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Mr. Enzi:  I thank the Senator from Georgia. Mr. President, I rise today to voice my strong opposition to both the substance of H.R. 2831, the so-called Ledbetter Fair Pay Act, as well as the process -- or, more accurately, the lack of process that's brought this matter to the floor today.

Welcome to “Gotcha Politics 2008.” Anytime we really are intending to pass a bill, particularly with our Health, Education, Labor and Pensions Committee, this is not the way we do it. We sit down, we talk about the principle, we list out the mechanisms for solving that principle, we work together to come up with a solution. That's not the case on this one. This has a lack of any meaningful legislative process regarding this bill.

Earlier in this session the Supreme Court issued a decision regarding the limitations period for filing claims under the discrimination statutes that I’ve noted. In my view, this decision was unquestionably correct and completely consistent with the intent of those statutes. However, even for those that might ultimately disagree with that view, there can be no debate that Congress's subsequent action was a slap-dash response and an attempt to score political points at the expense of responsible legislating. No sooner was the ink dry than this legislation was introduced in the House.  It was rushed through committee without change and rammed through the House on an essentially party-line vote.  Just five days later, the bill was debated under a rule that allowed only one hour of debate and no amendments. Does that seem a little familiar?

Yesterday we heard a diatribe about how republicans are holding up everything and in insisting on these motions to proceed being brought up. And then after it was approved 94-0 on a veterans bill, we weren't allowed to vote on it again anytime that day and we didn't even go into session until 5:00 tonight. That was to keep any discussion or any votes from happening on that and to limit any debate on this issue.

That's not the way the United States Senate is supposed to operate, but it's the way we're operating on this bill, just as they did in the House, not going through the normal process of making sure that concerns were being solved. That's the only way anything ever makes it through this body. A look at the House vote reveals that this was not the result of any ground-swell vote in that body.

The bill was then sent to the Senate. We still get to debate them in committee a lot of times. That hasn't happened. Despite the deceptive name, this bill destroys Title VII of the Civil Rights Act that was intentionally included by the drafters. Employment discrimination based on race, sex, religion, age, national origin, religion, or disability is intolerable. And the drafters wanted to ensure that any claims of such discrimination could be promptly addressed. Beyond this consideration, the drafters of those laws also recognized two practical realities: first, in the employment context, unaddressed claims of discrimination are particularly corrosive. Federal discrimination policy must ensure that bias is rooted out and remedied as quickly as possible. And, second, it's virtually impossible to discover the truth of such claims based on events in the distant past. With the passage of time, memories fade, critical witnesses become unavailable and records and documents and other physical evidence are destroyed or otherwise not available. Under this bill, that claim can go until the time of retirement and then be claimed back to the time of whatever the supposed discrimination was, where the witnesses aren't available. But most importantly, the accounting records aren't available anymore. How can you go back and figure that amount without the records? 

For these reasons, all the statutes contain a limitation period for commencing such actions. These actions of discrimination in the workplace led the drafters of Title VII to intentionally establish a relatively short period with respect to such claims. They selected a period of 180 days from the discriminatory act, a period that depending upon the state where the claim arises could extend to 300 days. This one doesn't restore this well-reasoned and plainly intended limitation period in policy, it would virtually eliminate it. In all employment discrimination cases, under this bill, an individual could file a timely charge of discrimination based on an event or act that occurred years, even decades before. Now, we are told however that such a change is necessary because employees may not know they are being discriminated against or that employers will hide the fact from employees in order to prevent the timely filing of a claim. These appear on their face to be appealing arguments. However, they ignore and misrepresent the actual state of the law. The law already provides remedies in these instances. The limitations period for filing employment discrimination claims is not nearly as inflexible as the proponents of this bill would lead people to believe. What about individuals who simply don't know the facts that would lead a reasonable person to conclude they've been discriminated against?  Would they be barred from bringing a claim with the Equal Employment Opportunity Commission?  If an employee doesn't know the facts, wouldn't their employer just get a free pass on discrimination?

The EEOC has addressed this directly. Here's what the EEOC's own compliance manual says. Quote:  "Sometimes a charging party will be unaware of a possible EEOC claim at the time of the alleged violation. Under such circumstances, the filing period should be told until the individual has or should have enough information to support a reasonable suspicion of discrimination." Under the well-recognized doctrine of continuing violation, all that the law requires is that there be a single act of discrimination within the applicable filing period and the other conduct is properly swept into the charge, from the reasonable time of knowing it.

Now, this flawed legislation also hides another vast expansion of workplace discrimination laws that must not go unmentioned. Since 1968, the law has been that the individual who is discriminated against is the person with the standing to file a lawsuit, but under this bill, any individual affected by application of a discriminatory compensation decision or other practice has standing value. So now it isn't just retirement or death that the person can bring this up. It's other family members that can bring it up, long after the last paycheck.

