This was a vote on a motion to table an amendment offered by Sen. Isakson (R-GA) to 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 lawsuits begins on the date the pay was originally agreed upon and does not begin again with each new paycheck. The Isakson Amendment would have limited the application of the Act to claims resulting from discriminatory compensation practices adopted on or after the date of enactment of S.181.

Isakson, speaking in support of the amendment, said its intent was to insure that the change in the law made by S.181”take(s) effect on the day the legislation becomes law and is not retroactive . . . So any incident that occurred in the past could not be reopened for litigation, but any case after the day of enactment would be governed by the provisions of the law as they are in the new legislation.” He argued that it was not fair to reach back, possibly as far as the 1960s, to “repeal a statute of limitations that applied for over 45 years, and open the possibility of a plethora of cases that have not been filed to now being filed or, asked another way: Is it fair, after a game has been played, to change the rules in order to change the outcome? . . . (to change) the law under which people were trying to operate in running their business . . . and create new litigation under changed rules?

Sen. Mikulski (D-MD), who was leading the support for S.181, opposed the amendment. She said “it would create an arbitrary and unfair cutoff for who gets the benefit of this fair pay bill . . . to only claims that arise out of discrimination that takes place after the bill passes. There is no principled reason for applying the bill only to future cases. The point of this bill is to correct a terrible wrong done to victims of pay discrimination. We should be seeking justice for as many people as possible. Applying this bill to pending cases would not be an unfair surprise for employers. This bill restores the law to where it was the day before the Supreme Court decided the Ledbetter case.”

Mikulski also argued: (I)f this amendment passes, it would create a 20-month gap in the law (between the date of the Supreme Court decision in the Ledbetter Case and the passage of the legislation) . . . Those workers who were unfortunate enough to have been discriminated against during that 20-month period would be treated worse than those who came before them and those who came after them. That is arbitrary, and it is unfair.”

Isakson responded that his amendment “would do nothing to a pending case. This amendment will only apply to a case that has not been filed and could have reached back all the way to the civil rights era of the 1960s . . . it would not in any way obliterate anybody's rights on any pending case that has been filed since May of 2007.” Mikulski responded by claiming that “(T)he Lilly Ledbetter Act does not go back to the inception of the Civil Rights Act. It goes back only to the Supreme Court decision of May 28, 2007. So I continue to disagree with the Isakson Amendment because I do believe it would create an arbitrary and unfair cutoff for those who would benefit from this bill.”

A motion to table is an effort to kill a pending bill or amendment, in this case the Isakson Amendment. The vote on the motion to table the amendment was 59-38 on an almost straight party line basis. Fifth-seven Democrats and two Republicans voted “aye”.  All thirty-eight “nay” votes were cast by Republicans.  As a result, the expanded statute of limitation rules in S.181 applied to wage discrimination that occurred before, as well as after, the enactment of the bill.