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Washington, D.C. –The Senate voted 61-38 Thursday to designate harming a fetus during commission of a violent federal crime as a separate crime.

U.S. Sen. Mike Enzi supported the bill, H.R. 1997, which is now headed to the President for his signature. But before the final vote was taken, Enzi led an effort to defeat an unrelated amendment that he said would have brought down the underlying bill and mandated sweeping changes in the workplace with broad negative consequences.

A statement Enzi made encouraging his colleagues to vote against the Murray amendment is below.

Statement of Senator Michael B. Enzi
March 25, 2004
Murray Domestic Violence Amendment to Unborn Victims Bill, H.R. 1997

Mr. ENZI. Mr. President, I rise in opposition to the amendment offered by the Senator from Washington. This amendment is a sweeping expansion of federal employment law. As the Chairman of the Subcommittee on Employment, Safety, and Training, I am compelled to discuss the implications of such an unprecedented and misguided expansion of current law.

Let me begin by saying that I share Senator Murray's concern about domestic violence. Domestic violence shatters families, and with it, the very foundation of our society. My opposition to this amendment is not based on a lack of concern for victims of domestic violence.

I am opposing this amendment because it is an unprecedented expansion in workplace laws without any consideration by the committee of jurisdiction. Senator Murray is the Ranking Member of the Subcommittee on Employment, Safety, and Training. Many of the provisions of this amendment fall within the Subcommittee's jurisdiction. However, the first time we are considering such a major expansion of Federal employment law is on the Senate Floor and on a bill totally unrelated to employment. The overly broad and vague provisions of this amendment conflict with and undermine existing employment laws. The Committee process is so important because that's when we carefully evaluate the impact of pending legislation and its relation with current law. We didn't do that here. What we have here is a 158 page proposal – which is not related to the underlying bill - that rewrites employment law without the benefit of any hearings or Committee consideration. The process is flawed and irresponsible.

What will this amendment do? It creates a new federal law that mandates employers – including small employers – to give up to 30 days leave to an employee to address domestic or sexual violence. However, this proposal ignores important requirements that Congress applied to leave taken under the Family and Medical Leave Act (the "FMLA"). Let me highlight a few of the differences between the FMLA and the Murray amendment.

1. The Family and Medical Leave Act applies to employers with 50 or more employees. The Murray amendment applies to employers with 15 or more employees. Most small businesses do not have the processes or personnel necessary to begin complying with this new leave requirement. In the past, Congress has recognized the burden of workplace regulation on small businesses. However, the Murray amendment would impose workplace regulations on small businesses never before covered by Federal employment laws. The Murray amendment would undermine the small business exemption Congress included in the Family and Medical Leave Act.

2. The Family and Medical Leave Act imposes a length of service requirement for employees to be eligible for leave. The Murray amendment has no service requirement for an employee to be eligible. Under the Murray amendment, a worker is presumably eligible for leave on the first day of work.

3. Under the Family and Medical Leave Act, employers can require that a health care provider certify the need for leave. The Murray amendment invites misuse and abuse because no third party verification for the leave can be required.

The Murray amendment does not amend the Family and Medical Leave Act itself. Instead, it is a backdoor effort to expand federal leave law at the expense of equity and clarity.

The Murray amendment prohibits employers from discriminating against an individual who is or is perceived to be a victim of domestic or sexual violence. Individuals with absolutely no legitimate claims of domestic or sexual violence would have a cause of action under this vague and broad standard. How are employers and courts to determine who a "perceived" victim is? Whatever the intent of this legislation, the result will be excessive confusion and litigation. The amendment defines a "victim of domestic or sexual violence" to include an "individual whose family or household member has been a victim of domestic or sexual violence." Under this definition, family-member abusers – such as parents who molested their own children – would be protected under this poorly drafted legislation.

The problems with the amendment extend beyond poor drafting. The Murray amendment is inconsistent with the remedy and enforcement provisions of existing employment discrimination laws. Under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, Congress gave Equal Employment Opportunity Commission (the "EEOC") the role of investigating and enforcing complaints of employment discrimination. These existing laws require a claimant to first file a complaint with the Equal Employment Opportunity Commission before being able to file a private suit in court.

The Equal Employment Opportunity Commission plays a vital role in employment nondiscrimination laws. The Commission's mediation activities expedite resolution of cases and reduce the backlog of employment cases in our courts. The Murray amendment would allow victims of domestic violence discrimination to bypass the administrative process and file suit in court. Allowing claimants to bypass the Equal Employment Opportunity Commission undermines the efficacy of the Agency and the legislation.

The Murray amendment disregards the remedy structure of other federal employment discrimination laws. Existing laws limit available damages. For example, consequential and punitive damages for claims under Title VII or the Americans with Disabilities Act are progressive with the size of the employer and capped at $300,000. The Murray amendment provides unlimited compensatory damages and punitive damages up to three times the amount of actual damages.

Why should a victim of domestic violence discrimination be able to circumvent the complaint process that victims of race or disability discrimination must follow? Why should a victim of domestic violence discrimination be able to recover greater damages than victims of race or disability discrimination? There is no justification for this unequal treatment. We must guard against enacting legislation that, in an effort to protect individuals from one type of discrimination, creates inequities for those who have been subjected to another type of discrimination.

I find the leave and discrimination provisions of this amendment very troubling. I find the unemployment compensation provisions to be misguided as well. The amendment requires states to provide unemployment compensation benefits to individuals who are separated from employment as a result of domestic violence. Individuals would receive unemployment compensation if they leave employment because of a reasonable fear of domestic violence, a desire to relocate to avoid domestic violence, or to obtain physical or psychological treatment.

Eligibility for unemployment compensation is and should continue to be a state, not a federal, decision. The terms of unemployment compensation are decided on a state-by-state basis. States have the authority to extend unemployment compensation to victims of domestic violence. A number of states have already done so. The Murray amendment imposes a federal mandate and higher costs on state unemployment compensation programs. The federal mandate will impose huge penalties on employers in states that fail to comply. The Federal Unemployment Tax on all employers in the state will be increased from $56 per worker to $434 per worker.

A federal mandate to cover domestic violence under state unemployment compensation programs requires states to pay the tab. However, we give the states no voice in whether or how to do so. It is unfair and irresponsible for Washington to impose this burden on already burdened state unemployment programs and employers.

Domestic violence is a serious problem that devastates lives and shatters families. However, we cannot allow a misguided attempt to address this problem create new problems that will impose unfair burdens on states and employers – particularly small businesses.

When I am back in Wyoming, I like to hold town meetings to find out what's on the minds of my constituents. At each Town Meeting, there is usually someone in attendance who is quite concerned about government regulations. I am often told to rein big government in. Keep the rules and regulations simple and responsive. And make sure they make sense.

This amendment takes the opposite approach. It's a classic example of a "one-size-fits-all" mentality that doesn't fit outside the beltway. This amendment ignores the careful consideration Congress has given to existing employment laws. With vague and broad language that conflicts with current federal employment law, lawyers – not domestic violence victims - will be the biggest winners.