Lilly Ledbetter Act

Floor Speech

LILLY LEDBETTER ACT -- (Senate - January 15, 2009)

Mr. CORNYN. Mr. President, I, too, would like to congratulate Senator Clinton on her nomination to be Secretary of State; and, alas, there is other work left to do in the Senate, as the Senator from Maryland alluded to, the Lilly Ledbetter Act, for which we will be voting on cloture in a minute. So I have a few words I would like to add specifically on that topic.

We will be voting for the so-called Lilly Ledbetter Act, and I think it is 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 a much broader impact and perhaps unintended by those who believe 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 had waited almost two decades before she raised her discrimination claim, long after the principal witness who could have testified in opposition to that claim had died--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 the documents and the memories and, indeed, the very existence of those who might be able to give testimony can be preserved so 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 is 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 it will be offered as an alternative and substitute, which I believe is fair to both those who bring a claim of discrimination and those who have to defend against it.

Indeed, I mentioned a moment ago I am the father of two daughters, now 27 and 26. Many small businesses that are created in America today are headed up by women. Indeed, we need to make sure those small businesses have some certainty, have some rules they can rely on in terms of knowing when they are likely going to be sued.

I think the Ledbetter Act 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 a time when this country is in a recession, I think it is appropriate to point out that no country has ever sued its way out of a recession. Yet the bill that comes to the floor on which we are called upon to vote--the very second bill that is 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 trial lawyers can bring multimillion-dollar lawsuits over decades-old workplace disputes.

There are many good policy reasons, as I mentioned, why it is important to have those statutes of limitations, but it is particularly true in employment cases where a person's subjective intent can be the decisive issue that the factfinder 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 called repose. That is a fancy word 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 businesses 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 is no way to know which of the employees may have had a secret grievance 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.

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 does not 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 5 years and sue for 5 years of back wages? This can be especially rewarding to a plaintiff who strategically sues when you consider that during that 5 years, the 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 is important, as we go into this bill, that it be characterized as the Trojan horse that it is. This is just the beginning. If you eliminate the statute of limitations in employment discrimination claims, 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 is not right. We should not allow this bill to be represented as a blow for women's equality and women's rights because it simply is much broader and has much more of a broader implication than that.

I am convinced this bill is actually a solution in search of a problem because it is worth noting that in fiscal year 2007, a total of 82,000-plus people timely filed complaints of employment discrimination with the EEOC. It is 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.

So I thank you, Mr. President, for the opportunity to speak briefly on the bill. Assuming cloture is adopted, I hope we will be taking up Senator Hutchison's alternative, which I think strikes the fair balance for which I would hope we would all strive, protecting the rights of both those who are victims of discrimination and the companies that have to defend against those claims.

Mr. President, I yield the floor.

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