[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
                JUSTICE DENIED? THE IMPLICATIONS OF THE
                 SUPREME COURT'S LEDBETTER V. GOODYEAR
                   EMPLOYMENT DISCRIMINATION DECISION

=======================================================================


                                HEARING

                               before the

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, JUNE 12, 2007

                               __________

                           Serial No. 110-47

                               __________

      Printed for the use of the Committee on Education and Labor


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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Ranking Minority Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Kenny Marchant, Texas
Timothy H. Bishop, New York          Tom Price, Georgia
Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland           Charles W. Boustany, Jr., 
Joe Sestak, Pennsylvania                 Louisiana
David Loebsack, Iowa                 Virginia Foxx, North Carolina
Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New 
Jason Altmire, Pennsylvania              York
John A. Yarmuth, Kentucky            Rob Bishop, Utah
Phil Hare, Illinois                  David Davis, Tennessee
Yvette D. Clarke, New York           Timothy Walberg, Michigan
Joe Courtney, Connecticut            Dean Heller, Nevada
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                   Vic Klatt, Minority Staff Director



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on June 12, 2007....................................     1

Statement of Members:
    Altmire, Hon. Jason, a Representative in Congress from the 
      State of Pennsylvania, prepared statement of...............    67
    McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member, 
      Committee on Education and Labor...........................     5
        Prepared statement of....................................     6
    Miller, Hon. George, Chairman, Committee on Education and 
      Labor......................................................     1
        Prepared statement of....................................     4

Statement of Witnesses:
    Brake, Deborah, professor, University of Pittsburgh School of 
      Law........................................................    24
        Prepared statement of....................................    26
    Henderson, Wade, president and CEO, Leadership Conference on 
      Civil Rights...............................................    13
        Prepared statement of....................................    15
    Ledbetter, Lilly, plaintiff in Ledbetter v. Goodyear, former 
      Goodyear employee..........................................    10
        Prepared statement of....................................    11
    Mollen, Neal D., Paul, Hastings, Janofsky & Walker LLP, on 
      behalf of the U.S. Chamber of Commerce.....................    18
        Prepared statement of....................................    20


                JUSTICE DENIED? THE IMPLICATIONS OF THE



                 SUPREME COURT'S LEDBETTER V. GOODYEAR
                   EMPLOYMENT DISCRIMINATION DECISION

                              ----------                              


                         Tuesday, June 12, 2007

                     U.S. House of Representatives

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 1:35 p.m., in Room 
2175, Rayburn House Office Building, Hon. George Miller 
[chairman of the committee] presiding.
    Present: Representatives Miller, Payne, Andrews, Scott, 
Woolsey, McCarthy, Tierney, Kucinich, Wu, Davis of California, 
Bishop of New York, Loebsack, Hirono, Yarmuth, Hare, Clarke, 
Shea-Porter, McKeon, Petri, Platts, Keller, Wilson, Kline, 
Marchant, Foxx, Davis of Tennessee, and Walberg.
    Staff present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Jody Calemine, Labor Policy Deputy 
Director; Lynn Dondis, Policy Advisor for Subcommittee on 
Workforce Protections; Carlos Fenwick, Policy Advisor for 
Subcommittee on Health, Employment, Labor and Pensions; Michael 
Gaffin, Staff Assistant, Labor; Brian Kennedy, General Counsel; 
Megan O'Reilly, Labor Policy Advisor; Michele Varnhagen, Labor 
Policy Director; Mark Zuckerman, Staff Director; Robert Borden, 
General Counsel; Cameron Coursen, Assistant Communications 
Director; Steve Forde, Communications Director; Ed Gilroy, 
Director of Workforce Policy; Rob Gregg, Legislative Assistant; 
Richard Hoar, Professional Staff Member; Victor Klatt, Staff 
Director; Jim Paretti, Workforce Policy Counsel; Molly 
McLaughlin Salmi, Deputy Director of Workforce Policy; Ken 
Serafin, Professional Staff Member; Linda Stevens, Chief Clerk/
Assistant to the General Counsel; and Loren Sweatt, 
Professional Staff Member.
    Chairman Miller [presiding]. The Committee on Education and 
Labor will come to order for the purposes of holding a hearing 
on ``Justice Denied? The Implications of the Supreme Court's 
Ledbetter v. Goodyear Employment Discrimination Decision.''
    The Supreme Court's ruling in the Ledbetter v. Goodyear is 
a painful step backward for civil rights in this country. It 
makes it more difficult for workers to stand up for their basic 
rights at work. This is unacceptable.
    Title VII of the Civil Rights Act was intended to protect 
the civil rights of every American. When employers violate 
their employees' civil rights, the Civil Rights Act sought to 
ensure that those employers would be held accountable.
    Nondiscrimination in the workplace is an inviolable 
American principle. Yet, today, in the 21st century, more than 
40 years after the passage of the Civil Rights Act of 1964, we 
have seen a devastating attempt to turn back the clock by the 
current Supreme Court.
    Lilly Ledbetter worked at Goodyear over 19 years. While it 
appears that her salary at the start of her career was 
comparable to what her male colleagues were earning, her salary 
slipped over time. When she retired as a supervisor in 1998, 
her salary was 20 percent lower than that of the lowest-paid 
male supervisor.
    Not only was Ms. Ledbetter earning nearly $400 per month 
less than her male colleagues, she also retired with a 
substantially smaller pension, and she will now have less 
economic security in retirement.
    A jury found that Goodyear discriminated against Ms. 
Ledbetter. She was awarded $3.8 million in back pay and 
damages. This amount was reduced to $360,000, the Title VII 
damage cap.
    Despite the fact that the jury found Goodyear guilty of 
discrimination, a sharply divided Supreme Court, in a 5-4 
opinion, decided that, while Ms. Ledbetter had been 
discriminated against, her claim was made too late.
    Title VII requires that employees file an Equal Employment 
Opportunity Commission charge within the 180 days of the 
unlawful employment practice. Ms. Ledbetter filed within 180 
days of receiving the discriminatory pay from Goodyear, but a 
slim majority of the Supreme Court found that because Ms. 
Ledbetter did not file within 180 days of a discriminatory 
decision to write those discriminatory paychecks, her time had 
run out. She could not recover anything; Goodyear owed her 
nothing.
    A slim majority of the Supreme Court shunned reason in 
order to satisfy its own narrow, ideological agenda. Reason and 
justice, however, demand a different result.
    Discrimination does not just occur when the initial 
decision to discriminate is made. You may not know when the 
decision to discriminate against you is made. You may not 
recognize it when it was made.
    Discrimination occurs both when the employer decides to 
discriminate and then when the employer actually discriminates 
by, for example, paying you less because you are a woman, an 
African-American, or older than other employees.
    Ms. Ledbetter was discriminated against with nearly every 
paycheck she received.
    The impact of the court's decision extends far beyond Ms. 
Ledbetter's case. It has far-reaching implications for an 
individual's right to receive equal pay for equal work.
    Victims of pay discrimination often do not realize that 
they have been discriminated against for a long time. The 
reality of the workplace is that most workers don't know what 
their co-workers are making. Many employers, as Goodyear did, 
prohibit employees from discussing their pay with others. And 
social norms also keep employees from asking the question.
    In addition, employers hold significant power over the 
employees. So even if an employee suspects discrimination, they 
will likely wait to sue until they know for sure.
    With the Ledbetter decision, the court is telling employers 
that to escape responsibility, all they need do is keep the 
discrimination hidden and run out the clock. Employers with a 
history of pay discrimination will be allowed to lawfully 
continue to discriminate against employees in protected 
categories, including sex, race, religion and national origin.
    If the employee missed the deadline to sue when the 
employer made the decision, according to this Supreme Court the 
employee must live with the pay discrimination for the rest of 
her tenure with that employer.
    This case is a clear indication that the court does not 
understand pay discrimination, nor does it reflect what the 
Congress intended when we passed the Civil Rights Act in 1964 
or its amendments in 1991.
    Women have made great strides in the workplace. They are 
leaders in business, government and academia. And for the first 
time in history, a woman is serving as the speaker of House of 
Representatives.
    Yet despite this progress that women have made, they 
continue to be held back by wage discrimination. We know that 
women are earning only 77 cents for every dollar earned by men. 
On average, women's wages constitute more than one-third of 
their family's income.
    Women still have a steep hill to climb for pay parity. 
Thanks to this misguided Supreme Court decision, that hill just 
got a lot steeper.
    Justice Ginsberg issued a strong dissent in the Ledbetter 
case and stated that, ``The court does not comprehend, or is 
indifferent to, the insidious ways in which women can be 
victims of pay discrimination.'' And she is right.
    As Justice Ginsberg suggests, the ball has now fallen into 
Congress's court. And make no mistake: Congress intends to act 
to correct the Supreme Court's grievous insult to American 
workers.
    Today's hearing is the first step in our efforts to address 
the issues raised by the court in the Ledbetter case and to 
clarify our intent that the discriminatory pay is never 
immunized.
    Victims of pay discrimination on the basis of race, sex, 
color, religion, national origin, disability or age are 
entitled to justice with each paycheck.
    Ms. Ledbetter, I want to thank you for your courage you 
have shown in bringing this battle from the shop floor all the 
way to the Supreme Court and now to the Congress of the United 
States. We look forward to your testimony today, and we pledge 
to work with you to correct the Supreme Court's injustice.
    And with that, I would like to recognize the senior 
Republican on the committee, Mr. McKeon of California.
    [The prepared statement of Mr. Miller follows:]

   Prepared Statement of Hon. George Miller, Chairman, Committee on 
                          Education and Labor

    The Supreme Court's ruling in Ledbetter v. Goodyear is a painful 
step backwards for civil rights in this country. It makes it more 
difficult for workers to stand up for their basic rights at work. That 
is unacceptable.
    Title VII of the Civil Rights Act is intended to protect the civil 
rights of every American. When employers violate their employees' civil 
rights, the Civil Rights Act sought to ensure that those employers be 
held accountable.
    Nondiscrimination in the workplace is an inviolable American 
principle. Yet today, in the 21st Century, more than 40 years after the 
passage of the Civil Rights Act of 1964, we have seen a devastating 
attempt to turn back the clock by the current Supreme Court.
    Lilly Ledbetter worked for Goodyear for over 19 years. While it 
appears that her salary at the start of her career there was comparable 
to what her male colleagues were earning, her salary slipped over time.
    When she retired as a supervisor in 1998, her salary was up to 20 
percent lower than that of the lowest-paid male supervisor.
    Not only was Ms. Ledbetter earning nearly $400 less per month than 
her male colleagues, she also retired with a substantially smaller 
pension. She will now have less economic security in retirement.
    A jury found that Goodyear discriminated against Ms. Ledbetter. She 
was awarded $3.8 million in back pay and damages. This amount was 
reduced to $360,000, the Title VII damage cap.
    Despite the fact that the jury found Goodyear guilty of 
discrimination, a sharply divided Supreme Court, in a 5-to-4 opinion, 
decided that while Ms. Ledbetter was discriminated against, her claim 
was made too late.
    Title VII requires an employee to file an Equal Employment 
Opportunity Commission charge within 180 days of the unlawful 
employment practice. Ms. Ledbetter filed within 180 days of receiving 
discriminatory pay from Goodyear.
    But a slim majority of the Supreme Court found that, because Ms. 
Ledbetter did not file within 180 days of a discriminatory decision to 
write those discriminatory paychecks, her time had run out. She could 
not recover anything. Goodyear owed her nothing.
    A slim majority of the Supreme Court shunned reason in order to 
satisfy its own narrow ideological agenda.
    Reason--and justice--demand a different result.
    Discrimination does not just occur when the initial decision to 
discriminate is made. You may not know when the decision to 
discriminate against you was made. You may not recognize it when it is 
made.
    Discrimination occurs both when an employer decides to discriminate 
and then when the employer actually discriminates--by, for example, 
paying you less because you are a woman, or African American, or older 
than the other employees.
    Ms. Ledbetter was discriminated against with nearly every paycheck 
she received.
    The impact of the Court's decision extends far beyond Ms. 
Ledbetter's case. It has far-reaching implications for an individuals' 
right to receive equal pay for equal work.
    Victims of pay discrimination often do not realize they have been 
discriminated against for a long time.
    The reality in the workplace is that most workers don't know what 
their co-workers are making. Many employers prohibit employees from 
discussing their pay with each other. And social norms also keep 
employees from asking the question.
    In addition, employers hold significant power over their employees, 
so even if an employee suspects discrimination they will likely wait to 
sue until they know for sure.
    With the Ledbetter decision, the Court is telling employers that to 
escape responsibility all they need to do is keep their discrimination 
hidden and run out the clock.
    Employers with a history of pay discrimination will be allowed to 
lawfully continue discriminating against employees in protected 
categories, including sex, race, religion and national origin.
    If the employee missed the deadline to sue when the employer made 
the decision, according to this Supreme Court, the employee must live 
with pay discrimination for the rest of his or her tenure with that 
employer.
    This case is a clear indication that the Court does not understand 
pay discrimination, nor does it reflect what Congress intended when we 
passed the Civil Rights Act of 1964 or its amendments in 1991.
    Women have made great strides in the workplace. They are leaders in 
business, government and academia. For the first time in history, a 
woman is serving as Speaker of the House of Representatives. Yet 
despite the progress that women have made, they continue to be held 
back by wage discrimination.
    We know that women are earning only 77 cents for every dollar 
earned by men. On average, women's wages constitute more than one-third 
of their families' income.
    Women still have a steep hill to climb for pay parity. Thanks to 
this misguided Supreme Court decision, that hill just got a lot 
steeper.
    Justice Ginsburg issued a strong dissent in the Ledbetter case and 
stated that the Court does not comprehend, or is indifferent to, the 
insidious way in which women can be victims of pay discrimination.
    And she is right.
    As Justice Ginsburg suggests, the ball has now fallen into 
Congress' court. And make no mistake--Congress intends to act to 
correct the Supreme Court's grievous insult to American workers.
    Today's hearing is a first step in our efforts to address the 
issues raised by the Court in the Ledbetter case and to clarify our 
intent that discriminatory pay is never immunized.
    Victims of pay discrimination on the basis of race, sex, color, 
religion, national origin, disability, or age, are entitled to justice 
with each paycheck.
    Ms. Ledbetter, I want to thank you for the courage you have shown 
in bringing this battle from the shop floor all the way to the Supreme 
Court and the Congress.
    We look forward to your testimony today and we pledge to work with 
you to correct the Supreme Court's injustice.
    Thank you.
                                 ______
                                 
    Mr. McKeon. Thank you, Chairman Miller, for convening 
today's hearing.
    And thank you to our witnesses for joining us this 
afternoon. I look forward to your testimony, as this committee 
considers which steps, if any, should be taken in the wake of 
last month's Supreme Court ruling.
    At issue is Title VII of the 1964 Civil Rights Act, which 
makes it unlawful to discriminate on the basis of gender with 
respect to compensation. This is a principle upon which all of 
us agree, without a doubt.
    At the same time, the law provides that an individual 
wishing to challenge an employment practice under this 
provision must first file a charge with the Equal Employment 
Opportunity Commission.
    This challenge must be filed within either 180 or 300 days, 
depending on his or her state of employment, after the alleged 
unlawful employment practice occurred. If an employee does not 
do so, he or she may not challenge that practice in court.
    This is the crux of why the Supreme Court delivered the 
ruling it did.
    In their dissenting opinion, Justice Ruth Bader Ginsberg 
and others urged Congress to conduct a ``parsimonious reading'' 
of Title VII. Today begins that process.
    So, Mr. Chairman, I am pleased we are taking the time to do 
so here in committee through regular order.
    In high-profile and emotionally charged cases such as this 
one, members of Congress often are tempted to find a quick fix 
and a quick headline, overreaching in the process and setting 
into motion a series of unintended consequences that may do 
more harm than good in the long run. I sincerely hope this is 
not one of those times, and beginning this process with an 
honest and straightforward hearing of the facts is a logical 
and responsible start.
    The fact is, what we are setting out to do is not an easy 
task. To simply put in place a policy that would overturn Ms. 
Ledbetter's case is one matter. However, the impact of our 
actions, if we take any, will extend far beyond that.
    Our task is to determine whether current law provides 
enough balance to treat employees and job providers fairly with 
respect to discrimination claims.
    And if we reach the conclusion that it does not--a 
conclusion that I believe remains an open question--we are 
faced with the challenge of ensuring that a legislative fix 
does not tip that balance too far in one direction or another.
    As I noted, no one in this committee room agrees with 
gender discrimination. Less than 2 months ago, I said as much 
during a hearing on legislation purportedly introduced to 
ensure pay equity for both men and women.
    At the same time, however, I hope no one in this room 
believes that we should put in place legislation that would 
keep employers indefinitely on the hook for employee claims of 
discrimination. Such legislation would be ripe for abuse, in my 
opinion, effectively allowing an employee to bring a claim 
against an employer decades after the alleged initial act of 
discrimination occurred.
    Under such circumstances, the employee could have received 
wages and benefits for dozens of years while the employer's 
senior leadership could have changed numerous times during that 
same period. At the end of the day, such a loophole conceivably 
could allow a retiring employee to seek damages against a 
company now led by executives who had nothing to do with the 
initial act of discrimination.
    That, in my opinion, represents the type of unintended 
consequences I warned against a few minutes ago.
    Under current law, aside from actions under the Civil 
Rights Act, there are other remedies for clear gender 
discrimination violations. Under the Equal Pay Act Amendment to 
the Fair Labor Standards Act, for example, the person found 
having been discriminated against can obtain back pay for any 
wages unlawfully withheld as a result of pay inequality, and 
twice that amount for a willful violation.
    Therefore, I will be interested in hearing from our 
witnesses how the application of this law, coupled with the 
potential tweaks to the Civil Rights Act, could strike the 
right balance without tipping it too far toward employers and 
employees.
    Mr. Chairman, the question before us is not a matter of 
tinkering around the edges, but rather a fundamental question 
of overhauling longstanding labor law. As such, I thank you for 
the opportunity to discuss it in an open and deliberative way 
with afternoon. As you discuss potentially introducing 
legislation, I hope such an approach continues.
    Thank you.
    [The prepared statement of Mr. McKeon follows:]

Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican 
                Member, Committee on Education and Labor

