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Senate Passes Ledbetter Pay Equity Bill

On January 22, the Senate passed, 61-36, S. 181, the Lilly Ledbetter Fair Pay Act, sponsored by Sen. Barbara Mikulski (D-MD). The House is expected to consider the Senate version of the Ledbetter bill next week; the House combined an identical version of the Ledbetter legislation (H.R. 11) and the Paycheck Fairness Act (H.R. 12) into one bill, which it passed on January 9 (see The Source, 1/9/09).

During consideration of the bill, the Senate rejected, 40-55, a substitute amendment by Sen. Kay Bailey Hutchison (R-TX) to start the 180-day statute of limitations for filing wage discrimination claims on the date that the employee “has, or should be expected to have, enough information to support a reasonable suspicion of wage discrimination.” S. 181 would apply the 180-day statute of limitations to each discriminatory paycheck.

The Senate also voted to table, or kill, several amendments:

  • an amendment by Sen. Arlen Specter (R-PA) to permit employers to assert as a defense the fact that the employee knew about the wage discrimination and willingly went along with it, 53-43;
  • an amendment by Sen. Specter to strike from S. 181 the phrase “or other practices” in order to limit the Ledbetter bill to discriminatory compensation decisions, 55-39. The phrase “other practices” refers to employment practices, such as non-payroll decisions (e.g., performance evaluations), that also impact an employee’s wages;
  • an amendment by Sen. Johnny Isakson (R-GA) to make the bill effective upon enactment instead of retroactively to May 28, 2007, the day before the Supreme Court’s ruling in the Ledbetter case, 59-38; and
  • an amendment by Sen. Mike Enzi (R-WY) to clarify who is eligible to file a wage discrimination claim against an employer, 55-41.

Speaking against Sen. Hutchison’s substitute amendment, Sen. Mikulski said, “Now, I so admire the gentlewoman from Texas…I know her intentions are good…but the language of her amendment — It is foggy. Let me go on to this a little bit. The amendment does not address the fundamental problem of the pay discrimination case, Ledbetter v. Goodyear, which created unreal and strict limitations for filing pay discrimination claims. It also fails to recognize that pay discrimination, unlike other kinds of discrimination, is repeated each time a worker receives an unfair paycheck. I want to repeat that. The Hutchison amendment fails to recognize that pay or wage discrimination, unlike other forms of discrimination, is repeated each time someone receives an unfair paycheck. Instead, the Hutchison amendment creates a new, confusing standard that requires workers to either be subject to the Ledbetter rule or prove they had no reasonable suspicion of discrimination when the employer first decided to pay them.” She continued, “Well, you have to prove a negative. That is almost impossible. From the day you walk onto the job or the day your coworker who gets a raise, when the guys get it and the girls do not, you would have to be snooping around and creating a very hostile workplace, branded a troublemaker, because you were saying, well, you would have to every week say, ‘Well, what did you get paid?’…‘What did you get paid?…’”

In support of her amendment, Sen. Hutchison said, “My concern is in two major areas: One is the inability for a legitimate defense to be raised if a person waits when they should have known there was discrimination, to be able to address that immediately or within a reasonable amount of time…If there is a company policy or a feeling in the company that if you talk about pay, you are going to be punished or maybe even fired, then that makes the statute of limitations not function at that point. That, then, is a policy that is discriminatory. That is what we are trying to do: give the right of the plaintiff to show that he or she could not have known [and] didn’t know…” She continued, “The second area that is of great concern to me is the expansion of the right of the plaintiff to go beyond the plaintiff himself or herself, to allow a person affected by the alleged discrimination to file suit, which could even occur after the person is not even there or is dead. That is putting into our system a possibility that the person might not have filed the claim on their own, didn’t file it, might not have wanted to, might have believed it wasn’t the right thing to do, or might have believed there were other areas that made up for what the person might have thought was not right in one particular area, such as the area where he or she worked or the amount of pay.”

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