Kay Hutchison

Mrs. HUTCHISON

Mrs. HUTCHISON. Mr. President, the CBO scores this as an actual savings. There will be no additional cost to the program and it has no impact over any other State's funding. I yield the remainder of my time.

Mrs. HUTCHISON

Mrs. HUTCHISON. Mr. President, Senator Rockefeller and I, as the chairman and the ranking member of the Commerce Committee, have worked on a bill that will delay for 3 months, basically until June 12, this transition. It is voluntary. That was very important. Because many broadcast companies have made the investment for digital transmission, and they will be able to go to that digital transmission. It also allows people, even if they have coupons that are expired, to reapply and get coupons. But I do wish to serve notice that I will not support another delay in implementation. By now people have had the notice, and we have done everything to help mitigate the cost of this transition. I talked to Senator Rockefeller about that, and I think we are in agreement that now is the time for people to get their coupons and get their boxes because June 12 this transition will be made.

Mrs. HUTCHISON

Mrs. HUTCHISON. I suggest the absence of a quorum. The clerk will call the roll.

Mrs. HUTCHISON. Mr. President, I thank the distinguished Senator from South Carolina. I believe he laid it out very well. I am very concerned about the broadening aspects of the underlying bill. As I have said on many occasions, Senator Mikulski and I have worked on so many issues to advance the cause of women, the rights of women, fair treatment of women. I would like to be able to support her bill, and I support the concept of her bill. My concern is in two major areas: One is the inability for a legitimate defense to be raised if a person waits when they should have known there was discrimination, to be able to address that immediately or within a reasonable amount of time. I want people to be able to raise the issue. I have heard of company policies. I have worked in a place where it was company policy that one didn't talk about pay. That was when I was making $600 a month. Maybe there was discrimination there. If there is a company policy or a feeling in the company that if you talk about pay, you are going to be punished or maybe even fired, then that makes the statute of limitations not function at that point. That, then, is a policy that is discriminatory. That is what we are trying to do: give the right of the plaintiff to show that he or she could not have known, didn't know, and could not have known. The second area that is of great concern to me is the expansion of the right of the plaintiff to go beyond the plaintiff himself or herself, to allow a person affected by the alleged discrimination to file suit, which could even occur after the person is not even there or is dead. That is putting into our system a possibility that the person might not have filed the claim on their own, didn't file it, might not have wanted to, might have believed it wasn't the right thing to do, or might have believed there were other areas that made up for what the person might have thought was not right in one particular area, such as the area where he or she worked or the amount of pay. I think you have to have a right yourself, but when it is a tort in our English law, in our American law, that does not accrue to another person generally. There are specific exceptions to that, but in general the tort claim goes with the person against whom the tort is committed. It should be that way in a discrimination area as well. So adding the ability for someone to sue on behalf of someone who isn't suing for something that happened to the person who isn't suing is a trail that is going to go way beyond the fairness that we try to put into our legal system. I hope we can pass my amendment. I hope we can keep working on this bill. I wish there had been a markup in committee because there might have been more of a capability to shape this bill so that it would be something that would meet the test of adding to a plaintiff's claim, cause of action, opportunities, but without producing such an unfair disadvantage to anyone to be able to defend by having a statute of limitations that is not effective and by increasing the capability of someone to make a claim on behalf of someone who has chosen or doesn't make the claim. I hope our colleagues will look at this issue. I hope we will be able to keep working on this matter. I would vote for this bill if my amendment passes. It will be a much harder decision if my amendment does not pass because I know the struggles of small business. I have great admiration for people who are in small business. I have been in small business myself. I know many times margins are very thin, and you want to make sure you know what your liabilities might be and that you have the ability to plan for that. We want business to thrive. We want business to keep employees. We don't want to do anything that causes fewer people to be employed because of greater potential liabilities. We don't want to do anything that adds to the instability of the job market today. We want to help our businesses get through this time by keeping people working. I am afraid the underlying bill will be a deterrent in that respect. I appreciate those who have spoken for this amendment. I hope we can continue to work on it together. I yield the floor.

Mrs. HUTCHISON. I appreciate that very much from the Senator from Maryland, as always, because I would like an up-or-down vote. This is an amendment that is the decision on this bill. I appreciate that. This whole debate has been sort of the test. Harry Reid said we would be able to have amendments. Our leader said we would take up the amendments that would be relevant to this labor issue. I think everyone has performed admirably. I hope we can keep going. I thank the Senator very much.

