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Floor Statement: Lilly Ledbetter Act

Floor Statement: Lilly Ledbetter Act - Thursday, January 15, 2009 View video | Can't view the video?

I too would like to congratulate Senator Clinton on her nomination to be Secretary of State. Alas, there is other work left to do in the Senate. The Senator from Maryland alluded to the Lilly Ledbetter act that we will be voting on cloture here in a minute. So I have a few words that I'd like to add specifically on that topic.

We'll be voting for the so-called Lilly Ledbetter Act. I think it's important to reflect a little bit on what that bill would actually do, because honestly, I think it has been characterized as a bill that will protect women's rights, which as a father of two daughters, I am all in favor of not just cracking the glass ceiling, but breaking it altogether. But actually this bill has, I think, a much broader impact and perhaps unintended by those who believe that it is only about protecting women's rights.

Indeed, what the Lilly Ledbetter Act would do is eliminate the statute of limitations. That sounds like an arcane topic for lawyers, that only lawyers could love. But basically what it would do in the case of Ms. Ledbetter, who waited almost two decades before she raised her discrimination claim long after the principle witness who could have testified in opposition to that claim had died. And indeed the purpose of the statute of limitations, as the lawyers in this body well know, is to be fair both to the plaintiff who brings the claim and to the defendant who has to defend against that claim, to make sure that the documents and the memories and indeed the very existence of those who might be able to give testimony can be preserved and can be so that the jury can make a good decision.

But indeed, if you wait 20 years before you assert your rights and after the principal witness who could testify in opposition to your claim has died, that's not exactly fair either. So Senator Hutchison, my distinguished senior Senator from Texas, will have an alternative which I hope will be offered, I expect will be offered as an alternative and substitute, which I believe is fair to both those who bring a claim for discrimination and those who have to defend it. Indeed, I mentioned a moment ago that my being the father of two daughters now 27 and 26, you know, many small businesses that are created in America today are headed up by women. And, indeed, we need to make sure that those small businesses have some certainty, have some rules that they can rely on in terms of knowing when they're going to be likely sued or not.

The Ledbetter Act, I think, could more appropriately be called a trial lawyer bailout. Because, of course, it is premised on the idea that one can slumber on their rights and never have to assert them and indeed fight an uneven fight because those who have to defend against them can no longer defend against them because the witnesses are no longer available. Indeed, at the time when this country is in a recession, I think it's appropriate to point out that no country has ever sued its way out of a recession. And yet, the bill that comes to the floor that we're called upon to vote on, the very second bill that's presented to this Senate in the midst of this economic crisis is one that would effectively, as I said, eliminate the statute of limitations in employment litigation so that trial lawyers can bring multi-million dollar lawsuits over decades-old work disputes.

There are many good policy reasons why, as I mentioned, it's important to have those statute of limitations, but it is particularly true in employment cases where a person's subjective intent can be the decisive issue that the fact-finder has to decide, where memories of the past can be colored by decades of subsequent workplace experience. Another important policy behind the statute of limitations is simply repose. That's a fancy word that says - that represents the idea that people should be allowed to move on with their lives without the constant fear of being sued for something that happened 20 years previously.

Again, during times of economic uncertainty, the Ledbetter bill would create not more certainty but more uncertainty. As I suggested earlier, small business would suddenly be exposed to new liability for acts that may have occurred years or decades ago, even if those acts occurred under a previous ownership before the current management was even in place. There will be no way for small businesses and large businesses alike to quantify this risk because there's no way to know which of the employees may have had a secret grievance that they have been harboring for many years just waiting for the opportunity to present the claim at a time when it cannot be adequately defended against.

Worst yet, this bill would actually encourage plaintiffs and their lawyers to strategically lie in wait, delaying their employment lawsuits for years while damages accumulate. Now this doesn't really help anybody except for perhaps the lawyers and the clients who can take advantage of this one-sided equation. Why sue promptly and limit your damages to a few months of back wages when you can wait five years and sue for five years of back wages? This can be especially rewarding to a plaintiff who strategically sues when you consider that during five years a plaintiff can diligently be preparing a lawsuit while the defendant is ignorant about the very grievance itself perhaps and memories and records fade.

So I think it's really important, as we go into this bill, that it be characterized as the Trojan horse that it really is. And this is just the beginning, Mr. President. To eliminate the statute of limitations in an employment discrimination claim, why not eliminate the statute of limitations in other claims? Medical malpractice, any other business disputes and the like. It is just not fair and it's not right. We shouldn't allow this bill to be represented as a blow for women's equality and women's rights, because it's simply much broader and has much more of a broader implication than that.

I'm convinced this bill is actually a solution in search of a problem. Because it's worth noting that in Fiscal year 2007, a total of 82,000-plus people timely filed complaints for employment discrimination with the EEOC. And it's important to ask what prevented Ms. Ledbetter from doing exactly the same thing, from filing her complaint at the time she knew that perhaps she had a grievance that could be presented to the employer. Thank you, Mr. President, for the opportunity to speak briefly on the bill. Assuming the cloture vote is passed, we'll be taking up, I hope, Senator Hutchison's alternative which I think strikes the fair balance I hope we would all achieve for, protecting the rights of those who are the victims of discrimination and the companies that have to defend against those claims.