    Thank you, Chairman Miller, for convening today's hearing. And 
thank you to our witnesses for joining us this afternoon. I look 
forward to your testimony, as this Committee considers which steps--if 
any--should be taken in the wake of last month's Supreme Court ruling.
    At issue is Title VII of the 1964 Civil Rights Act, which makes it 
unlawful to discriminate on the basis of gender with respect to 
compensation. This is a principle upon which all of us agree, without a 
doubt. At the same time, the law provides that an individual wishing to 
challenge an employment practice under this provision must first file a 
charge with the Equal Employment Opportunity Commission. This challenge 
must be filed within either 180 or 300 days, depending on his or her 
state of employment, after the alleged unlawful employment practice 
occurred. If an employee does not do so, he or she may not challenge 
that practice in court. This is the crux of why the Supreme Court 
delivered the ruling it did.
    In their dissenting opinion, Justice Ruth Bader Ginsburg and others 
urged Congress to conduct a--quote--``parsimonious reading''--unquote--
of Title VII. Today begins that process, and Mr. Chairman, I am pleased 
we are taking the time to do so here in Committee, through regular 
order. In high-profile and emotionally-charged cases such as this one, 
Members of Congress often are tempted to find a quick fix and a quick 
headline, over-reaching in the process and setting into motion a series 
of unintended consequences that may do more harm than good in the long 
run. I sincerely hope this is not one of those times, and beginning 
this process with an honest and straightforward hearing of the facts is 
a logical and responsible start.
    The fact is, what we are setting out to do is not an easy task. To 
simply put in place a policy that would overturn Ms. Ledbetter's case 
is one matter. However, the impact of our actions--if we take any--will 
extend far beyond that. Our task is to determine whether current law 
provides enough balance to treat employees and job providers fairly 
with respect to discrimination claims. And if we reach the conclusion 
that it does not--a conclusion that I believe remains an open 
question--we're faced with the challenge of ensuring that a legislative 
fix does not tip that balance too far in one direction or another.
    As I noted, no one in this Committee room agrees with gender 
discrimination. Less than two months ago, I said as much during a 
hearing on legislation purportedly introduced to ensure pay equity for 
both men and women. At the same time, however, I hope no one in this 
room believes that we should put in place legislation that would keep 
employers indefinitely on the hook for employee claims of 
discrimination.
    Such legislation would be ripe for abuse, in my opinion--
effectively allowing an employee to bring a claim against an employer 
decades after the alleged initial act of discrimination occurred. Under 
such circumstances, the employee could have received wages and benefits 
for dozens of years, while the employer's senior leadership could have 
changed numerous times during that same time period. At the end of the 
day, such a loophole conceivably could allow a retiring employee to 
seek damages against a company now led by executives who had nothing to 
do with the initial act of discrimination. That, in my opinion, 
represents the type of unintended consequences I warned against a few 
minutes ago.
    Under current law, aside from actions under the Civil Rights Act, 
there are other remedies for clear gender discrimination violations. 
Under the Equal Pay Act amendment to the Fair Labor Standards Act, for 
example, the person found having been discriminated against can obtain 
back pay for any wages unlawfully withheld as the result of pay 
inequality and twice that amount for a willful violation. Therefore, I 
will be interested in hearing from our witnesses how the application of 
this law, coupled with potential tweaks to the Civil Rights Act, could 
strike the right balance, without tipping it too far toward employers 
or employees.
    Mr. Chairman, the question before us is not a matter of tinkering 
around the edges, but rather a fundamental question of overhauling 
long-standing labor law. As such, I thank you for the opportunity to 
discuss it in an open and deliberative way this afternoon. As you 
discuss potentially introducing legislation, I hope such an approach 
continues.
                                 ______
                                 
    Chairman Miller. I thank the gentleman.
    And I ask unanimous consent that the gentleman from New 
Jersey, Mr. Andrews, the chairman of the Subcommittee on 
Health, Employment, Labor and Pensions, be permitted to give an 
opening statement. And my understanding is the minority has no 
objection.
    Mr. Andrews, you are recognized for 5 minutes.
    Mr. Andrews. I thank the chairman.
    I thank the minority for its cooperation.
    I thank the chairman for calling this hearing today. I wish 
it were not necessary.
    Make no mistake about it: The question before us today is 
not the grave personal injustice that was done to Ms. 
Ledbetter. It is the systemic injustice that I believe will be 
done to Americans across the board if this ruling is permitted 
to stand.
    Americans understand what is wrong with what happened to 
Ms. Ledbetter. She was hired at a comparable rate of pay to her 
male colleagues. Over a 19-year period of time, she was a 
valued employee of her employer. In 1996, she was awarded with 
a special award from her employer for excellence in her job.
    Because of the nature of her employer's policies, she did 
not know what her salary was in relation to her male 
counterparts. She was one of the few women to work in a 
supervisory position among 80 or so people in the plant in 
which she worked.
    During that period of time, she suffered egregious 
incidences of harassment and discrimination, involving 
inappropriate language, inappropriate behavior toward her as a 
woman. She sought redress and received a measure of redress 
when the offending supervisor was removed from her immediate 
chain of supervision.
    At the end of her 19-year tenure with the company, she 
finally discovered that her pay was about 20 percent lower, on 
average, than her male counterparts. She made far less than the 
least paid of her male counterparts.
    She took her grievances to the Equal Employment Opportunity 
Commission. The commission agreed with her. The commission then 
took the matter--she took the matter to the United States 
District Court.
    The employer defended the claim and said that the real 
reason Ms. Ledbetter was compensated so much less than her male 
colleagues was she wasn't as good at her job as they were.
    A jury of her peers listened to that defense and rejected 
it, found in her favor, found that the real reason she was 
egregiously underpaid was because she was a woman, and the 
company had in fact practiced gender discrimination. A jury of 
her peers awarded her a substantial judgment, including a 
substantial punitive damages award to rectify the situation.
    The case was litigated up through the court of appeals, 
eventually to the United States Supreme Court. The United 
States Supreme Court ruled that even though the EEOC had agreed 
with Ms. Ledbetter, even though a jury of her peers had heard a 
full defense of the claims made by her, that she should recover 
nothing. And the reason she should recover nothing is she 
didn't file her claim soon enough. She had a 6-month period to 
file her claim.
    The basis of her claim was that she made less than the men 
who worked there because she was a woman. But the policy of her 
employer was she wasn't allowed to know or ask how much men 
that worked next to her made. I assume that her remedy was to 
conduct a seance and determine what the men who worked next to 
her made and file a suit on that basis. [Laughter.]
    Ms. Ledbetter is an impressive woman. She has a lot of 
energy and a lot of power. But her powers, unfortunately, do 
not extend to the psychic realm. [Laughter.]
    So she was unable to have this piece of information she 
would have needed at the time she received her last evaluation. 
And she did not file her claim until later on.
    This is wrong. The work of this committee is to understand 
why this is wrong and what we should do about it.
    I am appreciative of the chairman calling this hearing. I 
think each of the witnesses have something to offer us. And I 
hope that Republicans and Democrats can work together to 
redress this situation.
    As I said, just a few minutes ago, to Ms. Ledbetter, I 
regret the fact that her case will not be remedied, because of 
the nature of our separation of powers. But I believe her cause 
will be won, because it is just and it is right.
    Thank you, Mr. Chairman.
    Chairman Miller. Thank you very much.
    We have some wonderful witnesses today, and we are going to 
begin with Lilly Ledbetter, who is a lifelong resident of 
Jacksonville, Alabama, where she lives with her husband, her 
son and daughter and her four grandchildren.
    For 19 years, Ms. Ledbetter worked, as we have heard, at 
the Goodyear Tire production plant in Gadsden, Alabama. After 
discovering that Goodyear was paying her less than her male 
colleagues, Ms. Ledbetter brought a claim of pay discrimination 
under Title VII of the Civil Right Act of 1964.
    It is the Supreme Court's May 29th decision in Ms. 
Ledbetter's discrimination case that is the center of our 
hearing today.
    Next we will hear from Wade Henderson, who is the president 
and the CEO of the Leadership Conference on Civil Rights, 
counselor to the Leadership Conference on Civil Rights 
Education Fund. Mr. Henderson serves as the Joseph Rauh 
professor of public interest law at the David A. Clarke School 
of Law, University of District of Columbia. And he is a 
graduate of Howard University and Rutgers University Law 
School.
    The cheering section is up here for Rutgers. [Laughter.]
    Neal Mollen is a partner with the law firm of Paul Hastings 
and is here today representing the Chamber of Commerce. Mr. 
Mollen is the local office chair of the Employment Department 
in Washington, D.C., co-chair of the firm's appellate practice 
group. And he received his law degree from the School of Law at 
the University of Richmond.
    Deborah L. Brake is the associate professor of law at the 
University of Pittsburgh School of Law. Professor Brake was 
formerly employed at the National Women's Law Center, where she 
litigated cases challenging sex discrimination in education, 
employment, housing and prisons, and worked on policy issues 
affecting women in Congress and administrative agencies. She is 
a graduate of Stanford University and Harvard Law School.
    Welcome to all of you.
    Ms. Ledbetter, we are going to begin with you.
    And there are lights on in front of you. The green light 
will go on when you begin to testify. An orange light will 
suggest that you might want to start wrapping up. And the red 
light is when your time is out. But feel free to finish your 
sentences, your paragraphs and your thoughts.
    You proceed in the manner in which you are most 
comfortable. And welcome to the committee. We look forward to 
your testimony.

    STATEMENT OF LILLY LEDBETTER, PLAINTIFF IN LEDBETTER V. 
               GOODYEAR, FORMER GOODYEAR EMPLOYEE

    Ms. Ledbetter. Good afternoon. Thank you, Mr. Chairman and 
Mr. Ranking Member, for inviting me. My name is Lilly 
Ledbetter. It is an honor to be here today to talk about my 
experience trying to enforce my right to equal pay for equal 
work.
    I wish my story had a happy ending, but it doesn't. I hope 
that this committee can do whatever is necessary to make sure 
that in the future what happened to me does not happen to other 
people who suffer discrimination like I did.
    I would like to give a shortened statement, but I 
respectfully request that my entire statement be submitted to 
the record.
    My story began in 1979, when Goodyear hired me to work as 
supervisor in the tire plant in Gadsden, Alabama.
    Toward the end of my career, I got the feeling that maybe I 
wasn't getting paid as much as I should, or as much as the men. 
But there was no way to know for sure, because pay levels were 
kept strictly confidential.
    I only started to get some hard evidence of discrimination 
when someone anonymously left a piece of paper in my mailbox at 
work showing what I got paid and what three other male managers 
were getting paid.
    When I later complained to EEOC, just before I retired, I 
found out that while I was earning about $3,700 hundred per 
month, all the men were earning $4,300 to $5,200 per month. 
This happened because, time and again, I got smaller raises 
than the men. And over the years, those little differences 
added up and multiplied.
    At the trial, the jury found that Goodyear had 
discriminated against me in violation of Title VII. The jury 
awarded me more than $3 million in back pay and punitive 
damages, but the law required the court to reduce my award to 
$360,000.
    The Supreme Court took it all away. They said I should have 
complained every time I got a smaller raise than the men, even 
if I didn't know what the men were getting paid and even if I 
had no way to prove the decision was discrimination.
    They said that once 180 days passes after the pay decision 
is made, the worker is stuck with unequal pay for the rest of 
her career, and that there is nothing illegal about that under 
Title VII.
    Justice Ginsberg hit the nail on the head when she said 
that the majority's rule just doesn't make sense in the real 
world. You can't expect people to go around asking their 
coworkers how much they are making.
    Plus, even if you know some people are getting paid a 
little more than you, that is no reason to suspect 
discrimination right away. Especially when you work at a place 
like I did, where you are the only woman in a male-dominated 
factory, you don't want to make waves unnecessarily. You want 
to try to fit in and get along.
    It was only after I got paid less than men again and again, 
without any good excuse, that I had a case that I could 
realistically bring to EEOC or to the court.
    Every paycheck I received I got less than what I was 
entitled to under the law. The Supreme Court said that this 
didn't count as illegal discrimination, but it sure feels like 
discrimination when you are on the receiving end of the smaller 
paycheck and you are trying to support your family with less 
money than what the men are getting for doing the same job.
    According to the Supreme Court, if you don't figure things 
out right away, the company can treat you like a second-class 
citizen for the rest of your career. And that is not right.
    The truth is, Goodyear continues to treat me like a second-
class worker to this day because my pension and my Social 
Security is based on the amount I earned while working there. 
Goodyear gets to keep my extra pension as a reward for breaking 
the law.
    My case is over, and it is too bad that the Supreme Court 
decided the way that it did. I hope, though, that Congress 
won't let this happen to anyone else. I would feel that this 
long fight was worthwhile if at least at the end of it I knew 
that I played a part in getting the law fixed so that it can 
provide real protection to real people in the real world.
    Thank you.
    [The statement of Ms. Ledbetter follows:]

   Prepared Statement of Lilly Ledbetter, Plaintiff in Ledbetter v. 
                   Goodyear, Former Goodyear Employee

    Good afternoon. Thank you, Mr. Chairman and Mr. Ranking Member for 
inviting me. My name is Lilly Ledbetter. It is an honor to be here 
today to talk about my experience trying to enforce my right to equal 
pay for equal work. I wish my story had a happy ending. But it doesn't. 
I hope that this Committee can do whatever is necessary to make sure 
that in the future, what happened to me does not happen to other people 
who suffer discrimination like I did.
Experience At Goodyear
    My story began in 1979, when Goodyear hired me to work as 
supervisor in their tire production plant in Gadsden, Alabama. I worked 
there for nineteen years. During that time, there must have been eighty 
or so other people who held the same position as me, but only a handful 
of them were women. But I tried to fit in and to do my job. It wasn't 
easy. The plant manager flat out said that women shouldn't be working 
in a tire factory because women just made trouble. One of my 
supervisors asked me to go down to a local hotel with him and promised 
if I did, I would get good evaluations. He said if I didn't, I would 
get put at the bottom of the list. I didn't say anything at first 
because I wanted to try to work it out and fit in without making waves. 
But it got so bad that I finally complained to the company. The manager 
I complained to refused to do anything to protect me and instead told 
me I was just being a troublemaker. So I complained to the EEOC. The 
company worked out a deal with the EEOC so that supervisor would no 
longer manage me. But after that, the company treated me badly. They 
tried to isolate me. People refused to talk to me. They left me out of 
important management meetings so I sometimes didn't know what was going 
on, which made it harder to do my job. So I got a taste of what happens 
when you try to complain about discrimination.
    When I started at Goodyear, all the managers got the same pay, so I 
knew I was getting as much as the men. But then Goodyear switched to a 
new pay system based on performance. After that, people doing the same 
jobs could get paid differently. Goodyear kept what everyone got paid 
confidential. No one was supposed to know. Over the following years, 
sometimes I got raises, sometimes I didn't. Some of the raises seemed 
pretty good, percentage-wise, but I didn't know if they were as good as 
the raises other people were getting. I got laid off during general 
layoffs a couple of times when business was bad, but they brought me 
back and I worked hard and did a good job. I got a ``Top Performance 
Award'' in 1996.
    Over time, I got the feeling that maybe I wasn't getting paid as 
much as I should, or as much as the men. I had heard rumors that some 
of the men were getting up to $20,000 a year extra for overtime work. 
However, I volunteered to work as much overtime as any of them, but I 
did not get anywhere near that much pay in overtime. I figured their 
salaries must be higher than mine, but I didn't have any proof--just 
rumors.
    Eventually one of my managers even told me that I was, in fact, 
getting paid less than the mandatory minimum salary level put out in 
the Goodyear rules. So I started asking my supervisors to raise my pay 
to get me up to Goodyear's mandatory minimum salary levels. And after 
that, I got some good raises percentage-wise, but it turned out that 
even then, those raises were smaller in dollar amounts than what 
Goodyear was giving to the men, even to the men who were not performing 
as well as I was.
    I only started to get some hard evidence of what men were making 
when someone anonymously left a piece of paper in my mailbox at work, 
showing what I got paid and what three other male managers were getting 
paid. Shortly after that, I filed another complaint of discrimination 
with the EEOC in 1998, when I got transferred from my management job to 
a job doing manual labor, requiring me to lift 80 pound tires all shift 
long. A little while after I filed my EEOC complaint, someone sent me 
an anonymous package showing what the other male managers were getting 
paid compared to me.
Pay Discrepancies
    After I filed my EEOC complaint and then filed a lawsuit, I was 
finally able to get the whole picture on my pay compared to the men's. 
It turned out that I ended up getting paid what I did because of the 
accumulated effect of pay raise decisions over the years. In any given 
year, the difference wasn't that big, nothing to make a huge fuss about 
all by itself. Some years I got no raise, when others got a raise. Some 
years I got a raise that seemed ok at the time, but it turned out that 
the men got bigger percentage raises. And sometimes, I got a pretty big 
percentage raise, but because my pay was already low, that amounted to 
a smaller dollar raise than the men were getting.
    For example, in 1993, I got a 5.28 percent raise, which sounds 
pretty decent. But it was the lowest raise in dollars that year because 
it was 5.28 percent of a salary that was already a lot less than the 
men's because of discrimination. So the gap in my pay grew wider that 
year. Without knowing what the other men were getting paid, I had no 
way of knowing whether that raise was potentially discriminatory or 
not. All I knew was that I got a raise.
    The result was that at the end of my career, I was earning $3,727 
per month. The lowest paid male was getting $4,286 per month for the 
same work. The highest paid male was making $5,236. So, I was actually 
earning twenty-percent less than the lowest paid male supervisor in the 
same position. There were lots of men with less seniority than me who 
were paid much more than I was.
Court Proceedings
    When we went to court, Goodyear acknowledged that it was paying me 
a lot less than the men doing the same work. But they said that it was 
because I was a poor performer and consequently got smaller raises than 
all the men who did better. That wasn't true and the jury didn't 
believe it. At the trial, two other women managers took the stand and 
explained how they were also discriminated against. One of them was a 
secretary who got promoted to manager, but only paid a secretary's 
salary. They kept telling her they would give her a raise, but they 
never did and she got fed up with that and went back to being a 
secretary. The other woman was also paid less than Goodyear's mandatory 
minimum wages.
    At the end of the trial, the jury found that Goodyear had 
discriminated against me in violation of Title VII. The jury awarded me 
backpay as well as $4,662 for mental anguish and $3,285,979 in punitive 
damages. Although the trial judge agreed that the jury's verdict was 
amply supported by the evidence at trial, he had to reduce the punitive 
damages and mental anguish award to the $300,000 statutory cap.
    The Supreme Court took it all away, even the backpay. They said I 
should have complained every time I got a smaller raise than the men, 
even if I didn't know what the men were getting paid and even if I had 
no way to prove that the decision was discrimination. They said that 
once 180 days passes after the pay decision is made, the worker is 
stuck with unequal pay for equal work under Title VII for the rest of 
her career and there is nothing illegal about that under the statute.
    Justice Ginsburg hit the nail on the head when she said that the 
majority's rule just doesn't make sense in the real world. You can't 
expect people to go around asking their coworkers how much money 
they're making. At a lot of places, that could get you fired. And 
nobody wants to be asked those kinds of questions anyway.
    Plus, even if you know some people are getting paid a little more 
than you, that's no reason to suspect discrimination right away. Pay 
can go up and down and you want to believe that your employer is doing 
the right thing and that it will all even out down the road. Especially 
when you work at a place like I did, where you are one of the only 
women in a male-dominated factory, you don't want to make waves 
unnecessarily. You want to try to fit in and get along. As I found out 
all too well, calling something ``discrimination'' isn't appreciated--I 
suffered the consequences when I went to the EEOC with proof of sexual 
harassment. Without proof, I would never go to the EEOC because it 
might cost me my job.
    Anyway, the little amount of money at issue early on isn't worth 
fighting over at first. No lawyer is going to take a case to fight over 
an extra $100 a month and most people can't afford to pay a lawyer out 
of their own pockets. It would have been hard to demonstrate to the 
EEOC or a jury that the first $100 pay difference was discrimination. 
It was only after I got paid less than men again and again, without any 
good excuse, that I had a case that I could realistically bring to the 
EEOC or to court.
Consequences
    What happened to me is not only an insult to my dignity, but it had 
real consequences for my ability to care for my family. Every paycheck 
I received, I got less than what I was entitled to under the law. The 
Supreme Court said that this didn't count as illegal discrimination, 
but it sure feels like discrimination when you are on the receiving end 
of that smaller paycheck and trying to support your family with less 
money than the men are getting for doing the same job. And according to 
the Court, if you don't figure things out right away, the company can 
treat you like a second-class citizen for the rest of your career. That 
isn't right.
    The truth is, Goodyear continues to treat me like a second-class 
worker to this day because my pension and social security is based on 
the amount I earned while working there. Goodyear gets to keep my extra 
pension as a reward for breaking the law.
    As you may know, making ends meet during retirement is not easy for 
a lot of seniors like me, even under the best of circumstances. It 
shouldn't be harder just because you are a woman who was discriminated 
against during your career.
Conclusion
    My case is over and it is too bad that the Supreme Court decided 
the way that it did. I hope, though, that Congress won't let this 
happen to anyone else. I would feel that this long fight was worthwhile 
if, at least at the end of it, I knew that I played a part in getting 
the law fixed so that it can provide real protection to real people in 
the real world.
    Thank you.
                                 ______
                                 
    Chairman Miller. Thank you.
    Mr. Henderson? Wade, welcome to the committee.

