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S. HRG. 110–802 

BARRIERS TO JUSTICE: EXAMINING EQUAL PAY 

FOR EQUAL WORK 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 23, 2008 

Serial No. J–110–120 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 5 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 56 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 4 

prepared statement .......................................................................................... 59 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 63 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3 

WITNESSES 

Ledbetter, Lilly, retired Goodyear Tire Employee, Jacksonville, Alabama ........ 6 

Lorber, Lawrence Z., Partner, Proskauer Rose LLP, Washington, D.C. ............. 8 

Mehri, Cyrus, Partner, Mehri & Skalet, PLLC, Washington D.C. ...................... 10 

QUESTIONS AND ANSWERS 

Responses of Lilly Ledbetter to questions submitted by Senators Leahy and 

Specter .................................................................................................................. 20 

Responses of Lawrence Z. Lorber to questions submitted by Senator Specter .. 24 

Responses of Cyrus Mehri to questions submitted by Senators Specter and 

Leahy ..................................................................................................................... 33 

SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union, Caroline Fredrickson, Director, Washington, 

DC, statement ...................................................................................................... 50 

Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of New York, 

statement .............................................................................................................. 54 

Hulteen, Noreen, former Assistant Manager of Pacific Telephone and Telegraph, statement .................................................................................................. 61 

Ledbetter, Lilly, retired Goodyear Tire Employee, Jacksonville, Alabama, 

statement .............................................................................................................. 65 

Lorber, Lawrence Z., Partner, Proskauer Rose LLP, Washington, D.C., statement ...................................................................................................................... 68 

Mehri, Cyrus, Partner, Mehri & Skalet, PLLC, Washington D.C., statement 

(Exhibit 2, 3, and 4, is being retained in the Committee files.) ....................... 87 

(1) 

BARRIERS TO JUSTICE: EXAMINING EQUAL 

PAY FOR EQUAL WORK 

TUESDAY, SEPTEMBER 23, 2008 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:04 a.m., in room 

SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feinstein, Durbin, Cardin, and Specter. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. I want to thank everybody for 

being here, and, Ms. Ledbetter, Mr. Lorber, and Mr. Mehri, thank 

you all for being here this morning. 

Seeing Senator Specter here and Senator Durbin, the Assistant 

Majority Leader, and Senator Feinstein, who is coming in slowly 

after a broken ankle, we had offered this hearing room to Senator 

Dodd, the Chairman of the Banking Committee because they also 

have a matter of some significance on today. But I think they have 

taken the large Dirksen room. I am told that this place actually 

was not large enough for the overflow there. 

I have tried as Chairman to have a series of hearings showing 

how court decisions which we just read about in the papers, but 

how they affect Americans’ everyday lives. Today, in addition to the 

Supreme Court, we are going to examine the importance of the 

Federal courts of appeal, since the Supreme Court only hears about 

75 cases a year, and the courts of appeal, of course, hear thousands 

of them. 

You would think especially now that equal pay for equal work 

would be a given in this country. Whatever work you do, no matter 

who is doing it, man or woman, they should be paid the same for 

the same kind of work. But the reality is still far from the basic 

principle. My friend Jill Biden reminded us all recently that American women still earn only 77 cents for every dollar earned by a 

male counterpart, and that decreases to 62 cents on the dollar for 

African American women and down to 53 cents on the dollar for 

Hispanic American women. Mrs. Biden is right to say that equal 

pay is not just a women’s issue; it is a family issue. 

So I am pleased to welcome to today’s hearing a brave woman 

who is a champion for equal pay. I had a chance to have a long 

chat with Lilly Ledbetter earlier this morning. She embodies the 

classic American story. Let me just tell you about that. She was a 

2 

working mother in a Goodyear tire plant. After decades of flawless 

service, she learned through an anonymous note that her employer 

had been discriminating against her for years. She was repeatedly 

deprived of equal pay for equal work. That affected her family, and, 

of course, the discrimination for all those years on her pay affects 

today her retirement pay. 

A jury of her peers found that Lilly Ledbetter had been deprived of over $200,000 in pay. They ordered the corporation to pay her 

additional damages for their blatant misconduct. Incredibly, the 

United States Supreme Court overturned stepped in—remember, 

they only take 75 cases a year, but, boy, they wanted to step in on 

this one, and they overturned that jury verdict. They created a bizarre interpretation of our civil rights laws, and they ignored the 

realities of the American workplace. 

Her employer, Goodyear Tire, will never be held accountable for 

its illegal activities. The Court’s ruling sends a signal to other corporations that they can discriminate with impunity, so long as they 

keep their illegal activities hidden long enough. That is not the way 

it should be in America. 

The current Supreme Court seems increasingly willing to overturn juries who heard the factual evidence and decided the case. 

In employment discrimination cases, statistics show that the Federal courts of appeal are 5 times more likely to overturn an employee’s favorable trial verdict against her employer than they are to 

overturn a verdict in favor of the corporation. That is a startling 

disparity for those of us who expect the employees and the employers to be treated fairly by the judges sitting on our appellate 

courts. 

Set to be argued before the Supreme Court this fall are several 

more cases affecting women whose very livelihoods hang in the balance. In addition to cases involving domestic violence protections 

and Title IX, they will consider cases that involve: whether retired 

employees should be penalized for leave they took related to their 

pregnancies; whether a children’s musician, who plays the guitar, 

who had her arm amputated has any right to recover against the 

drug company that negligently caused her injury that caused her 

to lose an arm; and whether an employee asked to participate in 

an internal sexual harassment investigation could be fired simply 

because she reported sexual harassment in her workplace. 

Now, when corporations discriminate against women paycheck 

after paycheck, it should not be tolerated. The civil rights protections enacted by Congress must be made real by enforcement. And 

one of the basic civil rights should be equal pay for equal work. 

Our courts are an essential mechanism to enforce the civil rights 

laws that Congress has passed—laws that protect women, the elderly, minorities, and the disabled. The rulings are reduced to hollow words on a page if judges issue rulings like the one rendered 

by the Supreme Court in Lilly Ledbetter’s case. 

A few months ago when the Senate tried to correct the Supreme 

Court’s unjust decision in the Ledbetter case, we fell just a few 

votes short of breaking through the Republican filibuster of that 

legislation. And a senior Republican Senator who was not present 

for the vote, and who thus effectively supported the filibuster, 

claimed that the real problem is not discrimination, but just all 

3 

those women need more training. I mean, this is outrageous in this 

day and age. You should hear what my wife and my daughter say 

about something like this. 

