-to-work, union shop, open Ms. MIKULSKI. I had a question for how much time do I have remaining? I shop, or agency shop law, we wouldn’t Senator DEMINT, and if the Senator am supposed to have 30 seconds left. have had that advantage, and we might will withhold, after I make my re- The PRESIDING OFFICER. The Sen- not even have had an auto industry in marks, he can address the Chair. ator from Tennessee has 1 minute 45 the United States today. That competi- The consequence of the DeMint seconds. tion between the States brought the amendment is that it amends the Na- The Senator from South Carolina. companies that came here, hired Amer- tional Labor Relations Act. Let me tell Mr. DEMINT. Madam President, I ican workers, built cars in our country, my colleagues the consequences. First think I mentioned some convoluted and now build half of our cars. These of all, let’s go to the facts. logic. I appreciate my colleague’s civil companies are providing the competi- The Lilly Ledbetter Fair Pay Act is discussion on this issue, but it is inter- tion that will help the Detroit part of about pay discrimination, about wage esting to hear that removing a Federal

VerDate Nov 24 2008 01:55 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\CR\FM\G22JA6.062 S22JAPT1 wwoods2 on PRODPC68 with SENATE January 22, 2009 CONGRESSIONAL RECORD — SENATE S763 mandate on States somehow violates I urge my colleagues to support this Again, my good friend from Ten- States rights. amendment. nessee has said that somehow this My colleague from Tennessee de- Mr. ALEXANDER. Madam President, amendment is going to take away the scribed a situation they have in their if I were speaking in Tennessee, I rights of States to have a right-to- State—the same situation in South would give the Senator from South work law. This is a right-to-work law. Carolina—where you can have a non- Carolina an A-plus for his statement Every State in the country would have union shop. People can choose to be in because it is exactly the law I want a right to work, a right to choose to be unions or unionize an organization. Tennessee to have. But what we are union or not to be union. This is not to Workers can decide whether they be- talking about here today is whether we restrict a State in any way at all. long to a union. What that is called is want Washington to tell each State Right now, if a State wants to be freedom. Those are basic rights of whether it can have a right-to-work right-to-work, it has to override Fed- Americans. What my amendment law or agency shop or a union shop law. eral legislation. Most of us continu- would do is restore that freedom for If Washington were to do that, Ten- ously talk about protecting secret bal- people who live in every State, not just nessee would not have a right-to-work lots of workers. It is Federal legisla- in States where State legislators have law. We would not have permission to tion, it imposes a law on everyone, but been able to overcome union pressure do that. We would not have an auto in- it is protecting the rights of individ- and reestablish that freedom. dustry which is one-third of all of our This is not about States rights, and uals because it is not about unions and manufacturing jobs. this is not about the rights of the Fed- it is not about the businesses for which So I want my Republican colleagues, eral Government. It is not about some they work. The Secret Ballot Protec- if I may say so, to be very careful here. Federal bureaucrats or what judges de- tion Act would protect the individual Do we really want Washington telling cide. Every American should have a and their rights. That is what this us that the principle is they are going right to decide whether they are going amendment is about. It is respecting to say whether we can have a right-to- to join a union. For us to have a law at the rights of individuals not to join a work law? I don’t want them telling me the Federal level imposed on people union. It does not take away any right around the country that they have to that. from a State; it actually removes a Does that mean 1 minute? join a union, they have to pay union Federal mandate on States. The PRESIDING OFFICER. The Sen- dues, that employers have a right to I appreciate all the time that was ator has 1 minute remaining. fire them if they don’t join a union— given to this discussion. I, again, urge Mr. ALEXANDER. When I was Gov- this is not good for individuals, but it my colleagues to support my amend- ernor of Tennessee—and I see the is not good for our country. ment. A few weeks ago, we had a debate former Governor of Missouri here— Ms. MIKULSKI. Madam President, about the American auto industry. nothing used to make me madder, to be this amendment reverses decades of es- Just about every expert recognizes blunt about it, than some Washington tablished labor law and addresses that forced unionization has essen- Congressman or Senator holding a issues that have nothing to do with the tially run them out of business. There press conference and telling me what Lilly Ledbetter Fair Pay Act. While is a reason companies are leaving the to do because usually they would tell the Senator from South Carolina de- forced compulsory union States and me what to do and not send the money, bated right to work, I want to keep on moving to Tennessee and South Caro- and then I would have to send the fighting for the right to get equal pay lina. It is because there is more free- money on to the mayor, raise taxes, for equal work. dom there. That is what this amend- lower taxes. I would have to do some- I understand the DeMint amendment ment is about. It is removing a Federal thing myself. We are perfectly capable No. 31 is now the pending business. I mandate that imposes on the freedom of deciding whether we need a right-to- move to table the amendment and ask of every American. work law. for the yeas and nays. Last year, the Senator from New Jer- It is very relevant to the discussion The PRESIDING OFFICER. Is there a sey was trying to ship New Jersey’s today. We are talking about fairness. sufficient second? laws to Tennessee with a national law. We are talking about discrimination. There is a sufficient second. We are talking about wages. But when I cannot stand up and say we want a national right-to-work law and then The question is on agreeing to the we force an American to join a union, motion. The clerk will call the roll. take part of their wages and give it to argue against having New Jersey’s laws The assistant legislative clerk called a union, that is not freedom. I cannot in Tennessee, for States and counties the roll. imagine anyone here who thinks that don’t want those laws. So we want through this issue saying it does not to fit those to our own circumstances. Mr. DURBIN. I announce that the have something to do with fairness and I greatly respect my colleague and Senator from Massachusetts (Mr. KEN- discrimination and what we are about friend, the Senator from South Caro- NEDY) is necessarily absent. as a country. We should have a right to lina. On principle, he is right. There is The PRESIDING OFFICER (Mr. unionize, we should have a right not to another principle—federalism—that we WHITEHOUSE). Are there any other Sen- unionize, but we should not force an can decide for ourselves. We would un- ators in the Chamber desiring to vote? American to join a union and make dermine that principle. The result was announced—yeas 66, their job contingent on it. This is much I urge my colleagues to vote against nays 31, as follows: greater discrimination than we are the DeMint amendment. [Rollcall Vote No. 11 Leg.] dealing with in this Ledbetter bill, and The PRESIDING OFFICER. The Sen- YEAS—66 it is very appropriate, if we are going ator from Maryland. Akaka Feingold Merkley to talk about fairness in eliminating Ms. MIKULSKI. Madam President, Alexander Feinstein Mikulski discrimination, that we include this how much time remains? Baucus Gregg Murkowski The PRESIDING OFFICER. The Sen- Bayh Hagan Murray amendment that would restore a basic Begich Harkin ator has 38 seconds. Nelson (FL) freedom to every American. That is Bennet Inouye Nelson (NE) what this amendment is about, is doing Ms. MIKULSKI. The Senator from Bingaman Johanns Pryor exactly what my colleague from Ten- South Carolina has how much time re- Bond Johnson Reed Boxer Kaufman maining? Reid nessee said they enjoy there. Why Brown Kerry Rockefeller shouldn’t they enjoy those same free- The PRESIDING OFFICER. The Sen- Burris Klobuchar ator has 1 minute 12 seconds remain- Byrd Kohl Sanders doms in Michigan and other States? Schumer I encourage my colleagues to set ing. Cantwell Landrieu Cardin Lautenberg Shaheen aside old ways of thinking and partisan Ms. MIKULSKI. I don’t know wheth- Carper Leahy Snowe politics, payback to unions. This is not er the Senator wants to yield back his Casey Levin Specter about us. It is not about States. It is time or use the time for further debate. Collins Lieberman Stabenow Tester about people. It is about basic Amer- Mr. DEMINT. Madam President, if I Conrad Lincoln Dodd Martinez Udall (CO) ican rights. No American should be may continue, I will use the rest of my Dorgan McCaskill forced to join a union. time. I want to make sure we are clear. Durbin Menendez

VerDate Nov 24 2008 01:55 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\CR\FM\G22JA6.064 S22JAPT1 wwoods2 on PRODPC68 with SENATE S764 CONGRESSIONAL RECORD — SENATE January 22, 2009 Udall (NM) Warner Whitehouse didn’t happen years ago when the only Udall (CO) Warner Whitehouse Voinovich Webb Wyden witness other than the accuser is ab- Udall (NM) Webb Wyden NAYS—31 sent? NAYS—38 Barrasso DeMint McCain Senator ISAKSON has come up with a Alexander DeMint Martinez Bennett Ensign McConnell very equitable solution to this riddle. Barrasso Ensign McCain Brownback Enzi Bennett Enzi Risch He recognizes that, if this bill is en- McConnell Bunning Graham Roberts Bond Graham Murkowski Burr Grassley Sessions acted, employers will have to keep a Brownback Grassley Risch Chambliss Hatch Shelby far more detailed record of every em- Bunning Gregg Roberts Coburn Hutchison Thune Burr Hatch Sessions ployment decision, every performance Chambliss Cochran Inhofe Vitter Hutchison Shelby Corker Isakson review, every personnel action, and Coburn Inhofe Wicker Thune Cornyn Kyl Cochran Isakson more. The bill retroactively re-opens Vitter Crapo Lugar Corker Johanns liability for dozens of years of employ- Voinovich Cornyn Kyl NOT VOTING—1 ment decisions. Upon enactment of this Crapo Lugar Wicker bill, employers will be on notice that Kennedy NOT VOTING—1 The motion was agreed to. the statute of limitations for title VII cases virtually never expires. But it Kennedy CHANGE OF VOTE simply isn’t fair to apply this new The motion was agreed to. Mr. CORKER. Mr. President, on roll- open-ended statute of limitations to Ms. MIKULSKI. Mr. President, I call vote No. 11, I voted ‘‘aye.’’ I ask employment decisions that occurred move to reconsider the vote. unanimous consent that I be permitted decades ago. Mr. REID. Mr. President, I move to to change my vote to ‘‘nay’’ since it Senator ISAKSON’s amendment re- lay that motion on the table. will not affect the outcome of the leg- solves this inequity by applying the The motion to lay on the table was islation. agreed to. The PRESIDING OFFICER. Without new law on a prospective basis. As a former small business person myself, I The PRESIDING OFFICER. The ma- objection, it is so ordered. jority leader is recognized. (The foregoing tally has been believe this is the only fair way to apply a new and burdensome standard. Mr. REID. Mr. President, I ask unan- changed to reflect the above order.) imous consent that when the Vitter I urge my colleagues to support this AMENDMENT NO. 37 amendment is offered, which will be amendment. The PRESIDING OFFICER. Under very quickly, there be 15 minutes for Ms. MIKULSKI. Mr. President, I ob- the previous order, there will now be 2 debate, 10 minutes for Senator VITTER, ject to the Isakson amendment. It minutes of debate equally divided prior 5 minutes for Senator MIKULSKI; that would create an arbitrary and unfair to the vote on amendment No. 37, of- upon the use or yielding back of time, cutoff for those who get the benefits of fered by the Senator from Georgia, Mr. the Senate proceed to vote in relation this bill. If the Isakson amendment is ISAKSON. to the amendment; that no amendment agreed to, it would create a 20-month The Senator will be in order. be in order to the amendment prior to gap in the law. Those workers who Who yields time? the vote; that upon disposition of the were unfortunate enough to have been The Senator from Georgia is recog- Vitter amendment, no further amend- discriminated against during that 20- nized. ments be in order, the bill be read a month period would be treated worse Mr. ISAKSON. Mr. President, the bill third time, and the Senate proceed to than those who came before them or as it is written applies to any claim vote on passage of the bill; that the after them. It is arbitrary and it is un- back to May 28. But the way it is word- vote on passage would be as if it were fair. ed, it appears to me it is a claim filed a cloture vote, and that if the thresh- and leaves it open for any past claim to I understand that the Isakson amend- old is achieved, the bill is passed, with be brought up that wasn’t previously ment is now the pending business. no intervening action or debate. filed. The amendment simply ensures I move to table the amendment and The PRESIDING OFFICER. Without that the act couldn’t be used for new ask for the yeas and nays. objection, it is so ordered. claims to be filed retroactively all the The PRESIDING OFFICER. Is there a Mr. REID. Mr. President, I, on behalf way back to the passage of title VII of sufficient second? of all Senate leadership, appreciate the the Civil Rights Act. It is a mere mat- There is a sufficient second. way we have moved through this legis- ter of being clear that it doesn’t retro- The question is on agreeing to the lation. Now, were all of these votes actively open the opportunity to file motion. easy? No, they were not easy. Some of new cases all the way back to the in- The clerk will call the roll. them were difficult votes for a number ception of the act. The legislative clerk called the roll. of my Senators, I am sure on the other Mr. ENZI. Mr. President, I would also Mr. DURBIN. I announce that the side of the aisle as well. But this is the like to speak in support of Senator Senator from Massachusetts (Mr. KEN- way we need to operate as a Senate. ISAKSON’s amendment No. 37. This NEDY) is necessarily absent. Were all of these amendments offered amendment is about basic fairness. We The PRESIDING OFFICER. Are there germane? No. But the people have a have been talking a lot about fairness any other Senators in the Chamber de- right to offer amendments. So I appre- during consideration of this bill—fair- siring to vote? ciate everyone’s cooperation to this ness for employees who suffer discrimi- The result was announced—yeas 59, point. We are going to move forward, nation and don’t realize it before a nays 38, as follows: we hope, to work out, and we are going legal deadline passes, and fairness for to clear, some of the nominations of [Rollcall Vote No. 12 Leg.] an employer who may have done noth- President Obama tonight or tomorrow. ing wrong but becomes a target of an YEAS—59 We also hope we can arrange to have, ambitious trial lawyer eager to test Akaka Durbin Menendez Monday night, a vote on Treasury Sec- new legal theories. Baucus Feingold Merkley retary-designee Geithner. We will try Bayh Feinstein Mikulski The question many people ask when Begich Hagan Murray to do that at a time convenient. It has looking at what the underlying bill Bennet Harkin Nelson (FL) been suggested to me that time would would do is how is it fair to sue a Bingaman Inouye Nelson (NE) be about 6 o’clock. We will probably Boxer Johnson businessperson over something that Pryor come in sometime in the afternoon. It Brown Kaufman Reed Burris Kerry may or may not have happened in his Reid is my understanding that people who Byrd Klobuchar or her company decades earlier? What Rockefeller are for and against him want 2 hours of Cantwell Kohl Sanders is a businessperson to do if the person Cardin Landrieu debate equally divided. But if people who is alleged to have committed the Carper Lautenberg Schumer want to talk more, we can come in ear- discriminatory act no longer works Casey Leahy Shaheen lier in the afternoon and do some Snowe there or, perhaps, is deceased? Anyone Collins Levin morning business, and people can talk Conrad Lieberman Specter can recognize the difficult position this Dodd Lincoln Stabenow about whatever they want during that creates. How do you prove something Dorgan McCaskill Tester time.