Now, practitioners weren't consulted and agreed that this incredibly broad language will easily cover dependents such as spouses and children. There's a huge expansion here that we have never talked about in committee, and before I close, I want to mention my greatest concern.  If we were really concerned about helping the greatest number of workers, we wouldn't be focused on changing the law to help improve their chances of a successful lawsuit. Instead, we would be providing a source for them to obtain training they need to get the current jobs and work towards better ones – flexibility to move. If we worked on the Workforce Investment Act—we've passed it through the Senate twice, never been able to have a conference committee—900,000 jobs a year could have better training. So our inability to get this is a shame because that would provide more benefit for those people than what this legislation would.

Again, I say, this has not gone through a proper process. It was rushed through the House.  It's always nice to be able to catch a little bit of publicity based on some articles in the paper and try and push something along. It doesn't work. It has to go through a normal process to pass the United States Senate. And that's what I'm sure will happen on this bill. I yield the floor and reserve the balance of the time.


Mr. Enzi:  Madam President, a few minutes ago we concluded a vote on this floor that came after a very short debate. Clever use of the rules by the majority before the cloture vote; I have to hand them that. So we didn't have any session today until 5:00 p.m. that's an interesting way to limit debate. The bill that we voted on also didn't come to a committee. Now, I’m very proud of the fact that Senator Kennedy and I are able to work out a lot of things on a lot of bills. In fact, I think we hold a record for major bill passage and it's been done in a very partisan way. We've worked out difficulties, sometimes we've compromised, and sometimes we've left things out so that things could get done. We never had that opportunity, we never had that courtesy, and we never got to debate this for one minute in committee, let alone here on the floor, and the debate was kind of fascinating to listen to because there's equal pay, which all of us are in favor of, and there's the pay gap, which all of us want to close. But the discussion ranged between the two making them sound like they were the same thing. When we talk about women as a whole, we're not equal. We've held some hearings in our committee on this and they've been very enlightening. If a person takes what's considered a traditional job, if a woman takes a traditional job, the jobs don't pay very well. If they take a nontraditional job, they pay very well. But there are nontraditional jobs for women, and somehow we've got to move women from those traditional jobs, where there's over employment, to some of the nontraditional jobs where there's underemployment.

One of the fascinating people that spoke at our committee was a young lady that became a mason. She puts rocks on buildings, and she was proud of the work that she does, and she should be. She started out paving then later adding some marble steps, and then adding pieces to the buildings and then doing high-altitude work. And I want to tell you, she makes more than I do because she does something different than most people do, and it pays well. But we have this thing in America where we say these are the people that ought to take those, and      these are the other jobs and you're probably not qualified for those. Well, where does that qualification happen? Throughout life we've got to be training people, encouraging people to do better things. We had the America competes act. That's a great act. It puts emphasis on science, engineering, and math so that people can be doctors and engineers. Those are high-paying jobs, and we ought to get more people into them because instead we're getting less and less people into them, and we're going to have a shortage in those fields.

Well, that's except for the fact that we can bring people in from other countries that can do those because they're turning out a lot of those people. And I’ve asked what the reason for that is. Well, they do some things that we're never going to do in this country. I was in India and they promised that every kid gets an education through sixth grade but they don't follow that promise. Only 20% of the girls get an education at all. They also have this little review at fourth grade to see if  people are interested in education, and they determine that they aren't and then they kick them out of school. And that's before sixth grade; that's fourth grade. Those people will make $1 a day the rest of their life.

At sixth grade, they have another purge that we would never stand for. At sixth grade, they kick out a bunch more. Those people will make $2 a day the rest of their life. In most of the world, poverty

So they're above the poverty line. Now, they wouldn't be in the United States, but they only let seven percent of the kids go to college. Seven percent. Again, we'd never stand for that. We keep trying to figure out how to get more and more into post-high school education. Now, that includes career and vocational education, and we need to do that. Part of their incentive to get people into science, technology, engineering and math are those jobs that pay well. And as one person in India told me, we don't have professional sport teams, so there aren't any kids out there that are bouncing a basketball, throwing a pass, or doing any of the other things that a lot of American kids are doing: Thinking that they're going to get to go pro and make most of themselves making about $18 million a year. Not going to happen for most of them.

I really appreciate the NCAA's ads that they're running now that show a whole bunch of people in different professional sports. And they say, there are 380,000 young people that are in college sports and every one of them will go pro but not in their sport. That's the important line on it -- not in their sport. Somehow we've got to get more people involved in the sciences so they've got the basic knowledge in grade school that will allow them to excel in high school, that will allow them to do well in college, and that will allow them to get into the higher is paying jobs. And there's equal talent in all of those areas.