  STATEMENT OF WADE HENDERSON, PRESIDENT AND CEO, LEADERSHIP 
                   CONFERENCE ON CIVIL RIGHTS

    Mr. Henderson. Good afternoon, Mr. Chairman, members of the 
committee. It is a privilege to represent the civil rights 
community in addressing the committee today.
    My name is Wade Henderson. I am the president of the 
Leadership Conference on Civil Rights. The Leadership 
Conference is the nation's leading civil and human rights 
coalition, with over 200 national organizations working to 
build an America as good as its ideals.
    I am here this afternoon to call on Congress to act to 
right a wrong perpetrated by our nation's highest court that 
will have a profound impact on the working lives and 
livelihoods of Americans across the country.
    As we have just heard from the courageous Lilly Ledbetter, 
the U.S. Supreme Court issued a 5-4 decision 2 weeks ago in 
Ledbetter v. Goodyear Tire & Rubber, which severely limits the 
ability of victims of pay discrimination to successfully sue 
under Title VII.
    As Justice Ginsberg pointedly emphasized in her dissent, 
pay discrimination is a hidden discrimination that is 
particularly dangerous due to the silence surrounding salary 
information in the United States.
    For example, one-third of private-sector employers have 
adopted specific rules prohibiting employees from discussing 
their wages with co-workers. And a significant number of other 
employers have more informal expectations that employees do not 
discuss their salaries.
    Workers knows immediately when they are fired, refused 
employment or denied a promotional transfer. But norms of 
secrecy and confidentiality make it difficult for employees to 
obtain compensation information.
    However, just because you don't know about it doesn't mean 
the discrimination isn't happening. Every time an employee 
receives a paycheck that is lessened by discrimination, it is a 
discriminatory act by the employer. The harm is ongoing. The 
remedy should be as well.
    The rule articulated by the Ledbetter court just doesn't 
make sense. There is no reason to put the burden on employees 
to know what their colleagues earn. In fact, the rule creates 
an incentive for employers to hide pay information in order to 
insulate themselves from liability.
    The rule in Ledbetter looks more like an arbitrary way of 
depriving victims of discrimination of the ability to obtain a 
remedy. It is a protection program for employers that 
discriminate.
    The impact of the court's decision in Ledbetter will be 
widespread, affecting pay discrimination cases until Title VII 
involving women and racial and ethnic minorities, as well as 
cases under the Age Discrimination and Employment Act and the 
Americans with Disabilities Act.
    Here is an example: Imagine you have worked for a company 
for 30 years. You are a good worker. You do a good job. Unknown 
to you, the company puts workers who are 50 or older on a 
different salary track, lower than the younger workers who do 
the same work.
    At 60, you learn that for the last 10 years you have been 
earning less, tens of thousands of dollars less, than 
colleagues doing comparable work. How do you feel? Imagine you 
are this worker. How would you feel?
    Even more, how do you feel when you learn that 180 days 
after you turned 50, 6 months after you started getting paid 
less, you also lost your right to redress for the hundreds of 
discriminatory paychecks?
    While today we are focused on the immediate problem in the 
Ledbetter decision, it is also important to understand that 
this decision is part of the Supreme Court's recent pattern of 
limiting both access to the courts and remedies available to 
victims of discrimination.
    The court's decisions have weakened the basic protections 
in ways that Congress never intended. For example, under the 
Supreme Court's recent rulings, older workers can no longer 
recover money damages for age discrimination if they are 
employed by the state. State workers can no longer recover 
money damages if their employers violate minimum-wage and 
overtime laws.
    There is no private right of action to enforce the 
disparate impact regulations of Title VI of the Civil Rights 
Act of 1964. And workers can now be required to give up their 
right to sue in court for discrimination as a condition for 
employment. And many plaintiffs remain subject to the damage 
caps in Title VII, which drastically limit possible recovery 
for plaintiffs who manage to win their cases in court.
    In many of these instances, as in Ledbetter, the court is 
acting as a legislature, making its own policy while acting 
directly contrary to Congress's intent.
    For opponents of civil rights, there is no need to repeal 
Title VII. Instead, you can substantially weaken its 
protections by chipping away at bedrock interpretations. Or you 
can make it difficult or impossible for plaintiffs to bring and 
win employment discrimination cases. Or you can make the 
remedies meaningless.
    For years, we in the civil rights community have watched as 
the Supreme Court has rolled back the ability of victims of 
discrimination to obtain meaningful remedies. But watching is 
over. It is time, past time, to take action.
    Justice Ginsberg pointed out in her dissent that Congress 
has stepped in on other occasions to correct the court's 
interpretation of Title VII. The Civil Rights Act of 1991 
overturned several Supreme Court decisions that eroded the 
power of Title VII. And as Justice Ginsberg sees it, ``Once 
again, the ball is in Congress's court.''
    We agree. The issues in this case are not academic. The 
fallout will have a real impact on the lives of people across 
America, people like Lilly Ledbetter.
    And members of the committee, today you begin the process 
of responding to Justice Ginsberg's call, a process that we 
will reaffirm that civil rights laws have legally enforceable 
remedies and that it is for Congress, not the courts, to decide 
the rules of the game.
    Thank you very much.
    [The statement of Mr. Henderson follows:]

  Prepared Statement of Wade Henderson, President and CEO, Leadership 
                       Conference on Civil Rights

    Good Afternoon. My name is Wade Henderson and I am the President of 
the Leadership Conference on Civil Rights. The Leadership Conference is 
the nation's premier civil and human rights coalition, and has 
coordinated the national legislative campaigns on behalf of every major 
civil rights law since 1957. The Leadership Conference's nearly 200 
member organizations represent persons of color, women, children, 
organized labor, individuals with disabilities, older Americans, major 
religious groups, gays and lesbians and civil liberties and human 
rights groups. It's a privilege to represent the civil rights community 
in addressing the Committee today.
    Distinguished members of the Committee, I am here this afternoon to 
call on Congress to act. To right a wrong perpetrated by our nation's 
highest court that will have a tremendous impact on the working lives, 
and livelihoods, of Americans across the county.
    Two weeks ago, the Supreme Court issued an opinion in Ledbetter v. 
Goodyear Tire & Rubber,\1\ which severely limits the ability of victims 
of pay discrimination to successfully sue under Title VII. In this 
case, the plaintiff, Lilly Ledbetter, a supervisor at Goodyear in 
Gadsden, Alabama, sued her employer for paying her less than its male 
supervisors and a jury found that Goodyear violated her rights under 
Title VII of the Civil Rights Act of 1964.
    Goodyear argued that Ms. Ledbetter filed her complaint too late 
and, by a 5-4 margin, the Supreme Court agreed. Title VII requires 
employees to file within 180 days of ``the alleged unlawful employment 
practice.'' \2\ The court calculated the deadline from the day Goodyear 
first started to pay Ms. Ledbetter differently, rather than--as many 
courts had previously held--from the day she received her last 
discriminatory paycheck. As a result, Ms. Ledbetter was unable to 
challenge or receive compensation for any of Goodyear's salary 
discrimination, even though the discrimination continued unabated for 
more than 15 years.
    In this decision, the Court got it wrong. A narrow majority, led by 
Justice Alito, set aside the clear intent of Congress in favor of its 
own policy preferences.
    The outcome in Ledbetter is fundamentally unfair to victims of pay 
discrimination. By immunizing employers from accountability for their 
discrimination once 180 days have passed from the initial pay decision, 
the Supreme Court has taken away victims' recourse against continuing 
discrimination.
    Moreover, the Court's decision in Ledbetter ignores the realities 
of the workplace. Employees typically don't know much about what their 
co-workers earn, or how pay decisions are made, making it difficult to 
satisfy the Court's new rule.
    As Justice Ginsberg pointedly emphasized in her dissent, pay 
discrimination is a hidden discrimination that is particularly 
dangerous due to the silence surrounding salary information in the 
United States. It is common practice for many employers to withhold 
comparative pay information from employees. One-third of private sector 
employers have adopted specific rules prohibiting employees from 
discussing their wages with co-workers, and a significant number of 
other employers have more informal expectations that employees do not 
discuss their salaries. Only one in ten employers has adopted a pay 
openness policy.\3\
    Workers know immediately when they are fired, refused employment, 
or denied a promotion or transfer, but norms of secrecy and 
confidentiality prevent employees from obtaining compensation 
information. As Justice Ginsberg's dissent points out, it is not 
unusual for businesses to decline to publish employee pay levels, or 
for employees to keep private their own salaries.
    The reality is that every time an employee receives a paycheck that 
is lessened by discrimination, it is an act of discrimination by the 
employer. The harm is ongoing; the remedy should be too.
    The impact of the Court's decision in Ledbetter will be widespread, 
affecting pay discrimination cases under Title VII affecting women and 
racial and ethnic minorities, as well as cases under the Age 
Discrimination in Employment Act \4\ involving discrimination based on 
age and under the Americans with Disabilities Act \5\ involving 
discrimination against individuals with disabilities.
    Here is an example. Imagine you have worked for a company for 30 
years. You are a good worker. You do a good job. Unknown to you, the 
company puts workers who are 50 or older on a different salary track ; 
lower than the younger workers who do the same work. At 60, you learn 
that for the last 10 years, you have been earning less--tens of 
thousands of dollars less than colleagues doing comparable work.
How do you feel?
    Imagine you are this worker. How do you feel?
    Even more, how do you feel when you learn that 180 days after you 
turned 50--six months after you started getting paid less--you also 
lost your right to redress for the hundreds of discriminatory 
paychecks.
    The decision in Ledbetter will have a broad real world impact. The 
following are just two examples of recent pay discrimination cases that 
would have come out very differently if the Court's new rule had been 
in effect.
    In Reese v. Ice Cream Specialties, Inc.\6\ the plaintiff, an 
African-American man, never received the raise he was promised after 
six months of work. He did not realize his raise had never been awarded 
until three and a half years later, when he requested a copy of his 
payroll records for an unrelated investigation.\7\ The employee filed a 
charge of race discrimination with the EEOC, and the court initially 
granted summary judgment to the employer. On appeal, the employee 
argued that his claim was timely under the continuing violation theory, 
and the court concluded that the relevant precedents compelled the 
conclusion that each paycheck constituted a fresh act of 
discrimination, and thus his suit was timely.\8\ If the rule in 
Ledbetter had been in effect, the plaintiff would not have been able to 
seek relief.
    In Goodwin v. General Motors Corp.,\9\ an African-American woman 
was promoted to a labor representative position, with a salary that was 
between $300 and $500 less than other similarly-situated white 
employees.\10\ Over time, Goodwin's salary disparity grew larger until 
she was being paid $547 less per month than the next lowest paid 
representative, while at the same time pay disparities among the other 
three labor representatives shrank from over $200 per month to only 
$82.\11\ Due to GM's confidentiality policy, Goodwin did not discover 
the disparity until a printout of the 1997 salaries ``somehow appeared 
on Goodwin's desk.'' \12\ She then brought a race discrimination action 
against her employer under Title VII. The district court dismissed the 
action, but the Tenth Circuit reversed and remanded, holding that 
discriminatory salary payments constituted fresh violations of Title 
VII, and each action of pay-based discrimination was independent for 
purposes of statutory time limitations. Again, if the rule in Ledbetter 
had been in effect, the plaintiff would not have been able to obtain 
relief.
    Pay discrimination is a type of hidden discrimination that 
continues to be an important issue in the United States. In the fiscal 
year 2006, individuals filed over 800 charges of unlawful, sex-based 
pay discrimination with the EEOC. Unfortunately, under the Ledbetter 
rationale, many meritorious claims will never be adjudicated.
    While today we are focused on the immediate problem of the 
Ledbetter decision, it is also important to understand that this 
decision is part of the Court's recent pattern of limiting both access 
to the courts and remedies available to victims of discrimination. The 
Court's decisions have weakened the basic protections in ways that 
Congress never intended by Congress.
    Under the Supreme Court's recent rulings, older workers can no 
longer recover money damages for employment discrimination based on age 
if they are employed by the state,\13\ state workers can no longer 
recover money damages if their employers violate minimum wage and 
overtime laws;\14\ there is no private right of action to enforce the 
disparate impact regulations of Title VI of the Civil Rights Act of 
1964;\15\ and workers can now be required to give up their right to sue 
in court for discrimination as a condition of employment.\16\ In many 
of these cases, as in Ledbetter, the Court is acting as a legislature, 
making its own policy while acting directly contrary to Congress's 
intent.
    For opponents of civil rights, there is no need to repeal Title 
VII. Instead you can substantially weaken its protections by chipping 
away at bedrock interpretations. Or, you can instead make it difficult 
or impossible for plaintiffs to bring and win employment discrimination 
cases. Or if you make the remedies meaningless.
    For years, we in the civil rights community have watched as the 
Supreme Court has rolled back the ability of victims of discrimination 
to obtain meaningful remedies. But the watching is over. It is time--
past time--to take action.
    As Justice Ginsburg pointed out in her dissent, Congress has 
stepped in on other occasions to correct the Court's ``cramped'' 
interpretation of Title VII. The Civil Rights Act of 1991 overturned 
several Supreme Court decisions that eroded the power of Title VII, 
including Wards Cove Packing Co. v. Atonio,\17\ which made it more 
difficult for employees to prove that an employer's personnel 
practices, neutral on their face, had an unlawful disparate impact on 
them, and Price Waterhouse v. Hopkins,\18\ which held that once an 
employee had proved that an unlawful consideration had played a part in 
the employer's personnel decision, the burden shifted to the employer 
to prove that it would have made the same decision if it had not been 
motivated by that unlawful factor, but that such proof by the employer 
would constitute a complete defense. As Justice Ginsburg sees it, 
``[o]nce again, the ball is in Congress' court.''
    We agree.
    The issues in this case are not academic. The fallout will have a 
real impact on the lives of people across America.
    People like Lily Ledbetter.
    Members of the Committee, today you begin the process of responding 
to Justice Ginsburg's call. A process that will reaffirm that civil 
rights have legally enforceable remedies. And that it is for Congress, 
not the courts, to decide the rules of the game.
    Thank you.
                                endnotes
    \1\ Slip op. No. 05-1074 (U.S. Supreme Court)
    \2\ 42 U.S.C. 2000e et seq.
    \3\ Bierman & Gely, ``Love, Sex and Politics? Sure. Salary? No 
Way'': Workplace Social Norms and the Law, 25 Berkeley J. Emp. & Lab. 
L. 167, 168, 171 (2004).
    \4\ 29 U.S.C. 621 et seq.
    \5\ 42 U.S.C. 12101 et seq.
    \6\ 347 F.3d 1007 (7th Cir. 2003)
    \7\ Id. at 1007
    \8\ Id. at 1013
    \9\ 275 F.3d 1005 (10th Cir. 2002)
    \10\ Id. at 1008
    \11\ Id.
    \12\ Id. at 1008
    \13\ Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)
    \14\ Alden v. Maine, 527 U.S. 706 (1999)
    \15\ Alexander v. Sandoval, 532 U.S. 275 (2001)
    \16\ Circuit City Stores v. Adams, 532 U.S. 105 (2001)
    \17\ 490 U.S. 642 (1989)
    \18\ 490 U.S. 228 (1989)
                                 ______
                                 
    Chairman Miller. Thank you.
    Mr. Mollen, welcome to the committee.

                  STATEMENT OF NEAL D. MOLLEN,
                    U.S. CHAMBER OF COMMERCE

    Mr. Mollen. Thank you, Mr. Chairman, Ranking Member McKeon 
and members of the committee. Thank you for inviting me here 
today, giving me this opportunity to testify.
    My name is Neal Mollen. I am here today to testify on 
behalf of the Chamber of Commerce of the United States of 
America about proposed legislation that would reverse the 
Supreme Court's Ledbetter decision.
    I had the privilege of serving as counsel of record for the 
Chamber and for the National Federation of Independent Business 
in the Ledbetter case.
    The Chamber unequivocally supports equal employment 
opportunities for all. It also promotes the implementation of 
fair and appropriate mechanisms to achieve that important goal.
    When Congress passed Title VII, it selected cooperation and 
voluntary compliance as the preferred means for achieving that 
end, with vigorous enforcement by private parties and the EEOC 
when those voluntary efforts failed.
    It seems to me self-evident that Congress's chosen 
enforcement scheme has been vindicated over the following 43 
years. The Ledbetter decision emphatically endorsed this 
statutory process.
    The rule emanating from Ledbetter is simple: If an employee 
believes that he or she has been treated discriminatorily by an 
employer, that matter should be raised internally and then with 
the EEOC, or a similar state agency, promptly.
    Only in this way can the processes of investigation, 
voluntary cooperation and conciliation be expected to work. 
When disagreements and disputes fester in the workplace and 
potential damage amounts increase, compromise and cooperation 
become far more difficult.
    Now, Ms. Ledbetter claimed in this case that the period of 
limitation was renewed every time she received a paycheck, and 
thus that she was entitled to wait until she decided to retire 
to raise her bias claims. Such a rule would have utterly 
frustrated Congress's design for attempting to resolve such 
matters, at least in the first instance, without litigation.
    Moreover, and perhaps more fundamentally, the Ledbetter 
decision recognized the profound unfairness inherent in a 
limitations rule that would permit an individual to wait for 
years or even decades before raising a claim of discrimination.
    To defend itself against a claim of discrimination, an 
employer has to be in a position to explain, first to the 
charging party and to the EEOC and then perhaps later to a 
jury, the reasons that it did what it did. To do so, it has to 
rely on documents and the memories of individuals, and neither 
or those is permanent.
    If a disappointed employee can wait for many years before 
raising a claim of discrimination, as Ms. Ledbetter did in this 
case, he or she can wait out the employer; that is, ensure that 
the employer is effectively unable to offer any meaningful 
defense to the claim.
    Ledbetter simply recognizes that it doesn't serve 
Congress's goal of eliminating discrimination to substitute a 
game of ``gotcha'' for the investigation and conciliation that 
Congress envisioned.
    That is precisely what happened in this case. The trial 
testimony showed that Ms. Ledbetter firmly believed as early as 
1992 that she had been the victim of pay discrimination and 
that, by 1994, she knew exactly what her coworkers made. But 
she didn't file a charge of discrimination until she had 
decided to retire in 1998. By the time the case went to trial, 
the manager she accused of bias had died of cancer and was 
unable to deny the charges.
    Now, we have heard today and heard elsewhere from other 
critics of Ledbetter that workers often don't have sufficient 
information to conclude that discrimination has occurred in 
time to meet the statues for filing deadlines. And I believe 
this concern is misplaced for several reasons.
    First, it is not common, in my experience in 21 years of 
litigating these cases, for an employee to claim that he or she 
worked for years on end without any inkling that discrimination 
had occurred. And that plainly was not the case here. This, it 
seems to me, is the far more common scenario.
    Second, the courts have developed a number of very 
effective tolling rules that can mitigate the impact of filing 
deadlines in those few cases in which the employer is engaged 
in some sort of affirmative misconduct or has misled the 
employee into allowing the limitations period to lapse.
    Finally, and most importantly, Ledbetter critics seem to be 
confusing the threshold standard for filing a lawsuit with the 
much lower standard for filing a charge of discrimination.
    To file a lawsuit in federal court, one must attest that 
after reasonable inquiry, the allegations contained in the 
complaint have evidentiary support. This threshold requirement 
does not apply to administrative charges before the EEOC. As a 
practical matter, the charging party need only have a good-
faith belief, an inkling of unfair treatment.
    The charge does not initiate litigation. The charge 
initiates a fact-finding process in which the EEOC, on behalf 
of the charging party, goes to the employer for precisely the 
comparative pay information to which the employee may not have 
access. Through this process, the truth usually comes out and 
the parties are able to mediate their dispute.
    Voluntary compliance and conciliation, that is the process 
that Congress envisioned, at least in the first instance, when 
it enacted Title VII. In the ensuing decades, it has proved to 
be remarkably successful. That process simply cannot work if 
the employee sits on the sidelines for years or even decades 
before raising a complaint.
    Statutes of limitations are an expression of society's 
principled collective judgment that it is unfair to call upon a 
defendant to answer serious charges years after the fact. A 
rule that refreshes the period of limitations with every 
paycheck cannot be squared with this important social value.
    Accordingly, the Chamber does not support proposals that 
would reverse or limit the decision handed down in Ledbetter.
    Thank you, Mr. Chairman.
    [The statement of Mr. Mollen follows:]