Mrs. HUTCHISON. Mr. President, I ask unanimous consent that my amendment be reinstated for the debate and the vote as previously ordered.

Mrs. HUTCHISON. Mr. President, I just want to say my distinguished colleague, the Senator from Maryland, said it is easy for an employer to know they will not have a liability; just pay equal. Simple: Pay equal. But let me give you an example of what an employer actually faces. You take the situation where, say, an employer owns a bakery. One employee punches in at 8, leaves at 4, does an adequate job during that time, and that employee is paid one wage. Another employee always stays late when there is a need to stay late for a reason and comes in early if the employer has a big order and needs help early, and the second employee is paid more than the first one. But the first one believes there is discrimination for some reason--age, race, gender--and, therefore, believes they have a claim. That is not a situation where the employer should have to pay exactly the same to two different people when one goes the extra mile and one does not. This is just one example a person who has been in small business can tell you happens every day in every business in our country. The people who go the extra mile, who do a little more, should be able to be rewarded. That is what ownership of a business thrives on. So I think to just say: Just don't discriminate, is to say, well, if one person is doing more, adding more to the business, and becoming more productive, we should have the ability as an employer to allow that person to make a little more or do something extra. So I do not think we want to get into a situation where you are only to pay the same wage for two different people who bring different things to the table. That is why we have lawsuits. It is why we have EEOC, to make those judgment calls. So I am trying to make sure we keep an equal and level playing field so people who own a business who are struggling in this very tough economy have the ability to make the decisions that will keep those employees employed and make the judgment calls so that an owner--who is the one signing the checks, the one signing the loan applications, the one putting forth their whole livelihood and their family's security-- also has a fair chance in any kind of a dispute to do what is best for the business and for the employees of the business. Thank you, Mr. President. I reserve the remainder of my time.

Mrs. HUTCHISON. Mr. President, I wish to reserve my time. There is another speaker coming down now on my side. The Senator from Maryland may wish to go forward or we may wish to wait and have the time equally divided.

