Jack Gross blends into a crowd after a Capitol Hill hearing.

The short, unassuming 61-year-old Iowan reminds me of people I knew growing up in Indiana. He’s plain-spoken and friendly. He could have stepped out of the Norman Rockwell painting that he says his childhood in Mt. Ayer, Iowa, resembled.

Over the course of two days in Washington during the week of October 5, Gross starred in a news conference and congressional hearing, beginning a political journey that could make him this year’s Lilly Ledbetter.

Like Ledbetter, Gross is that the heart of a controversial Supreme Court ruling. Her case centered on pay discrimination; his revolves around age discrimination. Congress passed a bill to overturn her case and vows to do the same for Gross’ case.

Goodyear paid Ledbetter less for her factory supervisor position than it paid her male colleagues, Ledbetter alleged. But the Supreme Court ruled in 2007 that she had not filed suit before the statute of limitations expired.

Ledbetter asserted that she didn’t know that Goodyear was shortchanging her until decades after it made the first unfair pay decision. Earlier this year, Congress approved a bill that renewed the statute of limitations each time a worker receives a paycheck diminished by discrimination.

The bill was the first that President Barack Obama enacted. He knew Ledbetter well before she showed up for the bill-signing ceremony in the East Room of the White House, because she had campaigned with him.

From the time of the court’s decision in the spring of 2007 until Congress passed a bill bearing her name last January, Ledbetter grew into a political symbol for Democrats.

As the party battled the threat of a Republican filibuster in the Senate and a veto by then-President George W. Bush, Ledbetter became a political touchstone for women’s groups and for Obama, who was working to appeal to supporters of then-Sen. Hillary Rodham Clinton.

Gross also represents a powerful constituency: older Americans. One of Washington’s behemoth lobbying organizations—AARP—is putting its weight behind the Gross bill.

What is most compelling about Gross is his story. He suffered chronic ulcerated colitis in his youth and worked his way through college. Upon graduation, he took a job with the insurer Farm Bureau in Iowa, where he has been employed for about 30 years. He worked for several years in the late 1970s until 1987 for a seed company, then returned to Farm Bureau.

Gross was eventually promoted to the position of claims administration vice president. He consistently received strong evaluations and developed an insurance policy package that is an exclusive Farm Bureau product.

But when the company’s Iowa and Kansas operations merged earlier this decade, Gross asserts that all claims department employees in Iowa with a rank of supervisor or higher were forced to take demotions. Many of his tasks were reassigned to younger workers.

Gross filed suit in 2003. He has been battling the company ever since but continues to work there, which means that he has had to “endure retaliation for exercising a legal right,” he said in prepared testimony.

The written statement he submitted for the record at an October 7 hearing of the Senate Judiciary Committee was even more poignant than his brief remarks.

“Many of my friends are also farm or small-town kids who now feel like they are the forgotten minority,” Gross wrote. “Some have been aggressively looking for work for months, only to find doors close when they reveal the year they graduated. This fight has become more about them than it is for me.”

He is upset that his name is now associated with a case that has made it harder for plaintiffs to prevail in age discrimination suits.

 “That’s a heavy burden to place on one guy who simply tried to right one single act of age discrimination,” he said in an interview.

As is the situation with so many employment lawsuits, if Farm Bureau had used Midwestern common sense and treated a high performer fairly, regardless of his age, the Gross lawsuit and the resulting bill could have been avoided.

Discerning trends in the Capitol Hill agenda requires skill at reading between the lines.

But President Barack Obama made the timeline for immigration reform much clearer for us all in an August 10 press conference after a summit meeting with the Mexican president and Canadian prime minister.

Obama acknowledged that with health care reform slowing down, energy legislation looming in the Senate and financial regulation reform hovering in the wings, it will be impossible to pass an immigration bill this year.

“Now, I’ve got a lot on my plate, and it’s very important for us to sequence these big initiatives in a way where they don’t all just crash at the same time,” Obama said. “I would anticipate that before the year is out we will have draft legislation along with sponsors potentially in the House and the Senate who are ready to move this forward, and when we come back next year, that we should be in a position to start acting.”