Prepared Statement of Neal D. Mollen, Paul, Hastings, Janofsky & Walker 
             LLP, on Behalf of the U.S. Chamber of Commerce

    I am here today to testify, on behalf of the United States Chamber 
of Commerce (Chamber), about proposed legislation that would reverse 
the Supreme Court's decision in Ledbettter v. Goodyear Tire & Rubber 
Co., Inc., 550 U.S. __ (2007). I had the privilege of serving as 
counsel of record for the Chamber in the Ledbetter case. I am a 
practitioner in the area of employment law, handling issues and matters 
across the broad span of employment discrimination and personnel 
practices. I have counseled and defended employers with respect to such 
issues for the past 21 years. I am coeditor of the American Bar 
Association/Bureau of National Affairs treatise Employment 
Discrimination Law (4th and 5th eds.), and the Equal Employment Law 
Update (BNA 7th ed. Fall 1999). For three years, I served as an Adjunct 
Professor of Labor Law at the Georgetown University Law Center. I 
currently serve as the chair of the Washington, D.C. Employment Law 
Department of Paul, Hastings, Janofsky &Walker LLP.\1\ Paul Hastings 
has over 1,100 attorneys internationally and 130 attorneys in our 
Washington office.
    I am testifying today on behalf of the United States Chamber of 
Commerce (Chamber). The Chamber is the world's largest business 
federation, representing more than three million businesses of every 
size, industry sector, and geographic region.
    The Chamber strongly supports equal employment opportunity for all 
and appropriate mechanisms to achieve that important goal. When 
Congress passed Title VII, it selected ``[c]ooperation and voluntary 
compliance * * * as the preferred means for achieving'' that goal,\2\ 
with vigorous enforcement by private parties and the Equal Employment 
Opportunity Commission when those efforts fail. The Chamber believes 
that Congress' chosen enforcement scheme--voluntary compliance and 
conciliation first, litigation thereafter when necessary--has been 
vindicated over the intervening 43 years. Without question, 
discrimination remains a problem in society as a whole, but the 
enormous progress made by employers in assuring nondiscrimination is 
undeniable, and stands as a testament to the efficacy of the 
enforcement tools selected by Congress.
    The Ledbetter decision emphatically endorsed these methods of 
voluntary cooperation and conciliation. The rule emanating from 
Ledbetter is simple; if an employee believes that he or she has been 
treated discriminatorily by an employer, that matter should be raised 
internally and then with the EEOC (or similar state agency) promptly 
and confronted forthrightly. Only in this way can the processes of 
investigation and voluntary cooperation and conciliation be expected to 
work. When disagreements and disputes in the workplace fester and 
potential damage amounts increase, compromise and cooperation become 
far more difficult.
    Ms. Ledbetter claimed, however, that she was entitled by a special 
``paycheck rule'' applicable only to claims of alleged pay 
discrimination, to sleep on her rights for decades before raising her 
concerns with the EEOC. This ``paycheck'' limitations rule, soundly and 
expressly rejected in Ledbetter, would have utterly frustrated 
Congress' design for attempting to resolve such matters, at least in 
the first instance, without litigation.
    Moreover, in order to embrace this ``paycheck'' rule, the Supreme 
Court would have been required to renounce a rule announced in a long 
line of wellunderstood cases regarding the application of rules of 
limitation under Title VII. The Court had repeatedly held that the 
statute's limitations period begins to run when the alleged 
discriminatory decision is made and communicated, not when the 
complainant feels the consequences of that decision.\3\ For the Court 
to overrule this precedent or for the Congress to supersede this 
settled law with legislation would promote instability and confusion in 
the law.
    Finally and perhaps most importantly, the Ledbetter decision 
recognized the profound unfairness inherent in a limitations rule that 
would permit an individual to sleep on his or her rights for years, or 
even decades, before raising a claim of discrimination. To defend 
itself against a claim of discrimination, an employer must be in a 
position to explain--first to the EEOC and the charging party, and 
perhaps later to a jury--the reasons it had for making the challenged 
decisions. To do so, it must rely on the existence of documents and the 
memories of people, neither of which is permanent. If a disappointed 
employee can wait for many years before raising a claim of 
discrimination, as Ms. Ledbetter did in this case, he or she can ``wait 
out'' the employer, i.e., ensure that the employer is effectively 
unable to offer any meaningful defense to the claim. That, the Court 
properly held, is patently unfair. It does not serve Congress' goal--
eliminating discrimination--to substitute a game of ``gotcha'' for the 
investigation and conciliation Congress envisioned.
    Statutes of limitation are an expression of society's principled, 
collective judgment that is it is unfair to call upon a defendant to 
answer serious charges when placed at such a disadvantage. A rule that 
``refreshes'' the period of limitations with every paycheck received to 
permit a challenge to every decision that contributed to current pay 
cannot be squared with this important societal value.
    I would like to expand briefly on some of these observations:
    1. Congress's Design In Creating Title VII's ChargeFiling Period 
Was Based On Fundamental Fairness To Employees And Employers Alike. 
Limitations periods ``promote justice by preventing surprises through 
the revival of claims that have been allowed to slumber until evidence 
has been lost, memories have faded, and witnesses have disappeared.''
    American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974). A 
period of limitation represents a balance between competing interests: 
it ``afford[s] plaintiffs with what the legislature deems a reasonable 
time to present their claims, [while simultaneously] protect[ing] 
defendants and the courts from having to deal with cases in which the 
search for truth may be seriously impaired by the loss of evidence, 
whether by death or disappearance of witnesses, fading memories, 
disappearance of documents, or otherwise.'' United States v. Kubrick, 
444 U.S. 111, 117 (1979).
    The interest in repose is particularly compelling in the employment 
setting. To defeat a claim of discrimination, an employer must be able 
to articulate its rationale for the challenged decision, and to do so 
convincingly. In an employment discrimination case, the employer 
attempts to show at trial that it had good reason for treating the 
plaintiff in the way it did, and the plaintiff tries to show that the 
employer's explanation is unworthy of credence; the jury must decide 
whom to believe. In many, if not most, trials, the testimony devolves 
to a ``he said/she said'' battle of recollections, and the most vivid 
rendition of events usually prevails.
    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. 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]. * * *'' Occidental Life 
Ins. Co. v. EEOC, 432 U.S. 355, 372 (1977) (quoting Congressman 
Erlenborn, 117 Cong. Rec. 31972 (1971)). 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 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 decisionmakers, 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 defendantemployer 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. The American workforce 
currently has a median job tenure of only four years.\4\ This number is 
substantially lower (2.9) for workers between ages 25 and 30, and is 
lower still (1.3) for workers in their early twenties. Id. It also 
varies by job category. For example, employees in ``administrative and 
support services'' and ``accommodation and food services'' have median 
tenures of only 1.9 and 1.6 years respectively. Id. Thus, when an 
employee of even moderate tenure delays in bringing a claim, the 
employer is unlikely to have the necessary witnesses at its disposal to 
defend itself.
    The Ledbetter case is a perfect example. At her trial, Ms. 
Ledbetter challenged every one of her employee evaluations (and 
associated pay increases) back to 1979, when she started at Goodyear. 
Most of her complaints centered on the actions of a single manager; she 
claimed that this man had retaliated against her when she refused to go 
out with him on a date. By the time the case went to trial, however, 
the manager had died of cancer and was unavailable to tell the jury 
that he had never asked Ms. Ledbetter on a date or that he never made a 
biased compensation decision. Goodyear was effectively unable to 
counter Ms. Ledbetter's inperson testimony in front of the jury and, 
not surprisingly, the jury returned a verdict for her. As the Ledbetter 
Court recognized, ``the passage of time may seriously diminish the 
ability of the parties and the factfinder to reconstruct what actually 
happened.'' Op. at 12.
    The fact that an employer may keep some employment records 
documenting decisions affecting pay is of little comfort. First, in 
practice, employers rarely record detailed explanations on paper as to 
why one employee might have received an incrementally lower or higher 
pay increase than his or her coworker. Unlike terminations, which are 
relatively rare and therefore are usually documented thoroughly at the 
time, most employers make compensation decisions about every one of 
their employees every year. The employer can hardly be expected to 
write extended narratives explaining the rationale for every one of 
those decisions for every employee, or record comparisons between and 
among all of the other similarly situated employees--i.e., why Employee 
A got a 3.5% increase and Employee B got 4%.
    Second, even if this kind of documentation existed, the ``story 
line'' of an employment decision cannot be told at trial solely with a 
few pieces of paper. Few defendants are likely to prevail at a trial--
even when the challenged decision was entirely biasfree--by meeting the 
live, detailed, and often emotional testimony of the plaintiff with a 
few words recorded on a document.
    It is important to note that the Equal Employment Opportunity 
Commission requires employers to keep only certain specified employment 
records (including those relating to ``rates of pay or other terms of 
compensation''), and then only requires that the records be kept for 
one year. See 29 C.F.R. Sec.  1602.14. The agency selected one year as 
the appropriate period ``so that there [would be] no possibility that 
an employer or labor organization [would] have legally destroyed its 
employment records before being notified that a charge [had] been 
filed.'' 54 Fed. Reg. 6551 (Feb. 13, 1989) (emphasis added). But when 
an EEOC charge has been filed, the employer is obligated to keep all 
records related to the substance of the charge until the matter has 
been resolved. If Title VII is amended to reverse Ledbetter, employers 
would be obligated to keep these records, not for one year, but in 
perpetuity.
    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. Ms. Ledbetter waited 
nearly 20 years to raise her claims, and by that time there was no real 
chance that Goodyear could defend itself. The Court rightly concluded 
that this sort of delay is unacceptable. That decision should be 
embraced, not reversed.
    2. The Outcome In Ledbetter Was Compelled By A Long Line Of Supreme 
Court Cases. Those criticizing the Ledbetter decision have suggested 
that it is a departure from prior precedent. Nothing could be further 
from the truth. The Supreme Court's cases in this area have always 
emphasized the distinction between decisions and consequences. For 
example, in United Airlines v. Evans, 431 U.S. 553 (1977), the 
plaintiff challenged the downstream, seniorityrelated consequences of 
her discriminatory termination; the Court held that the employer's 
actionable conduct occurred at the time of discharge, not when she felt 
the consequences in her comparative seniority when she was rehired. In 
Delaware State College v. Ricks, 449 U.S. 250, 25254, 258 (1980), the 
plaintiff was a college professor who was informed that he had been 
denied tenure and that, when the coming school year ended, so would his 
employment. Instead of filing a charge when notified of the decision, 
he waited until he was actually terminated before filing a charge of 
discrimination. This, the Court held, was too late.
    Ledbetter is merely a relatively straightforward application of 
this longrecognized distinction. Ms. Ledbetter should have complained 
to the EEOC when she was informed of her evaluation results; waiting 
until her retirement--decades after some of these decisions--was 
unfair.
    The Ledbetter critics have suggested that a special rule should be 
created for pay cases. The distinction they seek to make is a false 
one. Nearly every form of adverse employment action has an impact on 
compensation--denied promotions, demotions, transfers, reassignments, 
tenure decisions, suspensions and other discipline--they all have the 
potential to affect pay. In this case, Ms. Ledbetter complained that 
her low salary could be attributed to low evaluations she received over 
the years. She complained about the consequences of those evaluations 
rather than the evaluations themselves.
    The compensation consequences of any of these otherwise discrete 
employment decisions will appear in an employee's paychecks as long as 
that employee is with the same employer. If there were a separate rule 
of limitations for ``pay'' cases, every Title VII case would become a 
``pay'' case, including those that previously have been characterized 
as denialofpromotion or discipline cases. Employers would, undoubtedly, 
be forced to defend outoftime claims challenging discrete actions 
because those discrete decisions ultimately led to paycheck disparity.
    3. Title VII's ChargeFiling Period Was Intended To Foster 
Conciliation And Resolution; These Goals Become Much Less Attainable As 
Time Passes. Finally, I believe that much of the criticism recently 
leveled at the Ledbetter decision reflects a fundamental 
misunderstanding of the chargefiling process mandated by Title VII and 
the manner in which the process begins. Critics, including Justice 
Ginsburg, have suggested that it is often unfair to expect a worker to 
possess sufficient information to conclude that discrimination has 
occurred in time to meet the statute's filing deadlines. I believe this 
concern is misplaced for several reasons.
    First, one need only look at this case to recognize that the 
concern is vastly overstated.
    Ms. Ledbetter knew every year what her evaluation results were, and 
understood the relationship between those results and her pay--low 
evaluation scores inevitably resulted in low pay increases. She also 
complained to her coworkers at the time that she believed she was being 
treated unfairly. This is not a case, then, where the alleged victim 
was ignorant of her potential claim. She simply failed to do anything 
about it until she had decided to retire.
    Second, the courts have developed a number of special rules that 
can mitigate the impact of the filing deadlines in those few cases in 
which the employer has in some fashion misled the employee into 
allowing the period of limitations to lapse or otherwise prevented the 
employee from gaining access to the administrative process.\5\ In those 
circumstances, strict adherence to the statute's limitations provisions 
would be unfair, but legislative action is unnecessary to achieve 
justice because the law already provides a mechanism for avoiding harsh 
results.
    Third, and most importantly, Ledbetter critics seem to be confusing 
the threshold standard for filing a lawsuit with the much lower 
standard for filing a charge of discrimination. To file a lawsuit in 
federal court, one must attest that, after reasonable inquiry, the 
allegations contained in the complaint ``have evidentiary support.'' 
Fed. R. Civ. P. 11(b)(3). No similar threshold requirement exists for 
filing a charge of discrimination. The charging party need not have 
``evidentiary support'' to go to the agency for help, merely an inkling 
of unfair treatment.\6\
    ``[A] charge of employment discrimination is not the equivalent of 
a complaint initiating a lawsuit. The function of a Title VII charge, 
rather, is to place the EEOC on notice that someone (either a party 
claiming to be aggrieved or a Commissioner) believes that an employer 
has violated the title. The EEOC then undertakes an investigation into 
the complainant's allegations of discrimination. Only if the 
Commission, on the basis of information collected during its 
investigation, determines that there is `reasonable cause' to believe 
that the employer has engaged in an unlawful employment practice, does 
the matter assume the form of an adversary proceeding.'' EEOC v. Shell 
Oil Co., 466 US. 54, 68 (1984).
    That is, the purpose of the charge is to begin the factfinding 
process. Once filed, the charge arms the EEOC with the authority to go 
to the employer and ask for precisely the sort of detailed information 
the Ledbetter critics seem to assume a charging party must have before 
going to the agency. That is simply not the case.
    Once the charging party has shared his or her suspicions with the 
EEOC, and an investigation has commenced, the truth usually comes out. 
The charging party sometimes realizes that her concerns were unfounded. 
The employer sometimes realizes that it (or one of its supervisors) 
made a mistake or even a biased decision. Whatever the facts reveal, 
the parties then sit together with an agent of the EEOC and discuss the 
possibility of compromise--of an arrangement that resolves the 
employee's concerns in a manner acceptable to the employer. That is 
precisely the process Congress envisioned when it enacted Title VII, 
and in the ensuing decades, it has produced remarkable results.
    Only if this Congressionally mandated process of voluntary 
cooperation and conciliation fails to result in an acceptable 
compromise does the case end up in court, and if it does, the 
complainant is then armed with the evidence divulged during the agency 
process to support the much higher pleading standard applicable in 
federal court.
    In order for the conciliation process to work as Congress intended, 
allegations must be presented to an employer in a timely fashion. If 
allowed to fester over years--or decades--instead of being addressed 
when the employee first believes a problem might exist, it is much less 
likely that conciliation will work. As time passes, the parties may 
become more and more entrenched in their positions, potential ``fixes'' 
for the employee's problems become more difficult to arrange, and 
potential damages escalate. Simply put, the process envisioned by 
Congress cannot work if disappointed employees are allowed to wait 
years before filing a charge.
    Every statute of limitations reflects a legislative compromise 
among competing societal goals. Congress has provided a mechanism 
through which employees can raise allegations of bias and have them 
addressed, and it has judged that this process will work best if those 
allegations are raised, and, one hopes, resolved promptly. The system 
works.
    But that system cannot work effectively to eradicate 
discrimination, and employers will not be treated fairly, if Congress 
turns its back on the important societal goal underlying Title VII's 
period of limitations. Accordingly, the Chamber does not support 
proposals that would reverse or limit the decision handed down in 
Ledbettter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. __ (2007).
    Thank you for the opportunity to discuss these important issues 
with the Committee. Please do not hesitate to contact me or the 
Chamber's Labor, Immigration, and Employee Benefits Division if we can 
be of further assistance in this matter.
                                endnotes
    \1\ The views expressed in this paper are my own and those of the 
Chamber and not necessarily those of the Firm.
    \2\ Occidental Life Ins. Co. of California v. E.E.O.C., 432 U.S. 
355 (1977), quoting Alexander v. Gardner Denver Co., 415 U.S. 36 
(1974).
    \3\ See United Airlines, Inc. v. Evans, 431 U.S. 553, 55458 (1977); 
Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980); Lorance v. 
AT&T Tech., Inc., 490 U.S. 900, 912 n.5 (1989) (superseded by statute 
on other grounds).
    \4\ See Employee Tenure Summary, Sept. 8, 2006; U.S. Department of 
Labor, Bureau of Labor Statistics News, www.bls.gov/news.release/
tenure.nr0.htm (last viewed on 6/6/07).
    \5\ See, e.g., Nunnally v. MacCausland, 996 F.2d 1, 4 (1st Cir. 
1993) (``relief from limitations periods through equitable tolling * * 
* remains subject to careful casebycase scrutiny.''); English v. Pabst 
Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987) (equitable tolling may 
apply ``when defendant has wrongfully deceived or misled the plaintiff 
in order to conceal the existence of a cause of action'' and equitable 
estoppel may apply when, ``despite the plaintiff's knowledge of the 
facts, the defendant engages in intentional misconduct to cause the 
plaintiff to miss the filing deadline.'').
    \6\ ``[L]oose pleading'' is permitted before the EEOC.'' Deravin v. 
Kerik, 335 F.3d 195, 202 (2d Cir. 2003); Alvarado v. Bd. of Tr. of 
Montgomery Cmty. Coll., 848 F.2d 457, 460 (4th Cir.1988) (``precise 
pleading is not required for Title VII exhaustion purposes'').
                                 ______
                                 
    Chairman Miller. Thank you.
    Professor Brake?

