Education and Labor
On June 27, the House Education and Labor Committee approved, 25-20, the Lilly Ledbetter Fair Pay Act (H.R. 2831). The legislation follows a hearing on the Supreme Court ruling that denied Ms. Ledbetter’s claim of unlawful wage discrimination (see The Source , 6/15/07).
H.R. 2831 would amend Title VII of the Civil Rights Act of 1964 (P.L. 88-352) to permit an individual to file a claim of pay discrimination within 180 days of receiving a discriminatory paycheck, thus renewing the statute of limitations with each paycheck. Under the Supreme Court ruling in Ledbetter v. Goodyear Tire and Rubber, the plaintiff would have to file her claim within 180 days of the employer’s initial decision to discriminate against the employee or otherwise be barred permanently from filing. The bill also clarifies that an employee would be entitled to up to two years of back pay, as is allowed currently in Title VII. Finally, the measure extends these provisions to the Age Discrimination in Employment Act (P.L. 90-202), the Americans with Disabilities Act (P.L. 101-336), and the Rehabilitation Act (P.L. 93-112).
During its consideration of the bill, the committee rejected, 18-24, an amendment by Rep. Charles Boustany (R-LA) that would have changed all references to “discrimination” to “intentional discrimination.”
The committee also rejected, 20-25, an amendment by Rep. Ric Keller (R-FL) that would have removed the reference to “other forms of discrimination” without defining what they are.
Chair George Miller (D-CA) said, “The legislation that this committee is considering today would rectify the Supreme Court’s decision and provide the justice that reason demands. Under H.R. 2831, every paycheck or other compensation resulting, in whole or in part, from an earlier discriminatory pay decision or other practice would constitute a violation of Title VII, which guards against discrimination on the basis of race, sex, color, national origin, and religion.” Rep. Miller continued, “The Court’s misguided decision if allowed to stand has harmful consequences far beyond Ms. Ledbetter’s case…The Court is telling employers that to escape responsibility for discrimination all they need to do is keep it hidden and run out the clock. Unless Congress acts, employers who have made discriminatory pay decisions more than 180 days ago will be allowed to lawfully continue discriminating against employees with every paycheck without any legal consequences.”
Ranking Member Howard “Buck” McKeon (R-CA) said, “Mr. Chairman, let me begin by once again expressing deep concern with and sympathy for what Ms. Ledbetter has gone through…If we were here today to enact a very straightforward, very narrow measure that would impact her situation alone, I am certain that this mark-up would take very little time. Unfortunately, in spite of what the majority claims, what we are considering today is neither narrow nor straightforward. Rather, it is ill-considered and hastily-written and timed to meet artificial deadlines. As a result, this bill has not been vetted properly with key stakeholders, it has not been subject to a legislative hearing, and it has not been considered by the subcommittee of jurisdiction.” Rep. McKeon went on to say, “So let’s be clear: the measure before us is not a minor tweak of labor law meant to reverse a single Supreme Court decision. This bill guts that statute of limitations and Equal Employment Opportunity Commission charging requirements contained in current law.”
Judiciary
On June 28, the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing to examine the effect of the Supreme Court ruling in Ledbetter v. Goodyear Tire and Rubber on the enforcement of civil rights. The House Education and Labor Committee held a similar hearing on June 12 (see The Source, 6/15/07).
Chair Jerrold Nadler (D-NY) said, “I am very concerned that, once again, this Supreme Court has gone out of its way to read our antidiscrimination laws as narrowly as possible so as to deny relief to as many victims of discrimination as possible.” Rep. Nadler continued, “The Court has now rewarded employers who successfully conceal their discriminatory actions from their employees. This is not hard to do when it comes to pay. Unlike the Congress, which publishes all salaries quarterly, private business can conceal from its employees how much each worker is receiving. The Court’s decision is an open invitation to violate the law with virtual impunity.”