Mrs. HUTCHISON. Mr. President, we are 5 minutes away from voting. The last speaker on my side was not able to make it, so I wish to close on my amendment. What some courts around our country do is allow a plaintiff to say that he or she knew or didn't know, allow the person to say why they didn't know, and let the plaintiff go forward to give their defense or to give this statement as the reason why the statute of limitations should be tolled. In many jurisdictions, this is accepted and the statute of limitations is tolled. What my substitute does is codify this so every jurisdiction will allow the plaintiff to have a right to say: I didn't know, and here is why I didn't know, and I need to be able to toll the statute of limitations to have my rightful amount of pay or the job I have been denied. It codifies so that it is clear. It brings clarity to the law and a unification of all the districts' views that this plaintiff should be allowed to say: I could not have known, and that is why I didn't file my claim earlier. The other part of my amendment that I think is very important is that it does not allow the added person who is not the person who alleges the discrimination to still file a lawsuit on behalf of that person who did not file the lawsuit. That is in the underlying bill. I think it is a huge increase in another area of litigation that we don't have in the law today. In fact, in most tort claims we don't allow that because it is important when a person has a claim that they make the decision to pursue that claim. Having another person who might claim to be affected by the discrimination against someone else really takes one into a whole other realm of ``he said, she said.'' Well, why would an heir be able to file when the other person didn't? Maybe the person is gone, maybe the person is dead, maybe the person did not want to make this claim or would have had they been alive and they could make the decision. It just adds an element of instability in the system that I don't think we have seen really in any other area of the law. I want to have a fair judicial system. I want there to be more rights for the plaintiff to be able to come forward and sue for discrimination if they feel they have been discriminated against and to be able to say: I didn't know, I couldn't have known, our company doesn't let us talk about what we make, and have that before the court because I don't want anyone in this country to be discriminated against. I also want a businessperson--a small businessperson, a big businessperson, anyone who is creating jobs in our country and trying to make it so that we keep our economy strong and keep jobs from being let go--I want that person to have a fair chance too. If you have a person who files a claim when the supervisor who is alleged to have made the discrimination is dead, that is a problem for the company to be able to make a defense, and that is what this whole case is about. I believe Lilly Ledbetter was a good employee. I think she probably put forward her claim believing she had a discrimination, and I believe she probably did. I believe she started at a lower level, and even though she was increased at the same level every year as her peers, because she started out at the bottom or at a lesser level, that did cause discrimination. If she had brought the claim in a timely way when she first knew or should have known because of a note that she received that was anonymous, then she probably would have been able to prevail. I think she is a good and nice person, but we are setting a standard in the law that is going to make it very difficult for businesses to know what their liability is if a person claims something that happened 6, 8, 10 years ago. Not being able to have the records, not being able to have the witnesses, not being able to have the memories of people is going to be a significant deterrent for the employer to run the business. I particularly have a place in my heart for small businesses because I know it is very difficult for a small business to make the salaries and the payroll and to put their livelihoods on the line. I want to make sure we are fair to everyone. I want a person who is discriminated against to have a right of action. I do. I have said it before, I have been discriminated against. I know how it feels to be on the lower level when you know you are working harder. I know. But it is so important that also the person I am working for have a chance to defend with their witnesses and their records and let the court have everything to make a fair decision. In America, one of the things we have prided ourselves on that was put in the Constitution by our Founding Fathers is fairness, justice. We are a country that prides itself on fairness and justice. We have to make sure we continue to have equal rights of plaintiffs and defendants to be heard, and that is what my amendment does. If my amendment is adopted, I know we will add to the plaintiffs' capabilities, but with a fair right for the defense to make their case. And that is what our justice system should be. I hope we will adopt this amendment. I hope we can keep working on this bill. I am sure there are other things we can do. I would like for us to talk about the ability to have a negotiation. I tolled the statute of limitations when a point is brought up and there is a negotiation, an arbitration going on between an employer and an employee. When we go to conference, if my amendment is adopted, and we can work something like that out, I will be for it. I think it is a fair point because we do want to have the total ability of the plaintiff to be able to make his or her case, and we want to keep people employed in this country, and we do not want there to be a deterrent for small businesses to keep the people they have employed so we can get the economy going again in this country and go back to the full employment we had maybe 2 years ago and try to make sure we don't have in any way a deterrent for people to know what their liabilities are and start pulling back. I hope we can adopt my amendment and continue to work on this bill. I yield the floor and reserve the remainder of my time.

Mrs. HUTCHISON. Mr. President, I yield back my time, and I ask for the yeas and nays.

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

Mrs. HUTCHISON

Mrs. HUTCHISON. Mr. President, I come to the Floor today as the ranking member of the Senate Commerce, Science and Transportation Committee in support of the nomination of Raymond LaHood to be the 16th Secretary of Transportation. As a former 7-term Member of Congress representing the 18th District of Illinois, and a former member of the House committee on Transportation and Infrastructure, Congressman LaHood is well-qualified for this position. This week, the Commerce Committee held a full committee hearing to consider his nomination. To Congressman LaHood's credit, and with the cooperation of Chairman Rockefeller, our committee quickly discharged his nomination in order to fill this important Cabinet position. I am pleased that our committee moved expeditiously on Congressman LaHood's nomination and I am hopeful the full Senate will move just as quickly. As my colleagues know, the range of problems confronting the new Secretary of Transportation are amongst the most difficult that any new department leader has faced in quite some time. In a few short months, important policy, budgetary and regulatory decisions will need to be made on several transportation and infrastructure issues. I am confident that Congressman LaHood is up to the task and will hit the ground running. As my colleagues know, the existing highway program expires at the end of September. Until then, Congress and the new administration will have to work very hard on a reauthorization. This will be a very difficult process due to the current fiscal state of the highway trust fund and because of the current formula's disparate treatment between the States. In addition, we desperately need to create stability in our aviation infrastructure programs by passing a full fiscal year 2009 FAA extension, along with completing a multiyear FAA Authorization bill. I have encouraged Representative LaHood to support a full fiscal year extension of the current FAA Reauthorization bill, through September 30, 2009, along with committing to work with him on a new FAA Authorization bill. Without congressional and administration cooperation, the FAA's plan to modernize our air traffic control system--known as NextGen--could squander precious time and resources. Our Nation's skies and airports are severely congested; we need a Secretary in place immediately to oversee and manage the funding, implementation, and transition to NextGen. I am also confident the DOT will have a renewed focus and appreciation for our Nation's Amtrak and high speed rail system. This is an area we have neglected too long. While the Amtrak reauthorization that was just signed into law was an important step, we need strong leadership at the Department to ensure that we have a national passenger rail system that works. Congressman LaHood is a strong advocate for Amtrak and I look forward to working with him to implement the priorities of that important legislation. I encourage my colleagues to support Representative Hood's nomination.

