Yesterday, the Senate passed a version of the Lily Ledbetter Fair Pay Act (61 Yeas to 36 Nays), which would change employment discrimination law to state that it is unlawful to adopt a discriminatory compensation decision or practice; to subject an employee to a discriminatory compensation practice or decision; or to pay an employee under a discriminatory compensation decision or practice.
A key provision of the Act is that each discriminatory payment would be unlawful. That provision is key because it is meant to remedy the U.S. Supreme Court‘s decision that each discriminatory payment is not unlawful – instead, an employee would have to file a claim against his or her employer within 180 days after the very first discriminatory payment or else that claim would be barred. With that decision, the U.S. Supreme Court made fair pay claims extremely difficult to file on time.
On January 9, the House had passed a slightly different version of the Lily Ledbetter Fair Pay Act (those vote results are here). Since the House and Senate versions are different, the House will have to re-visit the issue. President Obama has said that he supports the legislation.
Some of the earlier House debate helps to explain the issues raised by the U.S. Supreme Court decision. Here’s what Rep. Rush D. Holt of New Jersey, a supporter and co-sponsor of the bill, had to say about it:
According to Justice Samuel Alito, who wrote the flawed decision, when Ms. Ledbetter failed to file a discrimination case within the statutorily provided 180 days from the initial decision to pay her less than her male colleagues, she was barred from filing a complaint and no relief was available. Despite documenting the sex based evaluation system Goodyear managers used, Lilly Ledbetter was denied justice and the rights afforded to her under the Civil Rights Act.
Justice Alito’s opinion runs contrary to decades of civil rights law, and the Lilly Ledbetter Fair Act would restore the law as it was prior to the Court’s ill considered decision. This bill would make it clear that when it comes to discriminatory pay, the protections of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Rehabilitation Act extend not only to these discriminatory pay decisions and practices but to every paycheck that results from those pay decisions and practices.
The nut of the opposition appears to be, hey, we don’t like discrimination either and it’s too bad the statute of limitations ran out, but we don’t want you to help people sue employers. Here’s Rep. Todd Tiahrt of Kansas opposing the bill:
Pay discrimination is not a partisan issue. Pay discrimination strikes at the heart of the American Dream. For more than 40 years, the 1963 Equal Pay Act and Title VII of the 1964 Civil Rights Act has made it illegal for employers to determine an employee’s pay scale based on his or her gender. I wholeheartedly agree and support these laws. Every American should be able to work hard, and make a living for his or her family. We can not tolerate gender discrimination in the workplace.
This legislation, however, is about bad politics rather than good policy. H.R. 11 was supposedly written to remedy a sad situation for one person–Lilly Ledbetter. She was apparently paid significantly less than her counterparts at Goodyear Tire Company during her tenure there. Decades later Ms. Ledbetter filed a claim of discrimination. Taking her claim through the courts, the U.S. Supreme Court ruled on May 29, 2007 that the statute of limitations had unfortunately run out.
Fact is, pay discrimination is not just a “sad situation for one person”. The gender wage gap is a pervasive problem requiring an effective remedy. And wage gaps based on discriminatory factors other than gender must also be addressed. To pretend that employers don’t ever try to pay someone less just because of their gender, race, national origin, etc., or that it’s a rare occurrence, is to deny reality.
Despite the fact that those who oppose the Lily Ledbetter Fair Pay Act want everyone to believe that the Act would open the floodgates of litigation against poor, defenseless employers, this is just not the case – wage claims are still difficult to identify and to prove. And if an employer wants to avoid being on the wrong side of litigation, it should adopt sensible, fair policies that largely involve treating employees with basic respect. Prematurely killing off a potentially effective remedy to unlawful discrimination is not the answer.