The measure fell three votes short of the 60 required under Senate rules to overcome a filibuster led by the chamber's Republicans.
Opponents argued that the bill would effectively eliminate the statute of limitations on pay discrimination cases and subject businesses to stale claims. The White House issued a veto threat before the Senate action.
Supporters mounted a fierce campaign to win over the handful of votes they needed to approve a final vote on the measure. They said the bill would bolster women and minorities in the workplace by overturning a Supreme Court ruling last year that held that pay suits had to be filed within 180 days of a discriminatory action, even if that action continues to diminish pay for years.
Under the bill, workers would be allowed to sue within 180 days of any paycheck affected by discrimination.
The bill passed the House last summer. Proponents vowed to continue to fight for Senate approval, although that is not likely to happen this year.
The Senate bill was placed on the calendar without a vote by the Senate Health, Education, Labor and Pensions Committee, which Kennedy chairs. One reason that the level of support can’t be determined is that many senators aren’t yet familiar with the bill.
An advocate for the measure says it was being pushed forward because the number of legislative days remaining in the Senate is limited and because courts are dismissing pay suits based on the Supreme Court ruling.
Marcia Greenberger, co-president of the National Women’s Law Center, asserts the bill would have made the statute of limitations work in the way Congress intended. She and other supporters say the Supreme Court erred in its decision in the case of Lilly Ledbetter, a former floor manager at a Goodyear Tire & Rubber Co. plant in Gadsden, Alabama.
Ledbetter, who started with Goodyear in 1979, claims the company paid her less than it did male co-workers for the same job over the course of her nearly 20-year tenure. When she retired, Ledbetter was paid $3,727 per month, while the lowest-paid male manager received $4,286.
Ledbetter filed a claim with the Equal Employment Opportunity Commission in March 1998—after she got an anonymous tip about the pay disparity. A jury ruled in favor of Ledbetter, awarding her back pay and $3 million in compensatory and punitive damages.
But the Supreme Court held that Goodyear was not liable because Ledbetter did not take action within 180 days of the first instance of discrimination.
In a scorching dissenting opinion, Justice Ruth Bader Ginsburg said the court majority failed to understand the realities of today’s workplace—where pay information is secret and evidence of discrimination builds up over long periods of time. She challenged Congress to clarify the federal statute of limitations.
Greenberger said the Equal Employment Opportunity Commission and appeals courts had been agreeing on the issue—until the 11th Circuit overturned the Ledbetter trial jury ruling and the Supreme Court concurred.
“This was never a problem that the employer community railed against,” she said.
But at House and Senate hearings, employment lawyers have opposed the bill. Eric Dreiband, a lawyer with Akin Gump, testified that it would force companies to implement “incredibly costly record keeping,” foster “unanticipated and potentially limitless monetary penalties” and create pension liability.
Kennedy, however, says that companies are getting a break on discriminatory behavior thanks to the Supreme Court decision. If they can cover up pay bias for 180 days, they can avoid suits.
“No one should get a free pass to break the law,” Kennedy said. “Civil rights is still America’s unfinished business. We cannot afford to go backwards on civil rights.”
—Mark Schoeff Jr.