Mrs. HUTCHISON

Mrs. HUTCHISON. Madam President, I would like to ask the Senator from Vermont, without relinquishing my right to the floor, if there is something he would like to do that would be short, and then we could go back to the business of the Ledbetter bill. I am happy to try to accommodate him.

Mrs. HUTCHISON. I would be happy to yield.

Mrs. HUTCHISON. Madam President, I am prepared to offer my amendment to the Ledbetter Act, the Mikulski bill. To proceed, I need to know if that is the order of business.

Mrs. HUTCHISON. Madam President, I had been working with Senator Mikulski and the majority leader about moving to Senator Mikulski's bill and my amendment, which is pending, and I had offered to allow Senator Voinovich to speak on that. If the Senator has something to intervene, I would be happy to try to accommodate, but this is the pending business.

Mrs. HUTCHISON. Madam President, reserving the right to object, let me ask the Senator from Ohio, whom I promised 12 minutes, whether he would be able to wait 7 minutes for Senator Leahy, after which I would turn the floor over to him before I discuss my own amendment?

Mrs. HUTCHISON. Madam President, let me ask whether I could propose this: I move that the Senator from Vermont be allowed 7 minutes on whatever subject he chooses, after which the Senator from Ohio would have 12 minutes, after which I would have the floor to speak on my amendment.

Mrs. HUTCHISON

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

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

Mrs. HUTCHISON. I yield 10 minutes to the Senator from Alaska.