VerDate Nov 24 2008 04:03 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\CR\FM\A22JA6.017 S22JAPT1 wwoods2 on PRODPC68 with SENATE January 22, 2009 CONGRESSIONAL RECORD — SENATE S765 We also understand we are going to after years does she discover that it suits. They didn’t do it before the be able to move to the SCHIP bill with- has been the result of discrimination. Ledbetter decision, and there is no rea- out filing cloture. I was going to file It is just as demeaning, and in many son to believe that they will do it after cloture on that tonight, but it is my ways even more frustrating, than a sin- we restore the import of the law. understanding that we can start that gle, concrete episode of bias. Lilly Ledbetter didn’t want to sue. In Monday night and work through the Justice Ruth Bader Ginsburg, who fact she has said that she wouldn’t amendments on that next week. We are took the unusual step of reading her have bothered if she thought the case going to finish that next week. I under- dissent in Lilly Ledbetter’s case from was close, or the result of an oversight, stand there will be a lot of amend- the bench, was outraged by her com- or based on poor reviews. But, as all of ments. I am sure that is the case. patriots on the Supreme Court who the evidence showed, it wasn’t. Lilly The reason we have to complete work held the passage of time against Lilly Ledbetter said: ‘‘It wasn’t even close to on it next week is that we must move Ledbetter. You see, Justice Ginsburg being fair. I had no choice. I had to go to the economic recovery package. We understands what so many Americans to court. I had to stand up for what was only have 2 weeks to finish that. I want also understand—that it is often a se- right.’’ to spend a good, long, hard week fin- ries of small and hidden decisions that This bill isn’t some windfall for ishing what we are doing before we add up to a lifetime of unequal pay. women to sit on their hands without send our product to the House because This kind of discrimination can’t be bringing claims during years of dis- we need that final week to make sure tied to one definitive act. Instead, it crimination. All of an employer’s nor- we do conferences and messages and comes from the cumulative effect of mal defenses are untouched by this work out whatever differences we have weeks, months, and sometimes years of bill. We have discussed the legal de- between the two bills. bigotry and injustice. fenses and the operation of various We are not going to be able to take Many of us have daughters and parts of this bill ad nauseum, but our recess for Presidents Day unless we granddaughters who need us to vote for overlawyering this isn’t going to finish that legislation. I think every- the Lilly Ledbetter Fair Pay Act. What change the fact that women make 78 one agrees, Democrats and Republicans will you say if your daughter or grand- cents on the dollar compared to simi- agree, we need to get this done. The daughter calls you tonight and said, larly situated men. imperative of doing this every day be- ‘‘Hey, I need some advice. I have had The right to make a fair wage to sup- comes more pronounced, in my mind. this job for 5 years. I have been work- port your family, regardless of gender, We had our Democratic policy com- ing really hard and I have always had is not something that should be doubt- mittee today where we had Alan Blind- good reviews, my colleagues like me, ed in America. The right to equal pay- er, who is a Democrat; Martin Feld- and I love my job. I need this job to checks is something that Congress stein is a Republican; and Mark Zandi, support my family. But I just found thought it guaranteed 46 years ago, and who I think is a Republican. I am pret- out that all along, I have been getting which was not in doubt until Lilly ty sure he is. He was one of Senator paid about 75 percent of what the guys Ledbetter’s case reached the Supreme MCCAIN’s chief advisers. They all here get paid for doing the same thing. Court. agreed and, in fact, Mark Zandi said to I have been asking around and it turns We must take the very simple step of me before the presentation: You are out our supervisors have been doing restoring this right so that women in going to be hearing from dark, darker, this for a while—paying men more, and America can be assured that their hard to darkest. We have economic problems saying things about women that are work for their families and their coun- that have never been seen in this coun- negative. One guy even said that our try will be compensated on the same try or the world before and we have to workplace doesn’t need women. What basis as men. work to see what we can do to help al- should I do?’’ Mrs. BOXER. Mr. President, I rise in leviate the problems that exist out in Do you want to tell your daughter or strong support of the Lilly Ledbetter that difficult financial world in which granddaughter, ‘‘Well, if the decision Fair Pay Act. we find ourselves. to discriminate against you was made As we begin our work this Congress So that is why people should not plan more than 180 days ago, that is too bad, to address the greatest economic chal- on next weekend going home. You you should have complained earlier’’? lenge our nation has faced in a genera- should plan on being here. If there is a I don’t want to do that, and I don’t tion, the solutions we consider must way we can work our way around that, intend to. I want to be able to say to focus on strengthening the middle I will be happy to do that. But I think my daughter, and all American daugh- class. the chances are quite slim that we ters, wives, sisters, and grand- Last month the economy lost 524,000 would be able to do that. daughters: There is something you can jobs, and in 2008, 2.6 million jobs were Mr. SCHUMER. Mr. President, today do about this. This behavior is wrong, lost—the most in one year since 1945. we get a second chance to do the right and Congress gave you a way to make Unemployment continues to climb— thing. it right. Plain and simple. in some areas of my State of Cali- Millions of American women and It is un-American to work your fornia, the unemployment rate is over men understand that it is wrong for a whole life for a fraction of what your twelve percent. Wages for many in the woman to work, year after year, along- colleagues make, solely because you middle class have actually decreased side a man and make less money sim- are a woman. It is un-American to tell over the last 8 years. ply because she is a woman. a woman who just wants a fair shake in And 46 years after passage of the Millions of American women under- exchange for 20 years of work that she Equal Pay Act, workers throughout the stand—unfortunately many know first should have known what was going on, nation still suffer pay discrimination hand—that you don’t always know and now it is too late—that she should based on gender, race, religion, na- when you are being discriminated have filed a new claim after every pay- tional origin, disability and age. against. Proof that you have been a check. When it comes to achieving the prin- victim of discrimination rarely boils Congress did not pass Title VII, not ciple of equal pay for equal work, we down to one magic moment where the to mention the Equal Pay Act, 46 years still have a long way to go. curtain is raised and it is all made ago only to lace it with traps and trip Women workers today earn only 78 clear. And of course, the curtain hardly wires for the unwary worker. cents for every dollar men earn. The ever comes up within 180 days of the Some critics of the Lilly Ledbetter pay disparity is still so great that it actual ‘‘act’’ of discrimination. Fair Pay Act have said that it will lead takes a woman 16 months to earn what All too often, discrimination based to an onslaught of lawsuits. But the a man earns in 12 months. on gender happens exactly the way it Congressional Budget Office has said In 2006, an average college-educated happened to Lilly Ledbetter. Paycheck that this isn’t true. I believe that is woman working full time earned $15,000 after paycheck, a woman receives based on the obvious proposition that less than a college-educated male. lower pay than her male colleagues. most women don’t want to sue their According to the American Associa- But only after years does she discover employers. They don’t go out of their tion of University Women, working that this was even happening. Only way to ruin their own lives with law- families lose $200 billion in income per

VerDate Nov 24 2008 04:03 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\CR\FM\G22JA6.072 S22JAPT1 wwoods2 on PRODPC68 with SENATE S766 CONGRESSIONAL RECORD — SENATE January 22, 2009 year due to the wage gap between men been the victim of years of pay dis- Before I begin, let me thank Senator and women. crimination. KENNEDY, the chairman of the HELP To put it simply, pay discrimination This is an unfair standard. Committee, and Senator MIKULSKI, for is hurting our middle class families and In most situations, if an employee their tireless work on this important hurting our economy. suspects pay discrimination, it takes issue. Unfortunately there is no easy solu- significant time to determine the facts. The Lilly Ledbetter Fair Pay Act tion that will eliminate all pay dis- As Justice Ginsburg pointed out, goes a long way toward ensuring that crimination. ‘‘compensation disparities are often right to equal pay. In a perfect world, But what this bill will do is ensure hidden from sight for a number of rea- of course, we could take that right for that when an employer discriminates sons.’’ granted—we could take it for granted based on gender or race or other fac- Ginsburg’s point underscores the that the value of work lies not in the tors, the employee can have his or her unreasonableness of the standard cre- race or gender of the person who is day in court. ated by the Supreme Court. doing it but in a job well done. With its 2007 Ledbetter v. Goodyear Many employers do not publish em- Unfortunately, we don’t live in that decision, the Supreme Court reversed ployee salaries and employees are often world. We know that, even now, some decades of legal precedent in the courts not eager to discuss their wages with employers cheat their employees out of of appeals and long-standing Equal Em- other employees. equal pay for equal work. ployment Opportunity Commission Earlier this month the New York That’s what happened to Lilly policies, and effectively undercut a Times reported that ‘‘in the last 19 Ledbetter. For almost two decades, commonsense, fundamental protection months, Federal judges have cited the from 1979 to 1998, she was a hard- against pay discrimination. Ledbetter decision in more than 300 working supervisor at a Goodyear tire With its decision, the Court imposed cases . . .’’ plant in Gadsden, AL. significant obstacles for workers by re- This decision has had significant im- And it is telling that she suffered quiring them to file a pay discrimina- pacts on the employees alleging pay from two types of discrimination at the tion claim within 180 days of when discrimination, severely limiting their same time. On the one hand, there was their employer FIRST starts discrimi- rights to equal pay. Some courts are sexual harassment, from the manager nating—an almost impossible standard. also using the decision to limit rights who said to her face that women This bill simply restores the law to in other areas of the law, like equal shouldn’t work in a tire factory, to the what it was prior to the Court’s deci- housing, equal education, and civil supervisor who tried to use perform- sion in a workable and fair way that rights cases. ance evaluations to extort sex. The Ledbetter decision was a giant will protect people like Lilly Ledbetter And on the other hand, there was pay step backward in the fight for equal op- from discrimination. discrimination: by the end of her ca- portunities and equal rights. Mr. President, the story of Lilly reer, as the salaries of her male co- Goodyear engaged in chronic dis- Ledbetter makes it clear why this leg- workers were raised higher and faster crimination against female employees, islation is necessary. than hers, she was making some $6,700 but because of this decision, the courts The discrimination she suffered is less per year than the lowest paid man must treat intentional, ongoing pay not unfamiliar to many female and mi- in the same position. nority employees in manufacturing discrimination as lawful conduct. Employers who can conceal their pay Now, the two kinds of discrimination plants and office parks across the coun- discrimination for 180 days are free to faced by Ms. Ledbetter have a good try. continue to discriminate with no re- deal in common. Morally, each Ms. Ledbetter was a female manager dress for the employee. amounts to a kind of theft—the theft at an Alabama Goodyear Tire plant We must ask ourselves: Is this a of dignity in work and the theft of the when she discovered after 19 years of standard that Congress should support? wages fairly earned. service that she was earning 20 to 40 This bill simply restores the law to Both send a clear message as well— percent less than her male counter- what it was in almost every state in that women don’t belong in the work- parts for doing the exact same job. the country before the Ledbetter case place. As Justice Ginsburg noted in her dis- was decided. That law basically said But there is a clear difference be- senting opinion, ‘‘the pay discrepancy you had 180 days to seek justice on tween sexual harassment and pay dis- between Ledbetter and her 15 male equal pay for equal work each time crimination. The former is blatant. counterparts was stark.’’ that you were discriminated against. The latter far too often stays insid- In 1997, her last year of employment It does so by eliminating the unrea- iously hidden. at Goodyear, after 19 years of service, sonable barrier created by the Supreme In fact, Lilly Ledbetter didn’t even Ms. Ledbetter earned $5,608 less than Court and allows workers to file a pay know she was being paid unfairly until her lowest-paid male coworker. She discrimination claim within 180 days of long after the discrimination began. earned over $18,000 less than her high- each discriminatory paycheck. Absent an anonymous coworker giving est-paid male coworker. For the Nation’s working families her proof, she might be in the dark to Evidence submitted in her trial and middle class to succeed and grow, this very day. showed that Ms. Ledbetter was denied the principle of equal pay for equal And that is hardly surprising. How raises despite receiving performance work must have teeth, it must have many Americans know exactly how awards, her supervisors were biased meaning, and this bill restores mean- much their coworkers make? What against female employees, and that in ing to the equal pay principle. would happen if they asked? At some some cases, female supervisors at the Justice Ginsburg told us, ‘‘Congress, companies, you could be fired. plant were paid less than the male em- the ball is in your court.’’ Armed with proof of pay discrimina- ployees they supervised. The time is now to restore decades of tion, Ms. Ledbetter asked the courts When Ms. Ledbetter discovered this, legal precedent and prevent the narrow for her fair share. And they agreed she took Goodyear to court and a jury Ledbetter decision from impacting with her: she had been discriminated awarded her full damages. more Americans facing discrimination. against. But Goodyear appealed the jury’s de- We must restore this important pro- She had been cheated. cision, and in 2007, the Supreme Court tection and return the law to its in- And she was entitled to her back pay. overturned the verdict and said that tended meaning. Unfortunately, the Supreme Court Ms. Ledbetter could not sue for back I urge my colleagues to vote for this ruled against her, and took it all away. pay despite overwhelming evidence bill. Yes, she had been discriminated that her employer had intentionally Mr. DODD. Mr. President, I rise against—but she had missed a very im- discriminated against her because of today to speak about an issue of funda- portant technicality. her gender. mental economic fairness—an issue She only had 180 days—6 months—to The Supreme Court threw out the that affects the dignity and the secu- file her lawsuit—and the clock started case because it took her longer than rity of millions of Americans: the right running on the day Goodyear chose to six months to determine that she had to equal pay for equal work. discriminate against her.

