This was a vote on an amendment offered by Sen. Hutchison (R-TX) to S.181, the Lilly Ledbetter Fair Pay Act of 2009. The language of S.181, as it was being considered by the Senate, 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 contained the unfair pay. S.181 was developed in response to a 2007 Supreme Court decision holding that the 180 day statute of limitations on equal pay suits begins on the day the pay was originally agreed upon, and does not begin again with each paycheck containing the discriminatory pay. That decision had prevented Lilly Ledbetter and from recovering for unequal pay because she did not learn that she was receiving unequal pay until years after she was hired. Under the wording of the Hutchison Amendment, the 180-day statute of limitations would start once the employee knows, or has reason to suspect, that he or she is subject to a discriminatory wage.

Sen. Hutchison, in arguing for her amendment, said that the most important consideration “is the right of an employee to have redress, if that employee is experiencing discrimination.” She then added: “(W)e also need to make sure that our small businesses and medium-sized businesses know what their underlying liabilities might be . . . .”

Sen. Voinovich (R-OH), who co-sponsored the amendment, pointed to the statement in the Supreme Court ruling that “statutes of limitations serve an important policy of repose in our justice system.” He then said “(U)nder American legal principles, it has long been public policy that a person should not be called into court to defend claims that are based on conduct long past . . . it can be very difficult to mount a defense in cases in which the underlying conduct occurred long ago because witnesses are difficult to locate, memories fade, and records are not maintained.” He referred to the Hutchison Amendment as a “sensible compromise . . . whereby once you know you have been discriminated against, then it is your obligation to bring that to the attention of the EEOC and start the process to obtain relief . . . While this may not be good for insurance companies who write policies and trial lawyers who bring lawsuits, I do not believe the legislation is sound public policy.” Sen. Sessions (R-AL) supported the amendment because, he said, “(T)here are only a few crimes, such as treason and murder, that have extended statutes of limitations. The entire legal system we have inherited . . . serving us so well, has always recognized, as a matter of policy, that people ought not to sit on their claims.”

Sen. Leahy, the chairman of the Senate Judiciary Committee, opposed the amendment. 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. These victims have the burden of proving the discrimination occurred and that evidentiary task is only made more difficult as time goes on. It seems it is always the woman employee's fault. That is wrong. Workers like Ms. Ledbetter and her family are the ones hurt by the ongoing diminished paychecks, not their employers.”

The vote was 40-55 along almost straight party lines. All forty “aye” votes were cast by Republicans. Fifty-four Democrats joined by one Republican voted “nay”. As a result, the Hutchison Amendment was defeated, and the language that the 180 day statute of limitations for filing a pay discrimination suit begins again with each new paycheck was retained in the bill the Senate was considering.