STATEMENT OF DEBORAH BRAKE, PROFESSOR, UNIVERSITY OF PITTSBURGH 
                         SCHOOL OF LAW

    Ms. Brake. Chairman Miller, Ranking Member McKeon and 
members of the committee, I thank you for the opportunity to 
discuss the problems created by the Ledbetter decision.
    My reasons for urging Congress to overturn this decision 
are detailed in my written testimony, and I will highlight some 
of them in my time before you today.
    First, the court's decision can only exacerbate the gender 
wage gap. By categorizing pay decisions as discrete, the 
court's ruling is blind to the realities of pay discrimination. 
Discriminatory pay decisions are not separate and distinct from 
the paychecks that follow. Left uncorrected, even a relatively 
minor disparity will expand exponentially over the course of a 
career.
    To illustrate, a study by researchers at Carnegie Mellon 
University gives the example of a 22-year-old man earning a 
starting salary of $30,000 and an equally qualified 22-year-old 
woman earning $25,000. Assuming each receives a 3 percent 
annual raise, this $5,000 gap would widen to $15,000 by the 
time the workers reached age 60, with a total pay difference of 
over $360,000 over their employment lives.
    If the man earned 3 percent annual interest on the 
difference, the disparity would total a staggering $568,000, 
enough to fund a secure retirement or a college education for 
several children.
    Under the Ledbetter rule, the young woman in this example 
must bring a Title VII claim within 180 days of when the 
initial discriminatory pay decision was made and communicated. 
Failing that, Title VII provides no legal recourse. As Justice 
Ginsberg recognized, the effect of the court's decision is to 
render such discriminatory pay decisions ``grandfathered, a 
fait accompli beyond the province of Title VII ever to 
repair.''
    The implications of the court's ruling for the gender wage 
gap are stark.
    Second, employees are not likely to be able to challenge 
decisions within the timeframe allowed. It is very difficult to 
know if you have experienced pay discrimination. People rarely 
know what their colleagues earn, much less what raises are 
received at each and every salary review.
    At least with hiring, firing, promotion and demotion 
decisions, the affected employee knows she has experienced an 
adverse action. She can search out an explanation, evaluate it 
for pretext, observe any comments suggestive of bias, and 
easily identify comparators.
    Pay decisions, in contrast, are rarely accompanied by an 
explanation from the employer, comparing salaries. And unlike 
job decisions such as hiring and promotion, where an employee 
can get some picture of how women fare generally in such 
decisions, a typical employee has no way of knowing how women, 
overall, are paid in comparison to men.
    Often, women's pay starts out even with men, but gradually 
and almost imperceptibly, declines over time in relation to 
men's. These women are likely to find their Title VII claims 
foreclosed.
    Even if an employee is aware of a modest discrepancy, a 
relatively minor disparity is likely to go unquestioned for 
some time, until it becomes too large to ignore.
    Women who are subjected to pay discrimination at the time 
they are hired face their own set of difficulties. A new 
employee is unlikely to have the kind of connections necessary 
to find out about pay discrimination or the kind of support and 
established work record it takes to have the courage to 
challenge it.
    Fourth, employers do not need the protection of the 
Ledbetter rule. There are already strong incentives on 
employees not to delay filing.
    First, the employee has the burden of proof. And it is the 
employee who is likely to be disadvantaged by delay. If the 
jury can't figure out what happened because the evidence is 
stale and memories have faded, the employee loses.
    Second, plaintiffs who engage in unreasonable delay in 
filing are barred from doing so by the defense of latches.
    Third, since employees may only recover back pay for a 
maximum of 2 years prior to filing the EEOC charge, they have a 
strong incentive to quickly challenge pay discrimination that 
has gone on for more than 2 years because the employer can keep 
the windfall from any discriminatory pay that falls out of that 
2-year limit.
    Only the employer is in a position to know about and 
evaluate disparities in salaries. But under the court's ruling, 
employers have no incentive to proactively examine pay equity, 
and they get a virtual pass to continue pay discrimination that 
is older than 180 days.
    In the long run, even employers are not well-served by the 
Ledbetter rule. The ruling encourages hypervigilance on the 
part of employees; a formal, adversarial approach to the 
slightest pay discrepancy; and a concerted effort to search out 
information about the salaries and raises of their colleagues--
not a recipe for a collegial workplace or a high level of trust 
between management and employees.
    Until the Ledbetter case, lower courts across the country, 
as well as the EEOC, had allowed employees to challenge 
discriminatory paychecks received within the limitations 
period. I urge Congress to restore the paycheck accrual rule 
that was widely understood to be the correct interpretation of 
Title VII until the Supreme Court just recently opted for a 
different course.
    [The statement of Ms. Brake follows:]

     Prepared Statement of Deborah Brake, Professor, University of 
                        Pittsburgh School of Law