VerDate Nov 24 2008 02:03 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\CR\FM\A22JA6.021 S22JAPT1 wwoods2 on PRODPC68 with SENATE January 22, 2009 CONGRESSIONAL RECORD — SENATE S767 Never mind that she had no idea she dles, and technicalities out of their Ledbetter vs. Goodyear Tire & Rubber was even the victim of pay discrimina- way. With passage of the Lilly Co., of title VII of the Civil Rights Act tion until years later. Figure it out in Ledbetter Fair Pay Act, we take an im- of 1964. The Court’s 5 to 4 ruling makes 180 days, the Court said or you are out portant step toward eliminating these it almost impossible for many victims of luck for a lifetime. discriminatory roadblocks once and for of pay discrimination to find an ade- It is not hard to see how this ruling all. quate legal remedy under the Civil harms so many Americans beyond Ms. Ms. MURKOWSKI. Mr. President, I Rights Act. The legislation we are con- Ledbetter. In setting an extremely dif- rise to speak about my vote on final sidering today will correct that. ficult, arbitrary, and unfair hurdle, it passage of the Lilly Ledbetter Fair Pay The Civil Rights Act established the stands in the way of many, many Act. Equal Employment Opportunity Com- Americans fighting against discrimina- I want to first reiterate a most im- mission, EEOC, to enforce title VII. tion. portant statement of the entire debate The EEOC is empowered to protect It also flatly contradicts what had on this bill, with which we all agree. As against employment discrimination been the standard practice of the Equal I said yesterday, during debate on Sen- based on sex, race, national origin, reli- Employment Opportunity Commission, ator HUTCHISON’s substitute amend- gion and disability by receiving com- flies in the face of decades of legal ment, discrimination because of an in- plaints of discrimination, investigating precedent, and ignores clear congres- dividual’s gender, ethnicity, religion, discrimination, conducting mediations sional intent. age, or disability cannot be tolerated. to settle complaints and filing law As Justice Ginsburg put it in her ve- No Americans should be subject to dis- suits on behalf of employees. Despite the efforts of the EEOC, the hement dissent, the Court’s Ledbetter crimination, and if they are, they have United States still suffers from signifi- ruling ignores the facts of discrimina- the right to the law’s full protection. tion in the real world. She writes: Having said that, I am pleased that cant pay iniquities. Numerous studies Pay disparities often occur . . . in small we have had the opportunity to offer using census data and controlling for increments; cause to suspect that discrimi- and vote on amendments that Members work patterns and socioeconomic fac- tors found that half or more of the nation is at work develops only over time. of the Senate believe would have per- wage gap between males and females is Comparative pay information, moreover, is fected this legislation. I would also often hidden from the employee’s view . . . due to gender alone, demonstrating note that this opportunity is a wel- Small initial discrepancies may not be seen that discrimination based on gender is come reversal from last year, when we as meet for a federal case, particularly when all too common in American work did not have an opportunity to offer the employee, trying to succeed in a non- places. Over the past decade, the EEOC amendments, and it was for that rea- traditional environment, is averse to making has averaged more than 24,400 com- waves. son that I voted against cloture last plaints of sex-based discrimination year. ‘‘The ball,’’ Ginsburg concluded, ‘‘is each year. in Congress’s court . . . The legislature As you know, I have had concerns One of those complaints was filed in may act to correct this Court’s par- about the Fair Pay Act’s deletion of 1998 by a woman named Lilly simonious reading.’’ the statute of limitations. In my view, Ledbetter. She alleged that she was the That is precisely what we are here to once an employee knows, or has a rea- victim of a sex-based pay disparity dur- do today. With today’s passage of the sonable suspicion, that he or she has ing her nearly 20-year career at Good- Lilly Ledbetter Fair Pay Act, employ- been the subject of discrimination, the year. Ledbetter sued Goodyear, and a ees will have a fair time limit to sue employee has the responsibility to file jury awarded her back pay and dam- for pay discrimination. They will still a complaint within a reasonable ages after finding, among other things, have 180 days, but the clock will start amount of time. That responsibility that Ledbetter was being paid $550 to with each discriminatory paycheck, benefits the employee first of all, but $1550 less per month than her male not with the original decision to dis- also benefits the employer, if a claim is counterparts who were doing the same criminate. After all, each unfair pay- pursued while records are available and work. For almost her entire tenure at check is in itself a decision to discrimi- memories are fresh. In addition, the Goodyear, Letbetter was not aware nate—it is ongoing discrimination. Em- employee is more likely to be able to that she was being discriminated ployees like Ms. Ledbetter will no recover the full amount of his or her against because the pay levels of her longer be blocked from seeking redress, lost wages rather than just the pre- coworkers were kept strictly confiden- through no fault of their own, except a vious 2 years’ wages. tial. In fact, she only learned that she failure to be more suspicious. For these reasons, I supported Sen- was making less than males doing the This is an important moment and im- ator HUTCHISON’s substitute amend- same job as her because of an anony- portant bill. I do wish we were also ment. Her amendment recognized the mous tip that she received shortly be- strengthening the remedies available important point that many employees fore her retirement. to victims of pay discrimination under do not know that their rate of pay is Congress’s intent in passing the Civil the Equal Pay Act. discriminatory. It would also have re- Rights Act and in passing subsequent For this reason we must also pass stored beneficial timeliness to the updates to the Civil Rights Act in 1991 into law the Paycheck Fairness Act, process once the employee suspected or a bill which I supported was to help authored by my friend and colleague in knew of discrimination. I am dis- remedy the sort of discrimination that the Connecticut delegation, Congress- appointed that this amendment failed. Lilly Ledbetter fell victim to. Al- woman ROSA DELAURO, and cham- At the end of the day, however, after though the validity of claims of pay pioned in the Senate by Senator Hil- the amendment process has con- discrimination filed within 180 days of lary Clinton. Had paycheck fairness cluded—a process that was not avail- receiving a paycheck reflecting dis- been law when Lilly Ledbetter decided able to us last year—I believe it is criminatory policies has been recog- to go to court, she may well have re- more important to vote for legislation nized by countless lower courts and ceived just compensation for the dis- that will improve every American’s was explicitly accepted under EEOC criminatory practices she endured. She ability to access full redress for any guidelines and by previous EEOC ad- certainly would have had a stronger act of wage discrimination. ministrative decisions, the Supreme case to make and a greater array of The Fair Pay Act provides that vital Court ruled that Ledbetter’s claim of tools. So, as critical as the Lilly protection. For that reason, I will vote discrimination was not actionable Ledbetter Fair Pay Act is, we certainly for this legislation. under title VII. Their opinion stated have more work to do. Mr. LEVIN. Mr. President, I support that Ledbetter’s claim was not filed Millions of Americans depend on the the Lilly Ledbetter Fair Pay Act. This within 180 days of the discriminatory right to equal pay for equal work: to legislation is important to ensure that act against her. earn a livelihood, to feed their fami- Americans from all walks of life have a In ruling against Ledbetter, the ma- lies, and to uphold their basic dignity. realistic opportunity for recourse if jority’s opinion stated that ‘‘it is not We ought to make it easier for Ameri- they are victims of pay discrimination. [the Supreme Court’s] prerogative to cans to exercise that right, not harder. We are considering this bill because of change the way in which title VII bal- We ought to get unfair roadblocks, hur- the Supreme Court’s interpretation, in ances the interests of the aggrieved

