(Senate - June 20, 2012)

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[Pages S4370-S4373]
From the Congressional Record Online through the Government Publishing Office []


      By Mr. FRANKEN (for himself, Mr. Leahy, Mrs. Murray, Mr. Harkin, 
        Mr. Whitehouse, Mr. Blumenthal, Ms. Mikulski, Mr. Sanders, Mrs. 
        Boxer, Mr. Akaka, Mr. Coons, Mr. Inouye, Mr. Kerry, Mrs. 
        Shaheen, Mr. Bingaman, Mr. Brown of Ohio, Mrs. Gillibrand, Mr. 
        Udall of New Mexico, Mr. Durbin, Mr. Wyden, Mr. Merkley, Ms. 
        Cantwell, Mr. Udall of Colorado, and Mr. Lautenberg):
  S. 3317. A bill to restore the effective use of group actions for 
claims arising under title VII of the Civil Rights Act of 1964, title I 
of the Americans with Disabilities Act of 1990, title V of the 
Rehabilitation Act of 1973, section 1977 of the Revised Statutes, and 
the Genetic Information Nondiscrimination Act of 2008, and for other 
purposes; to the Committee on the Judiciary.
  Mr. FRANKEN. Mr. President, our daughters' futures will be as bright 
as our sons'. That is the American promise. It is the American ideal--
that one's opportunity to prosper--one's economic security--depends not 
on one's gender but instead on one's work ethic--one's character--one's 
God-given talents.
  That men and women will be treated equally in America is a promise 
that was a made by Susan B. Anthony, who dedicated her life to women's 
suffrage and who famously said, shortly before her passing, that 
``failure is impossible.'' History proved her right: 15

[[Page S4371]]