    Chairman Miller, Ranking Member McKeon, and members of the 
Committee, I appreciate the opportunity to come before you today to 
discuss the problems recently created for working women by the Supreme 
Court's decision this Term in Ledbetter v. Goodyear Tire & Rubber Co., 
Inc.\1\ As you know, that decision rejected the so-called pay-check 
accrual rule that has been applied in the lower courts for many years 
and replaced it with a rule requiring an employee to challenge each and 
every discriminatory pay decision within Title VII's short statutory 
limitations period (typically 180 days, or a modestly longer 300 days 
in states with fair employment agencies), or lose forever the ability 
to challenge ongoing pay discrimination that is traceable to an earlier 
decision. The Court's rule is untenable for many reasons and can only 
exacerbate the gender wage gap. My reasons for urging Congress to act 
to overturn this decision and fix the gap it created in our civil 
rights laws are detailed below.
1. Pay Discrimination is Carried Forward and Compounded Over Time; It 
        is Anything But ``Discrete''
    By categorizing discriminatory pay decisions as ``discrete,'' the 
Court's ruling is blind to the realities of how pay discrimination is 
implemented. Discriminatory pay decisions are not separate and distinct 
from the paychecks that follow them. A discriminatory pay decision is 
likely to create a permanent sex-based disparity in pay because annual 
reviews and salary adjustments typically carry forward the prior salary 
as a baseline. Worse still, a discriminatory pay deficit is likely to 
be magnified by future salary adjustments, which typically take the 
form of percentage-based raises. As a result, left uncorrected, even a 
relatively minor initial pay disparity will expand exponentially over 
the course of an employee's career, even if subsequent raises are 
determined in a nondiscriminatory fashion.
    A study by researchers at Carnegie Mellon University shows how a 
discriminatory pay decision can continue to produce an ever-widening 
pay disparity throughout an employee's career.\2\ This study found that 
male students who graduated with a master's degree earned starting 
salaries 7.6% higher than their female counterparts, for an average 
annual salary difference of almost $4,000. To illustrate the long-term 
consequences of gender-based wage disparities that start out at modest 
levels, the study authors give an example of a 22-year old man who 
earns a starting salary of $30,000 and an equally qualified 22-year old 
woman with a starting salary of $25,000. Assuming each receives 
identical 3% annual raises, this pay gap would widen to $15,000 by the 
time these workers reached age 60, with a sum total difference of 
$361,171 over their employment lives. Assuming the man earned 3% annual 
interest on the difference, the disparity would total an even more 
staggering $568, 834.\3\ Such a substantial difference in pay could 
make a tremendous difference in a person's life, amounting to the 
ability to purchase a second home, secure financial stability in 
retirement, or pay for a college education for multiple children. The 
implications of such a pay gap extend into retirement, affecting 
employer pension plans, percentage-based employer contributions to 
retirement savings plans, and even social security.
    Under the rule announced in Ledbetter, the young woman in this 
example must bring any Title VII pay discrimination claim within 180 
days of when the initial discriminatory salary decision was made and 
communicated. Failing that, Title VII will provide no legal recourse 
for the salary discrimination that persists and compounds throughout 
her career. The effect of the Court's decision is, as Justice Ginsburg 
recognized, to render discriminatory pay decisions left unchallenged 
for 180 days ``grandfathered, a fait accompli beyond the province of 
Title VII ever to repair.''\4\
    The implications of the Ledbetter ruling for the gender wage gap 
are stark.\5\ Because of the tremendous difficulties employees face in 
quickly recognizing and challenging pay discrimination, detailed below, 
the Court's decision renders Title VII little more than hollow rhetoric 
when it comes to the law's promise of nondiscrimination in 
compensation. The realities of the workplace and employee compensation 
make it exceedingly unlikely that any discriminatory pay decision will 
be challenged within Title VII's extremely short statutory limitations 
period.
2. The Unrealistic Burden on Employees to Quickly Perceive and 
        Challenge Discriminatory Pay Decisions
    By requiring employees to quickly challenge each and every pay 
decision they suspect is discriminatory, the Ledbetter ruling imposes 
an untenable burden on employees. The Court's decision could not be 
more at odds with the realities of how employees perceive and respond 
to pay discrimination. The Court apparently assumes that employees have 
little difficulty discerning discriminatory pay decisions. In 
actuality, there are many obstacles to perceiving and challenging pay 
discrimination within the short window of time allowed employees by the 
Ledbetter decision.
    Under real-world conditions, it is very difficult for women and 
people of color to recognize when they have experienced 
discrimination.\6\ Various social-psychological hurdles create a 
resistance to seeing oneself as a victim of discrimination, and limited 
access to information and the limits of how people process information 
combine to make it very difficult for employees to quickly perceive 
discrimination.
    While perceiving discrimination is difficult in general, the 
problems are greatly exacerbated for pay discrimination. Employees are 
highly unlikely to have access to the kind of information necessary to 
raise a suspicion of pay discrimination. Employers rarely disclose 
company-wide salary information and workplace norms often discourage 
frank and open conversations among employees about salaries.\7\ As a 
result, employees rarely know what their colleagues earn, much less 
what raises and adjustments are given out to other employees at each 
and every salary review. An employee who learns that she will receive a 
5% raise, for example, will have no reason to suspect pay 
discrimination without knowing at the very least the percentile raises 
others receive and the reasons for any disparities. Indeed, a 
discriminatory pay gap may begin with no change in a female employee's 
pay, but with a decision to increase the pay of a male colleague while 
leaving her pay unchanged for a discriminatory reason.
    As these examples illustrate, unlike discriminatory actions such as 
hiring, firing, promotion or demotion decisions, there is no clearly 
``adverse'' employment event that occurs with a discriminatory pay 
decision. Unless it implements a pay cut, a pay-setting decision is 
unlikely to be experienced as adverse at all, much less suggestive of 
discrimination. Pay discrimination is particularly difficult to 
perceive because it is rarely accompanied by circumstances suggestive 
of bias. At least with discriminatory hiring, firing, promotion or 
demotion decisions, the affected employee immediately knows that she 
has experienced an adverse employment action. She can search out an 
explanation from the employer, evaluate it for pretext, and note any 
comments suggestive of stereotyping or bias. In making sense of the 
employer's explanation, she will have less difficulty identifying 
comparators (the person who got the promotion, the colleagues who were 
not fired, etc.). Pay decisions, in contrast, are rarely accompanied by 
any explanation from the employer comparing other employees' salaries 
or any discernible signs of prejudice. And unlike job decisions with 
respect to hiring, firing, promotion, transfer and demotion, where an 
employee can usually get some picture of how women generally fare in 
such decisions, an employee typically has no way of knowing how women 
overall are paid compared to men. Without aggregate data showing 
comparisons between men and women as a group, it is very difficult to 
perceive discrimination on an individual basis. For all of these 
reasons, pay discrimination is especially difficult to detect.\8\
    Working women whose pay gradually and imperceptibly declines in 
relation to their male colleagues, so as to produce an ever-widening 
gender wage gap over time, are likely to find their Title VII claims 
foreclosed by the Ledbetter rule. Each pay decision typically builds on 
the prior one, and unless corrected, discriminatory pay decisions are 
perpetuated and magnified by subsequent percentage-based adjustments. 
In this way, even if an employee is aware of a modest disparity between 
her pay and that of her colleagues, relatively minor disparities are 
likely to go unquestioned for some time, until the disparity becomes 
too large to ignore. By that time, however, under the Court's ruling, 
the employee will have lost long ago the right to complain under Title 
VII.
    Women who are subjected to pay discrimination in their starting 
salary at the time they are first hired face their own set of problems 
under the Court's ruling.\9\ An employee is especially unlikely to be 
in a position to perceive and challenge pay discrimination soon after 
she is hired. As Justice Ginsburg recognized in her dissent, case law 
demonstrates that it is not unusual for employees to work for an 
employer for quite some time before learning of a gender disparity in 
pay.\10\ New employees are unlikely to have the kinds of informal 
networks and connections necessary to find out information that would 
lead them to suspect pay discrimination. And even if they suspect pay 
discrimination, new employees are in a particularly precarious position 
when it comes to challenging it. A new employee is especially 
vulnerable to retaliation, the foremost concern of any employee who is 
considering whether to challenge perceived discrimination, and the 
number one reason for choosing not to do so.\11\ Without the benefit of 
an established work record, a recently hired employee will have little 
to fall back on if called upon to prove that an adverse action resulted 
from retaliation as opposed to job performance.\12\ And with less of an 
opportunity to develop strong connections and support from colleagues 
and supervisors in the workplace, a new employee may be less willing to 
risk retaliation by challenging a discriminatory pay decision.\13\ Yet, 
as illustrated in the example of the male and female workers discussed 
in the first section, pay discrimination that begins in a starting 
salary may follow a woman throughout her career, adding up to a 
tremendous discrimination-deficit over the course of her working life 
and even following her into retirement.
    In light of these realities, the Court's rule seems calculated to 
immunize employers from Title VII liability for any discrimination in 
pay.
3. The Catch 22 of When to Complain: Complain Immediately--But Not Too 
        Soon!
    One of the more troublesome aspects of the Court's ruling in 
Ledbetter is the dilemma it creates for employees who face pressures at 
both ends of the clock in timing a Title VII challenge to suspected pay 
discrimination. Under the Court's ruling, an employee must quickly 
complain of suspected pay discrimination within 180 days of when the 
discriminatory decision was made and communicated, or lose forever the 
right to challenge the resulting pay discrimination. However, in a 
cruel Catch-22, an employee who complains to her employer too soon, 
without an adequate factual and legal foundation for doing so, could 
find herself in an even worse position. If the employee quickly brings 
the suspected pay discrimination to the attention of her employer, and 
in the unfortunate event that the employer responds with retaliation, 
the employee could find herself out of a job and with no legal 
recourse.
    Under prior Supreme Court precedent, an employee who opposes what 
she believes to be unlawful discrimination is protected from 
retaliation only if she had a ``reasonable belief'' that the practice 
she opposed in fact violates Title VII. The Court adopted this standard 
in a 2001 decision, Clark County School District v. Breeden.\14\ In 
that case, the plaintiff, a female employee, was present in a meeting 
when her male coworker and male supervisor exchanged a laugh over a 
sexual reference. Soon after the meeting, the plaintiff complained to a 
supervisor that the sexual remark was offensive and sexually harassing. 
She was subsequently assigned to less desirable job duties and relieved 
of her supervisory responsibilities.
    The plaintiff in Breeden sued under Title VII, alleging that she 
was retaliated against for opposing sexually offensive conduct that 
contributed to a hostile environment. The Supreme Court rejected her 
retaliation claim, ruling that even if she had experienced retaliation 
in response to her complaint, no reasonable employee could have 
believed that the brief and isolated sexual dialogue that occurred 
would in itself, without more, create a hostile environment in 
violation of Title VII. In effect, she complained too soon, well before 
enough sexually offensive incidents had accumulated so as to lead a 
reasonable person to perceive a hostile environment. This standard 
leaves employees unprotected from retaliation if they oppose an 
employment practice too soon, without a reasonable basis for believing 
that the challenged conduct actually violates Title VII. Lower courts 
have applied this standard harshly, leaving plaintiffs unprotected for 
acting on their subjective beliefs that certain employer conduct is 
discriminatory without sufficient factual and legal support for proving 
an actual violation of Title VII under existing case law.\15\
    The dilemma for pay discrimination claimants is poignant: it may 
take a pattern of substantial pay disparities and time to investigate 
the relevant facts in order to establish a legally sufficient inference 
that the gap in pay is attributable to gender bias, rather than to some 
legitimate nondiscriminatory reason such as performance or 
experience.\16\ An employee who complains to her employer at the first 
sign of a pay gap may lack an adequate foundation for a ``reasonable 
belief'' that the gap is attributable to gender discrimination, thus 
leaving her vulnerable to and unprotected from any retaliation she 
might experience in response to her complaint. The Breeden standard 
thus creates serious legal risks for an employee who complains too 
soon. But on the other hand, if the employee waits more than 180 days 
after she first suspects an initial discriminatory pay decision, so as 
to be sure that she has an adequate legal and factual basis for 
alleging pay discrimination, she loses her ability to challenge the 
continuing discrimination in pay under Title VII, even if the 
discriminatory pay gap continues to suppress her pay and increases over 
time. Thus, Ledbetter punishes an employee for waiting too long to 
challenge pay discrimination.
    The only way out of this dilemma is for the employee to immediately 
file a formal Title VII charge at her very first suspicion of pay 
discrimination, without saying a word to her employer or anyone else in 
the workplace. This would solve the gap in Title VII's protection from 
retaliation because Breeden's reasonable belief standard applies only 
to forms of employee ``opposition'' to discrimination that fall short 
of participating in the formal EEOC charge-filing process.\17\ Filing a 
formal EEOC charge triggers full protection from retaliation without 
regard to the reasonableness of the employee's belief in an underlying 
Title VII violation.
    Of course, most employees would prefer to informally challenge or 
question suspected discrimination--such as, by complaining to 
management about a pay disparity or filing an internal grievance--well 
before resorting to the filing an official EEOC charge. And for good 
reason: it is not in anyone's best interests, employees or employers, 
for employees to jump the gun too quickly and invoke the formal 
machinery of Title VII if the perceived problems result from a 
misunderstanding or could be resolved informally and in a conciliatory 
fashion. Nor is such a trigger-happy response good for the EEOC, which 
already faces a severe backlog of claims. One of the stranger results 
of the Ledbetter-Breeden dilemma is to encourage employees to avoid 
precisely the kind of informal, conciliatory resolution of disputes 
that the majority in Ledbetter insists that Title VII promotes.
4. Employers Do Not Need the Protection of the Ledbetter Rule and Are 
        Not Well-Served by the Court's Decision
    The Court's opinion reflects an emphasis on protecting ``innocent'' 
employers--that is, employers who unknowingly continue to give effect 
to biased salary recommendations from long ago--from stale claims. The 
Court's concerns are overblown and misplaced. Employers who comply with 
Title VII are not well-served by the Ledbetter rule.
    The concern that an employee will consciously wait to bring a pay 
discrimination claim until witnesses leave and memories fade ignores 
the strong disincentives on Title VII plaintiffs not to delay in 
filing. First and foremost, it is the employee, not the employer, who 
is likely to be disadvantaged by excessive delay in suing. Title VII 
places the burden of proof on the plaintiff to demonstrate intentional 
discrimination by proving that the pay disparity was motivated by the 
plaintiff's gender. This is a difficult standard to meet under the best 
of circumstances.\18\ Delay that renders evidence ``stale'' and the 
facts difficult to uncover works to the disadvantage of the plaintiff, 
who bears the burden of convincing the jury that her account of what 
happened is the more likely one. If the jury is not convinced that an 
ongoing disparity in pay is traceable to intentional discrimination, 
the plaintiff loses.
    Second, the ability of courts to apply equitable principles to bar 
plaintiffs from suing if they have engaged in unreasonable delay 
strongly encourages plaintiffs to file Title VII claims promptly. As 
the Supreme Court has recognized, plaintiffs who unreasonably delay 
filing a Title VII claim may be barred from ever doing so by the 
defense of laches.\19\ Lower courts have applied the defense of laches 
to cut off plaintiffs' right to sue where the employee has delayed 
unreasonably in filing her claim, with prejudice to the employer, even 
if the employee has met the filing requirements for Title VII.\20\
    A third reason why plaintiffs are best-served by filing as soon as 
they know they have a claim is that the statute includes an explicit 
two year limitation on back pay. Title VII limits employees to a 
maximum of two years' back pay from the date the charge was filed.\21\ 
This provision encourages employees to file an EEOC charge as soon as 
they find out that they have been subjected to pay discrimination that 
has gone on for more than two years, since the employer can keep any 
discrepancy in back pay that falls outside of that two-year limit. The 
two year back pay limitation also protects employers from excess 
liability by setting a two year cap on back pay, regardless of how long 
the pay discrimination has gone on.
    In fact, the two-year back pay limit itself suggests that when it 
enacted Title VII, Congress intended to allow employees to challenge 
pay discrimination resulting from discriminatory decisions older than 
180 days. Under the Court's interpretation in Ledbetter, the two-year 
back pay limit makes no sense because the plaintiff can only recover 
back pay under that decision for the 180 days prior to filing the 
charge. Under this rule, it is difficult to imagine how the two-year 
back pay limit would ever come into play. Unfortunately, some lower 
courts, in addition to the majority in Ledbetter, seem to have 
forgotten that the two-year back provision exists, and have effectively 
read it out of existence. That is why it is important for Congress to 
reiterate that pay discrimination claimants can recover up to two 
years' back pay for pay discrimination that began before and extends 
into the limitations period
    Finally, the concern with employer ``innocence'' in cases where an 
employee continues to receive a truncated paycheck because of her sex 
is itself misplaced. Only the employer is in a position to know and 
evaluate the fairness of salaries across the workforce. Employers, much 
more so than employees, can identify gender gaps in pay and evaluate 
whether they are justified. An employer who continues to pay a woman 
less for her work is not ``innocent'' even if the discriminatory 
decision that started the pay gap was made long ago. In Lilly 
Ledbetter's case, for instance, Goodyear had plenty of reason to be 
concerned about its potential Title VII liability, given that the only 
female manager in the plant earned substantially less than each and 
every one of the fifteen male managers.
    Unfortunately, the Court's ruling offers absolutely no 
encouragement to employers to proactively evaluate employee wages and 
ensure pay equity in the workplace. Instead, the rule adopted by the 
Court leaves victims of pay discrimination out in the cold, while 
employers--who are in the best position to find out about and correct 
pay discrimination--get an effective license to continue any pay 
discrimination that is more than 180 days old. Far from being 
``innocent,'' such employers are enriched at the employee's expense.
    Employers would be hard-pressed to complain that overturning the 
Ledbetter ruling would place excessive burdens on employers, since 
employers have lived with the paycheck accrual rule until this very 
decision. Until the Ledbetter case, lower courts across the country had 
allowed plaintiffs to challenge discriminatory paychecks received 
within the limitations period, regardless of when the discriminatory 
pay decision was first made.\22\ Likewise, the EEOC, the federal agency 
charged with enforcing Title VII, has interpreted and applied Title VII 
to permit an employee to challenge continuing pay discrimination as 
long as one paycheck that pays the employee less because of sex falls 
within the limitations period.\23\ Overturning the Court's ruling in 
Ledbetter would simply restore the paycheck accrual rule that was 
widely understood to be the correct interpretation of Title VII until 
the Supreme Court decided to take a different course.
    Even though the Court's opinion is ``employer-friendly'' to the 
extreme, it is not clear that in the long run employers are well-served 
by the rule adopted in Ledbetter. As explained above, the Court's 
ruling creates a strong incentive for employees to file charges with 
the EEOC at the very first suspicion of a discriminatory pay decision, 
and not wait for further clarification or subsequent explanations that 
might dispel such suspicion. The incentive is for hyper-vigilance on 
the part of employees and a formal, adversarial approach to the 
slightest pay discrepancy or disappointment. There is also an incentive 
on employees to ferret out whatever information they can about their 
colleagues' pay, in order to make sure they do not lose their right to 
challenge pay discrimination in the future. These incentives are not 
likely to promote a collegial workplace, nor a high level of trust and 
conciliatory relations between management and employees.\24\ 
Enlightened employers who care about employee morale and management-
employee relations should not be too quick to celebrate the Court's 
decision.
5. The Implications of the Decision for Victims of Pay Discrimination
    Women who are affected by pay discrimination that is more than 180 
days old can take some comfort in the existence of the Equal Pay Act of 
1963,\25\ which may enable them to challenge some forms of pay 
discrimination under a different tolling rule than the Court adopted in 
Ledbetter for Title VII claims. The Equal Pay Act requires employers to 
pay men and women equally if they do substantially the same job, with 