VerDate Nov 24 2008 02:03 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\CR\FM\G22JA6.074 S22JAPT1 wwoods2 on PRODPC68 with SENATE S768 CONGRESSIONAL RECORD — SENATE January 22, 2009 employees against the interest in en- percent less. They are charged the current and continuing payment of a wage couraging the prompt processing of all same and must stretch their finances depressed on account of her sex. charges of employment discrimina- as best they can to make ends meet. When women work the same jobs as tion.’’’ The majority concluded that Women’s financial struggles do not men with the same skill, they should ‘‘Ledbetter’s policy arguments for giv- affect them alone. They affect count- be paid the same amount. If they are ing special treatment to pay claims less families across the country. Ac- not paid the same amount because of find no support in the statute’’ and cording to the U.S. Census, as of 2007, discrimination, they should be able to that the Supreme Court must apply approximately 20 percent of American seek recourse in Federal courts. I urge ‘‘the statute as written, and this means households were headed by women, and my colleagues to support this bill and that any unlawful employment prac- other surveys of households have re- restore American fair pay law. tice including those involving com- vealed that a majority of women report Mr. SANDERS. Mr. President, soon pensation, must be presented to the providing more than half of their we will be voting on the Lilly EEOC within the period prescribed in household incomes, with over a third Ledbetter Fair Pay Act, S. 181. The the statute.’’ totally responsible for paying the bills. House of Representatives has already The dissenters rightly characterize Ensuring equality in pay is abso- passed this legislation by a vote of 247 the majority opinion as ‘‘par- lutely essential right now. While all to 171. Passing this bill today will send simonious.’’ I believe that the majority Americans are concerned about a clear message that our country will put forth a misguided interpretation of downturns, layoffs, stagnant wages, not tolerate unequal pay for equal unlawful employment practices, and in and pay cuts, it is also true that in an work. As astonishing as it is, in the year doing so incorrectly found that Lilly economic downturn, women suffer dis- 2009, women earn, on average, only 77 Ledbetter’s claim did not fall within proportionately under almost every cents for every dollar earned by men in title VII of the Civil Rights Act. I also economic measure. Women lose their comparable jobs. What a truly un- believe that the opinion of the Court jobs more quickly than men, and in De- thinkable, and frankly disgraceful, cir- required an unreasonable interpreta- cember 2008, 9.5 percent of women who were the heads of their households cumstance—one that we must do ev- tion of Congress’s intent in title VII. erything within our power to change. were unemployed. Women’s wages fall Their finding would make it next to Today we have the opportunity to take more rapidly. Women are dispropor- impossible to file a successful claim of a small but very significant step in tionately at risk for foreclosure, and as discriminatory pay, given the chal- making sure that Americans have the of last year, 32 percent more likely to lenges in detecting such discrimina- legal opportunity to challenge pay dis- receive subprime mortgages than men. tion. The Supreme Court interpreted crimination. Congressional intent in a civil rights And women have fewer savings on aver- Lilly Ledbetter was a loyal employee law in a way that is restrictive of peo- age. at Goodyear Tire and Rubber Company The Lilly Ledbetter Fair Pay Act ples’ civil rights and available rem- for 19 years. At first, her salary was in takes an important step forward in edies. line with that of her male colleagues, protecting working American women’s But the issue for us to decide is not but over time she got smaller raises what a previous Congress intended. We financial well-being. The bill reverses creating a significant pay gap. Ms. are to decide what the law should be, the Supreme Court’s parsimonious Ledbetter was not aware of this pay and what is right. This legislation de- reading of pay discrimination law in discrimination until she received an termines that each discriminatory pay- Ledbetter v. Goodyear Tire & Rubber anonymous note detailing the salaries check will qualify as an unlawful em- Co. so that women will not be turned of three male coworkers. After filing a ployment practice under title VII. Eq- away twice—first by their employers complaint with the Equal Employment uitable remedies defendants can raise, when they seek equal pay for equal and Opportunity Commission, her case including laches, are not disturbed by work, and second by the courts when went to trial and the jury awarded her this bill. they go to file claims of unfair treat- $3.3 million in compensatory and puni- The Lilly Ledbetter Fair Pay Act ment. tive damages due to the extreme pay will restore the protections against dis- The bill is a necessary correction to discrimination she endured. criminatory pay that Congress and the a Supreme Court decision that was in- The Court of Appeals for the Elev- courts have previously endorsed, and correct. The bill ensures that when em- enth Circuit reversed this verdict, ar- provide a reasonable route through the ployers unlawfully pay women less for guing that Ms. Ledbetter filed her com- EEOC and the court system for people performing the same job, they can seek plaint too late. If you asked anyone on like Lilly Ledbetter to have pay dis- recourse in the Federal courts. the street, they would tell you that crimination corrected and remedied. I also want to say a word about the this decision goes against the citizens Mrs. FEINSTEIN. Mr. President, I amendments offered today. The Lilly of this country’s sense of right and rise today in support of the Lilly Ledbetter Fair Pay Act does not wrong. How was she to know that this Ledbetter Fair Pay Act of 2009. change the substance of title VII dis- discrimination was happening? Ms. This bill is about equality, and it is crimination law. What it does is make Ledbetter was already facing sexual about fairness. Although our country sure that women who have meritorious harassment at Goodyear Tire and Rub- has made many important strides to- discrimination claims under that law ber Co. and told by her boss that he ward equality, when it comes to the are not unfairly denied the right to go didn’t think a woman should be work- week-to-week question of paychecks, to Federal court and recover compensa- ing there. To argue that Ms. Ledbetter or the day-to-day issue of financial se- tion. should have asked her male counter- curity, women continue to lag behind. The bill says that women can file parts what their salaries were at the Women simply are not paid as much their claims within 180 days of their moment she suspected discrimination as men, even when they do the exact last discriminatory paycheck and can defies common sense. This topic was off same job. recover up to 2 years’ back pay from limits, as it is in most work places. It Last summer, the U.S. Census Bu- that date. Any stricter timing require- is clearly not her fault she didn’t dis- reau reported that women who work ment is simply out of touch with the cover this inequity sooner. full time earn, on average, only 78 realities of the workplace. In 2007, the Supreme Court upheld cents for every dollar that men earn. As Justice Ginsburg explained in her the Eleventh Circuit ruling in This is not an insignificant dif- dissent in the Ledbetter case: Ledbetter v. Goodyear Tire and Rubber ference. It means that when a man is [I]nsistence on immediate contest over- Co. and, as a result, took us a step back paid $50,000 a year for a certain kind of looks common characteristics of pay dis- in time. It gutted a key part of the work, a woman may receive only crimination. . . . Pay disparities often occur, Civil Rights Act of 1964 that has pro- as they did in Ledbetter’s case, in small in- $39,000. That is $11,000, or 22 percent crements; cause to suspect that discrimina- tected hardworking Americans from less. tion is at work develops only over time. . . . pay discrimination for 45 years by But when women go to pay their [A worker’s] initial readiness to give her em- making it extraordinarily difficult for bills, to buy groceries, or to try to find ployer the benefit of the doubt should not victims of pay discrimination to sue health care, they are not charged 22 preclude her from later challenging the then their employers.

VerDate Nov 24 2008 02:03 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\CR\FM\G22JA6.076 S22JAPT1 wwoods2 on PRODPC68 with SENATE January 22, 2009 CONGRESSIONAL RECORD — SENATE S769 The bill before us overturns the damentally flawed. With respect to a nothing to change this 2-year limit on Court’s 5–4 decision and reinstates situation like that experienced by Ms. back pay. prior law. It ensures that victims of Ledbetter, and thousands of American Some view this as a unique cir- pay discrimination will not be penal- women every day, the statute is not cumstance specific to Ms. Ledbetter. I ized if they are unaware of wage dis- tailored in such a way to recognize wholeheartedly disagree. According to parities. I am happy to say that we will long-term workplace discrimination. If a Government Accountability Office have the opportunity today to protect a woman is terminated solely because presentation based on the 2000 Census millions of hardworking Americans and of her gender—or perhaps passed over data, 7 of the 10 industries that hire the reverse the unreasonable and unfair for promotions or increased compensa- majority of women in this country ex- Ledbetter decision. I call on all of my tion irrespective of merit, but instead perienced a widening of the wage gap Senate colleagues to vote in favor of based solely on the fact she is a between male and female managers. In this bill, which will send a clear signal woman, she typically would have the 1963, when Congress passed the Equal that pay discrimination is unaccept- ability to meet the 180-day require- Pay Act, a woman working full-time able and will not be tolerated. ment. was paid 59 cents on average for every Ms. SNOWE. Mr. President, I come to But the kind of mistreatment we are dollar paid to male employees, while in the floor today to thank my Senate attempting to rectify with this legisla- 2005 women were paid 77 cents for every colleagues—particularly the persistent tion is both subtle and longstanding, it dollar received by men. Over the last 42 efforts of Senator MIKULSKI, but also to is almost impossible to comply with years, despite our best efforts, the wage gap has only narrowed by less commend Senators KENNEDY and SPEC- the statute as written. Generally, than half of a penny per year. TER for their willingness to address a women like Ms. Ledbetter enter a com- In my home State of Maine, the situ- controversial Supreme Court decision pany on a lower pay scale than their ation is even harsher for women in the head-on. I am proud to see the Senate peers, and starting with such a handi- workplace. For women in Maine, the taking up an issue that is so funda- cap continues to plague them through- concern about equal pay is especially mental to America—to the way we see out their careers. Over time, that gulf acute. In 2007, on average, women in ourselves, to the way we are perceived between her compensation and that of my State working full-time year-round around the world, to the core principles her male colleagues only widens. But earned only 76 percent of what men by which our country abides. Equality. why should they be penalized in law working full-time, year-round earned. Fairness. Justice. simply because they didn’t have the in- This is 2 percentage points below the I believe everyone in this body is fa- formation necessary to know they were nationwide average of 78 percent. Over miliar with the story of Lilly being discriminated against? Do we recent years, the gender wage gap has Ledbetter. She spent 20 years dili- really wish to say that justice should plateaued—we are not making gently working at the same company, be arbitrarily decided merely by a date progress. The following point is par- at the same facility in suburban Ala- and time? ticularly illustrative—the wage gap in bama, striving alongside her cowork- Now, opponents of the legislation Maine persists, like it does across ers, both male and female. Unknown to have indicated the Ledbetter bill be- America, at all levels of education. her at the time, from her earliest days fore us today will cost jobs, that it is a Women in the State with a high school at the facility she had become a victim radical departure from the intent of diploma earned only 62 percent of what of gender discrimination. How? Over the law, that it will impose massive men with a high school diploma time, those male colleagues who rose costs on employers, and encourage a earned. In fact, as is true nationwide, through the ranks at the same rate as deluge of lawsuits. But nothing could the average woman in Maine must re- Ms. Ledbetter were receiving consider- be further from the truth. ceive a bachelor’s degree before she ably more compensation. This bipartisan bill would simply re- earns as much as the average male Then, one day in June of 1998, her store the law of the land prior to the high school graduate. eyes were opened by an anonymous in- Supreme Court’s 2007 decision. Nine So, today, we have come here only to dividual who provided her with docu- courts of appeals followed the approach ensure that women who have been mentation finally alerting her to the we endorse in this bill, and the EEOC treated unfairly in the workplace have discrepancy in wages. From there, her used the same underpinnings included the opportunity to seek redress. In con- legal odyssey began. She filed a com- in the Ledbetter bill under both Demo- clusion, Lilly Ledbetter’s journey—in- plaint with the Equal Employment Op- cratic and Republican administrations. deed, the journey of all working portunity Commission, EEOC, in July, In fact, the legislation mimics lan- women—continues. Like Ms. Ledbetter, filed a discrimination lawsuit 4 months guage that Congress employed in the many of us who followed the case all later and found herself at what she ex- Civil Rights Act of 1991 to mitigate a the way to the chambers of the Su- pected to be the end of her journey, the Supreme Court decision that all but preme Court considered it the final U.S. Supreme Court, 8 years later. But eliminated employees’ opportunity to step. We were wrong—but now we have this was not the end of the journey. challenge seniority systems in the the opportunity to right that injustice. As Justice Ginsburg indicated in her workplace. I urge my colleagues to support final dissenting opinion, the majority did Indeed, after 17 years, this language passage for this legislation, and guar- not sufficiently consider the broad has not resulted in even a minimal antee that the Senate’s support for this array of case law that would have re- spike in claims through the kind of legislation is indeed her final step on a sulted in a decision in favor of Ms. broad interpretation we were warned decade-long journey. Ledbetter. Yet we are here today not against. That’s why the nonpartisan Mr. FEINGOLD. Mr. President, I am to argue the validity of the May 2007 Congressional Budget Office, CBO, has pleased to support the Lilly Ledbetter Supreme Court decision. Rather, we specifically stated it will not signifi- Fair Pay Act of 2009, legislation that I are here to address the root of the cantly increase the number of pay dis- have cosponsored for the past 2 years. problem, a role Congress must fulfill crimination claims. What it will do is This legislation simply seeks to pro- when the law clearly is lacking. In give workers who have reasonable tect American workers from pay dis- fact, in that same dissent, Justice claims a fair chance to have them crimination based on factors such as Ginsburg urged Congress to act expedi- heard. race, gender, religion, and national ori- tiously to repair this inequity. Today, In addition, this legislation does gin. I am pleased that the Senate is on we are one step closer to doing just nothing to alter current limits on the the verge of finally passing this impor- that. amount employers owe. Under Senator tant bill after we came so close to pass- The existing statute plainly indicates MIKULSKI’s bill, employers would not ing it last year. For over 2 years, Lilly the discrimination must have occurred have to make up for salary differences Ledbetter, the victim of discrimina- within 180 days of filing the complaint that occurred decades ago. Current law tory pay based on gender, has worked in order for the complaint to be consid- limits back pay awards to 2 years be- tirelessly to move this legislation for- ered timely. But as Ms. Ledbetter’s fore the worker filed a job discrimina- ward and today’s Senate passage of the case proves, this provision, now codi- tion claim under title VII of the Civil Ledbetter bill marks an important vic- fied in title VII of U.S. law, is fun- Right Act of 1964. The bill would do tory for her and the many advocates