Sen. Charles Schumer, D-New York and chair of the Senate Judiciary subcommittee on immigration, will be the point person on immigration reform in Congress. He originally promised to produce a comprehensive bill by Labor Day. Now he has walked that back to offering a proposal sometime this fall.

“We’re making great progress,” he told reporters just before the Senate broke for its August recess. “I’m not setting any deadlines here.”

Employment verification will continue to twist in the wind because proponents of comprehensive reform want to save that chip for negotiations involving a path to citizenship for undocumented workers currently in the United States.

So, this fall, immigration action likely will revolve around employment verification. In September, the House and Senate must reconcile different versions of homeland security appropriations bills.

The Senate measure includes permanent reauthorization of E-Verify, the government-run electronic verification system reviled by many business groups. It also codifies a Department of Homeland Security regulation that requires all federal contractors to sign up for E-Verify.

Finally, the Senate bill would deny funding to the DHS to rescind a regulation on Social Security no-match letters that could force employers to fire workers whose information on earnings reports doesn’t align with that in government databases.

There’s a lot to sort out in the homeland appropriations legislation, but not nearly as much as in health care reform. Both the House and Senate missed their goals of passing health care bills before the summer break.

That pushes the big battles into the fall. On your scorecard, note that the most important action will occur in the Senate Finance Committee. For now, it is looking like the last hope for a bipartisan bill.

Three Democrats, led by the panel’s chairman, Sen. Max Baucus, D-Montana, and three Republicans, led by the ranking Republican, Sen. Charles Grassley of Iowa, have been working for weeks on a bill. Grinding out consensus means that controversial provisions—such as a public insurance option and an employer mandate—will likely fall by the wayside.

But such an outcome will enrage liberal Democrats who have staked their claim in health care reform on establishing a public option—and, to a lesser extent, an employer mandate—like the ones in House legislation and the measure produced by Senate health committee.

The business community is hoping for the bipartisan negotiations in the Senate to produce a palatable bill.

“The Finance Committee is closer to getting it right than any other plan that exists right now,” said John Castellani, president of the Business Roundtable, a group representing chief executives of some of the largest U.S. corporations. “If they are successful, will the president support their version of reform?”

That’s probably the most important question in the health care debate. Those participating in the negotiations were optimistic but circumspect before the Senate headed home for August.

“We’re making steady progress and doing this in a very professional way,” said Sen. Kent Conrad, D-North Dakota.

Finally, in negotiations on another bill important to Workforce Management readers, the principals aren’t providing much guidance on developments. The Employee Free Choice Act, which would make it easier for workers to form unions, has been stalled for months because of a lack of support among moderate Democrats in the Senate.

Schumer also is a player on this bill. He is one of the senators trying to negotiate a compromise that will satisfy his colleagues who believe that the bill would hurt businesses struggling to survive the recession.

“There’s a group of people working on it, and we’re making great progress,” Schumer said.

Reading between the lines, it looks as if predictions that the Senate won’t act on EFCA this year may be right. But keep an eye on the measure. The exhilarating and frustrating thing about Capitol Hill is that conventional wisdom is consistently overturned.

Whenever President Barack Obama talks about the American people being ready to address a contentious issue, brace yourself. It usually means that he’s thinking in philosophical terms without committing to any details on areas where the real battles are waged.

Exhorting Congress to get the job done without providing specific direction has contributed to rising tension over health care reform. Look for more of the same on immigration.

As was the case with health care, early signals are bright on immigration. Sen. Charles Schumer, D-New York and chairman of the Senate Judiciary subcommittee on immigration, has vowed to introduce in September a comprehensive reform bill that would crack down on illegal immigration and create a path to citizenship for undocumented workers already in the country.

At a July 21 hearing, Schumer outlined a 10-point rubric for an electronic employment verification system that would include a biometric dimension to eliminate identity fraud. He got a couple amens from the Republican side of the aisle.

Schumer wants to overhaul the existing, government-run verification mechanism, E-Verify, which he calls “an example of a halfhearted and flawed system.”