And for those of us who know that women are more educated 

and better trained than ever before, it is a surprising perspective. 

Despite their training women still receive only 77 cents for every 

dollar that men make for the exact same work. So I hope that today’s hearing will be a chance to recognize the realities of the 

American workplace, the importance of fairness, and the indispensable role that our Federal courts play in making sure that all 

Americans receive equal pay for equal work. 

As the economy continues to worsen, many Americans are struggling to put food on the table, gas in their cars, and money in their 

retirement funds. And it is sad that recent decisions handed down 

by the Supreme Court and Federal appellate courts have contributed to the financial struggles of so many women and their families. I remind these judges they all get paid the same, and they get 

lifetime pay. They ought to look at the realities of the people in the 

workplace. 

[The prepared statement of Senator Leahy, appears as a submission for the record.] 

Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

I join you in welcoming our witnesses here today. I believe that 

the legislation which would have given Ms. Lilly Ledbetter a cause 

of action without being precluded by the statute of limitations, that 

legislation is sound and ought to be enacted. And I say that because every time Ms. Ledbetter received a check which was of a 

lesser amount than people in similar situations, she was discriminated against. And it seems to me that the logic of the situation 

favored the four dissenters in her case. Each time she was paid, 

she was paid less than a man in a comparable situation. 

I think that a construction ought to be employed which gives the 

maximum realistic protection to women in the workplace. We all 

know the problems that women have and the glass ceiling and the 

difficulties which are involved so that where there is discrimination, there ought not to be a technicality on statute of limitations, 

especially such a short statute of limitations as 6 months to preclude a recovery. 

The issue is a hard one, obviously, but my view is that that 

would be the appropriate way to administer this important area of 

law. 

I regret that I am not going to be able to stay to hear the witnesses. This is supposedly the last week in our session, and it is 

a very tumultuous week with very, very heavy engagements on the 

economic crisis, which I am working on this morning. And we are 

trying to wrap up a lot of business in the Judiciary Committee, and 

it is one of the burdens of chairmanship that the Chairman has to 

stay. I would welcome that burden, but it is not mine, at least for 

the moment. But staff will be here, and we will be reviewing the 

testimony and following this important issue very closely. 

4 

[The prepared statement of Senator Specter appears as a submission for the record.] 

Chairman LEAHY. When Senator Specter says that it is a somewhat tumultuous week, I chuckled because that is sort of a New 

England understatement. It is a wild week, and I appreciate him 

taking the time to come. 

If Senator Durbin has no objection, Senator Feinstein is the only 

woman on the Judiciary Committee panel, and she serves with distinction here and also is one of our crossover members on the Intelligence Committee. 

Senator Feinstein, did you have anything you would like to add? 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I 

would. 

I would like to say thank you, Ms. Ledbetter, thank you for doing 

what you are doing. Those of us who have looked at the history of 

our Nation know that women have had to fight for virtually everything they have received. In the early days of our Nation, women 

could not inherit property, women could not get a higher education; 

and, of course, until 1920, women could not vote in this country. 

The discrimination in the workplace still exists. 

I was of the generation that went out into the workforce in the 

mid-1950s and found that women need not apply, that it really did 

not matter how much graduate work you had for a given job. The 

belief was that a woman really could not do the job and do the job 

well. And there still is a legacy, I think, in our country of that 

problem. 

Lower paychecks are not the only problem. In a recession, it has 

been shown that women actually suffer disproportionately under 

almost any economic measure. As a matter of fact, as of April of 

this year, women were losing jobs faster than men; women’s wages 

were falling more rapidly than men’s; women were disproportionately at risk for foreclosure and 32 percent more likely to receive 

subprime mortgages than men; women had fewer savings than 

men; and non-married women had a net worth 48 percent lower 

than non-married men. 

Once retired, women actually find themselves in greater jeopardy. On average, we live 7 years longer than men, but we receive 

significantly fewer retirement benefits. 

Among women above retirement age, some do not receive any 

benefits at all because they have spent their working years inside 

the home caring for their children. Women who did work outside 

the home were often paid significantly less than their male counterparts. Their pension checks, of course, reflect that fact, and they 

are lower than those of their male colleagues. 

The problem is compounded even further, I believe, by bad company practices that leave women with no benefits at all for some 

periods during their careers. Before Congress passed the Pregnancy 

Discrimination Act, many employers refused to recognize women’s 

health issues as health issues. These companies denied women benefits for the weeks or even months that they were forced home due 

to pregnancy-related medical issues. 

5 

So these problems really deserve our attention. Ms. Ledbetter, it 

is so important that you have done what you have done, because 

you cannot possibly know your check is lower until you know it. 

And if there is a statute of limitations that ends your rights before 

you have an opportunity to know that you were not paid equally 

or fairly or rightly, then you are sunk, so to speak. 

I think you have raised a critical issue in our country. We now 

have a two-person family workplace. Generally, to earn enough 

money, both people in a household have to work in this economy. 

So it is critically important that we change the rules of the workplace to be able to reflect that, and I think you have struck a blow. 

As you know, Senator Kennedy has a bill to reverse the Supreme 

Court’s decision in your case. Many of us are cosponsors of that 

bill, and it might not pass this session, but I believe it will in the 

next session. 

So I just want to say thank you very much for what you have 

done. Be courageous and stand tall and hang tough. 

Thank you. Thank you, Mr. Chairman. 

[The prepared statement of Senator Feinstein appears as a submission for the record.] 

Chairman LEAHY. Thank you. And, Senator Durbin, thank you 

for your courtesy in letting Senator Feinstein go first. I will yield 

to you. 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you to all the panel for being here. 

This Committee approves judges and even Supreme Court Justices, and people come before us and say, You know, I am just 

going to call the balls and the strikes, just call them as I see them. 

You know, we just take the law and apply it. You know, it is really 

pretty simple. 

And look what happened to you. One of the Supreme Court Justices—in fact, the Chief Justice, who said he was just going to call 

the balls and strikes, obviously decided who was going to win the 

ball game before the first pitch. And in this case, it was your employer, because the standard that they held you to was inconsistent 

with the law as it has been written and interpreted, and it is inconsistent with common sense. And you are going to tell us about that, 

as you have so many times, and I am glad you are doing it. You 

put a face on an issue, and you have also dramatized why elections 

are important. Presidents pick judges. Judges interpret laws. If a 

President picks a judge who comes to it with a certain prejudice, 

people like you lose. And that is what happened. That is a simple 

fact. And all these folks who talk about strict construction and, 

man, we are going to stick by the law and just trust me, you know, 

we are going to call the balls and the strikes—well, unfortunately, 

you are out and they are still in. But we have got a chance to 

change it. 

