Barbara Mikulski

Ms. MIKULSKI

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

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

Ms. MIKULSKI. Well, thank you very much, Mr. President. It was in my enthusiasm that I neglected a few parliamentary housekeeping tasks. On April 23, when we had the vote in the Senate to vote on the Lilly Ledbetter Fair Pay Act, we lost it by two votes. On that day, I said we would continue our fight and that we needed to--we the women of America and the men who supported us--square our shoulders, suit up to fight for a new American revolution. I called upon the other women of America to put their lipstick on and be ready to go. Well, today is ``go day.'' And we are actively debating this amendment. One of the arguments that is often made is that this Fair Pay Act we are advocating could trigger either needless and enormous volumes of lawsuits or it creates a shifting ball of the statute of limitations. Both of those criticisms are false. First, the Lilly Ledbetter Fair Pay Act will not trigger more lawsuits. Because this bill the Democrats are advocating--and, oh, by the way, it is a bipartisan bill. We have over 54 cosponsors; Republicans are joining with us. It does not in any way trigger enormous lawsuits, because it simply restores the law, with greater clarity, that existed before the outrageous Supreme Court decision. We were not flooded with volumes of lawsuits on wage discrimination. There was an orderly process that occurred. The other is this floating statute of limitations argument. Well, that is a foggy term. But I tell you what is foggy is the Hutchison amendment. Now, I so admire the gentlewoman from Texas. We have worked together, as I said, on many issues. I know her intentions are good, but her language is flawed. I should say, not her language, but the language of her amendment. It is foggy. Let me go on to this a little bit. The amendment does not address the fundamental problem of the pay discrimination case, Ledbetter v. Goodyear, which created unreal and strict limitations for filing pay discrimination claims. It also fails to recognize that pay discrimination, unlike other kinds of discrimination, is repeated each time a worker receives an unfair paycheck. I want to repeat that. The Hutchison amendment fails to recognize that pay or wage discrimination, unlike other forms of discrimination, is repeated each time someone receives an unfair paycheck. Instead, the Hutchison amendment creates a new confusing standard that requires workers to either be subject to the Ledbetter rule or prove they had no reasonable suspicion of discrimination when the employer first decided to pay them. Well, you have to prove a negative. That is almost impossible. From the day you walk onto the job or the day your coworker who gets a raise, when the guys get it and the girls do not, you would have to be snooping around and creating a very hostile workplace, branded a troublemaker, because you were saying, well, you would have to every week say, well, what did you get paid, Mr. Udall? What did you get paid, Mr. Tester? What did you get paid? Well, I know we get paid the same pay, and I know we are doing the same, equal work. But that is not true in the workplace. So we believe the Hutchison amendment actually creates more fog than solutions. I want to continue the debate on this. I note that the gentlewoman from Texas has not come in, but I see the gentleman from South Carolina.

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

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

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

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

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

Ms. MIKULSKI. Mr. President, the Senator from Pennsylvania is a great lawyer, but his amendment is not. It only fixes half the problem. It does not cover personnel actions that still result in discriminatory wages. It strikes other practices which include job evaluations and classifications. If we drop ``other practices,'' we leave out Lilly Ledbetter from getting the justice she deserves and all like her. I understand the Specter amendment is now pending. I move to table the amendment and ask for the yeas and nays.

Ms. MIKULSKI. I move to reconsider the vote and to lay that motion on the table. The motion to lay on the table was agreed to.

Ms. MIKULSKI. Mr. President, the Enzi amendment is unnecessary. The ``affected by'' language is not vague. Our bill only applies to workers and their employers. Other parts of title VII that our bill does not change make this clear. The ``affected'' language is patterned after the Civil Rights Act of 1991. It has been around for 17 years and no one has tried to interpret it to apply to grandparents, spouses, or children, or anyone else other than the worker. I understand the Enzi amendment No. 28 is now pending. I move to table the amendment and ask for the yeas and nays.

Ms. MIKULSKI. Mr. President, I would like to comment on the arguments that have been made by the advocates for the Hutchison amendment. First, let me say this: If you are a business and you want to avoid a lawsuit, there is one clear remedy that does not require statutory action, and that is called give equal pay for equal or comparable work. If you don't want to end up in court, you don't want to end up at the EEOC, you don't want to end up with a tattered and tarred reputation, pay people equal pay. That is the way to avoid a lawsuit. Then you don't need a law. But, no, there are those in our country who still think we are back in the 20th or 19th centuries, and we are not going to put up with it. We can talk about the 180-day rule and wage-setting decisions and so on. I am a pragmatic, pro-business, pro-fairness Senator. My grandmother ran a small bakery and was known as having the best doughnuts in Maryland--well, certainly in Baltimore. My father ran a small grocery store. We paid equal pay for equal work. When we talk about small business, I know about small business. I also know the Hutchison amendment would create more problems. For example, the discovery rule fails to hold employers fully accountable for ongoing discrimination. That is a very big deal. If workers suspect discrimination but delay filing the claim for fear of retaliation or hopes that things could be worked out without litigation, they should not be forced to suffer continued wage discrimination indefinitely. Wage discrimination continues with every new unfair paycheck. If harm is ongoing, the remedy should be as well, regardless of when a worker learned of it. Doesn't this rule make things better for employers? No. The Hutchison amendment is very vague and foggy. The rule encourages premature claims which is going to increase litigation. Workers are going to feel compelled to file formal claims with the EEOC or take legal action for fear that they will be accused of delay. That is what the Supreme Court accused Lilly Ledbetter of. They didn't accuse Goodyear of discriminating in their paycheck. They accused Lilly Ledbetter of delay and Lilly Ledbetter lost out. There is a new day coming, including on the Supreme Court. I can't wait for those votes. Workers will feel compelled, as I said, to file formal claims quickly. The Hutchison amendment adopts an uncertain legal requirement that will increase litigation costs for workers and employers alike. It also creates an environment that is hostile. It means if you are a worker, you have to act on rumor or speculation. My gosh, this is like the French Revolution and letters of cachet, and it was rumored that they were not faithful to concepts of the Revolution. We can't have that in our workplace. We have to have a workplace that we are all in together. So the Hutchison amendment is well intentioned but deeply flawed in the very objective that it seeks to accomplish. I hope we defeat the Hutchison amendment and move on with debating other amendments. I also want to say to the Senator from Texas, if I may have her attention, we are going to have a vote, up or down, on her amendment. I will not move to table. I think she deserves a clear vote, the way we are talking about a new style of civility and openness and so on. At the conclusion, that would be the process, rather than going through a tabling motion. Is that agreeable with the Senator?