years later, women finally were given access to the ballot.
  That men and women will be treated equally in America is a promise 
that was made a generation later, by thousands of women who--under the 
banner of Rosie the Riveter--took to the factories and carried our 
national economy through a period of world war.
  That men and women will be treated equally in America is a promise 
that was made by Ruth Bader Ginsburg, who, in 1960, was passed over for 
a Supreme Court clerkship because she was a woman. Undeterred, she went 
on to start the Women's Rights Project at the ACLU, a platform from 
which she argued several landmark cases. In 1993, she was selected to 
serve as a justice on the very court that, years before, turned her 
  That men and women will be treated equally in America is a promise 
that is made today--by women like Senator Barbara Mikulski and Senator 
Patty Murray and Congresswoman Rosa DeLauro--women who have settled not 
for a mere presence in the halls of Congress but who instead have 
become among its most influential leaders.
  Generations of women have rejected inferiority. Because of these 
pioneers, the promise of gender equality in America has become more 
than just a promise. It has become our law. It is enshrined in the 
documents by which we are governed.
  This week, we celebrate the 40th anniversary of Title 9, a statute 
that guarantees equal educational opportunities for boys and girls--for 
men and women. In just a couple of years, we will mark the 50th 
anniversary of the Civil Rights Act of 1964, a landmark legislative 
achievement that codified our national commitment to ending 
discrimination in the workplace.
  So, yes, in America we have made a promise that one's gender will not 
be the deciding factor between having opportunities and being denied 
opportunities--between getting a job and being denied one--between 
getting a promotion and being denied one. We have made that promise. 
And we've come a long way toward fulfilling it.
  But we are not there yet. Even though women have been working outside 
the home for generations, they continue to face barriers in the 
workplace: Even though about half of all workers are women, only 12 
Fortune 500 companies have female CEOs. The Equal Employment 
Opportunity Commission reports that, in 2011, it received nearly 
100,000 complaints of discrimination. Statistics show that women still 
receive unequal pay for equal work.
  Although this week marks the 40th anniversary of Title 9, it also 
marks the one year anniversary of the Supreme Court's decision in Wal-
Mart v. Dukes, a decision that has had an enormous impact on workplace 
rights across the country. On its face, that case was about civil 
procedure--it was about litigation rules and legal technicalities. But, 
in a larger sense, the Dukes case was about the current state of our 
equal employment laws.
  In that case, a group of women tried to band together to enforce 
their rights to be free from discrimination--rights afforded them by 
Title 7 of the Civil Rights Act. The women alleged that their 
employer's policies allowed bias--rather than performance and merit--to 
determine who would be promoted or given raises.
  The evidence in the case indicated that women comprised 70 percent of 
the employer's hourly workforce but only 33 percent of its management 
team. The evidence indicated that women were paid less than men in each 
of the employer's 41 regions. It indicated that managers around the 
country relied on outdated stereotypes when making employment 
decisions. Both the trial court and the appellate court agreed that the 
women should be permitted to try their case as a group.
  The trial court's and the appellate court's decisions were consistent 
with precedent. Governing rules said that a group of workers could band 
together if they first showed, among other things, that their cases 
shared a common issue of law or fact. This is known as the 
``commonality'' requirement. The idea here is that if lots of workers 
raise a common issue, it's easier for the court to resolve that issue 
in one case than to resolve it over and over and over again in 
thousands of different cases.
  In Dukes, the common, central issue was whether the employer's policy 
of giving managers unfettered discretion to make pay and promotion 
decisions resulted in a disparate impact on women. In other words, all 
of the workers alleged that the employer's policy allowed bias to 
determine conditions of employment. Because the workers had presented 
that common question, ``Is the employer's policy discriminatory''; the 
lower courts concluded that the group could proceed together.
  But the Supreme Court concluded otherwise. Its rationale was 
unprecedented. In a 5 to 4 decision, the Court said that, to proceed as 
a group, the women had to show not only that they were united by a 
common issue, but also that they ultimately would prevail on that issue 
at trial. That is, to present their case, the women first had to prove 
their case. As Justice Ginsburg explained in her dissenting opinion, 
the Court's decision ``disqualifies the class from the starting gate.''
  Since Dukes was decided, dozens of employment discrimination cases 
effectively have been stopped before they even started. This is a 
problem. When Congress passed the Civil Rights Act of 1964, the 
Committee responsible for the bill issued a report in which it said 
that ``[t]he Committee agrees with the courts that Title 7 actions are 
by their very nature class complaints, and that any restriction on such 
actions would greatly undermine the effectiveness of Title 7.''
  But it doesn't take a Congressional Committee report to understand 
the effect of the Dukes decision. Betty Dukes, the lead plaintiff in 
the case, put it well when she testified before the Senate Judiciary 
Committee. She said that, quote, ``[o]ur civil rights are only as 
valuable as the means that exist to enforce them.'' It is one thing to 
pass a law saying that men and women should be treated equally. It is 
another thing to give that law some teeth--to say that we really mean 
  The Dukes decision makes it harder for women--for any group of 
workers, for that matter--to band together to enforce the Civil Rights 
Act. Unable to band together, many workers may not have access to legal 
representation. Unable to band together, many workers will choose not 
to challenge workplace discrimination at all, concluding that the 
personal costs of doing so--the potential for retaliatory actions--
outweigh any possible benefits. Unable to band together, workers will 
be less able to use the courts to address employers' discriminatory 
policies on a company-wide basis.
  So, today, on the one year anniversary of the Court's decision in 
Dukes, I rise to introduce the Equal Employment Opportunity Restoration 
Act. This bill will restore workers' ability to enforce effectively our 
Nation's antidiscrimination laws. Perhaps as importantly, this bill 
reaffirms the American promise of workplace equality.
  The bill creates a new judicial procedure--called a ``group 
action''--which mirrors the class action procedures that were available 
to workers before Dukes was decided. Instead of disqualifying workers' 
cases at the starting gate, this bill says that workers can proceed 
together if they create a reasonable inference that they were subjected 
to a discriminatory employment policy or practice. It will be--as it 
always has been--left to a trial to determine the merits of the 
workers' allegations and the viability of the employers' defenses.
  I am proud to introduce this bill with Congresswoman DeLauro and with 
my Senate colleagues, including Senators Leahy, Mikulski, Murray, and 
  I am grateful to the many wonderful organizations in Minnesota and 
Washington that have worked with me on this bill. They include the 
National Partnership on Women and Families, the ACLU, the Leadership 
Conference on Civil and Human Rights, the National Women's Law Center, 
the American Association of University Women, and the Lawyers' 
Committee for Civil Rights Under Law.
  Our daughters' futures will be as bright as our sons'. For more than 
a century, we have followed a path toward gender equality. The trail 
has been blazed by generations of women--women whose names are found in 
the history books, yes, but also by those whose names are not--the 
working mother who rises before dawn and punches a clock every day so 
she can