VerDate Nov 24 2008 02:03 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\CR\FM\G22JA6.077 S22JAPT1 wwoods2 on PRODPC68 with SENATE S770 CONGRESSIONAL RECORD — SENATE January 22, 2009 around the country who joined with sion was made. Ms. Ledbetter found Office has also reported that restoring her. out about the decision to pay her less the law to where it was before the These are challenging economic than her male colleagues well after 180 Ledbetter decision will not signifi- times for many families in Wisconsin days from when the company had made cantly affect the number of filings and around the country. Too many the decision. Under the Supreme made with the EEOC, nor will it sig- workers are struggling to hang onto Court’s decision, it was just too late nificantly increase the costs to the their jobs, their homes, and provide for for Ms. Ledbetter to get back what she Commission or to the Federal courts. their children. We in Congress need to had worked for. It did not matter that The impact of pay discrimination do all we can this year to help create she only discovered that she was being continues throughout a person’s life, solid family-supporting jobs, but we paid less than her male counterparts lowering not only wages, but also So- also need to make sure that people who many years after the inequality in pay cial Security and other wage-based re- already have jobs can support their had begun. And it did not matter that tirement benefits. This places a heavy families. We need to pass legislation there was no way for her to find out burden on spouses and children who like the Ledbetter bill to help ensure she was being paid less until someone rely on these wages and benefits for that workers are treated fairly and told her that was the case. life’s basic necessities like housing, earn what they deserve. In Ms. Ledbetter’s case, to put it sim- education, healthcare, and food. This I know many of my colleagues in the ply, the Supreme Court got it wrong. It discrimination can add up to thou- Senate share my disappointment and ignored the position of the Equal Em- sands, even hundreds of thousands, of frustration that, despite all the gains ployment Opportunity Commission and dollars in lost income and retirement women have made since gaining the the decisions of the vast majority of benefits. In these challenging economic right to vote 100 years ago, they still lower courts that the issuance of each times, Congress must do all it can to make 77 cents on the dollar compared new paycheck constitutes a new act of ensure that the wages and retirement to their male counterparts. It is hard discrimination. It ignored the fact that savings of American men and women to believe that this pay disparity con- Congress had not sought to change this are protected and not subject to attack tinues to exist in the 21st century. Un- longstanding interpretation of the law. by flawed court decisions or legislative fortunately, the pay disparity not only The Court’s decision also ignores re- inaction. exists but is even larger in my State of alities of the American workplace. Per- On matters of pay discrimination, Wisconsin. According to data gathered haps we lose sight of this in Congress, this bill simply returns the law to by the Institute for Women’s Policy since our own salaries are a matter of where it was before the Supreme Court Research, IPWR, women’s salaries were public record, but the average Amer- issued its misguided decision in 2007. only approximately 72 percent of men’s ican has no way of knowing the salary We need to do more than just correct salaries in Wisconsin. The wage gap of his or her peers. As Ms. Ledbetter past mistakes, however we also need to gets even larger when you look at the noted, there are many places across the examine the challenges facing working earnings of minority women through- country where even asking your co- Americans and address those chal- out Wisconsin. In 1999, African-Amer- workers about their salary would be lenges in a constructive and thoughtful ican women’s salaries were only around grounds for dismissal. way. I look forward to working with 63 percent of White men’s salaries; The Lilly Ledbetter Fair Pay Act, my colleagues to strengthen and im- while Hispanic women’s salaries were which has been pending in the Senate prove laws that help working families, only 59 percent of White men’s salaries since shortly after the Supreme Court’s including creating jobs, expanding ac- according to an analysis of Wisconsin- erroneous decision, reestablishes a rea- cess to health care, and improving edu- ites’ wages by IWPR. sonable timeframe for filing pay dis- cational opportunities for all Ameri- These troubling wage gaps exist crimination claims. It returns the law cans. throughout the country and, thanks to to where it was before the Court’s deci- Mr. President, I am pleased that the the flawed Supreme Court decision in sion, with the time limit for filing pay Senate was finally able to prevent a fil- Ms. Ledbetter’s case, it is now even discrimination claims beginning when ibuster of this important legislation more difficult for hard-working Ameri- a new paycheck is received, rather and that we are now on the verge of cans to seek legal redress for this in- than when an employer first decides to passing this bill. I am a proud cospon- equity in the workplace. discriminate. Under this legislation, as sor of the Lilly Ledbetter Fair Pay As we heard in testimony before the long as workers file their claims within Act, and I was disappointed when it Judiciary Committee last year, Lilly 180 days of a discriminatory paycheck, failed in the Senate by just four votes Ledbetter’s experience ‘‘typifies the their complaints will be considered. last year. This is a significant victory uphill battle that American workers This bill also maintains the current for working families in Wisconsin and face’’ in efforts to ‘‘right the wrong of limits on the amount employers owe around the country. Of course, pay dis- pay discrimination.’’ After she found once they have been found to have crimination is not the only issue that out that she was being paid less than committed a discriminatory act. Cur- women, minorities, people with disabil- her male counterparts, she filed a com- rent law limits back pay awards to 2 ities, and other protected groups of plaint with the EEOC and then brought years before the worker filed a job dis- workers confront, and we need to do a lawsuit in Federal court in Alabama. crimination claim. This bill retains more to strengthen and improve other The Federal district court ruled in her this 2-year limit, and therefore does employment conditions, like worker favor, but 2 years ago, the Supreme not make employers pay for salary in- safety, as well. As this new Congress Court ruled that Ms. Ledbetter had equalities that occurred many years gets underway, I stand ready to work filed her lawsuit too long after her em- ago. Workers thus have no reason to with my colleagues in the Senate to ployer originally decided to give her delay filing a claim. Doing so would advance legislation that protects em- unequal pay. Under title VII of the only make proving their cases harder, ployment rights and strengthens job Civil Rights Act of 1964, an individual especially because the burden of proof opportunities for all Americans. must file a complaint of wage discrimi- is on the employee, not the employer. Mr. GRASSLEY. Mr. President, let nation within 180 days of the alleged Opponents say that this bill will bur- me first say, I adamantly oppose and unlawful employment practice. Before den employers by requiring them to de- abhor discrimination of any kind, the Ledbetter decision, the courts had fend themselves in costly litigation. whether it is based on gender, age, reli- held that each time an employee re- This is simply not the case. Most em- gion, disability or race. I am a father ceived a new paycheck, the 180-day ployers want to do right by their em- to two daughters. I have five grand- clock was restarted because every pay- ployees and most employers pay their daughters and two great-grand- check was considered a new unlawful employees fair and equal wages. This daughters. I want all of my grand- practice. legislation is targeted at those employ- daughters to know that their goals and The Supreme Court changed this ers who underpay and discriminate achievements will only be limited by longstanding rule. It held that an em- against their workers, hoping that em- their own ambition rather than a des- ployee must file a complaint within 180 ployees, like Ms. Ledbetter, won’t find picable act of gender discrimination. days from when the original pay deci- out in time. The Congressional Budget There is no place for discrimination in

VerDate Nov 24 2008 04:03 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\CR\FM\G22JA6.078 S22JAPT1 wwoods2 on PRODPC68 with SENATE January 22, 2009 CONGRESSIONAL RECORD — SENATE S771 our country, and all of my colleagues discrimination claims. By pushing related to the case of Ms. Lilly share this belief. No side in this debate claims off indefinitely into the future, Ledbetter and how current law treats is in favor of gender discrimination. the bill creates a separation between those wishing to file discrimination The matter before the Senate is the the discriminatory act and the filing of claims. I believe improvements are in Lilly Ledbetter Fair Pay Act. The a claim making cases harder to prove order to the current law, but S. 181 Lilly Ledbetter Fair Pay Act seeks to and more costly to defend. Simply put, goes well beyond what is reasonable overturn a Supreme Court decision the bill offered by Senator MIKULSKI and equitable. that the sponsors contend has removed greatly expands the existing statute Ms. Ledbetter was not prevented statutory protections against discrimi- further than it was before the Supreme from asserting claims because she nation, in this case, pay discrimina- Court decided the Ledbetter case. wasn’t aware of her employer’s alleged tion. The Court’s decision in Ledbetter While I believe the Mikulski bill goes discrimination. She was prevented v. Goodyear Tire held that a plaintiff too far, I do believe Congress should from asserting her claims because, as alleging pay discrimination under title act to ensure discrimination claims are Ms. Ledbetter testified under oath in VII must file a claim within the statu- not simply ignored. As I said before, we the case, she knew about the alleged tory filing period of the alleged dis- need to find the right balance. I believe discrimination for nearly 6 years before crimination. that balance is found with the alter- bringing her lawsuit. It is unfair to individuals who were native bill offered by my colleague, While it is essential that employees unknowingly discriminated against to Senator KAY BAILEY HUTCHISON. Her be given an adequate period of time to have a strict statute of limitations amendment essentially codifies a dis- press a discrimination claim, employ- that prevent them from bringing suit cretionary approach that courts and ers must also be protected from endless once they discover the discrimination. the Equal Employment Opportunity litigation. I could not agree more. An individual Commission have applied in these cases Statutes of limitation serve an im- should not be precluded from seeking for years. portant function in our judicial sys- justice simply because they were not The fact is, the Supreme Court and tem. By effectively eliminating the aware of the discrimination. This is the the EEOC have long recognized that statute of limitation in employment situation that the proponents of the statutes of limitation or charge-filing discrimination cases, S. 181 would Ledbetter bill seek to address. periods can be extended or ‘‘tolled’’ in make it very difficult for an employer However, we must also ensure that circumstances where the discrimina- to mount a credible defense to a dis- the remedy to this injustice does not tion is hidden or concealed. Simply crimination claim. Both small business lead to allegations of discrimination put, defendants shouldn’t be able to owners and employees deserve a fair that are years and, perhaps, decades run out the clock just because they process. Although I support fair pay for old. A reasonable statute of limitations hide the discrimination or it is un- equal work and oppose workplace dis- ensures that the discrimination is iden- known to the victim. crimination of any kind, I oppose S. 181 tified and reported and the employee The Hutchison alternative simply and I am hopeful a balance can be receives a timely resolution if there is codifies this doctrine of equitable toll- reached before it becomes law. discrimination. Statutes of limitation ing. The Hutchison amendment pro- (At the request of Mr. REID, the fol- have been part of our legal history for vides that the clock on the charge-fil- lowing statement was ordered to be hundreds of years and further the in- ing deadline does not start running printed in the RECORD.) terest of justice by ensuring claims are until an employee discovers the dis- ∑ Mr. KENNEDY. Mr. President, equal brought in a timely manner while evi- crimination or should have discovered pay for equal work is a fundamental dence is still available. These limita- the discrimination. This thoughtful, civil right. This principle is at the tions have long been recognized by balanced approach protects the rights heart of our Nation’s commitment to courts as a way to balance the rights of of the employee if the discrimination fairness. When President Kennedy plaintiffs against the rights of defend- was concealed, but also ensures that signed the Equal Pay Act in 1963, he re- ants. In the case of employment dis- the claim can be resolved timely. The minded us that protection against pay crimination suits, the statute of limi- Hutchison amendment codifies the discrimination is ‘‘basic to democ- tations provides employers protection flexibility of the claim-filing deadline racy.’’ Those words ring even truer from having to defend allegations when the discrimination is concealed, today. When we inaugurated Barack where records no longer exist or em- rather than effectively eliminating the Obama as our new President this week, ployees have moved on or passed away. deadline outright. It is the type of bal- our country strongly reaffirmed its Statutes of limitations have always anced, measured approach we as legis- commitment to a fairer, more just stood in some tension, and it is our job lators are elected to find. American society. as the elected representatives of plain- While it is my sincere hope that in My good friend Senator MIKULSKI has tiffs and defendants across this country this day and age no employer treats in- taken an important step toward to strike the necessary balance. We dividuals differently based on gender, I achieving this fairer, more just society need to ensure that law does not sanc- am a cosponsor and strongly support by leading the debate in the Senate on tion hidden discrimination nor effec- the Hutchison amendment and believe the Lilly Ledbetter Fair Pay Act, and tively eliminate the statute of limita- it is the best possible way to ensure I thank her for her inspired leadership. tions. that the rights of all individuals are She has truly been a passionate advo- The supporters of this bill have of- protected from discrimination. cate for women and others who have fered their version of a solution to this Unfortunately, this balanced amend- suffered the injustice of discrimina- problem. The underlying bill would es- ment was rejected by the majority, as tion. I also commend Senator HARKIN sentially reset the clock on the statute were a number of other thoughtful, bal- for the work he has done on this bill of limitations every time a new pay- anced, and needed amendments offered and on the Fair Pay Act. Senator Clin- check was received by an individual by colleagues on my side of the aisle. ton has also been a champion for pay who was discriminated against in the Because those efforts to improve the equity, and we pledge to continue her past. They believe this is necessary re- bill and minimize unintended con- good work. gardless of how long in the past the sequences were rejected, I must vote We must pass the Lilly Ledbetter claim of discrimination occurred. It against the bill. I regret that the Sen- Fair Pay Act. It will give American would effectively eliminate the statute ate was unable to work in a more bi- workers who are victims of pay dis- of limitations for discrimination partisan manner to address the serious crimination based on race, age, gender, claims. issue of gender discrimination. national origin, religion, or disability a The underlying bill also goes far be- Mr. MARTINEZ. Mr. President, law- fair chance to enforce their rights. yond the stated objective of providing yers have a saying: ‘‘Bad facts make As a nation, we have often acted in justice to those who have been subject bad law.’’ In my opinion, bad facts recent years to expand and strengthen to concealed discrimination. Instead, it make even worse legislation. The pro- our civil rights laws in order to end could have the exact opposite effect of posal before the Senate, S. 181, assumes discrimination, and we have always hindering efforts to quickly resolve a number of erroneous facts directly done so with bipartisan support. The