Two days after Schumer’s hearing, Rep. Heath Shuler, D-North Carolina, reintroduced a bill that would expand E-Verify and make it permanent. The Secure America Through Verification and Enforcement Act almost got enough support last year to force a vote on the House floor over the wishes of Democratic leadership.

It looks as if the bill has momentum again this year, with 77 bipartisan co-sponsors already on board. It will compete for the hearts and minds of lawmakers with a measure backed by the Society for Human Resource Management that would build a verification system alternative to E-Verify.

Shuler wants to bolster work-site and border enforcement before Congress takes up a bill that would provide a path to citizenship for illegal immigrants. Schumer seeks to do everything in a comprehensive bill.

“It’s the only way you’re going to get it done,” Schumer says.

The ranking Republican on the subcommittee, Sen. John Cornyn, R-Texas, asserts that employment verification must “be done first” in the journey to comprehensive immigration reform.

“I’m agnostic whether it has to be one bill or not,” Cornyn says.

But Capitol Hill liberals don’t temporize about sequence. Members of the Congressional Hispanic Caucus want all elements of immigration reform—addressing illegal immigrants already in the country and enforcement—tackled at once.

“The end of illegal immigration is only possible through effective employment verification as part of comprehensive immigration reform,” Rep. Luis Gutierrez, D-Illinois, testified at Schumer’s hearing.
 
Conservative Democrats are splitting from liberals on a major issue. Sound familiar? It may become similar to the fight that has broken out in health care reform over the House Blue Dog Democrats’ effort to achieve more savings in the House measure. 

While the verification battle is simmering, the Obama administration is making E-Verify the foundation of its crackdown on employers who knowingly hire illegal workers. The Department of Homeland Security touts the system’s effectiveness and says it is working to correct the identity fraud problem.

“The system has made dramatic improvements in reliability,” says Michael Aytes, acting director of U.S. Citizenship and Immigration Services. “That’s not really an argument at this point against the system.”

Elsewhere on Capitol Hill, negotiators are trying to reconcile two homeland security appropriations bills that include different timelines for extending the E-Verify program.

It will take presidential leadership to sort out the swirl of employment verification activity. Obama will have to let Congress—especially his own party—know how he wants to proceed in order to avoid a breakdown like the one we’re seeing in health care reform.

Democratic Sen. Al Franken of Minnesota didn’t waste time endorsing a bill that would make it easier for workers to form a union.

In one of his first official acts after being sworn in Tuesday, July 7, the former Saturday Night Live writer and performer co-sponsored the Employee Free Choice Act. Franken joined the Senate after the Minnesota Supreme Court declared him the winner of the state’s disputed Senate race on June 30.

Franken is a sensation in Washington not for his comedic talent but because he is the 60th Democrat in the Senate. That means that on paper the Democrats have enough members to overcome Republican efforts to block legislation through a filibuster.

Such a move was the demise of EFRA in 2007. But Franken is by no means the savior of the current version of the legislation, which is a long way from achieving 60 votes.

Most of the reaction to Franken coming to the capital has centered on his role as the 60th Democrat. But what people overlook is that the 40 Senate Republicans only need to bring one Democrat to their side to sustain a filibuster.

It’s possible that it may be easier for the GOP to maintain its cohesion than for Senate Majority Leader Harry Reid, D-Nevada, to keep Democrats in line. The clearest example is EFCA.

Sure, the GOP is monolithic in its opposition. But there are several Democrats that oppose a provision that would authorize a union based on a majority of employees signing cards and another that would establish mandatory arbitration for first contract negotiations.

Arlen Specter, a newly minted Democrat from Pennsylvania who switched from the Republican Party in April, is one Democrat who opposes EFCA. Another is Sen. Mark Pryor, D-Arkansas.

Specter and Pryor are both involved in negotiations on a compromise to EFCA. Observers say that an alternative bill may not emerge until late July or in September.

Proponents of the bill contend that it has stalled because of a multimillion-dollar campaign conducted by the U.S. Chamber of Commerce and other business groups. The chamber rails against EFCA as a threat to secret-ballot union elections and maintains that the measure would raise labor costs at the worst time—during a recession.

But EFCA has more problems than a determined opposition. Look at what William Gould, a Stanford law professor and chairman of the National Labor Relations Board from 1994-98, has to say.