[[Page S4372]]

support her family--the young woman, fresh out of college, who defies 
stereotypes and pursues an engineering career--the small business-owner 
who hires dozens of people in her community.
  We should continue along the path toward equality in the workplace. 
We should not stop now. We should not turn back now. The bill that we 
introduce today says that we won't.
  Mr. LEAHY. Today, I am pleased to join Senator Franken to introduce 
the Equal Employment Opportunity Restoration Act of 2012. This 
important legislation will respond to the Supreme Court's decision in 
Wal-Mart v. Dukes, and restore women's ability to challenge 
discrimination in the workplace.
  Today marks the 1 year anniversary of that case--where just five 
Justices disqualified the claims of 1.5 million women who had spent 
nearly a decade seeking justice for sex discrimination by their 
employer, Wal-Mart. By a 5 4 decision, the Supreme Court ruled that the 
women did not share enough in common to support bringing a class 
action. Perhaps more troubling, just five Justices said that Wal-Mart 
could not have had a discriminatory policy against all of them, because 
it left its payment decisions to the local branches of its stores. In 
reaching this conclusion, the Supreme Court provided a clear path for 
corporations to avoid company-wide sex discrimination suits, and made 
it harder to hold corporations accountable under our historic civil 
rights laws.
  Betty Dukes has worked for Wal-Mart, where she started as a part-time 
cashier in Pittsburg, California, for almost 20 years. Throughout her 
years at Wal-Mart, Betty expressed an interest in advancement and in 
the management track. Unfortunately, she was continually overlooked for 
promotions, receiving only one in her lengthy career there. Betty Dukes 
then learned of the pay disparities between the male and female 
employees at a Pittsburg Wal-Mart store. She decided to take a stand, 
and filed a class action lawsuit against Wal-Mart in 2001. Betty Dukes 
and the other women were appalled to learn that the pay disparities did 
not stop at the Pittsburg store. In fact, there was widespread gender 
discrimination occurring at Wal-Mart stores across the country.
  Last year, I chaired a hearing on how Supreme Court rulings affect 
Americans' access to their courts. Betty Dukes came and shared her 
story at that hearing. She made it clear that she did not plan on 
giving up. In these tough economic times, American consumers and 
employees rely on the law to protect them from fraud and 
discrimination. They rely on the courts to enforce laws intended to 
protect them. Unfortunately, these protections are being eroded by what 
appears to be the most business-friendly Supreme Court in the last 75 
  The Supreme Court's recent decisions make some wonder whether it has 
now decided that some corporations are too big to be held accountable. 
Whether it is Lilly Ledbetter suing her employer for gender 
discrimination, or a group of consumers suing their phone company for 
deceptive practices, an activist majority of the Supreme Court is 
making it more and more difficult for Americans to have their day in 
  We cannot ignore the fact that gender discrimination in the workplace 
persists. Earlier this month, I urged the Senate to pass the Paycheck 
Fairness Act, a bill that would have set a clear path to address the 
systemic problems that result from pay disparities. Unfortunately, the 
Senate could not overcome a partisan filibuster, and was not able to 
even debate the measure.
  I believe that the ability of Americans to band together to hold 
corporations accountable, especially when it comes to workplace 
discrimination, has been seriously undermined by the Supreme Court. All 
people should be evaluated on the basis of their contribution to the 
workplace, not irrelevant factors like sex, gender, race, ethnicity, or 
disability. These decisions have been praised on Wall Street, but will 
no doubt hurt hardworking Americans on Main Street. I thank Senator 
Franken for introducing this important bill, and urge all Senators to 
come together and support this effort to restore hardworking Americans' 
access to their courts.