What we've got to do is encourage that equal talent. I've been trying to get the work force investment act through here and I've gotten it through the senate twice unanimously, and there hasn't been a willingness to do the conference committee with the House. I asked why and they said, well, we're afraid of where the conference committee might go. There is no reason for that fear right now because the same people would in charge of the conference committee. If they're in charge of it, they can make sure it doesn't go anywhere they don't want it to go. But if we can pass that bill, it will provide the flexibility that will allow 900,000 people a year to train for higher-skilled jobs. Those can be mostly women. That will narrow the pay gap. They can go into other kinds of jobs that they may have been precluded by other events in their life from ever getting into. If we want to narrow the wage gap, there are a number of ways to do that. But it means that we have to get them into areas that they haven't been typically working in before. That's the biggest solution on this whole thing but part of the difficulty in passing a bill around here is having a chance to work on the bill. The bill that came before us earlier today passed the House in a very quick fashion using their rules.  They don't have the unlimited debate that we're supposed to have over here but often don't have over here, and they weren't allowed to amend it and had to pass it.

Now, it gets over here and the way we usually work a bill is for the Chairman of the committee and the ranking member, Senator Kennedy and myself, to sit down and list out some principles that we kind of check with the rest of the committee to see if those are the principles we're really trying to solve. After we've got those principles, we plug in details and see if we've got the details right. Then we call in the stakeholders, who is anybody who's interested in that particular issue and we see if they agree with it. And you know, we found that when we can get agreement with the people on the committee and the stakeholders, that we've got the answer right. And most people in this body agree that we've got it right, because most of those go through unanimously.

A long debate for a bill that comes out of our committee is probably two hours. We're going to have one of those tomorrow. It's going to be genetic nondiscrimination, a very important bill. First of all, to get people to take advantage of the Genome Project there are things that if you have your blood checked and find out your genetic framework, you can tell things that could happen to you in the future. If you know they could happen to you in the future, you can do things to keep that from ever happening. Now, the difficulty is sometimes insurance companies insist on those things and you never hear back on what happened. This requires that you're going to hear back on what happened. And it also requires a genetic marker that could happen to you, they're not allowed to make it a preexisting condition and your employer's not allowed to fire you over it.

So we're pretty sure that once it finishes here and I think we're going to do that tomorrow, it will go right over to the house and the house will take care of it too.  Now, that doesn't mean we left the house and the House Committee out of the process. We let them into the process. We let them into the process early so that everybody would know what was happening but that hasn't been the case on the bill that we just discussed, and I have to be rather disappointed that there wasn't the need, the courage, and the desire to see what the principles are and see if we can actually solve the problem.

We can build a good case for equal employment because we've always voted for equal employment. We'll all vote for equal employment. We all want to close the pay gap. Now, that's a little tougher to do but we can do it if we work together. If we work separately, it will be like so many bills that come over here and get debated for long periods of time, which isn't the most productive thing. The most productive place is the committee. In the committee, you can have a couple of people that are interested in one part of the issue, go off by themselves and come up with a solution. Quite often it isn't the polarized one that the Republicans had or the polarized one that the Democrats had. It is the third way, and that eliminates the clash of the two polarized sides. There are so many things around here that have been debated so long that if you mention a term from that item, you hear instant rebellion from both sides. I have watched staff so many times hear a word and jump into the weeds arguing about the broader application of that word and keep it from actually getting to the principle that's trying to be done.

So there's a way to get these bills done, but it isn't through gotcha politics, it isn't by just bringing things here without consulting the other side, to see if there are any small corrections, or maybe even big deals can be made. So, I have to be disappointed after all of the cooperation we've had in committee that there wasn't even an opportunity for cooperation in the committee. Any time that anybody thinks they're being discriminated against, they need to be able to at least find out if they are. As far as the equal employment, if anybody thinks they're being discriminated against, get a hold of me, and get a hold of my Committee. We will help. We'll help line up people that are more knowledgeable on it than I am, more knowledgeable than my staff is because we don't want that to happen.

The real important part of this is to do it timely, do it promptly, as soon as you think you're being discriminated against, you want to complain about it. Now, you don't have to complain about it to your employer. You can complain about it to some legal counsel and get some counsel on it, and there are a number of other mechanisms for doing that. There are solutions and we ought to reach those solutions and we ought to make sure that people aren't in that kind of a bind. Now, we hope they don't wait till the end of their working lifetime to decide that, that they do it as soon as they think they're being discriminated against. As we pointed out, there's long range to that. It is as soon as they have a reasonable reason to think that before any of the statute of limitations kick in. So there are some solutions out there but they're not going to be done on the floor of the United States Senate.

What we’ll bring is a series of amendments we think that will put the other side in a bad light if they vote against it and both sides will have those. It isn't just one side that will do it, both sides will do it. So we need to have a little more civil way of solving this problem, and I have confidence it can be done. I thank the chair and yield the floor.