VerDate Nov 24 2008 02:03 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\CR\FM\G22JA6.052 S22JAPT1 wwoods2 on PRODPC68 with SENATE S772 CONGRESSIONAL RECORD — SENATE January 22, 2009 result has been great progress towards claims of pay discrimination within 180 tion last year, but the Senate dropped increasing equal opportunity and equal days after an employer first acts to dis- the ball. Now we have a new Congress justice for all our people, and we will criminate. Never mind that many and a new opportunity to master the never abandon this basic goal. workers, such as Ms. Ledbetter, do not challenge that Justice Ginsburg put to Despite our past efforts to end pay know at first that they are being dis- us, and we have a new President who is discrimination, too many of our citi- criminated against. Never mind that strongly committed to equal pay and zens still put in a fair day’s work, but workers often have no way to learn of to ending pay discrimination. I ask my go home with less than a fair day’s the discrimination against them or colleagues to enable the march of pay. Women, for example, bring home gather evidence to support their sus- progress on civil rights to continue. only 78 cents for each dollar earned by picions because employers keep salary Together, let us stand with working men. African American workers make information confidential. Never mind people. Let us pass the Lilly Ledbetter only 80 percent of what White workers that the discrimination continues each Fair Pay Act.∑ make and Latino workers make only 68 and every time an employee receives The PRESIDING OFFICER. The Sen- percent. Many qualified older workers an unfair paycheck. ator from Louisiana. and workers with disabilities also bear The Ledbetter decision means that AMENDMENT NO. 34 the burden of an unlawful pay gap. many workers across our country will Mr. VITTER. Mr. President, I call up They are paid less than their cowork- be forced to live without any reason- amendment No. 34. ers for reasons that have nothing to do able way to hold employers account- The PRESIDING OFFICER. The with their performance on the job. able when they violate the law. Em- clerk will report. Confronting pay discrimination is ployers will have free rein to continue The assistant legislative clerk read about addressing the real challenges their illegal activity, and the workers as follows: faced by real Americans to make ends who are unfairly discriminated against The Senator from Louisiana [Mr. VITTER] meet. These challenges have been will have no remedy. This result defies proposes an amendment numbered 34. mounting in recent months, as millions both justice and common sense. Mr. VITTER. Mr. President, I ask of American workers struggle even The American people have made unanimous consent that the reading of harder each day to provide for their clear that they are yearning for a gov- the amendment be dispensed with. families in this troubled economy. ernment that promotes, not defies, jus- The PRESIDING OFFICER. Without Pay discrimination makes their tice and common sense. We can answer objection, it is so ordered. struggle even harder. In these dire eco- this call for change by quickly passing The amendment is as follows: nomic times, workers and their fami- the Lilly Ledbetter Fair Pay Act and (Purpose: To preserve open competition and lies can’t afford to lose more economic restoring a clear and reasonable rule Federal Government neutrality towards ground—but that is just what is hap- the labor relations of Federal Government addressing how pay discrimination ac- contractors on Federal and federally fund- pening to thousands of Americans who tually occurs in the workplace. The ed construction projects) still face pay discrimination. 180-day time period for filing a pay dis- At the appropriate place, insert the fol- With the economy in a severe reces- crimination claim begins again on each lowing: sion, we cannot afford to wait to fix date when a worker receives a dis- SEC. ll. GOVERNMENT NEUTRALITY IN CON- this problem. With women and minori- criminatory paycheck. TRACTING. ties still making less than White men By doing so, the Lilly Ledbetter Fair (a) PURPOSES.—It is the purpose of this sec- for the same work, we can’t be compla- Pay Act ensures that employers can tion to— cent. With thousands of workers facing actually be held accountable when they (1) promote and ensure open competition discrimination because of their race, break the law. Under this bill, workers on Federal and federally funded or assisted construction projects; their sex, their national origin, their can challenge ongoing discrimination (2) maintain Federal Government neu- age, their religion, and their disability as long as it continues. As long as the trality towards the labor relations of Federal every year, we must continue the bat- injustice and the damage of the dis- Government contractors on Federal and fed- tle to end this national disgrace. crimination continue, the right to erally funded or assisted construction Lilly Ledbetter’s own case dem- challenge it should continue too. projects; onstrates the financial toll that pay The bill before us restores the rules (3) reduce construction costs to the Fed- discrimination can take. Lilly made 20 that employers and workers had lived eral Government and to the taxpayers; percent less than her lowest paid, least with for decades, until the Supreme (4) expand job opportunities, especially for experienced male colleague and almost small and disadvantaged businesses; and Court upended the law in the Ledbetter (5) prevent discrimination against Federal 40 percent less than her highest paid case. We know these rules are fair and Government contractors or their employees male colleague. For Lilly and other workable. They were the law in most of based upon labor affiliation or the lack victims like her, the cost of pay dis- the land and had the support of the thereof, thereby promoting the economical, crimination over time is large. A re- EEOC under both Democratic and Re- nondiscriminatory, and efficient administra- cent study estimates that women lose publican administrations until the tion and completion of Federal and federally an average of $434,000 over the course of Ledbetter decision. There won’t be any funded or assisted construction projects. their career because of the pay gap. surprises after this bill passes. As the (b) PRESERVATION OF OPEN COMPETITION AND FEDERAL GOVERNMENT NEUTRALITY.— Not only that, but their lower wages Congressional Budget Office has stated, (1) PROHIBITION.— also mean their pension benefits and the bill will not increase litigation (A) GENERAL RULE.—The head of each exec- their Social Security benefits are lower costs. utive agency that awards any construction as well. Unless we act, thousands of Congress must stand with American contract after the date of enactment of this American workers will continue to face workers to reverse the Supreme Act, or that obligates funds pursuant to such the same injustice that Lilly Ledbetter Court’s Ledbetter decision. Civil rights a contract, shall ensure that the agency, and has endured. groups, labor unions, disability advo- any construction manager acting on behalf It is our common responsibility to cates, and religious groups from across of the Federal Government with respect to such contract, in its bid specifications, attack this problem with every tool at the country support this legislation. project agreements, or other controlling doc- our disposal. Unfortunately, the chal- Many responsible business owners also uments does not— lenge has been made more difficult be- support it, especially, the members of (i) require or prohibit a bidder, offeror, cause of the Supreme Court’s decision the U.S. Women’s Chamber of Com- contractor, or subcontractor from entering last May that pulled the rug out from merce. The American people want us to into, or adhering to, agreements with 1 or under victims of pay discrimination by act. more labor organization, with respect to making it harder for them to stand up In her stirring dissent in the that construction project or another related for their rights. Ledbetter case, Justice Ruth Bader construction project; or In Ledbetter v. Goodyear Tire & Rub- Ginsburg wrote that ‘‘Once again, the (ii) otherwise discriminate against a bid- der, offeror, contractor, or subcontractor be- ber Company, the Supreme Court re- ball is in Congress’s court.’’ Nearly 2 cause such bidder, offeror, contractor, or versed decades of established law by re- years after she wrote those words, the subcontractor— interpreting existing law on equal pay ball is still in Congress’s court. The (I) became a signatory, or otherwise ad- and ruling that workers must file House passed this important legisla- hered to, an agreement with 1 or more labor

VerDate Nov 24 2008 02:03 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\CR\FM\G22JA6.036 S22JAPT1 wwoods2 on PRODPC68 with SENATE January 22, 2009 CONGRESSIONAL RECORD — SENATE S773 organization with respect to that construc- (i) that the awarding authority, recipient employees in favor of union workers, to tion project or another related construction of grants or financial assistance, party to a pay into union and pension health project; or cooperative agreement, or construction man- plans, even if they already have their (II) refuse to become a signatory, or other- ager acting on behalf of any of such entities own plans. wise adhere to, an agreement with 1 or more had issued or was a party to, as of the date Not being able to bid on a public of the enactment of this Act, bid specifica- labor organization with respect to that con- project because of a PLA is very detri- struction project or another related con- tions, project agreements, agreements with struction project. one or more labor organizations, or other mental to small disadvantaged compa- (B) APPLICATION OF PROHIBITION.—The pro- controlling documents with respect to that nies who rely on these contracts for visions of this subsection shall not apply to particular project, which contained any of much of their growth. contracts awarded prior to the date of enact- the requirements or prohibitions set forth in Again, this amendment would pro- ment of this Act, and subcontracts awarded paragraph (1)(A); and vide equal opportunity and open com- pursuant to such contracts regardless of the (ii) that one or more construction con- petition in Federal contracting. It date of such subcontracts. tracts subject to such requirements or prohi- would codify the status quo right now, (C) RULE OF CONSTRUCTION.—Nothing in bitions had been awarded as of the date of which is to bar Federal agencies from the enactment of this Act. subparagraph (A) shall be construed to pro- requiring union-only PLAs on Federal (5) FEDERAL ACQUISITION REGULATORY COUN- hibit a contractor or subcontractor from vol- construction projects. This sort of untarily entering into an agreement de- CIL.—With respect to Federal contracts to scribed in such subparagraph. which this subsection applies, not later than equal opportunity nondiscrimination is (2) RECIPIENTS OF GRANTS AND OTHER AS- 60 days after the date of enactment of this important and certainly is consistent SISTANCE.—The head of each executive agen- Act, the Federal Acquisition Regulatory with the spirit of this underlying bill. cy that awards grants, provides financial as- Council shall take appropriate action to Let me also mention in closing that sistance, or enters into cooperative agree- amend the Federal Acquisition Regulation to this amendment has the full support of ments for construction projects after the implement the provisions of this subsection. many national groups such as Associ- date of enactment of this Act, shall ensure (6) DEFINITIONS.—In this subsection: ated Builders and Contractors, The As- that— (A) CONSTRUCTION CONTRACT.—The term ‘‘construction contract’’ means any contract sociated General Contractors of Amer- (A) the bid specifications, project agree- ica, the National Association of Minor- ments, or other controlling documents for for the construction, rehabilitation, alter- such construction projects of a recipient of a ation, conversion, extension, or repair of ity Contractors, Independent Electrical grant or financial assistance, or by the par- buildings, highways, or other improvements Contractors, the National Association ties to a cooperative agreement, do not con- to real property. of Disadvantaged Businesses, the Na- tain any of the requirements or prohibitions (B) EXECUTIVE AGENCY.—The term ‘‘execu- tional Black Chamber of Commerce, described in clause (i) or (ii) of paragraph tive agency’’ has the meaning given such the National Federation of Independent (1)(A); or term in section 105 of title 5, United States Business, Women Construction Owners (B) the bid specifications, project agree- Code, except that such term shall not in- clude the Government Accountability Office. and Executives, and others. ments, or other controlling documents for I ask unanimous consent to have such construction projects of a construction (C) LABOR ORGANIZATION.—The term ‘‘labor printed in the RECORD a letter making manager acting on behalf of a recipient or organization’’ has the meaning given such party described in subparagraph (A) do not term in section 701(d) of the Civil Rights Act clear that support from a broad-based contain any of the requirements or prohibi- of 1964 (42 U.S.C. 2000e(d)). group of organizations. tions described in clause (i) or (ii) of para- Mr. VITTER. Mr. President, this is There being no objection, the mate- graph (1)(A). my amendment, No. 34 the Government rial was ordered to be printed in the (3) FAILURE TO COMPLY.—If an executive neutrality in contracting amendment. RECORD, as follows: agency, a recipient of a grant or financial as- It is very simple; it is very straight for- JANUARY 21, 2009. sistance from an executive agency, a party U.S. SENATE, to a cooperative agreement with an execu- ward. It would provide true equal op- portunity and open competition in na- Washington, DC. tive agency, or a construction manager act- DEAR SENATOR: The undersigned organiza- ing on behalf of such an agency, recipient, or tional contracting. tions call on you to support an amendment party, fails to comply with paragraph (1) or Congress has a duty to ensure that offered today by Senator David Vitter (S.A. (2), the head of the executive agency award- infrastructure projects paid for by tax- 34) to the ‘‘Ledbetter Fair Pay Act of 2009’’ ing the contract, grant, or assistance, or en- payers are free from favoritism, and (S. 181) that eliminates discrimination and tering into the agreement, involved shall these interests would not be served if ensures fairness in federal procurement by take such action, consistent with law, as the Congress were to require union-only forbidding union-only project labor agree- head of the agency determines to be appro- Project Labor Agreements or PLAs for ments (PLAs) on federal and federally funded priate. construction projects in the 111th Con- construction projects. In addition, this (4) EXEMPTIONS.— amendment protects taxpayers and ensures (A) IN GENERAL.—The head of an executive gress. fair and open competition on contracts for agency may exempt a particular project, According to a January 2008 report all federal infrastructure projects. We urge contract, subcontract, grant, or cooperative issued by the Bureau of Labor Statis- you to support the Vitter Amendment to the agreement from the requirements of 1 or tics, only 13.9 percent of America’s pri- ‘‘Ledbetter Fair Pay Act of 2009’’ (S.181) more of the provisions of paragraphs (1) and vate construction work force belongs when it comes up for a vote in the U.S. Sen- (2) if the head of such agency determines to a labor union. So this means that ate. that special circumstances exist that require union-only PLAs discriminate against Equal opportunity and open competition in an exemption in order to avert an imminent well over 8 out of 10 construction work- federal contracting are critical issues to con- threat to public health or safety or to serve sider as the federal government explores var- the national security. ers in America who would otherwise be ious solutions, including significant infra- (B) SPECIAL CIRCUMSTANCES.—For purposes able to work on those projects. structure spending, to stimulate our ailing of subparagraph (A), a finding of ‘‘special cir- Given the debate on the current leg- economy. Congress must ensure federal and cumstances’’ may not be based on the possi- islation, I believe this amendment is federally funded infrastructure projects paid bility or existence of a labor dispute con- particularly important for the fol- for by taxpayers are administered in a man- cerning contractors or subcontractors that lowing reasons: Minorities are particu- ner that is free from favoritism and discrimi- are nonsignatories to, or that otherwise do larly negatively impacted by union- nation while efficiently spending federal tax not adhere to, agreements with 1 or more only PLAs. This discrimination is dollars. These interests would not be served labor organization, or labor disputes con- if Congress were to require union-only re- cerning employees on the project who are harmful to women and minority-owned quirements, commonly known as union-only not members of, or affiliated with, a labor construction businesses whose workers PLAs, on federal construction projects. The organization. have traditionally been underrep- Vitter Amendment would protect taxpayers (C) ADDITIONAL EXEMPTION FOR CERTAIN resented in unions, mainly due to arti- from costly and discriminatory union-only PROJECTS.—The head of an executive agency, ficial and societal barriers to union ap- PLA requirements on federal construction upon application of an awarding authority, a prenticeship and training programs. contracts. recipient of grants or financial assistance, a Requirements under a PLA can be so A union-only PLA is a contract that re- party to a cooperative agreement, or a con- burdensome that many women and mi- quires a construction project to be awarded struction manager acting on behalf of any of to contractors and subcontractors that agree such entities, may exempt a particular nority-owned businesses are deterred to: recognize unions as the representatives of project from the requirements of any or all from even bidding on construction their employees on that jobsite; use the of the provisions of paragraphs (1) or (2) if projects. A PLA could force these em- union hiring hall to obtain workers; pay the agency head finds— ployers to have to abandon their own union wages and benefits; obtain apprentices