possible defenses for pay disparities resulting from merit-based 
systems, seniority systems or any factor other than sex. The Equal Pay 
Act is not governed by the tolling rule adopted for Title VII pay 
claims in Ledbetter. A plaintiff may challenge an ongoing violation of 
the Equal Pay Act at any time and seek recovery for the prior two years 
of discrimination--three years, if the violation is ``willful.''
    However, the existence of an alternative statutory remedy for some 
instances of gender inequality in pay does not begin to solve the 
problems created by the Ledbetter ruling. First, as Justice Ginsburg 
observed in her dissent, the Equal Pay Act offers no help to other 
protected classes covered by Title VII. The Equal Pay Act covers only 
certain specified instances of pay inequality between men and women. 
Victims of pay discrimination on the basis of race, color, national 
origin and religion are left with Title VII, and they are stuck with 
the Court's untenable filing rule for their pay discrimination claims. 
The inequity is apparent: in workplaces where there is a man in a 
similar job performing similar work, a woman can challenge ongoing pay 
discrimination under the Equal Pay Act at any time, and recover for the 
prior two (and possibly three) years of discrimination. However, 
victims of other forms of pay discrimination covered by Title VII have 
no recourse if their claims are more than 180 days old. It is hard to 
conceive of a rational explanation for this kind of inequity.
    Women of color, in particular, who already have considerable 
difficulty carving up their claims to sort out the ``race'' elements 
from the ``sex'' elements, will have a particularly tough road to 
navigate, given the very different approach to filing now taken by 
Title VII and the Equal Pay Act. For example, an African American woman 
might bring a timely Equal Pay Act claim based on the higher salary of 
a male colleague who does similar work. However, if the difference in 
pay turns out to be attributable to her race rather than her sex, and 
the discriminatory decision behind the disparity was older than 180 
days, any Title VII claim she might have would be time-barred. Our 
civil rights laws should not leave such gaps in protecting all workers 
from the pay discrimination that Congress has sought to prohibit.
    Second, the existence of the Equal Pay Act does not even solve the 
problems Ledbetter creates for women who are harmed by pay 
discrimination on the basis of sex. Not all sex discrimination in pay 
that violates Title VII also violates the Equal Pay Act.\26\
    The Equal Pay Act is limited to cases where the plaintiff can point 
to a comparator of the opposite sex who does the same work in the same 
job for more money. That standard has been construed harshly, in ways 
that make it difficult for plaintiffs to identify comparators.\27\ 
Title VII is broader than the Equal Pay Act because it reaches all 
claims of intentional pay discrimination, regardless of whether there 
is an opposite-sex comparator in the workplace who earns more money 
than the plaintiff for doing the same job. For example, a woman who 
holds a unique job, or a job that is not equivalent to any job 
performed in that workplace by a higher-earning man, will have no claim 
under the Equal Pay Act. However, such an employee might nevertheless 
prove that her salary is negatively affected by gender bias--perhaps, 
for example, because it is based on discriminatory and biased 
evaluations of her work performance. Hence, some instances of pay 
discrimination will violate Title VII but not the Equal Pay Act. In 
addition, the Equal Pay Act offers more limited remedies for pay 
discrimination than Title VII, permitting liquidated (fixed and 
limited) damages and back pay, but not compensatory or punitive 
damages.
    The unfortunate consequence of the Court's ruling in Ledbetter is 
to effectively nullify Title VII's broader reach by imposing a harsh 
and unrealistic filing deadline, leaving women who experience sex 
discrimination in compensation only the protection of the narrower 
Equal Pay Act. This is an odd result, given that Title VII was enacted 
one year after the Equal Pay Act and was intended to broaden the 
protection from sex discrimination then available under existing law.
6. Lorance Revisited
    In 1991, Congress enacted legislation to overturn and correct a 
spate of Supreme Court decisions that had adopted stingy readings and 
narrow interpretations of Title VII and other civil rights statutes. 
One of the decisions overturned by the 1991 Act, Lorance v. AT&T 
Technologies, Inc.,\28\ took a near-identical approach to Ledbetter in 
construing Title VII's filing requirements to bar challenges to the 
application of an intentionally discriminatory seniority system within 
the limitations period when the seniority system was first adopted 
outside the limitations period.
    In that case, the Court required employees to challenge a 
discriminatory seniority system soon after it was first adopted, and 
ruled that employees could not wait to file a discrimination charge 
until the seniority system was applied to them. In reasoning virtually 
identical to that used by the majority in Ledbetter, the Court in 
Lorance reasoned that the unlawful employment practice occurs, for 
purposes of triggering Title VII's timely filing requirements, when the 
discriminatory decision was first made and not when its effects are 
felt by employees.\29\
    Overturning Lorance in the Civil Rights Act of 1991, Congress 
railed against the injustice of barring employees from challenging 
discrimination that was perpetuated and given effect within the 
limitations period each time the previously adopted system was applied 
and implemented to disadvantage a female employee. In response to the 
Lorance ruling, Congress passed an amendment to Title VII clarifying 
that:
    For purposes of [Title VII's timely filing requirements], an 
unlawful employment practice occurs, with respect to a seniority system 
that has been adopted for an intentionally discriminatory purpose in 
violation of this title (whether or not that discriminatory purpose is 
apparent on the face of the seniority provision), when the seniority 
system is adopted, when an individual becomes subject to the seniority 
system, or when a person aggrieved is injured by the application of the 
seniority system or provision of the system.\30\
    Although the specific language overturning Lorance was directed to 
the filing requirements for challenging seniority systems, Congress 
expressed its disapproval of the Court's decision in more general 
terms. In enacting this provision, Congress clearly stated its 
intention to ensure that the reasoning of Lorance would never again bar 
employees from challenging ongoing practices that perpetuate 
discrimination.\31\ Indeed, in explaining this provision, Congress even 
explicitly endorsed the very paycheck accrual rule rejected by the 
Court in Ledbetter. As the Senate Report accompanying the proposed 
Civil Rights Act of 1990, the precursor to the 1991 Act, carefully 
explained:
    [T]he provision concerns employer rules and decisions of on-going 
application which were adopted with an invidious motive. Where, as 
alleged in Lorance, an employer adopts a rule or decision with an 
unlawful discriminatory motive, each application of that rule or 
decision is a new violation of the law. In Bazemore * * *, for example, 
* * * the Supreme Court properly held that each application of that 
racially motivated salary structure, i.e., each new paycheck, 
constituted a distinct violation of Title VII. Section 7(a)(2) 
generalizes the result correctly reached in Bazemore.\32\
    Remarkably, the Court in Ledbetter not only flouted Congress' 
intention to reject the kind of reasoning relied on in Lorance, but it 
even cited Lorance with approval in support of its decision in 
Ledbetter. As Justice Ginsburg pointed out in her dissent in Ledbetter, 
until now, the Court has ``not once relied upon Lorance'' in the ``more 
than 15 years'' since Congress passed the 1991 Act, and ``[i]t is 
mistaken to do so now.'' \33\ The Ledbetter majority's failure to learn 
the lessons of the 1991 Act suggests a need for Congress to revisit the 
teachings of the 1991 Act and restore the paycheck accrual rule, 
permitting employees to challenge pay discrimination that extends into 
the filing period regardless of when it first began.
    Congress should correct this stingy decision and give employees a 
fair chance at challenging unlawful pay discrimination. As Congress 
previously recognized in passing the 1991 Act, the paramount goals of 
Title VII are to prevent discrimination and provide make-whole relief 
to the individuals harmed by it--not to protect employers from 
``stale'' challenges to ongoing discrimination.
7. Congress Should Act to End the Inequity in our Civil Rights Laws 
        that Bars Women from Fully Recovering Damages for Intentional 
        Discrimination
    In her dissenting opinion in Ledbetter, Justice Ginsburg noted the 
problem that arises from the non-uniformity of our civil rights laws in 
providing different coverage for sex discrimination in pay for women 
under the Equal Pay Act than for other kinds of pay discrimination 
covered by Title VII.\34\ As she explained, although women may be able 
to seek redress under the Equal Pay Act for sex discrimination in pay, 
and avoid the Court's harsh rule in Ledbetter, victims of other forms 
of pay discrimination covered by Title VII will not.
    There is another kind of inequity resulting from the non-uniformity 
of our Nation's civil rights laws that is blatantly apparent from the 
Ledbetter case. Because the discrimination in Ledbetter involved a 
claim for sex discrimination under Title VII, the plaintiff's recovery 
of damages was capped by the statutory limit of $300,000 for combined 
compensatory and punitive damages, applicable to large employers such 
as Goodyear.\35\ As a result, the plaintiff's jury award of over $3.5 
million, reflecting the jury's decision to award punitive damages to 
punish Goodyear for its gross misconduct, was reduced to $360,000, the 
maximum allowable combined compensatory and punitive damages plus an 
award of $60,000 back pay.
    As a case challenging sex discrimination in pay, no federal 
employment statute would have allowed the plaintiff in this case full 
recovery. As noted above, the Equal Pay Act does not permit 
compensatory or punitive damages at all. In contrast, claims for pay 
discrimination on the basis of race might fall within Section 1981's 
prohibition on race discrimination in the making of contracts 
(including employment contracts), which does not have a statutory cap 
on damages. This inequity in remedies for the kinds of employment 
discrimination Congress has judged to be intolerable is not justified 
by any principle of fairness or justice.
    Congress should lift the statutory cap on damages in Title VII so 
as to permit plaintiffs full recovery for intentional employment 
discrimination and impose sufficient incentives on employers to deter 
discrimination in the first place.
                                endnotes
    \1\ Slip Opinion, No. 05-1074 (May 29, 2007).
    \2\ See Linda Babcock & Sara Laschever, WOMEN DON'T ASK: 
NEGOTIATION AND THE GENDER DIVIDE 1(2003).
    \3\ Id. at 1-5. See also Virginia Valian, WHY SO SLOW?: THE 
ADVANCEMENT OF WOMEN 3 (1998) (``Very small differences in treatment 
can, as they pile up, result in large disparities in salary, promotion, 
and prestige. '').
    \4\ Slip Opinion at 2 (Ginsburg, J., dissenting).
    \5\ Although researchers disagree about the size and causes of the 
gender-wage gap in the United States, there is broad agreement that a 
significant gender wage gap exists. See, e.g., Bureau of Labor 
Statistics, U.S. Dep't of Labor, HIGHLIGHTS OF WOMEN'S EARNINGS IN 
2003, at 29 tbl. 12, 31 tbl. 14 (Sept. 2004) (reporting that women's 
median weekly earnings were 79.5% of men's in 2003, but only 73.6% for 
college graduates); Michael Selmi, Family Leave and the Gender Wage 
Gap, 78 N.C. L. Rev. 707, 715 (2000) (explaining that, although the 
gender wage gap today is narrower than it was in the 1970s, the bulk of 
the change occurred during the 1980s, with little additional progress 
since 1990); Daniel H. Weinberg, U.S. Dep't of Commerce, Census 2000 
Special Reports, EVIDENCE FROM CENSUS 2000 ABOUT EARNINGS BY DETAILED 
OCCUPATION FOR MEN AND WOMEN 7 (May 2004) (documenting a gender wage 
gap at every level of earnings); Francine D. Blau et al., THE ECONOMICS 
OF WOMEN, MEN, AND WORK 150 (5th ed. 2006) (explaining that ``women 
earn less than men in all age categories,'' and the ratio of women's 
earnings to men's decreases as they age). Although there is no 
consensus about the cause of this gap, wage discrimination is at least 
partly to blame. See Selmi, supra, at 719-43 (reviewing data showing 
that nondiscriminatory reasons, even in the aggregate, do not explain 
the gender wage gap); U.S. Gen. Acct. Office, WOMEN'S EARNINGS: WORK 
PATTERNS PARTIALLY EXPLAIN DIFFERENCE BETWEEN MEN'S AND WOMEN'S 
EARNINGS, GAO-04-35 at 2 (Oct. 2003) (women in 2000 earned only 80% of 
what men earned even after accounting for differing work patterns and 
other ``key factors ''); Council of Econ. Advisers, EXPLAINING TRENDS 
IN THE GENDER WAGE GAP 11 (1998) (concluding that women do not earn 
equal pay even when controlling for occupation, age, experience, and 
education); Michelle J. Budig, Male Advantage and the Gender 
Composition of Jobs: Who Rides the Glass Escalator, 49 Soc. Prob. 258, 
269-70 (2002) (explaining that men are advantaged, net of control 
factors, in both pay levels and wage growth regardless of the gender 
composition of jobs).
    \6\ See Deborah L. Brake, Perceiving Subtle Sexism: Mapping the 
Social-Psychological Forces and Legal Narratives that Obscure Gender 
Bias, 16 Columbia J. of Gender & Law (forthcoming 2007) (on file with 
author) (summarizing social psychology research documenting the 
extensive barriers women and people of color face in perceiving 
discrimination). See also Deborah L. Brake, Retaliation, 90 Minn. L. 
Rev. 18, 25-28 (2005) (discussing social science research documenting a 
``minimization bias'' in which targets of discrimination resist 
perceiving and acknowledging it as such, even when they experience 
behavior that objectively qualifies as discrimination).
    \7\ See Leonard Bierman & Rafael Gely, Love, Sex and Politics? 
Sure. Salary? No Way: Workplace Social Norms and the Law, 25 Berkeley 
J. Emp. & Labor L. 167, 168, 171 (2004) (noting that one-third of U.S. 
private sector employers have policies prohibiting employees from 
discussing salaries and that many more communicate informally an 
expectation of confidentiality with respect to employee salaries).
    \8\ See Brenda Major & Cheryl R. Kaiser, Perceiving and Claiming 
Discrimination, in THE HANDBOOK OF RESEARCH ON EMPLOYMENT 
DISCRIMINATION: RIGHTS AND REALITIES 279, 289-90 (Laura Beth Nielsen & 
Robert L. Nelson, eds., 2005) (discussing research showing that people 
are better able to perceive discrimination when it is accompanied by 
overt indicators of prejudice); Cheryl R. Kaiser & Brenda Major, A 
Social Psychological Perspective on Perceiving and Reporting 
Discrimination, 31 Law & Social Inquiry 801, 805 (2006) (discussing the 
difficulty of perceiving discrimination on a individual, case-by-case 
basis).
    \9\ The time of hiring is a common departure point for salary 
discrimination. See, e.g., Barry Gerhart, Gender Discrimination in 
Current and Starting Salaries: The Role of Performance, College Major 
and Job Title, 43 Indus. & Lab. Rel. Rev. 418, 427 (1990) (``even with 
a comprehensive group of control variables, the analysis shows that 
women had significantly lower starting and current salaries than men 
''); Kostas G. Mavromaras & Helmut Rudolph, Wage Discrimination in the 
Reemployment Process, 32 J. of Hum. Resources 812, 813-14 (1997) 
(explaining that supervisors often have more discretion in setting a 
starting salary than they do in later salary reviews). The use of an 
employee's prior salary to set entry level salary with a new employer 
can also usher in pay discrimination at the time of hiring. Cf. Jeanne 
M. Hamburg, Note, When Prior Pay Isn't Equal Pay: A Proposed Standard 
for the Identification of ``Factors Other Than Sex'' Under the Equal 
Pay Act, 89 Colum. L. Rev. 1085, 1108 (1989) (contending that employers 
should have the burden of justifying use of prior salary when it 
results in unequal pay).
    \10\ Slip Opinion at 8 (Ginsburg, J., dissenting); see also 
Mavromaras & Rudolph, supra note 9, at 813-14 (explaining that job 
announcements typically indicate a broad salary range rather than a 
specific salary, so that new employees are unlikely to know if they are 
paid less than other entry-level hires).
    \11\ See Brake, Retaliation, supra note 6, at 28-37; Joanna L. 
Grossman, The Culture of Compliance: The Final Triumph of Form Over 
Substance in Sexual Harassment Law, 26 Harv. Women's L. J. 3, 25-26 
(2003) (discussing research showing that, even in the harassment 
context, where discrimination is more obvious and blatant, filing a 
complaint is a last resort, after other strategies have failed).
    \12\ Cf. 2 Arthur Larson, Employment Discrimination Sec.  35.01, at 
35-3 (2d ed. 2006) (explaining that a defendant may rebut a prima facie 
case of retaliation by offering a nondiscriminatory reason for its 
action, shifting the burden back to the plaintiff to prove that the 
proffered reason was pretextual).
    \13\ See Major & Kaiser, supra note 8, at 295-96 (discussing the 
importance of social support as a factor influencing the decision to 
report discrimination); see also Brake, Retaliation, supra note 6, at 
39-40 (citing research showing that persons relatively lower in an 
organizational hierarchy are particularly vulnerable to retaliation).
    \14\ 532 U.S. 268 (2001).
    \15\ For a sampling and critique of some of the lower court rulings 
applying this standard, see Brake, Retaliation, supra note 6, at 82-
102.
    \16\ See Slip Opinion at 8 (Ginsburg., J., dissenting) (``Even if 
an employee suspects that the reason for a comparatively low raise is 
not performance, but sex (or another protected ground), the amount 
involved may seem too small, or the employer's intent too ambiguous, to 
make the issue immediately actionable--or winnable. ''); see also 
Bierman & Gely, supra note 7, at 178 (``Employees observe wage 
differentials without the full information necessary to evaluate the 
justifications for differing wages. '').
    \17\ Two distinct clauses in Title VII extend protection from 
retaliation to persons who complain of discrimination, depending on 
what form their challenge takes. Retaliation against an employee for 
filing a charge with the EEOC or a complaint in court falls under Title 
VII's ``participation clause,'' which protects against retaliation 
because an employee ``has made a charge, testified, assisted, or 
participated in any manner in an investigation, proceeding, or hearing 
under [Title VII].'' 42 U.S.C. Sec.  2000e-3(a) (2000). A different 
clause, known as the ``opposition clause,'' makes it unlawful to 
retaliate against an employee ``because [the employee] has opposed any 
practice made an unlawful employment practice by [Title VII].'' Id. 
This clause extends protection to employees who complain of 
discrimination informally, short of invoking the formal legal machinery 
of Title VII. Protection under the opposition clause is essential to 
promote Title VII's policies favoring the early and informal resolution 
of dispute, and because charges of discrimination rarely reach the EEOC 
or a court without some higher level person first learning of the 
employee's grievance. However, only the participation clause offers 
full protection from retaliation regardless of the merits of the 
underlying discrimination charge. The opposition clause protects 
employees from retaliation for challenging discrimination only if they 
have a reasonable belief that the employment practice they opposed 
actually violated Title VII. For a more thorough discussion of the 
interaction of these two clauses, see Brake, Retaliation, supra note 6, 
at 76-82.
    \18\ See, e.g., Michael Selmi, Why Are Employment Discrimination 
Cases So Hard to Win?, 61 La. L. Rev. 555 (2001) (examining lower court 
decisions in employment discrimination cases and insurance cases and 
finding that plaintiffs fare much worse in employment discrimination 
cases).
    \19\ See National RR Pass. Corp. v. Morgan, 536 U.S. 101, 121 
(2002) (``In addition to other equitable defenses, therefore, an 
employer may raise a laches defense, which bars a plaintiff from 
maintaining a suit if he unreasonably delays in filing a suit and as a 
result harms the defendant. '').
    \20\ See, e.g., Smith v. Caterpillar, Inc., 338 F.3d 730 (7th Cir. 
2003) (applying defense of laches to bar plaintiff's Title VII claim 
where plaintiff engaged in inexcusable delay in pursuing state 
employment process for eight and a half years before terminating state 
process and filing with the EEOC).
    \21\ 42 U.S.C. Sec.  2000e-5(g)(1) (2000) (``Back pay liability 
shall not accrue from a date more than two years prior to the filing of 
a charge with the Commission. '').
    \22\ See, e.g., Forsythe v. Fed'n Empl. & Guidance Serv., 409 F.3d 
565 (2d Cir. 2005); Cardenas v. Massey, 269 F.3d 251 (3d Cir. 2001); 
Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336 (4th Cir. 1994); 
Merrill v. S. Methodist Univ., 806 F.2d 600 (5th Cir. 1986); Ashley v. 
Boyle's Famous Corned Beef Co., 66 F.3d 164 (8th Cir. 1995) (en banc); 
Gibbs v. Pierce County Law Enforcement Support Agency, 785 F.2d 1396 
(9th Cir. 1986); Goodwin v. GMC, 275 F.3d 1005 (10th Cir. 2002); Shea 
v. Rice, 409 F.3d 448 (D.C. Cir. 2005); Anderson v. Zubieta, 180 F.3d 
329 (D.C. Cir. 1999).
    \23\ 2 EEOC Compliance Manual Sec. 2-IV-C(1)(a), p. 605:0024, and 
n. 183 (2006). See also Slip Opinion at 14-15 (Ginsburg, J., 
dissenting) (citing EEOC administrative rulings and litigation 
positions permitting employees to challenge any discriminatory 
paychecks received within the limitations period).
    \24\ See, e.g., Bierman & Gely, supra note 7, at 177-78 (noting 
that employee efforts to find out their colleagues' salaries tend to 
generate conflict among employees and undermine workplace morale).
    \25\ 29 U.S.C. Sec.  206(d)(1).
    \26\ See County of Washington v. Gunther, 452 U.S. 161 (1981) (in 
Title VII suit by women hired to guard female prisoners, challenging 
county's practice of paying them less than men hired to guard male 
prisoners, plaintiffs could proceed with their suit even though 
differences in jobs foreclosed a violation of the Equal Pay Act since 
they alleged intentional discrimination in the setting of salaries).
    \27\ See Katharine T. Bartlett & Deborah L. Rhode, GENDER AND LAW: 
THEORY, DOCTRINE, AND COMMENTARY 50 (4th ed. 2006) (``Successful Equal 
Pay Act cases, however, are relatively rare, particularly in cases 
involving upper-level employees. The main problem with administrative 
and executive positions is the difficulty of finding a close enough 
comparison employee. '').
    \28\ 490 U.S. 900 (1989).
    \29\ Id. at 908-09.
    \30\ 42 U.S.C. Sec.  2000e-5(e)(2) (2000).
    \31\ See 137 Cong. Rec. S15483, S15485 (daily ed. Oct. 30, 1991) 
(interpretive memorandum of Sen. Danforth) (``This legislation should 
be interpreted as disapproving the extension of this decision rule [in 
Lorance] to contexts outside of seniority systems. '').
    \32\ Civil Rights Act of 1990, S. Rep. No. 101-315, at 54 (1990).
    \33\ Slip Opinion at 12 (Ginsburg, J., dissenting).
    \34\ Id. at 16-17.
    \35\ The limit for smaller employers is even lower, set at $50,000 
for employers with 15-100 employees, $100,000 for employers with 101-
200 employees, $200,000 for employers with between 200 and 500 
employees, and $300,000 for all employers with more than 500 employees.
                                 ______
                                 