Mrs. HUTCHISON. Mr. President, I thank the Senator from Alaska for her support of my amendment. I wish to lay out my amendment one more time, and then the long- suffering and ever-patient Senator from Maryland will have the chance to rebut. She has been so wonderful about making sure everyone got a chance to speak and knowing we would still be here to debate this amendment, and then setting a time agreement for the vote tomorrow, when the leaders have made that decision. This is such an important issue. As the Senator from Alaska has said, and really everyone has said, we all want to make sure we give every opportunity to a person who has faced discrimination in the workplace to be able to have a redress of that discrimination. The law, as it is today, gives 6 months for a person to be able to go forward to the EEOC, and then later to the courts, to say there has been an act of discrimination. Now, most of the time it is easy for an employee to know when a cause of action occurs. If it is age discrimination and someone has been demoted; if it is a firing, of course; any lessening of duties or responsibilities, that is a signal that perhaps there is some discrimination of some kind--whether it be based on age or gender or whatever might be alleged. The harder issue is pay, there is no question because most people do not talk about what they make around the water cooler or in the break room. Most people hold that close because there are many factors that go into pay. Because of that, it is harder to do the fair thing. That is what I am trying to do with my amendment, to make sure there is a fair opportunity for an employee to have the right of redress and also a fair opportunity for the person in business to know if there is a liability or a mistake. If the Mikulski bill passes, one would be able to sit on a claim because it would not matter if the person should have known of the alleged discrimination. They can pick their time, and it could be months, years, decades after a discrimination has occurred. This is a problem because the employer has to be able to have an opportunity to mount a legitimate defense with records that would be kept, with witnesses who would come forward, with memories that would be fresh, to give the employer the right to know what the liability is and be able to have witnesses or the person who is accused there to make the other side of the case. In pay discrimination, what we are doing in my substitute is basically setting a standard that will be uniform across the country, in all courts. It is what the Supreme Court has said should be the test. In some districts, the court will say: Well, let's hear from the employee why she did not know or why he did not know. If the court says: Well, I think that is reasonable--maybe there is a policy in the company that if you talk about your salary, that is grounds for firing. Now, that would be a very strong presumption for the employee that maybe they were in the dark. So we want that employee to have the right to say there is no way I could have known. There was a policy against it. But we need to have that standard across the board in every district. Some courts will do it, but not every court will do it, which is why my substitute amendment is needed, because we need every employee to have the ability to make the case that person could not have known. Now, the distinguished assistant majority leader said that puts the employee with the burden of proof. Well, the employee is the plaintiff. The plaintiff always has the burden of proof in our legal system. We would certainly--if it were something that would make a difference to the Senator from Maryland or the Senator from Illinois; if it would make a difference that we would establish a rebuttable presumption that would favor the employee but be allowed to be rebutted by the employer--we could talk about that, and I would be open to that suggestion. But the plaintiff bringing the case in our system does have the burden of proof. What we want is to assure that responsibility is codified in the law, that it is codified so that person has the right, but also the responsibility to press a claim. This is the important part of the substitute that says we want the right of the employee to be able to say they did not know, and why, and give courts the chance to apply a standard that would be set for everyone in this country to have the right to press the claim if they did not know. On the other hand, the reason we have statutes of limitations--and we have had since the beginning of law in this country, and in other civil law countries--is that the defendant does have a right to be able to make the defense and be able to anticipate what the liability might be. A small business that has a person come forward who has a claim from 10 years ago, and they did not know the employer did not know this right was accumulating and could result in a catastrophic effect on a small business--when if the employee, when he or she suspected, brought forward this claim, perhaps it could be settled right then and there so everyone wins. So I hope we can work on this bill so we do give fairness to both sides in a legal case. We wish to have the right of the employee to come forward when that person knew or should have known within 6 months of that right accruing; and we need to have the right for the business to be able to have evidence, records, witnesses, and fresh memories to mount an effective case in defense if they are going to rebut the charge. That is one part of the substitute. The other part is, I think, also very important; and that is that in the bill before us there is a major change in common law and in tort law that has also been a part of our legal system and our case law since the beginning of law in our country and in other countries that have the types of laws we do; and that is that a tort accrues a right to the person who is offended or damaged or hurt by another action. It does not accrue to another person who is affected by or might be considered affected by this claim. Now, there are exceptions to that. But in the main, it is, I think, essential, if we are going to have a statute of limitations that goes beyond the act itself--and in this case it would be 6 months, which is the law today--that it accrue to the person actually injured, the employee, and not some other person on behalf of the person who did not bring the case. Under the Mikulski bill, the Ledbetter Act, a new right has been given to a person who may not be the person with the injury. So it could be a case where the person dies after working at a place of employment, a business. The person dies, and within 6 months of that person's last paycheck and subsequent death, some other person--an heir, a child, a mother, a father--could bring a case, which the person who has allegedly been discriminated against chose not to bring or did not bring. In such an absurd case, possible under the Ledbetter bill, you do not even have the person discriminated against to testify. I think this is a very big hole in the concept of fair play that our legal system tries to provide. By saying ``other affected parties,'' I think we have opened up a whole new right and possible class of plaintiffs that has not been contemplated before and could achieve an inequitable result. So I hope very much that people will look at my substitute and try to get to the same end Senator Mikulski and I both want, by trying to shape the legislation so that it keeps the fairness in the process for a person who claims a discrimination and a person in the business that has hired this person to have a fair right for a defense. That should be our goal. I think my substitute does achieve that balance. I hope very much we can work this into a bill that all of us can support for people who have certainly known discrimination, as I have, and for people who want to make sure their children and grandchildren don't face discrimination, as well as for those who wish to make sure we don't discriminate against that small business owner who is all of a sudden, after 10 or 15 years, maybe looking at a liability that they didn't know about, couldn't prepare for because they don't know about it; maybe it is a mistake and maybe it could be corrected if we keep that statute of limitations that would say a person knew or should have known can have 6 months to file a claim so there can be an equitable, judicial remedy for this potential claim. Mr. President, I yield the floor.

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

Mrs. HUTCHISON. Mr. President, I appreciate very much the remarks of the Senator from Ohio who has much the same feeling about this I do. He wants to protect the employee who has known discrimination but also knowing that a business or small business needs to know what the liability might be and, hopefully, correct it if the notification is given in a timely way. So I would look forward to talking about my amendment. At this time, I ask unanimous consent that my amendment be set aside in order for Senator Specter to be able to offer amendments, after which then Senator Mikulski will have the floor. Then when we get back to my amendment, I would like to debate my amendment.

Mrs. HUTCHISON

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