Thank you. 

[The prepared statement of Senator Durbin appears as a submission for the record.] 

Chairman LEAHY. Thank you very much. 

6 

Our first witness, as we have already said, is going to be Lilly 

Ledbetter, who worked at a Goodyear tire plant in Alabama for 

more than 20 years. She became the first woman to be promoted 

to supervisor. Now, that was a plus for them. What she was not 

told, of course, was that she was being paid less than her male 

counterparts. And she turned to the courts for justice. The Supreme Court denied her claim. Today she is a tireless advocate for 

fair pay. 

Ms. Ledbetter, please go ahead, and hit that talk button and it 

is all yours. 

STATEMENT OF LILLY LEDBETTER, RETIRED GOODYEAR TIRE 

EMPLOYEE, JACKSONVILLE, ALABAMA 

Ms. LEDBETTER. Thank you. My name is Lilly Ledbetter, and I 

appreciate this opportunity to testify. I am sorry to say that I am 

a living example of the fact that pay discrimination continues to be 

a pervasive problem in the workplace. In addition, my case illustrates the barriers that courts put in the way when workers try to 

vindicate their civil rights. 

I began working as a supervisor in the Goodyear tire plant in 

Gadsden, Alabama, in 1979. I worked for Goodyear for almost 20 

years. I worked hard and was good at my job, but it was not easy. 

I was only one of a handful of women supervisors, and I faced obstacles and harassment that my male peers did not have to endure. 

Although I only found out about it later, I also was subjected to 

pay discrimination for virtually the entire time I worked at Goodyear. 

When I first started, the managers got the same pay, so I knew 

I was getting paid as much as the men. But then Goodyear 

switched to a pay system that was supposed to be based on performance where people doing the same jobs got paid differently. 

Like most employers, Goodyear knew all the facts. It knew who 

was making what. It made the decisions about how much to pay 

each manager, and it knew whether its pay system was based on 

performance or something else. But the workers didn’t know. In 

fact, Goodyear prohibited us from discussing our salaries. 

I only started to get some hard evidence when someone left an 

anonymous note in my mailbox showing that three other male 

managers were getting paid between 15 percent and 40 percent 

more than I was. 

I thought about just moving on, but I just could not let Goodyear 

get away with their discrimination. So I filed a complaint with the 

EEOC and afterward went to court. 

It wasn’t until I filed my case that I finally was able to learn 

what Goodyear had known for years: that it was paying me a lot 

less than all of the men doing the same work. Goodyear claimed 

that it was because I was a poor performer. That wasn’t true, and 

the jury didn’t believe it. They found that Goodyear had violated 

Title VII and awarded me the money I was owed. 

But Goodyear appealed the verdict, and the Eleventh Circuit 

Court of Appeals and then five Justices of the Supreme Court ruled 

that although I continued to be paid less than the men right up 

to the date I filed my charge, I had complained too late. According 

to these judges, any pay discrimination complaint must be filed 

7 

within about 6 months of the first time a worker gets a discriminatory paycheck—no matter how long the discrimination continues, 

no matter how much damage it causes the worker, and no matter 

how much the employer knows that it is getting away with, and 

profiting from, its unlawful conduct. 

This ruling just does not make sense in the real world. At a lot 

of places, you could get fired for asking your coworkers how much 

money they were making, and it is the employers, not the employees, who know how much they are paying each worker and who 

have the chance to correct any disparities. 

The end result of the Court’s ruling is that employers can pay 

workers less than they are entitled to for their entire careers and 

then pocket the difference. Equally disturbing, the higher courts rejected what had been the law in every part of the country. I am 

not a lawyer, but my counsel told me it was settled law that an 

employee could challenge each discriminatory paycheck she received. In fact, the law was so clear that the EEOC intervened on 

my side before the Eleventh Circuit. 

But the Supreme Court took a law that had been applied to protect people like me and created a loophole big enough for employers 

to drive a truck through. And my case is only the tip of the iceberg. 

Companies have gotten the Supreme Court’s message loud and 

clear. They will not be punished for pay discrimination if they do 

it long enough and cover it up well enough. Women from all over 

the country have told me how they are paid less for doing the same 

job as their male colleagues. And now there is nothing they can do. 

And courts have applied the Supreme Court’s ruling in my case to 

all different kinds of cases, not just pay discrimination cases. 

The Senate can restore the promise that the Supreme Court 

broke in my case by enacting the Lilly Ledbetter Fair Pay Act, a 

bill that simply restores the law to what it was before the Court’s 

decision. The Senate can also restore the promise of the laws more 

broadly by insisting that judges understand the real world and are 

committed to upholding longstanding legal protections. 

My case is over. I will never receive the pay I deserve from Goodyear. But Congress has the power to ensure that what happened 

to me never happens to anyone else. I am honored to be here today, 

and thank you for the opportunity to testify before this Committee. 

I am very grateful from the bottom of my heart for this opportunity. 

Thank you, each one of you, for being here. 

[The prepared statement of Ms. Ledbetter appears as a submission for the record.] 

Chairman LEAHY. Thank you very much, Ms. Ledbetter, and I 

appreciated very much the opportunity to talk with you about this 

before the hearing. 

Lawrence Lorber is a partner in the Washington, D.C., office of 

Proskauer Rose LLP. He is an employment law practitioner. He 

counsels and represents employers in connection with all aspects of 

labor and employment law. He was formerly Deputy Assistant Secretary of Labor and Director of the Office of Federal Contract Compliance Programs during President Ford’s administration. 

Good to have you here, sir. Please go ahead. 

8 

STATEMENT OF LAWRENCE Z. LORBER, PARTNER, 

PROSKAUER ROSE LLP, WASHINGTON, D.C. 

Mr. LORBER. Good morning, Chairman Leahy, members of the 

Committee. I am pleased to be here. As the Chairman said, my 

name is Lawrence Lorber, and I am a partner in the law firm of 

Proskauer Rose here in Washington. 

The laudable goal of equal pay for equal work that we are discussing today is one that I am personally familiar with. Prior to entering private law practice, I served as the Director of the Office 

of Federal Contract Compliance Programs and a Deputy Assistant 

Secretary in the Department of Labor. The OFCCP enforces an Executive order which prohibits discrimination and requires affirmative action by Federal contractors, in addition to requiring affirmative action and prohibiting discrimination on the basis of disabled 

and veteran status. 