      By Ms. LANDRIEU (for herself and Mr. Inhofe):
  S. 3321. A bill to promote permanent families for children, privacy 
and safety for unwed mothers, responsible fatherhood, and security for 
adoptive parents by establishing a National Responsible Father Registry 
and encouraging States to enter into agreements to contribute the 
information contained in the State's Responsible Father Registry to the 
National Responsible Father Registry, and for other purposes; to the 
Committee on Finance.
  Ms. LANDRIEU. Mr. President, I bring to the attention of the body a 
bill called the Protecting Adoption and Promoting Responsible 
Fatherhood Act of 2012. I introduced this bill on behalf of myself and 
Senator Inhofe, with whom I have worked with so closely on many issues 
involving adoption and the protection of children who are outside of 
family care, both here in the United States and abroad. I thank Senator 
Inhofe, the senior Senator from Oklahoma, for being an original 
cosponsor of this legislation. I also thank Congresswoman Laura 
Richardson for introducing a companion piece of this legislation in the 
House today.
  We just celebrated Father's Day this past weekend. I know my father 
and my husband and men all over the country celebrated with their 
children and their families. We honor the extraordinary fathers in the 
  Parenthood is the ultimate gift. It is also an incredible 
responsibility. Many of us have benefited from really wonderful fathers 
who care for and support families and support children through their 
young years, their adult years, and even into their older years. When 
fathers are absent, when they abandon their responsibility to their 
children, they can make the mothers of their children and their 
children more vulnerable. Sometimes women will make a decision to place 
a child for adoption if they are unmarried, unwilling, unable--just at 
a vulnerable time in their life and not able to raise a child. Adoption 
can be a very positive option. There are some Members of our Congress 
who have adopted children and have adopted grandchildren, so we know 
the blessings of adoption.
  This bill will help to facilitate and clear up some legal quagmires 
that occur until many States clear the way for women of any age to make 
a decision for adoption. There are many of us, across party lines, who 
have supported more domestic infant adoption, more domestic adoptions 
for children of all ages, and particularly adoption of special-needs 
  This bill really affects infant adoption. It sets up a voluntary 
registry that tracks what 38 States have already done. Any person, any 
male who has the intention of supporting and raising a child can 
register on this registry, and their will and wishes will be taken into 
consideration. But in the situation that often happens where this man 
is not interested in being the kind of responsible father he should be, 
then this registry helps to expedite, without a lot of legal quagmire 
but with protection to both the father and the mother, to expedite 
  It has gone through a vetting process with any number of outside 
organizations. I thank the American Bar Association. I want to 
particularly thank the Association of Adoption Attorneys, which helped 
to draft this important piece of legislation.
  I wanted to come to the floor to introduce it. We will, of course, 
bring it up when the leadership allows us that opportunity. It may have 
to go through a committee process. We may be able to clear it with the 
support of both Republicans and Democrats, as is shown by the support 
of Senator Inhofe and myself. Hopefully we can get it done in a short 
period of time and provide a clear path to promote adoption in the 
United States.
      By Mr. ROCKEFELLER (for himself and Mr. Cardin):
  S. 3323. A bill to amend the Servicemembers Civil Relief Act to 
improve the protections for servicemembers against mortgage 
foreclosures, and for other purposes; to the Committee on Veterans' 
  Mr. ROCKEFELLER. Mr. President, today I introduce the Military Family 
Home Protection Act, a bill to strengthen the legal protections our 
military personnel are guaranteed under the Servicemembers Civil Relief 
Act, SCRA.