VerDate Nov 24 2008 02:03 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\CR\FM\A22JA6.025 S22JAPT1 wwoods2 on PRODPC68 with SENATE S774 CONGRESSIONAL RECORD — SENATE January 22, 2009 through union apprenticeship programs; and ments because they know they are In addition, the distinguished Sen- obey the union’s restrictive work rules, job going to get a good job at the price ator from Maryland talked about cost. classifications and arbitration procedures. that has been bid. These agreements PLAs do impact cost. They push up Construction contracts subject to union- cost. If they make cost reliable, they only PLAs almost always are awarded exclu- help keep costs predictable and under sively to unionized contractors and their all- control. That is critical for large Fed- only make them reliably high. A good union workforces. According to the most re- eral projects. example is the $2.4 billion project right cent data from the U.S. Department of La- It is also a preventive strategy. here to replace the Wilson Bridge be- bor’s Bureau of Labor Statistics, only 13.9 Often, they prevent labor disputes and tween suburban Maryland and Vir- percent of America’s construction workforce assure a steady supply of high-quality ginia. When a union-only PLA require- belongs to a union. This means union-only workers. ment was pushed by former Maryland PLAs would discriminate against almost Project labor agreements benefit Governor Glendening, that threw a nine out of 10 construction workers who workers and communities. Now more wrench into the project and drove costs would otherwise work on construction up 78 percent. After that, President projects if not for a union-only PLA. than ever, we need to be creating high- This discrimination is particularly harm- quality jobs. Project labor agreements Bush issued an Executive order to do ful to women and minority-owned construc- ensure that wages and benefits and away with those PLAs, and phase 1 of tion businesses whose workers traditionally working conditions are simply fair. In- the bridge project was rebid. Multiple have been under-represented in unions, stead of embracing these benefits, the bids were received, and the winning mainly due to artificial and societal barriers Vitter amendment would prohibit the bids came in significantly below engi- in union membership and union apprentice- use of it. neering estimates. Today, with that ship and training programs. Then there is another issue—execu- rule against the PLA requirement, the In closing, we strongly urge you to elimi- nate discrimination and guarantee equal op- tive authority. This would take away project is almost complete and sub- portunity and open competition in federal longstanding executive authority. It stantially under budget. I have exam- construction procurement by supporting the would tie the hands of a President. I ple after example such as that, where Vitter Amendment (S.A. 34) to the certainly don’t want to tie the hands of union-only PLAs do jack up the cost to ‘‘Ledbetter Fair Pay Act of 2009’ (S. 181). our new President, but I don’t want to the taxpayer. Sincerely, tie the hands of any President under In addition, since we are talking Associated Builders and Contractors; Inde- the Executive authority to do PLAs. about discrimination issues, PLAs do pendent Electrical Contractors; National As- Our Nation’s Executive has always had cut out and harm and put at a dis- sociation of Minority Contractors—North- advantage many women and minori- east Region; National Association of Small the authority over Federal con- Disadvantaged Businesses; National Black tracting. There is no reason to shift ties, certainly including women- and Chamber of Commerce; National Federation the balance of power. That could result minority-owned businesses. of Independent Business; Women Construc- in all kinds of lawsuits, et cetera. With that, I urge all of my colleagues tion Owners and Executives, USA. Senator VITTER says that project to support this amendment. Mr. VITTER. I retain the remainder labor agreements restrict competition, I yield back the remainder of my of my time. but that is not true. Under President time. The PRESIDING OFFICER. The Sen- Clinton, both union and nonunion con- The PRESIDING OFFICER. The Sen- ator from Maryland. tractors were able to win bids. Non- ator from Maryland. Ms. MIKULSKI. Mr. President, I ask Ms. MIKULSKI. Mr. President, I union workers were not excluded. All unanimous consent that my remarks want to be clear that I object to the construction workers could work on be extended by 1 minute for the pur- Vitter amendment. I do it on both pol- projects governed by project labor pose of acknowledgment and thanking icy and procedural grounds. agreements. That is what I am going to First, on procedure, this amendment people. repeat: Project labor agreements do The PRESIDING OFFICER. Without has nothing to do with the Lilly not require union-only labor. That is a objection, it is so ordered. Ledbetter Fair Pay Act. The Lilly myth. It has no basis in reality. It has Ms. MIKULSKI. Mr. President, I Ledbetter Fair Pay Act focuses on no basis in statute. thank someone who is not with us to- wage discrimination. The Vitter I know the time is growing late. I night for his steadfast work on this amendment focuses on project labor also thank the Senator from Louisiana bill, our beloved Senator KENNEDY. We agreements by Federal agencies. It for agreeing to a time agreement. I can’t wait to have him back. I thank deals with contracting. It deals with think I have made the essence of our the distinguished ranking member, construction work. It does not deal argument. I will reserve the remainder Senator ENZI, for his wonderful co- with wages in that category. of my time for a wrap-up statement operation in enabling us to move this The great thing about today is that and some individuals I would like to bill and to proceed with civility and we have not become locked in a debate acknowledge, some of the people who focus and, I might add, timeliness. I on process. I thank my colleagues on have worked so hard on this bill. thank all of my colleagues, Judiciary the other side of the aisle for the The PRESIDING OFFICER. The Sen- Committee as well as HELP Com- amendments they offered. They were ator from Louisiana. mittee members. I thank the Kennedy focused. They were clear. It was pri- Mr. VITTER. How much time re- staff who worked with me on doing marily about wage discrimination. mains on both sides? this—Sharon Block, Portia Wu, and When we look at the Vitter amend- The PRESIDING OFFICER. The Sen- Charlotte Burrows—and my own staff: ment, it would prohibit Federal dollars ator from Louisiana has just under 61⁄2 Ben Gruenbaum and Priya Ghosh from being used for something called minutes. The Senator from Maryland Ahola. project labor agreements. These agree- has 30 seconds. I want to, then, proceed to the first ments, which contractors and labor or- Mr. VITTER. Mr. President, let me bill the Senate will actually vote on ganizations establish to set the terms again underscore that it has been since the inauguration of our new of employment for large construction clearly demonstrated that project President. I think this debate shows we projects, benefit both the Government labor agreements, union-only project can change the tone. Let’s keep that and workers. History has shown they labor agreements, do hurt women and up. produce high-quality jobs, high-quality minorities and also hurt women- and I move to table the Vitter amend- work that is completed efficiently and minority-owned businesses. They are ment and ask for the yeas and nays. effectively, on time, and meeting the often shut out or disadvantaged The PRESIDING OFFICER. Is there a bottom line of the bid. through those agreements because of sufficient second? When we talk about project labor historical factors. That is one reason, There appears to be a sufficient sec- agreements, it is not true that PLAs among many, why all of those organi- ond. require union-only labor. Project labor zations I cited, including organizations The question is on agreeing to agreements have been used for years to representing minority- and women- amendment No. 34. The clerk will call help construction companies run effec- owned businesses, strongly support my the roll. tively and efficiently. State and local stand-alone bill and strongly support The assistant legislative clerk called governments often use these agree- my amendment. the roll.