During my tenure at the OFCCP, policies asserting that agency’s 

authority to retrieve back pay for employees were formulated and 

successfully litigated. In 1990 and 1991, I was counsel to the Business Roundtable for the discussions which led to the 1991 Civil 

Rights Act, which reversed, I believe, 11 Supreme Court decisions 

and resulted in a marked change in employment discrimination 

law. And most recently, I have served as the Chair of the U.S. 

Chamber of Commerce’s EEO Committee and, as such, have been 

involved—it has been my privilege to be involved with the recently 

enacted Americans with Disabilities Amendments Act. 

I wish to discuss very briefly three points. 

First is the impact of H.R. 1338, the Paycheck Fairness Act, simply as an example of a purported response to a problem, which I 

believe neither responds to the problem nor creates an appropriate 

legal framework to address equal pay concerns. 

Second, I would like to briefly mention a series of Supreme Court 

decisions all of which have served to vastly expand the rights of 

employees, in particular expand and redefine the concept of retaliation under various employment laws which could deal with many 

problems, including perhaps some addressed by Ms. Ledbetter. 

And, third, I wish to briefly discuss the issue of class actions and 

what they do in reality to employment discrimination. 

The Paycheck Fairness Act. We have heard a lot about it. We are 

told that this will restore the law to the way it was before the 

Ledbetter decision. With all due respect, I do not believe that is the 

case. The Paycheck Fairness Act really changes the notion and the 

whole thrust of the Equal Pay Act, which is an Act which prohibits 

denial of equal pay for equal work without any necessity to prove 

intent by employers. That is a critical element and something that 

should not be cavalierly cast away. The Equal Pay Act finds its 

genesis not in 1963, but really back to the War Labor Board in the 

1940s, when the issue was when women were entering the workplace and performing tasks not heretofore then performed by 

women they were required to receive equal pay. The War Labor 

Board established principles then which carry forward to 1963 and 

carry forward today that equal pay for equal work is the law and 

intent has nothing to do with that concept. So that we have a 

structure to deal with this issue, I think we may look to some legal 

issues involving litigation as to how you deal with it. But, neverVerDate Nov 24 2008 10:26 Apr 15, 2009 Jkt 048537 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\48537.TXT SJUD1 PsN: CMORC
9 

theless, that has been the law since 1963, predating Title VII, and 

it is the law today. 

In terms of the Paycheck Fairness Act, I just want to briefly talk 

about three elements of that. 

First, it would eliminate caps on punitive and compensatory 

damages. The Congress addressed that issue in 1991 when it 

passed the Civil Rights Act, established appropriate caps to respond to the individual harms that individuals who were found to 

have their rights violated and they could be recompensed for. Unlimited caps, unlimited damages does nothing to preserve that; 

rather, it does simply provide and create a legal lottery so the very 

few who get their case in court may get a windfall; the very many 

who have to wait in a long line do not receive anything. 

Second, the Paycheck Fairness Act would eliminate employer responses, defenses, to pay disparities—disparities which might be 

occasioned by geographic differences, job differences, or any of the 

other types of issues that we address. And it does bring back before 

us the concept of comparable work where we have Government 

agencies setting compensation and salaries, not based on the market, not based on the realities of the workplace, but based on statistical models which may have no meaning in the real world. 

Let me very briefly talk about judicial decisions. Senator Durbin 

spoke about it. Mr. Chairman, you spoke about it. 

The Supreme Court had a series of decisions in the last 2 years. 

Most critically, it rewrote the law of retaliation, established broad 

coverage for employees who assert their rights to have a cause of 

action, even if the underlying cases that they bring are found without merit. The White case and other cases that I briefly discuss in 

my testimony point out the fact that the Court understands the importance of our employment laws and understands the importance 

of retaliation to prevent violations and to enhance the enforcement 

of those laws. We do know that the Supreme Court in the 

Meacham case vastly expanded the reach of the Age Discrimination 

in Employment Act. So we do not have a Court that is unwilling 

to face the law as it finds it, but we do have a Court that tells the 

Congress, ‘‘Rewrite the law if you want it, but we cannot make the 

law.’’ And that to me is the teaching of this Court because this has 

been a Court which has countless times enhanced the rights, at 

least as it interpreted the laws that were written, enhanced the 

rights of employees. But it does not make the law. And we go back 

to cases such as Ricks v. Delaware, go back a long time ago where 

the Supreme Court said you have to bring the case when the case 

arises. 

Let me just briefly sum up by saying that employment law, perhaps unlike other law, tends to be individualized. We look to the 

actions of managers— 

Chairman LEAHY. And we will go into that on our questions. I 

must say I somewhat disagree on whether they interpret the law 

instead of making the law. We can cite a whole lot of cases where 

I feel this Court has made the law in areas that had been considered for years to be settled law. 

[The prepared statement of Mr. Lorber appears as a submission 

for the record.] 

10 

Chairman LEAHY. Our next witness is Cyrus Mehri, a founding 

partner in the law firm Mehri & Skalet. Mr. Mehri served as class 

counsel in the two largest race discrimination class actions in history: Roberts v. Texaco, Inc. and Ingram v. The Coca-Cola Company. He is a frequent guest on radio and television, a guest columnist for Diversity, Inc. 

Mr. Mehri, please go ahead. 

STATEMENT OF CYRUS MEHRI, PARTNER, MEHRI & SKALET, 

PLLC, WASHINGTON, D.C. 

Mr. MEHRI. Chairman Leahy, thank you for the opportunity to 

be here today alongside a genuine American heroine, Lilly 

Ledbetter. Her case illustrates a profound problem in the Federal 

courts and one that has been documented by a seminal new Cornell 

Law study, as well as some case studies I put in my testimony. 

First, the Cornell study, which is in a Harvard law journal. 

There are two key takeaways I would like the Committee to walk 

away with: 

First, the U.S. appellate courts are hostile to American workers. 

They treat employee cases very differently than other cases. When 

employers win at trial, they show deference to the fact finder and 

they reverse them 8 percent of the time. But when employees win 

at trial, they reverse them a stunning 41 percent of the time, and 

these are employees like Ms. Ledbetter who had their cases vetted 

by counsel, who overcame motion practice before going to trial, and 

convinced the fact finder that they were discriminated against, and 

yet the appellate courts reached down and reversed those trial victories. 

