In a 225-199 vote, the House passed the Lilly Ledbetter Fair Pay Act. Named after the plaintiff in a recent Supreme Court case, the legislation would allow victims to file a claim within 180 days of any paycheck that has been diminished by bias—even if the discriminatory act that set the pay disparity in motion occurred decades ago.
The statute of limitations would restart with each affected check, undoing a contentious 5-4 Supreme Court decision handed down May 29.
The court ruled that a claim must be filed within 180 days of the moment that an unfair pay adjustment is made.
Outside of that statutory window, which in some states is 300 days, an employer is not liable, the court said. The ruling significantly narrows the scope of pay cases.
The trial jury found in favor of Ledbetter, a former supervisor at a Goodyear Tire & Rubber plant in Gadsden, Alabama, who sued the company for paying her less than it paid men for the same job over most of her nearly 20-year tenure.
The Supreme Court, however, ruled that Ledbetter didn’t have a case because she did not file the suit when the discrimination occurred in the 1970s. Ledbetter said she did not discover the disparity until more than a decade later.
Democrats denounced the decision, responding in part to Supreme Court Justice Ruth Bader Ginsburg. She excoriated the court majority for ignoring the realities of today’s workplace, where pay levels are secret and women and minorities can feel intimidated, and encouraged Congress to clarify federal discrimination law.
Democrats argued that they were fortifying the intended statute of limitations—and preventing companies from running out the clock.
“If they can hide the discriminatory act for 180 days, they can continue to discriminate far into the future,” said Rep. George Miller, D-California and chairman of the House Education and Labor Committee, during the floor debate on Monday, July 30.
Passing the Ledbetter bill “is the only decent thing to do,” Miller said.
Several obstacles face the legislation. The foremost is President Bush’s threatened veto. In a policy statement July 27, the administration said that the measure would result in the “effective elimination of any statute of limitations” for pay discrimination and possibly for promotion and termination.
A two-thirds majority of the House and Senate would be required to override a presidential veto. It’s not clear, however, that the Ledbetter bill will get to Bush.
A companion measure in the Senate introduced July 20 by Sen. Edward Kennedy, D-Massachusetts and chairman of the Senate Health, Education, Labor and Pensions Committee, is drawing opposition from Sen. Mike Enzi, R-Wyoming and the ranking member of the panel.
“It is too broadly written and would provide trial attorneys a blank check to pursue a litany of actions that have little or nothing to do with pay discrimination,” said Enzi spokesman Craig Orfield.
In the House debate, Republicans criticized Democrats for rushing forward for political reasons with what Republicans called a vague and sloppy bill. Amendments were barred during the floor debate.
“We aren’t taking sides for or against discrimination in the workplace,” Rep. Howard “Buck” McKeon, ranking member of the labor committee, said in describing the differences between the parties. “Rather, we’re staking out distinct positions on fair and equitable justice and the rule of law.”
Democrats maintained that the bill simply returns discrimination law to where it was before the Supreme Court’s decision.
“It restores the statute of limitations that has been in existence for nearly four decades,” said Rep. Robert Andrews, D-New Jersey. “If these cataclysmic events were going to happen, why haven’t they happened over the last 35 years?”
Andrews cited an estimate by the Congressional Budget Office that stated that the Ledbetter measure “would not establish a new cause of action for claims of pay discrimination.”
But an employment lawyer is wary of the bill. Debra Friedman, an attorney with Cozen O’Connor, said that it goes beyond wages to cover vacation benefits, pensions and other kinds of compensation. It could force companies to defend against stale claims after witnesses have left the company and records have been lost or destroyed.
“The bill places an unrealistic burden on employers to identify and eradicate the effects of discriminatory actions that employers may not be aware of and fails to take into account the difficulties employers will face in defending claims of discrimination dating back years—even decades,” Friedman said.
Regardless of whether the bill becomes law, Friedman encourages employers to implement facially neutral performance evaluation systems, require next-level management review of evaluations, specify the reasons for compensation adjustments and communicate with employees about those decisions.