Ms. MIKULSKI. Mr. President, I move to reconsider the vote, and to lay that motion on the table. The motion to lay on the table was agreed to.

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

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

Ms. MIKULSKI

Ms. MIKULSKI. I reserve the remainder of my time.

Ms. MIKULSKI. Madam President, this amendment reverses decades of established labor law and addresses issues that have nothing to do with the Lilly Ledbetter Fair Pay Act. While the Senator from South Carolina debated right to work, I want to keep on fighting for the right to get equal pay for equal work. I understand the DeMint amendment No. 31 is now the pending business. I move to table the amendment and ask for the yeas and nays.

Ms. MIKULSKI. I had a question for Senator DeMint, and if the Senator will withhold, after I make my remarks, he can address the Chair. The consequence of the DeMint amendment is that it amends the National Labor Relations Act. Let me tell my colleagues the consequences. First of all, let's go to the facts. The Lilly Ledbetter Fair Pay Act is about pay discrimination, about wage discrimination. That is what we have been debating on both sides of the aisle. The debate has been focused, it has been targeted, it has been precise and, I might add, quite civil. It has nothing to do with right-to-work laws. This is not the time nor the place to debate whether we should have a Federal right-to-work law. We need to restore the ability of victims of pay discrimination to pursue justice. If we want to have a debate on a Federal right-to-work law, then I suggest to the Senator from South Carolina that he offer his own bill, let's put it through the committee, and let's vote on it, but let's not bring right-to-work laws into the wage discrimination focus of the Lilly Ledbetter Fair Pay Act. So let's go now to the facts or the merits of the amendment being offered by Senator DeMint. No. 1, it reverses decades of established labor law and addresses the issues that have nothing to do with the Fair Pay Act. The DeMint amendment undermines States abilities to choose what labor laws work best for them. That is the point made by the Senator from Tennessee. It would also impose right-to-work laws on workers who do not want them. Federal labor policy has been neutral on right-to-work issues for over 60 years. That means States are free to decide whether they want to impose right-to-work laws. The amendment would impose right-to-work laws on States that do not want them, and it would even impose such laws in the railroad and aviation industry, which has never been subjected to them. We have debated this issue before. A bipartisan majority of Congress rejected this approach in the 104th Congress, which was in 1996. We had a vote on a similar amendment, and it was defeated 31 to 68. I hope we defeat the DeMint amendment today. Let's stick strictly to the Lilly Ledbetter discussion. We have been having an excellent discussion all day long. Again, I urge defeat of the DeMint amendment. Madam President, how much time do I have remaining, and, of course, answer the questions of our colleagues as to time.

Ms. MIKULSKI. Madam President, how much time remains?

Ms. MIKULSKI. The Senator from South Carolina has how much time remaining?

Ms. MIKULSKI. Mr. President, I object to the Isakson amendment. It would create an arbitrary and unfair cutoff for those who get the benefits of this bill. If the Isakson amendment is agreed to, it would create a 20-month gap in the law. Those workers who were unfortunate enough to have been discriminated against during that 20-month period would be treated worse than those who came before them or after them. It is arbitrary and it is unfair. I understand that the Isakson amendment is now the pending business. I move to table the amendment and ask for the yeas and nays.

Ms. MIKULSKI. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Ms. MIKULSKI. I don't know whether the Senator wants to yield back his time or use the time for further debate.

Ms. MIKULSKI. Mr. President, today is a great day in the Senate. We have now overwhelmingly passed a bipartisan bill to correct an injustice that has been prevailing among people--women, minorities, and people with disabilities--in the area of wage discrimination. What is so great about today is not only our overwhelming legislative victory, but we showed, No. 1, that we can change the tone. I thank Leader Reid for the leadership he provided in creating the legislative framework where we can move ahead with open debate. Notice that we did this bill in a well-measured, well-modulated, well-paced way. There was no need for cloture motions. There was no need for parliamentary quagmires. What it showed, though, is there is a need for civility and cooperation. We, as Americans, have to know, given this economic situation, that we are all in it together. When we work together, we now know each and every one of us makes a difference. But when we truly work together, we can make change. Today we changed the law, we changed direction, we change history, and I thank all my colleagues and all the staff who have made this possible. I also wish to say a special thanks to Senator Ted Kennedy. I hope he is watching tonight because, Ted, we miss you. We know you are not on the floor; you are with us in spirit. There is more to be done. We cannot wait for you to be back. Let's go and get the job done. America is counting on us to do the kinds of things we have done today and act the way we did, the way we got the business done. vote explanation

Ms. MIKULSKI

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