[[Page S4373]]

  Entering military service can sometimes make it difficult or 
impossible for our Soldiers, Sailors, Airmen, and Marines to meet their 
civilian legal and financial obligations. In laws dating back to the 
Civil War, Congress has given active-duty military personnel special 
protections against legal actions that might be taken against them 
while they are away from home because of military service. The purpose 
of these laws, according to a 1943 Supreme Court decision, is ``to 
protect those who have been obliged to drop their own affairs to take 
up the burden of the nation.'' Congress re-wrote the World War II-era 
``Soldiers and Sailor Relief Act'' in 2003, as full-time military, 
Reservists, and National Guard personnel were deploying in large 
numbers to Iraq and Afghanistan. This comprehensively updated statute 
was re-named the ``Servicemembers Civil Relief Act.''
  Since the September 11 attacks, we have asked our military 
personnel--both our active-duty and reserve components--for 
unprecedented service and sacrifice. We have asked them to deploy 
multiple times to Iraq and Afghanistan, and we have asked their 
families to live without their loved ones for long periods of time. We 
have asked our National Guard and Reserve personnel--not just once, but 
sometimes two or three times--to leave their jobs, put their civilian 
lives on hold, and answer their country's call to service. The promise 
the SCRA makes to these Americans is that while they are engaged in the 
defense of our country, we will protect them and their families from 
adverse financial actions on the home front. One important way the SCRA 
protects these servicemembers is by lowering their mortgage interest 
rates while they are on active duty, and by prohibiting banks from 
foreclosing on their homes without first getting court approval.
  Unfortunately, as I learned during a joint House-Senate forum I held 
in the Senate Commerce Committee hearing room in July 2011, not all 
banks have been following the law. In May 2011, for example, the 
Department of Justice settled lawsuits with the former Countrywide Home 
Loans, now a subsidiary of Bank of America, and Saxon Mortgage, a 
subsidiary of Morgan Stanley, for $22 million. In these lawsuits, DOJ 
alleged that the companies violated the SCRA by foreclosing on more 
than 170 servicemembers without court orders. At the House-Senate 
forum, which I organized with Representative Elijah Cummings, the 
Ranking Member of the House Oversight and Government Reform Committee, 
we heard from two members of the military and other experts about how 
these SCRA violations can devastate military families. Mrs. Holly 
Petraeus, who is the Director of Servicemember Affairs at the Consumer 
Financial Protection Bureau, as well as the wife of General David 
Petraeus, told us that:

       . . . [W]hile a foreclosure is devastating for any American 
     family, it can be especially painful for military families. 
     Both the family back home and the deployed servicemember, who 
     feels helpless to take action to prevent the foreclosure, are 
     put in a terrible situation. It is vital that servicemembers 
     receive all the protections afforded to them by the SCRA.

  At the time we held this forum, legislators in both houses were 
already hard at work on legislation to strengthen the SCRA and improve 
banks' compliance with the SCRA. In late 2010, Congress passed a new 
law, P.L. 111 275, that allowed deploying soldiers to terminate their 
cell phone contracts without penalties, and that gave the United States 
Attorney General new powers to enforce the SCRA against creditors. In 
June 2011, the Senate Veterans' Affairs Committee, on which I serve, 
approved a bill sponsored by Senator Begich, S. 941, which included a 
provision to extend the period of SCRA mortgage protections from nine 
months to twelve months after a servicemember leaves military duty. The 
Senate Veterans' Affairs Committee is also actively considering other 
proposals to improve the SCRA.
  The legislation I am introducing today with Senator Cardin was 
introduced in the House of Representatives as H.R. 5747 on May 15, 
2012, by Ranking Member Cummings, along with the Ranking Member of the 
House Armed Services Committee, Representative Adam Smith, and the 
Ranking Member of the House Veterans' Affairs Committee, Representative 
Bob Filner. Two days later, it was adopted as an amendment to the 
National Defense Authorization Act by an overwhelming vote of 394 27.
  Now that the House has expressed its bipartisan support for this 
legislation, I am introducing it in the Senate for consideration. The 
recent House vote shows that this is an issue that should rise above 
partisan politics. I hope that the House's recent action will give the 
Senate new momentum to look at what we can do to strengthen the SCRA 
and protect our military personnel and their families. A short summary 
of the bill is provided below.
  The Military Family Home Protection Act expands the class of covered 
individuals under the SCRA's mortgage provisions to include: All 
servicemembers serving on the battlefield, regardless of when they 
bought their home. Servicemembers retiring 100 percent disabled due to 
service-connected injuries and surviving spouses of servicemembers who 
died in military service.
  The act stays mortgage foreclosure proceedings against SCRA-covered 
persons for 1 year following their service; it also eliminates a 
current sunset provision that will reduce this protection to 90 days 
beginning January 1, 2013.
  The Act doubles the civil penalty for SCRA mortgage violations to 
$110,000 for the first offense and $220,000 for subsequent violations.
  The act protects servicemembers and their families against 
discrimination by banks and lenders on account of servicemembers' 
eligibility for SCRA protections. It also requires banks and lenders to 
take further steps to ensure SCRA compliance. These steps include: 
Designating an SCRA compliance officer. Requiring SCRA compliance 
officers to distribute information to servicemembers about their SCRA 
protections, and providing a toll-free telephone number and website to 
help servicemembers better understand their SCRA protections.