This has a chilling effect, a debilitating impact on civil rights litigants, and the data in this study shows a 37-percent drop in Federal employment discrimination cases in our court system. 

But Ms. Ledbetter is not alone. There are many other devastating stories of American workers. One, I would like to tell you 

the story of Mr. Anthony Ash and Mr. John Hithon, African American workers at a Tyson’s plant in Alabama. The citizens who 

served on that jury heard evidence that these two employees had 

greater experience, had longer tenure, and were loyal employees of 

the company, and yet they were passed over for promotions. They 

also heard evidence of racial animus where the decisionmaker, 

their supervisor, would repeatedly call them ‘‘Boy’’ in the workplace, to the point that Mr. Ash’s spouse came in and said, ‘‘My 

husband is a man, not a boy.’’ They heard that evidence. They 

found discrimination. And yet the appellate court, the Eleventh 

Circuit, found that as a matter of law—a matter of law—that the 

use of ‘‘Boy’’ in the workplace is not evidence of discrimination. 

They created a whole new legal standard that for promotion cases 

the evidence has to jump off the page and slap you in the face, a 

standard that no law school in America teaches. 

Now let me tell you the story of Susan Septimus who worked in 

the general counsel’s office of the University of Houston. The Texas 

citizens serving on that jury heard evidence of a hostile work environment. They heard that she was forced to file a grievance with 

the university, but as soon as she did that, her supervisor retaliVerDate Nov 24 2008 10:26 Apr 15, 2009 Jkt 048537 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\48537.TXT SJUD1 PsN: CMORC
11 

ated against her by giving her a low performance rating, and then 

even wrote a memo to the file outlining the plan of retaliation. 

The university hired an independent counsel who found evidence 

of retaliation and hostile work environment, and the jury, hearing 

all that evidence, found that they had retaliated against Susan 

Septimus. But, once again, the employer has an easy recourse. 

They can go to the court of appeals, and there the court of appeals 

reversed this trial outcome. They created a whole new legal standard that makes it impossible, essentially, for an employee to show 

evidence of retaliation. 

So Ms. Ledbetter is not alone. There are literally hundreds of 

stories like this around the country that are imperiling our Federal 

judiciary from being a level playing field for American workers. 

Fortunately, I believe there is a path to turn this around, and that 

is to cast a completely new prism—create a new prism in the judicial nomination process, to cast a much wider net of who the potential nominees are than we currently do. 

Right now we are only drawing from a very narrow pool of potential nominees. When you do that, you are going to have skewed 

outcomes like we have here, a 5:1 disparity against American workers. And that is not going to change until we start bringing in 

nominees who, as part of their life experience, like Justice Ginsburg, part of their work experiences have fought to open doors, 

have fought for American workers, have fought for the middle-class 

and have fought for small businesses. We do not have that in the 

judiciary right now. We have a judiciary that is predominantly-the 

attendance is predominantly lawyers who have worked for the most 

powerful. We have precious few who have worked for people like 

Ms. Ledbetter who just want a fair shake in the American judiciary. 

Thank you, Chairman. 

[The prepared statement of Mr. Mehri appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

Ms. Ledbetter, you can tell from my opening statement I am concerned that the courts reward employers who conceal their discriminatory conduct from their employees. You had mentioned to 

me earlier Justice Ginsburg’s dissent, and it is a powerful dissent. 

Justice Ginsburg emphasized that pay discrimination is more pernicious than other forms of job discrimination because it is hidden 

from sight. It is not here in the Congress. Pay is transparent. People can just look up and find out what anybody is paid. Most private employers conceal pay data. 

Now, you said in your testimony that you first heard about this 

when somebody left an anonymous note in your mailbox. Is that 

correct? 

Ms. LEDBETTER. That is correct. And the four of us, the names 

on that paper, we were doing the exact same job, because there 

were four crews, A, B, C, D. And I was one of those people making 

15 to 40 percent less than the other guys. 

Chairman LEAHY. How did this discriminatory pay affect you, 

your family, your retirement? 

Ms. LEDBETTER. It affected me a great deal while I was earning 

a living because I had two children that I needed to send to college. 

12 

They needed college educations. They needed clothes. They needed 

all of the normal expenses that a family has during that time. And, 

also, first-line managers were paid overtime, being time and a half, 

double time, triple time. That cost me a great deal, because when 

I was working those extensive hours, I was not getting the money 

that I was entitled to. And during that period of time I was working, my retirement was based on what I earned. My contributory 

retirement was based on what I earned. My 401(k) investment was 

based on what I earned. And then I learned when I retired that 

Social Security was also based on what I earned. And so it makes 

me be treated, in my opinion, like a second-class citizen for all of 

my life because it never can be changed. 

Another thing I learned early on in the process is that once a 

person has to file a charge, there is no compensation that can ever 

adjust for your retirement losses. They do not ever consider that 

in any lawsuit. So that is gone. And I would have never waited any 

period of time. I would have gone to court immediately because I 

needed the money that I was entitled to at the time I was working. 

Chairman LEAHY. Let me ask you a little bit about this. Mr. 

Lorber has suggested that the courts are telling the Congress, well, 

we are just enforcing the law, you can write the law differently. 

But a few months ago, the Senate tried to bring up legislation to 

overturn the Supreme Court’s decision, and the Republicans filibustered even proceeding to it. I mentioned in my opening statement that there is a senior member of the Senate, a Republican, 

who did not even bother to show up for the vote. He claimed the 

real problem is ‘‘women just need more job training.’’ 

Now, you worked for this company for 20 years. You were deprived of over $200,000 in pay. Were you lacking the training that 

your male colleagues had to perform that job? 

Ms. LEDBETTER. No, sir. In fact, I had more training than most 

because I saw the discrimination early on, me being the lone female, so I was a member of a management association that is national. In fact, I was the first female president that was ever elected to head up that organization that was 95 percent men at the 

time. And we offered a lot of management courses that were very 

expensive, and I paid for those. I had over 100 professional courses 

that I was taking from Auburn University, University of Alabama, 

University of Georgia, anyone else that offered them. I had more 

training than most people at the plant. 

Chairman LEAHY. Would it be safe to say you do not want to be 

dismissed by somebody who said, ‘‘I will pay you less just because 

you need more training’’ ? 

Ms. LEDBETTER. No, sir. I am very offended by that statement. 

Chairman LEAHY. I can imagine. 

Ms. LEDBETTER. Very offended. 

