Lilly Ledbetter Fair Pay Act of 2009 - Resumed

BREAK IN TRANSCRIPT

Ms. MURKOWSKI. Mr. President, I rise to speak in support of the Hutchison substitute amendment to the Lilly Ledbetter Fair Pay Act. I do believe this substitute amendment strikes a fair balance in ensuring that employees can be relieved of discrimination. I wish to say, at the outset of my comments, I am very pleased we are able to offer amendments to this legislation. I do intend to work with my colleagues to craft and support any other amendments that I believe will improve the legislation before us.

Before speaking directly to the Hutchison substitute, I wish to make very clear one point: Discrimination because of an individual's gender, ethnicity, religion, age or disability cannot be tolerated. No American should be subject to discrimination. If they are, they have the right to the law's full protection.

The heart of the Supreme Court's Ledbetter decision is the ruling that the law requires an employee to file a complaint within 180 days of when the discriminatory intent is first activated by paycheck. Last year, I had the opportunity to speak with Lilly Ledbetter. I know she made a visit to many offices. I had a good conversation. I believed her when she told me she didn't know her wages were lower than those of her male colleagues. I agreed it is often very difficult, perhaps impossible, to know how one's wages compare with another employee's, and that even if an employee does know that he or she is being paid less, that often it is very difficult to know for sure that the reason for the disparity is discrimination.

The best solution to this problem, though, is not necessarily to restart the clock at each paycheck. I believe the best solution is to clarify that if the employee did not know about the discriminatory action at the time it was supplied or could not have reasonably suspected discrimination, the clock starts when that knowledge is available to the employee or when it is reasonable for the employee to have known of the discrimination.

It is also reasonable to require that an employee file a complaint in a timely manner, once that knowledge or that suspicion is available. The Hutchison substitute is a good fix to the Ledbetter decision. Her amendment not only recognizes that many employees do not know what their colleagues are being paid or that any disparity is due to discrimination, the Hutchison substitute amendment would also restore the reasonable requirement that the employee file a complaint in a timely manner.

We all know memories have a tendency to fade away. Paperwork may be lost or thrown away. People leave jobs. Requiring an employee to file a timely claim benefit benefits the employee in pressing his or her claim. How can the Equal Employment Opportunity Commission investigate a claim of discrimination and find the truth, if the discriminating supervisor has retired, moved away or, perhaps, even died? That is what happened to Lilly Ledbetter. The supervisor who made the original discriminatory decision about her wages died before she could even file her complaint. He wasn't even available to be questioned or cross-examined. How can the EEOC find out the truth, if the records were lost that show a woman or a minority or senior or disabled person's first paycheck was inordinately lower than the first paycheck of his or her peers?

So Senator Hutchison's amendment ensures that this clock does not start running on the 180-day statute of limitations until an employee finds out about, or could reasonably be expected to suspect, the possibility of discrimination. It ensures that workers can hold their employers accountable for pay discrimination.

Now, some have argued--or some will argue--Senator Hutchison's amendment would institute an unfair discovery rule. They argue it will force employees to file before they are sure of discrimination, when they may most fear retaliation. But I disagree. Senator Hutchison's amendment says the clock starts when the employee ``did not have, and should not have been expected to have, enough information to support a reasonable suspicion of such discrimination, on the date on which the alleged unlawful employment practice occurred.'' It does not say the employee must file when they have a hunch. It says a ``reasonable suspicion.''

Opponents of this amendment may also contend that the Lilly Ledbetter Fair Pay Act simply restores the paycheck accrual rule that was in place before the Supreme Court decision and that a discovery rule would be a new hurdle for employees to deal with. Again, I disagree with this. Prior to the Supreme Court's Ledbetter decision, the EEOC applied, through regulation, the concept--many attorneys are familiar with it--of ``equitable tolling.'' This concept basically means that a plaintiff may proceed with a complaint notwithstanding missing a deadline if the employee did not know he or she was being discriminated against.

The Hutchison amendment actually strengthens that familiar, often used legal concept that protects employees' rights by putting it in the statute.

Opponents of placing a so-called discovery rule in the law also allege it would lead to confusion in the courts. They call it an unclear and untested rule. Again, I would disagree. The EEOC and the courts are quite familiar with the concept of equitable tolling, and there is substantial case law in which it has been applied.

Opponents also claim a discovery rule will force plaintiffs to prove a negative--that the employee should not be expected to have known about the discrimination--before they even get to the question of whether there was discrimination. I believe it is fairly easy to prove that one did not have access to the pay records of other employees, that it is fairly easy to prove the piece of information that led the employee to file the complaint was not available to him or her earlier.

I believe the substitute amendment we have before us strikes the right balance in ensuring that employees can be relieved of discrimination. It recognizes employees often do not know their pay is different from their colleagues. It recognizes it is not always obvious that a pay disparity is based on discrimination.

For those reasons, I have cosponsored this amendment by my colleague, Senator Hutchison, and I urge my other Senate colleagues to support it.

With that, Mr. President, I yield the floor.

BREAK IN TRANSCRIPT

Source