Martha Chamallas, professor at the Moritz College of Law at The Ohio State University, focused her remarks on the damage awards available to plaintiffs under Title VII, noting that Title VII caps on damages treat victims of discrimination based on sex, disability, or religion differently from victims of discrimination based on race or national origin. She said, “The anomaly arises because employees who charge racial or national origin discrimination in employment may assert claims under 42 U.S.C §1981 [the Civil Rights Act of 1866]. Section 1981…bars racial and ethnic discrimination in the making of contracts (including employment contracts), but does not reach other forms of discrimination. Significantly, there are no caps on either compensatory or punitive damage awards under §1981. This means that plaintiffs who can categorize their claims as either racial or ethnic discrimination stand to be fully compensated, while other claimants are subject to significant reductions of their awards under Title VII caps.” Ms. Chamallas added that, “[t]he anomalous scheme works a particular hardship on women of color who suffer racialized forms of sexual harassment or discrimination, but are unable to classify their discrimination as ‘race’ discrimination for purposes for suing under Section 1981,” and concluded that “[t]his double standard in damages does not reflect a considered congressional judgment that somehow sex, disability, or religious discrimination is of a lesser order than either racial or national origin discrimination….Most importantly, the current discrepancy in protection for victims of intentional discrimination cannot be justified by any principle of fairness or justice.”
“An employer’s ability to tell its story dissipates sharply as time passes. Memories fade; managers quit, retire, or die; business units are reorganized, disassembled, or sold; tasks are centralized, dispersed, or abandoned altogether,” said Neal Mollen, an attorney representing the U.S. Chamber of Commerce. Mr. Mollen continued, “Unless an employer receives prompt notice that it will be called upon to defend a specific decision or describe a series of events, it will have no ‘opportunity to gather and preserve the evidence with which to sustain [itself]’…That is precisely why Congress wisely selected relatively brief periods of limitation for filing administrative charges under Title VII. This problem is becoming ever more acute for employers, exacerbated by the trends in employee mobility, mergers, expansions, acquisitions, reductions-in-force, divestitures, and reorganizations. When a dispute in the workplace is raised promptly, as Congress intended, most or all of the decision-making, witnesses, and human resources representatives an employer will need to consult and to tell its story convincingly are likely to still be working for the defendant-employer at the time of a trial, or at least the employer will usually be able to locate them. The employer’s ability to muster a defense dwindles, however, as the challenged decision recedes into the past.” Mr. Mollen added, “Thus the limitations periods selected by Congress in enacting Title VII are rooted in notions of fundamental fairness that are the hallmarks of our American system of justice. The American people are fair. They want individuals to have an opportunity to raise their concerns and, where their legal rights have been invaded, a process through which they can seek redress. But they also believe — correctly that an injured party has to act with reasonable dispatch in pressing his or her claims. It violates the most basic notions of justice to allow an individual even one who may have been subjected to discrimination to wait until the employer is essentially defenseless to raise the allegation. The Court rightly concluded that this sort of delay is unacceptable. That decision should be embraced, not reversed.”
Marcia Greenberger, co-president of the National Women’s Law Center, outlined numerous concerns with the application of the Supreme Court’s ruling in the Ledbetter case to other pay discrimination cases. She noted that the Court’s restrictive interpretation of the statute of limitations bars victims of pay discrimination from bringing claims at all and that the statutory cap on damages means that women subject to pay discrimination will not receive full compensation and that there is no effective deterrent against discrimination in the future. She also noted that the decision in the Ledbetter case does not take the reality of wage discrimination into account when requiring employees to file their claims quickly. Citing several factors, such as the fact that employees rarely know how much their coworkers are making, and that one-third of private sector employers have specific rules against disclosing such information; most new employees are reluctant to challenge pay discrepancies; some employees may believe that any pay inequities can be corrected informally; and that employers no longer have an incentive to investigate or create fair workplaces, Ms. Greenberger expressed concern that the decision forces employees to discover discriminatory pay practices within 180 days or be barred from ever doing so.
Lilly Ledbetter of Alabama also testified. Her statement was identical to her testimony at a hearing before the House Education and Labor Committee on June 12 (see The Source, 6/15/07).