Chairman LEAHY. So am I. So am I. 

Ms. LEDBETTER. And the medical doctor that I participated in a 

meeting last weekend in New York, she would agree as well. She 

is a physician. She did not need any more education either. 

Chairman LEAHY. Thank you. My time is up. 

Senator Feinstein. 

Senator FEINSTEIN. And I am going to try to keep to the strict 

time limit here. Thank you very much. 

13 

I was interested, Ms. Ledbetter, in what you said to Senator 

Leahy, that the way you found out was you received a note from 

someone. Is that right? 

Ms. LEDBETTER. That is correct. 

Senator FEINSTEIN. And that note said that you and three other 

people were being discriminated against with respect to your pay? 

Ms. LEDBETTER. It was just—mine was the only one that had on 

it extremely low pay. In fact, at that particular time I worked, I 

was a supervisor in the tire room, the only female. 

Senator FEINSTEIN. And what percent was your pay below the 

men? 

Ms. LEDBETTER. Between 15 and 40 percent. Some of them were 

being paid 40 percent more than mine at that time. 

Senator FEINSTEIN. I see. Then what did you do about it? Who 

did you talk to at Goodrich about it? 

Ms. LEDBETTER. I went straight to EEOC. 

Senator FEINSTEIN. And what did they say? 

Ms. LEDBETTER. They did some investigation, and they called in 

a few days and said that I had one of the best cases that they had 

ever seen, but they were so backlogged that I might want to consider getting an attorney and going forward. 

Senator FEINSTEIN. Did you ever talk to any of the leadership at 

the company? 

Ms. LEDBETTER. They hired an arbitrator from Texas that called 

me and made me an offer of $10,000, which that was such an insult to me, knowing, looking back and calculating how much money 

that I had lost, there was no way. I just could not accept it, and 

seeing and knowing the injustice, what had been done to me and 

other people at that factory. And there were two other women who 

testified at my trial. One of them had been a supervisor during the 

time that I had been. She had previously been a union worker and 

was promoted. She finally had taken all the harassment that she 

could stand, and she sold her service. And at the time she testified 

for me, she was a supervisor for Honda in Alabama. But they 

asked her why she never complained, and she said, ‘‘Well, if I had 

complained, I was a divorced mother with a handicapped son, we 

live paycheck to paycheck. I could not afford to miss my check.’’ 

Senator FEINSTEIN. Of course, I am not recommending this, but 

the thought does occur that if every working woman were to take 

Goodrich tires off of their car, that might sensitize Goodrich. It is 

an interesting thing to me that increasingly as a society becomes 

more sophisticated, the leadership substitutes arbitrators— 

Chairman LEAHY. It was Goodyear. It was Goodyear, not— 

Senator FEINSTEIN. Well, all right. 

Chairman LEAHY. It was Goodyear, not Goodrich. Entirely different companies. 

Senator FEINSTEIN. Yes, right. 

Ms. LEDBETTER. It was Goodyear. 

Chairman LEAHY. I do not want to see people pulling the wrong 

tires off. 

Ms. LEDBETTER. Neither do I. Neither do I. But you can pull the 

Goodyears off. 

[Laughter.] 

14 

Senator FEINSTEIN. I am going to check mine. I am going to go 

check my tires. 

Ms. LEDBETTER. You do that. 

Chairman LEAHY. I can see my wife checking the tires right now 

on my car. 

Senator FEINSTEIN. But something has to sensitize them, I think, 

to this concern. There is no greater issue among working women, 

poll after poll after poll has shown, than wage disparity. And it has 

got to be changed in our society. And it is not going to be changed, 

I believe, by arbitrators and conciliators and the middlemen. 

Ms. LEDBETTER. No. 

Senator FEINSTEIN. It is going to be changed by the CEO of the 

chairman that says this will not go on within our company. 

And so I think—aside from the legislation, which I support— 

some of us who are in the working women world ought to put our 

heads together and see what we might be able to do to sensitize 

the top leadership of the company. 

Now, having said that, this is a very difficult time because of 

what is happening in the investment and Wall Street community. 

But notwithstanding that, I think CEOs have to understand that 

this is a new day and that women have tremendous obligations of 

home support, family support, tuition, insurance, all kinds of 

things they have to pay and be responsible for. So no longer can 

this be tolerated in the workforce. 

You are leading the way, and, again, I just want to say thank 

you very much. 

Ms. LEDBETTER. Thank you for that. I do appreciate it, because 

this will never gain Lilly Ledbetter a dime, what I am doing today. 

But I have heard from so many people across this country, not just 

in the South. I originally thought it was a Southern problem. It is 

not. This is all across the United States. And we minorities are entitled to be treated fairly and paid fairly, and it is no longer just 

the females’ problem or the minorities. It belongs to—it is a family 

issue because it affects all aspects of a family. You are exactly right 

in your statement. It does affect the whole bit. 

Senator FEINSTEIN. Could I ask you one last question? 

Ms. LEDBETTER. Yes. 

Senator FEINSTEIN. What do you figure in terms of back wages 

you are entitled to? 

Ms. LEDBETTER. That I am entitled to? 

Senator FEINSTEIN. Yes. 

Ms. LEDBETTER. It would be very difficult, I would have to go 

back and look at all the overtime, because it was not uncommon 

for me to work 12-hour shifts. We were on a continuous operation, 

and when my peer on the other shift was out, I was required to 

work his shift as well as mine. And there was one 3-month period 

that I worked 3 months, 12 hours at night, and I was required to 

be there an hour early and stay over an hour after the shift. And 

it was a 35-minute drive to where I lived. So, needless to say, I did 

not sleep much or eat much, either. I was primarily working. So 

it would be quite a bit. 

And then my retirement, my contributory retirement was a percentage of what I was earning, and Goodyear matched it. And then 

the 401(k), I put in 10 percent, which was the max allowable. And 

15 

they matched with 6 percent stock. And at that time in those days, 

the stock was running around $77 per share. So I missed a lot of 

money just on that. 

It is a tremendous amount of money. 

Chairman LEAHY. The jury found $200,000, didn’t they? 

Ms. LEDBETTER. That is correct. And, also, the back pay, that is 

another problem that some in the Supreme Court said, why, people, if this was changed, people would be coming out of the woodwork filing lawsuits. That is not true because there is no incentive. 

