This was a vote on passage of S. 181, the Lilly Ledbetter Fair Pay Act of 2009. S.181 changed the law to say that the 180 day statute of limitations for filing a pay discrimination suit begins again with each new paycheck that contains the unfair pay. The bill was developed in response to a 2007 Supreme Court decision holding that the 180 day statute of limitations on equal-pay law suits begins on the date the pay was originally agreed upon, and does not begin again with each new paycheck containing the discriminatory pay. That ruling had prevented Lilly Ledbetter from recovering for unequal pay because she did not learn that she was receiving unequal pay until years after she was hired.
Sen. Mikulski, (D-MD), who led the effort on behalf of the legislation, said that its intent is “simply (to) restore the law as it existed before the recent Supreme Court decision so that we make sure the statute of limitations runs from the date of the actual payment of a discriminatory wage, not just from the time of hiring.” Mikulski addressed the concern of opponents of the bill that it will generate a wave of lawsuits, and argued it would not “because it did not trigger, open-ended, millions of lawsuits before the Supreme Court decision” when workers thought that the 180 day statute of limitations kept resetting with each paycheck. Mikulski concluded by saying: “(W)age discrimination not only affects women, but it affects all who are discriminated against, and it is often minorities. We want to be sure we keep the courthouse door open.”
Sen. Leahy, the chairman of the Senate Judiciary Committee, also supported the bill. He noted that “many employers do not allow their employees to learn how their compensation compares to their coworkers'. They can hide it . . . and pray that they never find out how they were discriminated against, and then say when they are found out . . . you should have filed suit earlier. The fact that we had it all locked up and you couldn't possibly have known you were being discriminated against is your fault.”
Most Republicans opposed the bill for a variety of reasons. Sen. Graham (R-SC) said S.181 would create “a statutory statute of limitations that we have not seen before, that, quite frankly, does not make a whole lot of sense . . . The ability to create a job in America and keep a job here is very much at risk . . . We are on the verge, in my opinion, of having . . . a litigation system that is going to drive people out of business and leave this country. Quite frankly, if we go down the road this bill is charting, we are going to make it harder to do business in this country and we will not enhance fairness.”
Sen. DeMint (R-SC) echoed the sentiments of his South Carolina colleague and said he opposed the bill because it “creates more uncertainty for the very businesses we need to create the jobs and to keep the jobs we have . . . in the middle of a recession.” Sen. Enzi (R-WY) suggested that it was not “fair to sue a businessperson over something that may or may not have happened in his or her company decades earlier” He asked: “(H)ow do you prove something didn't happen years ago when the only witness other than the accuser is absent?”
The vote was 61-36, largely along party line basis. Fifty-seven Democrats and four Republicans voted “aye”. All thirty-six “nay” votes were cast by Republicans. As a result, the Senate passed the Lilly Ledbetter Fair Pay Act of 2009 and sent it on the House.