VerDate Nov 24 2008 04:03 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\CR\FM\A22JA6.033 S22JAPT1 wwoods2 on PRODPC68 with SENATE January 22, 2009 CONGRESSIONAL RECORD — SENATE S775 Mr. DURBIN. I announce that the Carper Kohl Reid compensation decision or other practice is Casey Landrieu Rockefeller Senator from Massachusetts (Mr. KEN- adopted, when an individual becomes subject Collins Lautenberg Sanders NEDY) is necessarily absent. to a discriminatory compensation decision Conrad Leahy Schumer or other practice, or when an individual is The PRESIDING OFFICER (Mr. Dodd Levin Shaheen Dorgan Lieberman affected by application of a discriminatory BEGICH). Are there any other Senators Snowe compensation decision or other practice, in- Durbin Lincoln Specter in the Chamber desiring to vote? cluding each time wages, benefits, or other Feingold McCaskill Stabenow Feinstein Menendez The result was announced—yeas 59, Tester compensation is paid, resulting in whole or Hagan Merkley nays 38, as follows: Udall (CO) in part from such a decision or other prac- Harkin Mikulski Udall (NM) tice. [Rollcall Vote No. 13 Leg.] Hutchison Murkowski Warner ‘‘(B) In addition to any relief authorized by YEAS—59 Inouye Murray section 1977A of the Revised Statutes (42 Johnson Nelson (FL) Webb Akaka Hagan Nelson (FL) Kaufman Nelson (NE) Whitehouse U.S.C. 1981a), liability may accrue and an ag- Baucus Harkin Nelson (NE) Kerry Pryor Wyden grieved person may obtain relief as provided Bayh Inouye Pryor Klobuchar Reed in subsection (g)(1), including recovery of Begich Johnson Reed back pay for up to two years preceding the Bennet Kaufman Reid NAYS—36 filing of the charge, where the unlawful em- Bingaman Kerry Rockefeller Alexander Crapo Lugar Boxer Klobuchar ployment practices that have occurred dur- Sanders Barrasso DeMint Martinez Brown Kohl ing the charge filing period are similar or re- Schumer Bennett Ensign McCain Burris Landrieu lated to unlawful employment practices with Shaheen Bond Enzi McConnell Byrd Lautenberg regard to discrimination in compensation Specter Brownback Graham Risch Cantwell Leahy Bunning Grassley Roberts that occurred outside the time for filing a Cardin Levin Stabenow Burr Gregg Sessions charge.’’. Carper Lieberman Tester Chambliss Hatch Shelby SEC. 4. DISCRIMINATION IN COMPENSATION BE- Casey Lincoln Udall (CO) Coburn Inhofe Thune CAUSE OF AGE. Conrad McCaskill Udall (NM) Cochran Isakson Vitter Dodd Menendez Voinovich Section 7(d) of the Age Discrimination in Corker Johanns Voinovich Dorgan Merkley Warner Employment Act of 1967 (29 U.S.C. 626(d)) is Cornyn Kyl Wicker Durbin Mikulski Webb amended— Feingold Murkowski Whitehouse NOT VOTING—1 (1) in the first sentence— Feinstein Murray Wyden (A) by redesignating paragraphs (1) and (2) Kennedy NAYS—38 as subparagraphs (A) and (B), respectively; The PRESIDING OFFICER. Under and Alexander Crapo Lugar the previous order, three-fifths of the (B) by striking ‘‘(d)’’ and inserting ‘‘(d)(1)’’; Barrasso DeMint Martinez (2) in the third sentence, by striking Bennett Ensign McCain Senators duly chosen and sworn having Bond Enzi McConnell voted in the affirmative, the bill is ‘‘Upon’’ and inserting the following: ‘‘(2) Upon’’; and Brownback Graham Risch passed. (3) by adding at the end the following: Bunning Grassley Roberts The bill (S. 181) was passed, as fol- Burr Gregg Sessions ‘‘(3) For purposes of this section, an unlaw- Chambliss Hatch Shelby lows: ful practice occurs, with respect to discrimi- Coburn Hutchison Snowe S. 181 nation in compensation in violation of this Cochran Inhofe Thune Act, when a discriminatory compensation Collins Isakson Be it enacted by the Senate and House of Rep- Vitter decision or other practice is adopted, when a Corker Johanns resentatives of the United States of America in Cornyn Kyl Wicker Congress assembled, person becomes subject to a discriminatory compensation decision or other practice, or SECTION 1. SHORT TITLE. NOT VOTING—1 when a person is affected by application of a This Act may be cited as the ‘‘Lilly Kennedy discriminatory compensation decision or Ledbetter Fair Pay Act of 2009’’. other practice, including each time wages, The motion was agreed to. SEC. 2. FINDINGS. benefits, or other compensation is paid, re- Mrs. MURRAY. Mr. President, I Congress finds the following: sulting in whole or in part from such a deci- move to reconsider the vote. (1) The Supreme Court in Ledbetter v. sion or other practice.’’. Mr. CARDIN. I move to lay that mo- Goodyear Tire & Rubber Co., 550 U.S. 618 SEC. 5. APPLICATION TO OTHER LAWS. tion on the table. (2007), significantly impairs statutory pro- (a) AMERICANS WITH DISABILITIES ACT OF The motion to lay on the table was tections against discrimination in compensa- 1990.—The amendments made by section 3 agreed to. tion that Congress established and that have shall apply to claims of discrimination in been bedrock principles of American law for The PRESIDING OFFICER. Under compensation brought under title I and sec- decades. The Ledbetter decision undermines tion 503 of the Americans with Disabilities the previous order, the clerk will read those statutory protections by unduly re- Act of 1990 (42 U.S.C. 12111 et seq., 12203), pur- the title of the bill for the third time. stricting the time period in which victims of suant to section 107(a) of such Act (42 U.S.C. The bill was read the third time. discrimination can challenge and recover for 12117(a)), which adopts the powers, remedies, Mr. MENENDEZ. Mr. President, I ask discriminatory compensation decisions or and procedures set forth in section 706 of the for the yeas and nays. other practices, contrary to the intent of Civil Rights Act of 1964 (42 U.S.C. 2000e–5). The PRESIDING OFFICER. Is there a Congress. (b) REHABILITATION ACT OF 1973.—The (2) The limitation imposed by the Court on sufficient second? amendments made by section 3 shall apply to the filing of discriminatory compensation claims of discrimination in compensation There appears to be a sufficient sec- claims ignores the reality of wage discrimi- brought under sections 501 and 504 of the Re- ond. nation and is at odds with the robust appli- habilitation Act of 1973 (29 U.S.C. 791, 794), The bill having been read the third cation of the civil rights laws that Congress pursuant to— time, the question is, Shall the bill intended. (1) sections 501(g) and 504(d) of such Act (29 pass? (3) With regard to any charge of discrimi- U.S.C. 791(g), 794(d)), respectively, which The clerk will call the roll. nation under any law, nothing in this Act is adopt the standards applied under title I of The legislative clerk proceeded to intended to preclude or limit an aggrieved the Americans with Disabilities Act of 1990 person’s right to introduce evidence of an call the roll. for determining whether a violation has oc- unlawful employment practice that has oc- curred in a complaint alleging employment Mr. DURBIN. I announce that the curred outside the time for filing a charge of discrimination; and Senator from Massachusetts (Mr. KEN- discrimination. (2) paragraphs (1) and (2) of section 505(a) of NEDY) is necessarily absent. (4) Nothing in this Act is intended to such Act (29 U.S.C. 794a(a)) (as amended by The PRESIDING OFFICER. Are there change current law treatment of when pen- subsection (c)). any other Senators in the Chamber de- sion distributions are considered paid. (c) CONFORMING AMENDMENTS.— siring to vote? SEC. 3. DISCRIMINATION IN COMPENSATION BE- (1) REHABILITATION ACT OF 1973.—Section The result was announced—yeas 61, CAUSE OF RACE, COLOR, RELIGION, 505(a) of the Rehabilitation Act of 1973 (29 SEX, OR NATIONAL ORIGIN. U.S.C. 794a(a)) is amended— nays 36, as follows: Section 706(e) of the Civil Rights Act of (A) in paragraph (1), by inserting after ‘‘(42 [Rollcall Vote No. 14 Leg.] 1964 (42 U.S.C. 2000e–5(e)) is amended by add- U.S.C. 2000e–5 (f) through (k))’’ the following: YEAS—61 ing at the end the following: ‘‘(and the application of section 706(e)(3) (42 Akaka Bennet Burris ‘‘(3)(A) For purposes of this section, an un- U.S.C. 2000e–5(e)(3)) to claims of discrimina- Baucus Bingaman Byrd lawful employment practice occurs, with re- tion in compensation)’’; and Bayh Boxer Cantwell spect to discrimination in compensation in (B) in paragraph (2), by inserting after Begich Brown Cardin violation of this title, when a discriminatory ‘‘1964’’ the following: ‘‘(42 U.S.C. 2000d et

VerDate Nov 24 2008 02:03 Jan 23, 2009 Jkt 079060 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\CR\FM\A22JA6.032 S22JAPT1 wwoods2 on PRODPC68 with SENATE S776 CONGRESSIONAL RECORD — SENATE January 22, 2009 seq.) (and in subsection (e)(3) of section 706 of No. 7 on amendment No. 25, had I been Alaska and who defended the United such Act (42 U.S.C. 2000e–5), applied to claims present I would have voted ‘‘nay.’’ States from the Japanese during World of discrimination in compensation)’’. The PRESIDING OFFICER. The Sen- War II. It is a tragedy because these (2) CIVIL RIGHTS ACT OF 1964.—Section 717 of ator from Iowa is recognized. people were led to believe they would the Civil Rights Act of 1964 (42 U.S.C. 2000e– 16) is amended by adding at the end the fol- Mr. GRASSLEY. I thank the Chair. be compensated for their service to our lowing: (The remarks of Mr. GRASSLEY per- Nation. It is a tragedy because most of ‘‘(f) Section 706(e)(3) shall apply to com- taining to the introduction of S. 301 are the people I am talking about, most of plaints of discrimination in compensation printed in today’s RECORD under these gentlemen, are Eskimos—among under this section.’’. ‘‘Statements on Introduced Bills and the first people of the United States, (3) AGE DISCRIMINATION IN EMPLOYMENT ACT Joint Resolutions.’’) members of a class of people to whom OF 1967.—Section 15(f) of the Age Discrimina- Mr. GRASSLEY. I thank the Chair the United States Government has bro- tion in Employment Act of 1967 (29 U.S.C. for the time, and I yield the floor. ken its promises time and time again. 633a(f)) is amended by striking ‘‘of section’’ The PRESIDING OFFICER. The Sen- and inserting ‘‘of sections 7(d)(3) and’’. It is a tragedy because they were mis- ator from Alaska is recognized. SEC. 6. EFFECTIVE DATE. led into believing their retirement pay This Act, and the amendments made by f was increasing. It is a further tragedy this Act, take effect as if enacted on May 28, ALASKA TERRITORIAL GUARD because this bad news is going to be 2007 and apply to all claims of discrimination communicated in a letter signed by a in compensation under title VII of the Civil Ms. MURKOWSKI. Mr. President, branch chief in the Army Human Re- Rights Act of 1964 (42 U.S.C. 2000e et seq.), sometime this week letters will be sources Command. These people de- the Age Discrimination in Employment Act mailed from the U.S. Army Human Re- serve an apology from the Secretary of of 1967 (29 U.S.C. 621 et seq.), title I and sec- sources Command in St. Louis, MO, to Defense. They do not need to be receiv- tion 503 of the Americans with Disabilities 25 elderly Alaskans. Those letters will ing this news about this error from a Act of 1990, and sections 501 and 504 of the tell these 25 elderly Alaskans that the branch chief in the Army Human Re- Rehabilitation Act of 1973, that are pending Army has changed its mind—it has on or after that date. sources Command. changed its mind—about whether their It is also a tragedy because some of Mrs. MURRAY. I move to reconsider service in the Alaska Territorial Guard these people in the Department of De- the vote. during World War II counts toward fense chose to implement this decision Ms. MIKULSKI. I move to lay that military retirement. The effect of this in the dead of an Alaska winter, when motion on the table. abrupt reversal in position is to reduce we know that our Native elders in The motion to lay on the table was the monthly retirement payments to rural Alaska are most vulnerable. agreed to. each of these 25 elderly Alaskans. Right now, in the village of Kwig and Ms. MIKULSKI. Mr. President, today These retirement payments will be re- in Noatak and in the other commu- is a great day in the Senate. We have duced by an average of $386 a month. nities, it is dark, it is cold, and re- now overwhelmingly passed a bipar- Six will lose more than $500 a month in sources are scarce. The increase in re- tisan bill to correct an injustice that retirement pay. These reductions will tirement pay, which was implemented has been prevailing among people— take effect on February 1. just this last June, was very welcome women, minorities, and people with So in less than 10 days, these individ- news to those who were receiving it. It disabilities—in the area of wage dis- uals who have been receiving these came at a time when the cost of fuel crimination. payments—these elderly Alaskans who What is so great about today is not was rising to levels in our rural com- served us during World War II—will be munities that people simply could not only our overwhelming legislative vic- receiving a letter, maybe before their tory, but we showed, No. 1, that we can pay. benefits are cut off, but they will be re- If you will recall, back home in June change the tone. I thank Leader REID ceiving a letter saying: Sorry, your and July, in the cities, we were paying for the leadership he provided in cre- service doesn’t count toward military $4.50, $5 a gallon for our fuel. But out in ating the legislative framework where retirement. the villages they were paying $7, $8 a we can move ahead with open debate. Mr. President, I state again: None of gallon, and in some areas even higher Notice that we did this bill in a well- these 25 elderly Alaskans knows this is than that. Throughout the State, but measured, well-modulated, well-paced coming. It will come as a complete sur- particularly in rural Alaska last sum- way. There was no need for cloture mo- prise to them, possibly, when they re- mer, folks were anxious about whether tions. There was no need for parliamen- ceive that letter. Whether they are they were going to be able to afford to tary quagmires. What it showed, tuning in to C–SPAN and hear my com- heat their homes this winter. though, is there is a need for civility ments tonight, we don’t know. Last week, in the Indian Affairs Com- and cooperation. We, as Americans, It is going to take a while for these mittee, the Presiding Officer had an have to know, given this economic sit- letters coming out of St. Louis, MO, to opportunity to join us, and I was able uation, that we are all in it together. reach their destinations because these to put on the record the plight of some When we work together, we now know letters are being sent to some of the of the Native people in the community each and every one of us makes a dif- remotest parts of our State, of rural of Emmonak who have literally had to ference. But when we truly work to- Alaska. Four of these letters are des- choose between buying stove oil to gether, we can make change. tined for the village of Noatak. This is heat their homes or whether they Today we changed the law, we an Inupiat Eskimo village of 489 people should buy food for their families. changed direction, we change history, in northwest Alaska. I would suggest, I guess some of the good news we and I thank all my colleagues and all Mr. President, that outside of you and have learned is that none of these let- the staff who have made this possible. I, there is probably nobody in Wash- ters informing these elders that they I also wish to say a special thanks to ington, DC, who could identify Noatak will see a reduction in benefits is going Senator TED KENNEDY. I hope he is on a map. Four of these letters are des- to the village of Emmonak, but I would watching tonight because, TED, we tined for the village of Kwigillingok. suspect many of the villages to which miss you. We know you are not on the We call it Kwig because it is so dif- these letters are going are no better floor; you are with us in spirit. There is ficult to pronounce. This is a Yupik Es- off. You just have to ask the question: more to be done. We cannot wait for kimo community of 361 people. How can our government be so insensi- you to be back. Let’s go and get the job All told, these letters are being sent tive—taking money, taking retirement done. to elders in 15 Alaska Native commu- benefits out of the pockets of our el- America is counting on us to do the nities in interior and western Alaska. ders, of our seniors, at a time of the kinds of things we have done today and The poster board that I have behind me year when they are absolutely the act the way we did, the way we got the indicates some of the elderly gentle- most vulnerable? business done. men who may be receiving these letters I hope I have gained the attention of VOTE EXPLANATION in the next several weeks. some, and with the indulgence of my Mr. HARKIN. Mr. President, while I This decision is tragic. It is tragic be- colleagues, I would like to fill in a lit- was necessarily absent for rollcall vote cause it affects veterans who defended tle bit of the background. I will not be

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