I can only go back 2 years. That is the law. Nothing is changed 

about that, and I knew that when I filed my charge on going back 

for equal pay. You are only entitled to 2 years. And they took, the 

courts took the lowest-paid person in the department and calculated my back pay, which would have been, without overtime, 

just $60,000. I lost that. The Supreme Court took that away. They 

said that we should have had that all in one—in two different 

cases. Well, my attorney in Birmingham, Alabama, started out in 

two different cases. But the judge there said put them all together 

because they would all come under Title VII, Equal Pay. 

And this gentleman is exactly right. Equal Pay passed in 1963. 

And why in 2008 are so many, so many women not being paid fairly? 

And the other gentleman is exactly right. They are first to be 

laid off, they are the first to be cut, their wages and their work 

shifts. 

Senator FEINSTEIN. Thank you. 

Chairman LEAHY. Thank you. 

Senator Cardin of Maryland is here. Please go ahead. 

Senator CARDIN. Thank you, Mr. Chairman. 

I want to really thank Senator Feinstein and thank our Chairman, Senator Leahy, for what they have done throughout their entire career to speak out and to do everything they can so that we 

address the inequities of pay in this country. They have been true 

champions, including my senior Senator, Senator Mikulski, who 

has been in the forefront on this fight. And I thank all three of our 

witnesses for your fighting for this, and for your continuous support for the right causes. 

And I must tell you, Ms. Ledbetter, I think you will have done 

more for equal pay than just about any other person. And I know 

that you will not benefit directly. But you have done a lot for our 

country. 

You are right, we have been struggling for this for many years. 

I was in the State legislature when we passed an equal pay statute, and still we have the inequities in our own State. And the Supreme Court decision in your case is just so outrageous, it defies 

logic. How are you expected to be able to file a claim if you did not 

know about it, that you were being discriminated against? That defies just common sense. 

And I think Americans understand that what this Nation stands 

for, our basic protections of treating people fairly, is a protected 

right. And yet the Supreme Court by its 5–4 decision effectively 

said there is no way to enforce the right of equal pay for equal 

work. 

16 

And your courage and what you continue to do by being here as 

a witness—and I was with you in Denver, and I appreciate the fact 

that we got information out, had that opportunity. I think you have 

really put the conscience of America behind this issue, and I really 

just wanted to thank you for that. You are right, it is a critical 

issue for the individual. It is economic security. If you are not paid 

fairly, you are being robbed of the proper compensation for the 

work that you are doing. But it affects more than just your paycheck. It affects your retirement, and we are struggling with economic security for retirees. And women are at a terrible disadvantage today because of the compensation issue as one of the major 

factors of why women are not as well prepared for retirement security as their male counterparts. 

So it is beyond just the paycheck that you receive. It affects your 

entire security. It affects your family’s security. I believe it affects 

the economic security of America. I think we are being robbed of 

the right system, and it is affecting all of us, and it certainly affects 

the moral fiber of our Nation, what we stand for. The principles of 

America are very much challenged by these efforts. 

So I just really wanted to take the time to be here to thank all 

three of you, all three of our witnesses, and to let you know that 

we will continue to make sure that this is corrected. It is important 

not just for the individuals who are being discriminated against. 

This is critically important for our country. It is what we stand for. 

It is our highest priority, protecting the rights of our citizens. And 

I think your presence here today gives us additional energy to continue this battle until we have won. 

Thank you. 

Ms. LEDBETTER. Thank you, sir. 

Senator FEINSTEIN. Thank you, Senator Cardin. I think your 

words are well stated, and I think we all agree with them. 

Senator Leahy just absented himself for a few moments, but I 

think unless there are additional things that any member of the 

panel has to say—oh, he is back. I was just going to adjourn the 

hearing. 

Chairman LEAHY. Thank you. As we have said, we are all trying 

to cover about three different things because of the financial matters going on. I apologize. I had to return a phone call on that. 

Mr. Mehri, I have read a number of these reports you have 

talked about, but I have also looked at this Harvard Law and Policy Review, ‘‘Employment Discrimination Plaintiffs in Federal 

Court: From Bad to Worse? ’’ You have practiced in this area for 

years. Under the Cornell study, Federal courts of appeals are five 

times more likely to overturn a trial verdict in favor of an employee 

than they are to overturn a verdict in favor of an employer. 

You refer to it basically as an anti-employee bias in our Federal 

courts. Is that something that surprises you? You have practiced 

there for years. 

Mr. MEHRI. Chairman Leahy, I knew we had an uphill battle. 

But when I found out that there was a 5:1 disparity against employees from our U.S. appellate courts, I was shocked. And it pains 

me because I know the struggles that workers have like Ms. 

Ledbetter, hundreds or thousands of employees around the country 

who are just trying to get their fair shake in our Federal courts. 

17 

And when they overcome all these obstacles to get to the point 

where they have a fact finder, they have a case of substantial merit 

if the jury or the judge ruled in their favor, to have these appellate 

courts this hostile to employees, finding every way possible to rule 

against the employee, rewriting the law, ignoring the deference 

that one should have to the fact finder who is there hearing the 

witnesses, that shocks me. And it puts our civil justice system on 

a very weak foundation and imperils our civil justice system. 

There is a connection between your hearing today, Chairman, 

and the other hearings today about the economic crisis, because 

what has happened is that ideology has been the No. 1 criteria for 

these nominees, now let’s have a broader perspective. In both examples, the workers are the ones who are suffering. 

Chairman LEAHY. Well, some of us have been troubled by not 

just the courts’ policy, but in this case, the Equal Employment Opportunity Commission, the EEOC, which, as all three of you know, 

is charged with enforcing Title VII, they filed a brief in support of 

Ms. Ledbetter before the Eleventh Circuit. But when it came up to 

the Supreme Court, the Solicitor General of the United States, who 

normally would be expected to support EEOC’s interpretation, he 

filed a brief against Ms. Ledbetter. 

Mr. MEHRI. That troubles me, Chairman, because the experts are 

the EEOC, and as Justice Ginsburg pointed out in her dissent, they 

actually have a common-sense paycheck accrual rule in part of the 

EEOC manual. They are the experts. They are on the front lines. 

And when the Solicitor General overruled them between the U.S. 

Court of Appeals and the U.S. Supreme Court, I think that has had 

a chilling effect on the EEOC on subsequent cases that are going 

to go before the Supreme Court. I caution the Committee to take 

a look at that because when you politicize something like this, the 

losers of it in this circumstance is America’s commitment to civil 

rights. 

Chairman LEAHY. Mr. Lorber, I gather you would not agree. Is 

that—or do you agree? 