In a May 26 speech at the London School of Economics, Gould indicated that he backs some aspects of EFCA but opposes the two primary parts.

“But I am of the view that the other provisions (i.e., recognition on the basis of union authorization cards and the arbitration process) are either fundamentally flawed or so problematical that they need substantial change,” Gould said.

“[T]here will inevitably be more disputes about cards than there ever will be about ballots,” Gould said. “[T]he statute contains no criteria for the arbitrator to follow, creating bad policy as well as constitutional problems.”

Remember that this criticism is coming from the NLRB chair during the Clinton administration, not a fire-breathing conservative.

The fundamental problem with union elections is the way that they can be delayed by companies, according to Gould. Companies have a great advantage over unions when it comes to the campaign because no employee union organizers are barred from company property.

Charles Craver, a professor of law at George Washington University, also says that employers hold the trump cards.

“Workers really listen” when their supervisors oppose an organizing effort, Craver says. “The company has a fundamental advantage over a union because it controls the worker’s destiny.”

It’s difficult to predict how an EFCA compromise will look. But it’s a good bet that criticisms of the bill by Democrats—and their recommendations for how to improve the organizing process by limiting company influence on campaigns—will provide clues for what will emerge from negotiations.

For the past couple weeks we’ve been hearing a lot about “empathy.” That’s one of the characteristics President Barack Obama said he wanted in the next Supreme Court justice.

He believes that his nominee, Judge Sonia Sotomayor, possesses such a quality thanks to her hardscrabble upbringing in the South Bronx. In introducing her to the nation May 27, Obama said that she understood daily challenges that face most Americans, especially those who are poor.

“It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live,” Obama said. “Along the way [Sotomayor has] faced down barriers, overcome the odds, lived out the American dream that brought her parents here so long ago.”

During the last two weeks, Sotomayor has been making her rounds on Capitol Hill visiting senators who will vote on her nomination sometime this year. Her hearings before the Senate Judiciary Committee will commence July 13.

As she makes her way toward what will likely be Senate confirmation, I’ll be watching to see how this “empathy” theme plays out. For now, it looks as if it’s one of those areas where the business world is a step ahead of some people in the political world, who are criticizing “empathy” as a code word for judicial activism.

I can understand wariness about judges who legislate from the bench. We depend on judges to uphold the law objectively. They ensure that the United States sets the best example in the world of a society that prospers under the rule of law.

But the background a judge brings to his or her role inevitably will influence how he or she rules on a case. It seems that the more backgrounds represented on the Supreme Court the better.

People who promote corporate diversity tend to make the same business case. A group of people with varying backgrounds and perspectives will make a better decision about a product or business strategy than a group of people who are alike.

This is especially true when it comes to finding new markets, according to Carl Brooks, president and CEO of the Executive Leadership Council. 

“The new markets are obviously the global markets, but the other increasingly attractive market is the emerging domestic markets, which are populated by African Americans, Hispanics, females, Asian Americans,” Brooks said in an interview earlier this year. “To the extent you can ensure that you understand their needs, their desires, you have a greater opportunity to be able to have products and services which satisfy these groups.”

Tiane Mitchell Gordon, senior vice president for diversity and inclusion at AOL, calls diversity a strategic imperative. Law firms have gotten that message in part because they want to be as diverse as the corporate law departments with whom they work.

These companies and law firms are seeking “empathy” with their consumers and clients. They want to better understand and serve their markets. Everyone is familiar with the social justice arguments for diversity in hiring. But there’s also a strong business—or profit—case to be made.

In the same way, it stands to reason that a more diverse Supreme Court also would strengthen its ability to deliver justice.

But that doesn’t mean I’m comfortable with the following Sotomayor statement, which she has repeated in several speeches: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Republicans should press Sotomayor on this assertion. Make her explain why her background automatically renders her decisions more valid than those made by someone like Supreme Court Chief Justice John Roberts Jr.

Both Sotomayor and Roberts have been praised as having brilliant legal minds. A Supreme Court on which they both serve is likely to be stronger than one that didn’t include either of them.