Mr. LORBER. No, I do not agree, Mr. Chairman. With all due respect, you are looking at cases such as Ms. Ledbetter’s case which 

are cases of procedure, which are cases as to when one knows the 

wrong has occurred, when one should bring the case. 

Now, the statutes are clear as to when you have to bring your 

cases. In employment, evidence gets stale very quickly. The decisions, with all due respect, are not made by the CEOs. They are 

often made by managers in plants throughout the country. And the 

notion that you could wait and bring a case 2, 3, 5, 7, 10 years 

after an act occurred when the actor may no longer be available to 

explain why he or she made that act simply makes no sense. 

Chairman LEAHY. But doesn’t that kind of beg the question? Ms. 

Ledbetter did not know about the discrimination. But Goodyear did 

know about the discrimination. They knew they were discriminating. They kept it hidden. She had no way of knowing it. Workers do not have any incentive to sleep on their rights. But if the 

discrimination went on all that time, why shouldn’t they be able to 

challenge it? Remember, there are four members of the Supreme 

Court who obviously disagreed with your position. Justice Ginsburg 

wrote a very compelling dissent in that. 

18 

Just as a matter of fairness, I find it difficult that if a company 

discriminates against an employee, they keep that discrimination 

hidden and do it in such a way that the employee does not realize 

they are being discriminated against, and then when they find out 

subsequently, the employer can then step forward and say, ‘‘You 

should have discovered it before now. We hid it. We had all the 

ability to hide it. You had no way of knowing it. But, gosh, we got 

away with it.’’ Is that fair? 

Mr. LORBER. The way you articulate it, I have questions about 

it, but I would simply say that there are alternatives. What is 

being asked for now is an unlimited time to bring cases when the 

evidence simply is stale. You have made it clear throughout your 

career, which is distinguished beyond anything anybody else could 

aspire to, that you began as a prosecutor. You know about stale 

evidence. You know when the evidence has to be brought. 

There are other proposals, I understand, before the Senate, Senator Hutchison and others talking about discovery rules, rules 

which would enable the matter to be brought when and if the matter is discerned and understood. But what has happened here, 

what employers are being asked to deal with are cases that might 

be 20 years old. We know, fortunately or not, that the places of 

business where the acts occurred may no longer exist. And to ask 

that there be liability, this unlimited liability, liability which simply turns the Equal Pay Act on its head in a manner that does not 

reflect what the intent of these laws were does not seem to make 

sense. 

If, in fact, there are these types of problems, the Congress dealt 

with it in— 

Chairman LEAHY. But there are things—I mean, you talk about 

the criminal law and the statute of limitation. Obviously, there are 

some cases where the statute of limitation never runs. Some cases 

are considered serious enough even if the case is brought 45 years 

later, it can still be brought. And, of course, I agree with you about 

the difficulty in finding evidence on that. But there are other cases 

that are very specific. The analogy I would use, if somebody flees 

a jurisdiction to avoid prosecution, the statute does not start running in most jurisdictions. I would argue that if you hide what you 

are doing, the statute should not run either. Obviously, we disagree 

on this point, and obviously, I find the dissent more compelling 

than the majority. But I also wanted, because I knew you disagreed 

with what Mr. Mehri said, I wanted you to have a chance to state 

it. 

You talked about the Hutchison bill. Are you familiar with that 

bill, Ms. Ledbetter? 

Ms. LEDBETTER. Yes, sir. 

Chairman LEAHY. Would that have helped? If that had been law 

at the time of your case, would that have helped you? 

Ms. LEDBETTER. No, sir. No, sir. The only thing that would have 

helped me is the law as it was prior to the Supreme Court ruling 

the day of the—May 29th, I believe, of 2007. If the law had stayed 

like it was and the Supreme Court had interpreted the law like it 

had been, I would have been fine. The system worked for me, and 

I would like to point out, too, that there is never an incentive for 

anybody to sit and wait to file a charge, because one—I would like 

19 

to tell the Committee, too, that I filed an EEO charge in 1998, 

early, and this is 2008, and I am still talking. And the ruling did 

not come down until May of 2007. A person has to give up a lot 

of their life to go through something like this, and it is very difficult. It is not easy. And there is no incentive because I was working for my family and I needed every dime that I possibly could 

have earned. That is why I worked every hour of overtime I could, 

and I would have gone immediately—which I did when I knew. I 

never knew any earlier. 

The Hutchison bill, the way I understand it, is not right on the 

point of when you know. It is when—something like you might 

have known or should have known or—and I am not a lawyer, I 

am not an expert, but it would not have helped me. The Lilly 

Ledbetter Fair Pay bill, as it is written, is the only correct way to 

put the law back, and it is very simple. Very simple. It should be 

a law that Democrats and Republicans could agree on because it 

is a human rights, civil rights solution to the problem. 

Chairman LEAHY. Well, Ms. Ledbetter, I can assure you I am one 

of the ones who knows it is going to be here next year because of 

the 6-year term. This bill will come back up. 

Ms. LEDBETTER. Good. 

Chairman LEAHY. I would urge Senators not to avoid voting on 

it. I would hope that they would allow us to vote on it. And, frankly, I will not take as an excuse in a vote against it—I will not agree 

with somebody who says, ‘‘Well, women just need more training.’’ 

Ms. LEDBETTER. No. No, we don’t. No more education either. 

Chairman LEAHY. When my wife went back to nursing after raising kids, I know the kind of training she had just to get recertified 

and to get her RN license. She and male nurses were getting exactly the same training. 

I will keep the record open, Mr. Lorber, if you want to add, of 

course, to anything that was said there. In fairness to you, we will. 

Mr. Mehri, the same; Ms. Ledbetter, the same. 

I apologize for the lack of people here, but this really is, in my 

34 years here, one of the most extraordinary times in the Senate, 

and Senators are all over the place. 

So thank you very, very much, all three of you. 

[Whereupon, at 11:10 a.m., the Committee was adjourned.] 

[Additional material is being retained in the Committee files, see 

Contents.] 

[Questions and answers and submissions for the record follows.] 

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81 


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82 


48537.063
83 


48537.064
84 


48537.065
85 


48537.066
86 


48537.067
87 


48537.068
88 


48537.069
89 


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90 


48537.071
91 


48537.072
92 


48537.073
93 


48537.074
94 


48537.075
95 


48537.076
96 


48537.077
97 


48537.078
98 


48537.079
99 


48537.080
100 


48537.081
101 

Æ 


48537.082