    Chairman Miller. Thank you very much.
    And thank you all for your testimony.
    Mr. Mollen, so your theory is that workers sit back and 
they calculate this and they calculate the level of 
discrimination, and then at some point they make a decision to 
strike and file a suit?
    Mr. Mollen. Well, I think, Mr. Chairman, that there are 
certainly some that do. I think that most do not.
    I think, though, that the lesson to take from Ledbetter is 
that the process Congress devised works reasonably well when 
individuals go first to the employer and ask a simple question. 
I mean, I think that common sense tells you that is probably 
the first place to go.
    Chairman Miller. Mr. Mollen, that is not a simple question 
in a lot of workplaces.
    Mr. Mollen. That may be true, Mr. Chairman. And I am not 
saying that it would work in every instance. But I do think 
most employers would be receptive, particularly when we are 
talking about relatively small differences in pay, that a 
question to the employer in the vast majority of circumstances 
is going to be received and acted upon in some manner. It may 
not be ultimately to the satisfaction of the employee----
    Chairman Miller. You know, when you look at some of the 
other court documents that were filed in Ms. Ledbetter's case--
and we are not here to try the case--but when you look at it, 
this didn't look like the friendliest workplace for women that 
you might walk into.
    And, you know, I find it kind of interesting that the 
defense is, not knowing whether I am going to get hit by a 
truck tomorrow, whether I am going to die of cancer, whether I 
am going to get fired or anything else that is going to happen 
to my family, I am going to calculate to take a couple hundred 
dollars a week less because someday I can strike and get the 
mother lode. And I got a 2-year limitation on what I can 
recover.
    I mean, we know we all need more sort of financial 
education, economic education, but that one doesn't quite make 
sense to me.
    Mr. Mollen. Well, first of all, Mr. Chairman, the 
limitation of 2 years only applies to back pay. Liability can 
extend, under the paycheck rule, back into the dim, dark 
recesses of time. What I am suggesting, it may not----
    Chairman Miller. But in this case, it only went to 2 years.
    Mr. Mollen. Well, of back pay, but there were also 
compensatory----
    Chairman Miller. Yes, right. Right. So this calculation 
that you have Ms. Ledbetter making over a period of 8 or 9 
years doesn't make sense.
    Mr. Mollen. I am sorry, Mr. Chairman. Perhaps I was 
misunderstood. What I meant to say, what I meant to point out, 
was that the undisputed, I believe, testimony at trial was 
that, as early as 1992, Ms. Ledbetter testified that she 
believed that she was the victim of discrimination, and that a 
couple of years----
    Chairman Miller. That may very well be accurate. Whether 
you can act on that belief or not is open to question.
    Mr. Mollen. At that point, Mr. Chairman, the statute 
requires that individuals take their claim to the EEOC and 
begin the investigative and conciliatory processes that that 
statute contemplates.
    Chairman Miller. Ms. Brake, is this, sort of, the ordinary 
behavior of people?
    Ms. Brake. I don't believe so, Mr. Chairman.
    And if it is not out of order, I would like to respond to 
something that Mr. Mollen had said about the incentive schemes 
here. Mr. Mollen said that the incentive here is for the 
employee to quickly go to the employer and try to work it out.
    Emphatically, after the Ledbetter rule, that is not the 
incentive of an employee. In fact, an employee, after 
Ledbetter, is under time pressure at both ends of the clock 
because Ledbetter says, ``Complain right away. You are going to 
lose your right to ever do so if you wait more than 180 days.'' 
But at the other side of the clock is a decision that I have 
explained in my written testimony, known as the Breeden 
decision, which says, if you complain too soon, and you are 
retaliated against, you could be fired with no legal recourse.
    If you complain too soon before you have a reasonable 
foundation of proving a discrimination claim, if your employer 
retaliates against you, you are out of luck under Title VII 
laws.
    The only way out of that dilemma is to go straight to the 
EEOC. Don't say a word to your employer, or else you are at 
risk for too soon opposing perceived discrimination without 
enough of a foundation to prove it.
    So, in fact, the incentive is not conciliation. The 
incentive is formal, adversarial, file with the EEOC--an 
already backlogged, overburdened agency.
    And that is why I say, in the long run, I think some 
forward-looking general counsel of employers have said, ``We 
are not sure we like this rule.''
    Chairman Miller. Mr. Henderson?
    Mr. Henderson. Mr. Chairman, I am, of course, not surprised 
that the Chamber of Commerce would support the court's cramped 
interpretation of Title VII. I am surprised, however, that the 
characterization of the traditional culture, customs and 
practices of the workplace would be distorted in the manner 
that we have heard here today.
    And here is what I mean: It is quite clear that a process 
of conciliation and voluntary compliance can work where there 
is transparency on the part of employers with regard to crucial 
information that allows employees to make these decisions.
    As you pointed out, Ms. Ledbetter worked in an environment 
that was a male-dominated environment, that was not necessarily 
the most conducive to allowing women to achieve their full 
potential in the workplace.
    To assume that such an environment would encourage the kind 
of challenge to employer practices that Mr. Mollen's scenario 
would suggest, it seems to me it is a bit unrealistic.
    Certainly, while Ms. Ledbetter may have had some inkling 
that she was not being treated fairly in the workplace, no 
employee who seeks to hold onto a job, a supervisory job in an 
area of responsibility, is going to openly confront an employer 
without adequate information about the practices that they are 
challenging.
    And to recognize that the company does not maintain the 
kind of transparency that would be necessary to do that, it 
seems to me it is disingenuous to suggest that employees can 
assume that burden and carry it out effectively. That is really 
the purpose of trying to restructure the playing field after 
Ledbetter.
    Chairman Miller. Ms. Ledbetter, do you have a comment?
    Ms. Ledbetter. Yes, sir. Yes, sir, I do.
    What Mr. Mollen said would be all and well good if your 
employer would listen. I went to them, my superior, my 
immediate boss, on numerous occasions, and even during 
evaluations. When I would get one, I would ask, ``How do I 
rank, even with my peers?'' I was not even told if I ranked A, 
B, C, D or E.
    Only occasionally did they tell me that I was on the bottom 
when I would pursue asking about a raise. I never knew. There 
were many years that I did not even know when Goodyear adjusted 
their minimum and maximum on pay structure for area managers. I 
didn't even know what the minimum and the maximum was. And 
oftentimes, when I did find out what the minimum was, I would 
learn that I am way below it.
    And it is just not a practical suggestion to say, ``Go to 
your employer.'' For example, at that particular time, I had 
two children in college, which I was paying their tuition and 
their living expenses. And if I went to my employer and really 
made a fuss, I would lose my job, and there was no doubt about 
it.
    And there were only two other women in that workforce, in 
the area managers during that time. One was in the same boat I 
was. She was a divorced mother with a handicapped child, and 
she was afraid to ask for a raise because they would dismiss 
her or move her somewhere that she would have to quit, which 
later she did. She later sold her service and left the company, 
and she testified at my trial.
    Also, there was another lady who had worked for the company 
for a lot of years. And she was an area manager, and she asked 
to be in a secretary's position while her children were small. 
Later, they asked her to go back to being an area manager, and 
she did. But they did not raise her pay. And she went to the 
plant manager's office and asked for a raise. And they never 
gave her one. In fact, the plant manager said emphatically, 
``We are not going to give you any more money.'' She said, ``In 
that case, I will go back to being a secretary.'' And she 
testified at my trial.
    And the women just didn't have the opportunities that they 
should. And there may be some companies that will listen, but 
the people that I worked for would not. And I needed my job. 
And I needed to support my family.
    Chairman Miller. Thank you.
    Mr. McKeon?
    Mr. McKeon. Thank you, Mr. Chairman.
    Mr. Mollen, would you like to respond to any of those last 
three comments?
    Mr. Mollen. Thank you, Congressman McKeon.
    I certainly would not contend that every employer in the 
United States is hospitable to a complaint of discrimination, 
and I didn't mean to suggest that they were. I do think that 
the vast majority of employers, when approached about something 
like that, ultimately it may not work out to the satisfaction 
of the employee, but I think that they would be receptive to 
the concern.
    But that is what the EEOC is there for. The process that 
Congress envisioned was to receive a claim from a disappointed 
employee and investigate it on behalf of that employee, to go 
to the employer, ask the employer for the comparative pay 
information that the employee doesn't have access to, and that 
once that material is received, once that information has been 
digested, the parties sit down with an agent of the EEOC and 
they attempt to work things out.
    It usually works, not always. And when it doesn't work out, 
Title VII has teeth. There is a private course of action. The 
disappointed individual can take it to court.
    But I think that some of the critics of Ledbetter see this 
as a litigation-only process. And I think when a chairman asks 
a table full of lawyers about the right response, and the 
response is, ``Well, people are going to sue; people are going 
to sue immediately''--to those who only have a hammer, 
everything looks like a nail. Every lawyer thinks that the only 
solution is to file a lawsuit. I really think that that is a 
vast overstatement of the consequence of the Ledbetter 
decision.
    Mr. McKeon. Thank you.
    You know, in listening to the testimony, in listening to 
Ms. Ledbetter, it sounds like to me there was pretty evident 
discrimination.
    But what I am trying to understand here is--and I am not a 
lawyer. So I am sure I don't understand all the nuances of the 
law. But it seems to me that the court's duty is to read the 
law and rule on the law.
    Is it not in the law that you have 180 days to file a 
complaint? Are there different feelings on that?
    Mr. Henderson. May I respond, Mr. McKeon?
    Mr. McKeon. Sure.
    Mr. Henderson. That is certainly a correct statement, in as 
far as it goes, although let me back up for just a minute.
    Mr. Mollen began his remarks by suggesting that Congress 
constructed a system with Title VII that supported efforts of 
voluntary compliance, conciliation and mediation.
    Nothing that we have suggested here today would suggest 
that we oppose that. In fact, we embrace it. We think that it 
would be wonderful if employee complaints and grievances were 
resolved in a way that could be worked out without litigation 
in some instances.
    The problem in this instance, though, is that the Ledbetter 
decision in the Supreme Court has created a rule that insulates 
employers from the very acts that we are seeking to challenge. 
Employers are encouraged, by virtue of this decision, to 
withhold information that might enable an employee who has a 
grievance to determine the legitimacy of the charge that they 
seek to bring.
    Mr. McKeon. I understand. We are going to have to try to 
sift through this. But can I get back to the basic question? Is 
the law that you are required to file your grievance within 180 
days?
    Mr. Henderson. But interpreted in the following manner: It 
depends on when your grievance occurs. You are correct in 
assuming that you are required to do it in 180 days. But if, in 
fact----
    Mr. McKeon. I am just trying to clarify----
    Mr. Henderson. No, no, I understand.
    Mr. McKeon. [continuing]. What the current law is. Because 
I understand our job here is to write the laws. And I think we 
can probably find problems with about every law we write, which 
is then discussed in the courts and refined. And then, I guess, 
we have reauthorizations which we go back and do.
    But I just want to know, is there agreement that the law 
states that you must file your claim within 180 days?
    Mr. Henderson. It depends on when the grievance occurs.
    Ms. Brake. Mr. McKeon, if I might----
    Mr. McKeon. There might be some differences as to when it 
occurs, but does the law state that it is 180 days from when 
you file your----
    Ms. Brake. Mr. McKeon, it is from the unlawful employment 
practice. And until this Ledbetter decision, a 1986 Supreme 
Court decision had said the unlawful practice happens when each 
discriminatory paycheck pays someone less because of race. That 
was the court's determination.
    Mr. McKeon. And whenever that is done, is it 180 days that 
you have----
    Ms. Brake. Yes. And that is the rule we are arguing for 
here: When the discriminatory paycheck pays someone less on the 
basis of race, sex or any other Title VII practice, that is 
when the clock should start ticking. That is the rule the EEOC 
has applied.
    Mr. McKeon. I guess this is why we have a 5-4 decision 
rather than a 9-0 decision, because when you have nine lawyers 
in a room, the best you can hope for is maybe 6-3, and then 
when you throw in politics and other problems with it, it gets 
tougher.
    But----
    Mr. Mollen. If I can, Congressman McKeon, it actually is--
--
    Mr. McKeon. My time has run out. But the chairman went a 
little bit over.
    Will you indulge----
    Chairman Miller. Go ahead, Mr. Mollen.
    Mr. Mollen. Just a point of clarification. It is actually 
300 days for the vast majority of American employees.
    Mr. McKeon. That was going to be my next question, 180 to 
300. I was trying to get to 180.
    Mr. Mollen. It is only 180 days in a very small number of 
jurisdictions in which there are no state fair employment 
practice agencies.
    Mr. McKeon. See, I think we could probably argue--and 
probably what we should be talking about is, is this correct? 
Should we be extending that? Should we be changing that law? 
Should we make it more definitive? You know, that is what I 
think we should really be----
    Chairman Miller. This and other questions will be answered 
when we return from a vote. We have a vote on now. We are going 
to be gone about 20, 25 minutes, unfortunately.
    I think that includes--yes, because we are about out of 
time on this vote. So put on your running shoes.
    We will be right back. Thank you.
    [Recess.]
    Chairman Miller. The committee is going to go ahead and 
reconvene. I don't want to keep witnesses longer than we have 
to.
    And we will begin with Mr. Andrews.
    We will let you get back in your chairs, though, before he 
starts asking you questions.
    Mr. Andrews is recognized for 5 minutes.
    Mr. Andrews. Thank you, Mr. Chairman.
    I thank the witnesses for their testimony, as well.
    Mr. Mollen, I wanted to ask you about the Chamber's 
position embracing this decision and ask you the following 
question: Let's assume that we have an employee who has worked 
at a place for a couple years and everything seems to be 
reasonably all right.
    And on January 2nd, she gets her employment evaluation. The 
employer says, ``You know, you are struggling a little bit. You 
are not doing very well. So no raise this year.''
    And the company has a policy, which indicates that the 
company does not disclose the compensation of other employees 
to a given employee. And, further, the company has a policy 
which prohibits employees from asking each other how much they 
make. And this individual honors that policy. She doesn't ask 
any of her coworkers what they make. And she doesn't hear it 
from the employer.
    She goes on, and she is at an event on July 10th--this is 
in a 180-day state. This is an event on July 10th, outside the 
180 days. She is at a retirement dinner for one of the fellow 
employees. And the employees, they have a couple drinks after 
the dinner. And the employee says, ``Listen, I have always 
liked you. And I wonder why you stay here.'' And she says, 
``What do you mean?'' The employee says, ``Well, you know, you 
are only making, like, three-quarters of what everybody else 
is. You are only making three-quarters of what all the men are 
in your job.''
    Should her claim be outside the statute of limitations?
    Mr. Mollen. I think that if I understand the hypothetical 
correctly, I think it is quite likely that when that claim gets 
to court, the court will say that equitable tolling applies, 
because the employer's policy that prohibits employees from 
discussing their compensation is likely unlawful.
    Mr. Andrews. Is there any authority which says that 
equitable tolling extends to that kind of case?
    What you said in your written testimony is that tolling 
takes place if the employer has affirmatively acted to bar 
information from these employees. What if--and I think it is 
common--what if an employer says in their employee handbook, 
``Look, it just promotes disharmony in the workplace. We just 
don't want people talking about this''? Is that an affirmative 
action that would bring in equitable tolling?
    Mr. Mollen. Congressman Andrews, I wish I could give you a 
case name right now. But I think it is quite likely that a 
court would say that an affirmative rule that prohibits 
employees from discussing that kind of information----
    Mr. Andrews. But, no, no, that is not what it says. The 
employee handbook says, ``In the interest of harmony, it is our 
practice not to talk about each other's compensation.'' It 
doesn't say you get fired if you do it; they are not that 
stupid. But it says, ``We discourage people from doing that.''
    Or, if this woman were your client and said, ``Well, I 
assume I can file my claim, right, because it has been 
equitably tolled,'' do you think she is able to get passed the 
statute of limitations?
    Mr. Mollen. As I say, I believe that it is likely that she 
would.
    Mr. Andrews. What if the employee handbook is silent about 
this?
    Mr. Mollen. Closer question.
    Mr. Andrews. Okay. Now, let me ask you not what the law is, 
but what it should be: Do you think that is a just result? If 
the court were to come out and say, ``Well, the employee 
handbook is silent, and so there is no equitable tolling in the 
statute of limitations,'' do you think that is a fair result?
    Mr. Mollen. Well, I think that if the employee has an 
inkling that----
    Mr. Andrews. She has no inkling.
    Mr. Mollen. I am sorry?
    Mr. Andrews. This employee has no inkling. As a matter of 
fact, she understands, because around the workplace, people 
start asking around about the management of the company are 
kind of frowned on. So she just goes to her job every day, does 
her job.
    Do you think that is a just result?
    Mr. Mollen. Well, I think, Congressman Andrews, that you 
have put your finger on a question that was noted by the court 
in Ledbetter----
    Mr. Andrews. I am not talking about Ms. Ledbetter's case. I 
am asking the Chamber's position on whether that is a just 
result or unjust.
    Mr. Mollen. You know what? I would have to discuss the 
Chamber's decision with the Chamber.
    Mr. Andrews. What is your position? Do you personally think 
it is just or unjust?
    Mr. Mollen. I think that it is just to have a rule that 
requires a charging party or the employee to act promptly with 
dispatch when the facts are such that the employee has a reason 
to file a charge.
    Mr. Andrews. In my fact pattern, does the employee have any 
reason to file a charge?
    Mr. Mollen. It is very difficult to tell on the sparse 
facts that you have given me. I mean, it is really hard for me 
to say----
    Mr. Andrews. But on the facts that I have given you--I have 
made it real complicated. On those facts, do you think the 
employee has an inkling that would justify filing an EEOC claim 
and get past the barrier of the Breeden case to have a 
reasonable grounds to do that?
    Mr. Mollen. The Breeden case was an entirely different 
question.
    Mr. Andrews. Would you answer my question? Do you think it 
is a just result or not?
    Mr. Mollen. I can't answer your question in the context of 
Breeden because it was a retaliation----
    Mr. Andrews. Can you answer in the context of my facts that 
I gave you? Is it just or unjust? What do you think?
    Mr. Mollen. What I think is that, if I were in your seat, I 
would want to study that issue more closely. I don't make 
policy decisions.
    Mr. Andrews. No, but you are a citizen and a voter. What do 
you think? Do you think that is a just result or not?
    Mr. Mollen. If the facts are that this individual has 
absolutely no way of knowing that an adverse employment action 
has occurred----
    Mr. Andrews. Right.
    Mr. Mollen. [continuing]. I would say that it was likely 
that a result that denied that individual the right to file a 
charge would be--I wouldn't be comfortable with that.
    Mr. Andrews. So you think it is unjust.
    So then, okay, then the question becomes, how much 
information does the employee have to have before they have 
this inkling? How much do they have to have?
    I mean, in Breeden what happened, if I recall, is that a 
woman is at a meeting and there are some inappropriate sexual 
references made in a joke at the meeting, and she files a 
complaint, and she is punished for filing the complaint. And 
the Supreme Court says that is not an inkling, that is not 
enough, that she doesn't have a reasonable basis, so she is not 
protected by whistleblower.
    How much is enough?
    Chairman Miller. My apologies for the microphones. They are 
working on them.
    Mr. Mollen. I don't know how to answer that question, 
Congressman. There is no commonly accepted----
    Mr. Andrews. That is right. And, Mr. Mollen, that is 
exactly my point. I don't know how to answer it, and millions 
of employees around the country don't know how to answer it 
either.
    But now they have to live under it, because--yes, they do--
because if they don't game the system correct on the timing, 
and if they wait too long beyond this 180 days and just take an 
educated guess that they got an inkling and they are not 
protected by the Breeden decision, they get fired and they have 
no protection.
    So if you can't figure it out, you are an expert, how is 
some employee supposed to figure it out?
    Chairman Miller. Ten seconds or less.
    Mr. Mollen. Congressman, I don't believe that that is an 
accurate characterization of Breeden or the plight that this 
employee would be in. Breeden was the specific context of a 
harassment claim. Harassment claims are serial violations, and 
with one joke, no reasonable individual----
    Mr. Andrews. I would say that so is giving someone a 
paycheck every week that results from discrimination is serial 
violation.
    Chairman Miller. The gentleman's time has expired. We are 
going to have to continue this discussion elsewhere.
    Mr. Keller?
    Mr. Keller. Thank you, Mr. Chairman.
    Chairman Miller. If anybody who is not speaking, if you 
would turn your mikes off, let's see if that----
    Mr. Keller. All right.
    Mr. Mollen, you testified that, in your view, if Congress 
adopted a paycheck rule, then every charge of discrimination, 
be it demotion, promotion, transfer or otherwise, would become 
a paycheck case.
    Can you expand on that, please, and explain to me in 
greater detail what your concern is here?
    Mr. Mollen. I would be happy to, Congressman. The problem 
is that the vast majority of adverse employment actions about 
which an individual can file a charge have economic 
consequences.
    In this case, what Ms. Ledbetter's complaint really 
centered around, the contents of her evaluation, those 
evaluations had downstream economic consequences. And it was 
those consequences that led her to argue that the paycheck rule 
also applied.
    But there are economic consequences to a denied promotion. 
Every paycheck that doesn't reflect the amount of the increased 
responsibility, increased pay that comes with the promotion 
also has the same feature that was identified by Ms. Ledbetter.
    Chairman Miller. My apologies. I am going to interrupt you 
here. I am told that we have to turn the mikes off and reboot 
them, which is not going to be helpful to the recording of 
this, but if we will all just turn our mikes off for a minute 
and then I can tell you when----
    [Audio gap.]
    Chairman Miller. The good news is the mikes are back on. 
The bad news is they are only on for the members of Congress. 
[Laughter.]
    Mr. Marchant, you are recognized for 5 minutes.
    Mr. Marchant. Thank you, Mr. Chairman.
    Mr. Mollen, are there any additional comments you would 
like to make about the previous question?
    Mr. Mollen. Yes, there are. [Off-mike] to testify that he 
never asked her out, that this never happened, and that there 
was a bona fide reason for the evaluations that he gave.
    Pay disparities do not yield necessarily intentional 
discrimination. And so the fact that a payroll record would 
show that Ms. Ledbetter makes less than her peers does not mean 
that there was discrimination or that there was a violation of 
Title VII.
    It is merely a distinction. It may be a distinction that is 
worth investigating, that the EEOC would want to ask questions 
about. But it does not yield a violation of the statute.
    And I think it is very important to keep in mind the 
limitation of the Ledbetter decision. It does not apply to 
adverse impact cases, because there you are talking about the 
application of a rule or a policy that has an adverse impact on 
members of a protected class. That sort of case has a very 
different sort of limitations period.
    Mr. Marchant. We have heard testimony this afternoon that 
the deadline for filing a charge is 180 days, and that is 
unreasonably short.
    Comments about that, Mr. Mollen?
    Mr. Mollen. Well, first of all, for most individuals it is 
300 days, not 180 days. When Congress devised Title VII, it 
said that in those states that established a fair employment 
practice agency that meets certain criteria, the limitations 
period would be 300 days to file a charge with the EEOC. But in 
those states that have no such agency, it would be 180.
    At the time Congress, of course, could not know how many 
states would create such agencies. Well, as a practical matter, 
most states have them. The vast majority of Americans work in 
states where those agencies exist. So, in reality, it is closer 
to a year.
    But I think that the nut here is whether Congress made the 
correct judgment when they passed Title VII that these are 
claims that need to be dealt with with dispatch. Congress 
advisedly selected a brief limitations period; whether it is 
180 days or 300 days, that is a relatively brief period. 
Congress selected that advisedly. And they did so because these 
are the kinds of disputes that need to be dealt with with 
dispatch.
    The paycheck rule says not only do they not have to be 
dealt with with dispatch, but they can wait until the end of 
the career. And that is fundamentally unfair to the employer, 
who is put to the task of reconstructing why a decision made in 
1979 when an individual was hired was made.
    And that is the fundamental bedrock fairness that is 
represented by the Ledbetter decision and the patent unfairness 
that the paycheck rule presents.
    Mr. Marchant. Does the 300 days meet the reasonable 
dispatch rule?
    Mr. Mollen. I believe it does.
    Mr. Marchant. But would you say that the 180 days does?
    Mr. Mollen. I am speaking only for myself now. I think that 
you could make a rational argument that the 180-day rule is 
perhaps too brief. I believe that many employers would either 
acquiesce or may even support a move from 180 days to 300 days. 
You know, I haven't taken a canvass, I couldn't tell you.
    But I think that most employers have accommodated 
themselves to the fact that in most instances the limitations 
period for Title VII is 300 days. Ms. Ledbetter happened to be 
working in one of the few states that doesn't have a fair 
employment practices agency, and so she was subjected to the 
shorter rule.
    And I think that that is something that deserves some 
study, whether that distinction continues to be rational or 
realistic.
    Mr. Marchant. Mr. Chairman, I yield back my time.
    Chairman Miller. Thank you.
    Ms. Woolsey?
    Ms. Woolsey. Thank you, Mr. Chairman.
    I agree with Mr. Henderson, and I agree with Professor 
Brake. This decision just doesn't make sense in the real world.
    I was a human resources professional for 20 years, and 
while you were going on and talking about some of the evidence 
that Ms. Ledbetter--in her evaluations, the least productive of 
all of her colleagues, 79 others did better than she. I can't 
in all my life understand why would an employer keep an 
employee that was at the bottom--a management employee, a 
widget maker, any employee?
    So you have to ask yourself that question, because that 
management did not consider Ms. Ledbetter the bottom. They just 
put her there so they could pay her less, and we know it, or 
could say that.
    And when we say nobody knew that Ms. Ledbetter earned far 
less than her male counterparts--uh-huh, her managers knew. 
Their managers knew. It was not a secret in that company. Shame 
on them. Shame on the Supreme Court. And shame on us if we 
don't do something about it.
    So I would like, Professor Brake, if Congress doesn't fix 
the Ledbetter decision, what advice would you give a woman 
seeking to bring a claim of unequal pay?
    Ms. Brake. Well, it is an excellent question, 
Congresswoman, because, frankly, as a lawyer, I would have to 
advise employees that they truly are in a bind in many 
respects. Again, complaining too soon, especially if you start 
out in a conciliatory way, going through your employer's 
internal grievance process, leaves you at great risk. So that 
is the frank reality.
    Now, Mr. Mollen talks about the Breeden decision and says 
it is limited to harassment. I am afraid it is not limited to 
harassment. I have done a lot of research on how the lower 
courts apply the Breeden standard, and I have written a very 
lengthy article about retaliation and how that standard is 
applied. It is applied across the board to any type of 
discrimination.
    If you complain internally, without going to the EEOC, too 
soon, without a reasonable foundation for proving your case, 
and if you are unlucky enough to experience retaliation, you 
have no legal recourse.
    I would have to advise the woman that. And so, I would have 
to advise her, then, that inasmuch as it might make you persona 
non grata with your employer for all time, file with the EEOC. 
Are they going to pay attention to it? Possibly not, if it is 
too early to have any evidence.
    If you have the slightest suspicion, though, and I mean the 
slightest suspicion, Ledbetter forces you to file immediately.
    Of course, the great difficulty with Ledbetter is the 
question that a number of the congressmen were getting at: How 
do you know when a reasonable person should know that they have 
experienced pay discrimination?
    And the reason, I think, that Mr. Mollen and the rest of us 
have such difficulty talking about, well, what would the lower 
courts do, is they have never had to decide before. They have 
never have to decide before if there even is a discovery rule 
for pay claims, because across the country, until this very 
decision, we had the paycheck accrual rule. The EEOC applied 
it. If you had any discriminatory paycheck within the 
limitations period, you were not time-barred. And that is why 
we don't have a lot of case law on how the discovery rule would 
apply to pay claims.
    Now, I will say, the case law that I have studied that has 
equitable tolling and the discovery rule in other contexts does 
not give me great comfort. In many jurisdictions, short of 
active concealment--that is, fraudulent behavior on the part of 
an employer, lying to the employee--short of active 
concealment, the clock starts ticking from the time you know of 
your injury, not from the time you might know of 
discrimination. That is not a good rule for employees.
    So in all honesty, it is very hard to advise a woman, 
because the options are few and far between, unless she has 
perfect knowledge. And it is almost never the case that an 
employee has perfect knowledge going to a pay claim.
    Ms. Woolsey. Well, thank you.
    And, Mr. Henderson, given the environment of that employer, 
the environment of that business, given that, probably, I am 
sure, Ms. Ledbetter wasn't able to get any information from her 
male colleagues on what they earned, why would they risk their 
jobs to tell her what they earned? How in the world does Mr. 
Mollen, do you think, think that she should have gone into the 
payroll office and asked for the payroll?
    Mr. Henderson. That is a question, Ms. Woolsey, that I 
can't honestly answer.
    I thought Mr. Hare raised a question in his presentation 
about a utopian vision of how employers and employees coexist 
in the workplace. Realistically, of course, I wish it were 
true. It is not.
    And I think that the context in which Ms. Ledbetter talked 
about her case is a great example. She was one of three women, 
as I mentioned before, working to hold onto a job under great 
difficulty. This is a woman who obviously had concerns.
    And as Mr. Mollen himself properly pointed out, we are 
talking an instance here of intentional discrimination, where a 
spurned supervisor decides to, if you will, retaliate by 
setting a lower level of wage compensation for this employee.
    She is in turn then forced to do one of two things. And 
under the Ledbetter rule, she is forced at the immediate 
speculation that she may have been treated unfairly to file a 
charge with an agency--in this instance, EEOC--that is 
incapable of handling the volume of cases they get now, much 
less the surge that may come in a post-Ledbetter period. It is 
unrealistic.
    And what it seems to us to have done--and this, perhaps, 
was unintentional on the part of the court--but it provides 
even further insulation for employers who may have been 
inclined at one point to do the right thing, but now see that 
the cost of doing business is better protected when they 
withhold essential information that might otherwise give an 
employee the kind of knowledge they need to file a genuine 
case.
    That is not what Congress intended. The paycheck accrual 
rule has been in place now for almost 20 years. It does seem to 
have become an established custom and practice of the business 
community. While it may have been challenged on the part of a 
few employers, Congress has never been confronted year after 
year after year with bills introduced for purposes of repealing 
that rule to establish a rule now articulated under the 
Ledbetter case.
    What we are saying is that the business community had come 
to accept this, even though obviously they were not entirely 
happy with some of its consequences.
    But the businesses, the employers, have all of the 
advantages. For the most part, they have all of the advantages. 
They have the information, they have the evaluations that they 
make of employees, and they have the context of being able to 
use both official rules and informal practices to reaffirm 
their posture.
    I think it is unfair to ask anyone like Ms. Ledbetter to 
take on that kind of challenge. She is courageous enough to 
have filed a complaint. I think it is unrealistic to expect 
employees to do more under these circumstances.
    Ms. Woolsey. Thank you.
    Mr. Wu [presiding]. The gentlelady's time has expired.
    Mr. Davis is recognized for 5 minutes.
    Mr. Davis of Tennessee. Thank you, Mr. Chairman.
    Mr. Mollen, would you like to respond to anything you have 
just heard, with the employers having all the advantages or any 
of the last comments?
    Mr. Mollen. Thank you, Congressman.
    They have none of the advantages in a litigation structure 
in which the individual making the charge can wait for years or 
decades to make allegations of discrimination.
    I would hope that we could all agree that it would be 
unfair to have a system in which there effectively was no 
limitations period. That is what the paycheck rule means.
    In the compensation area--and as I testified earlier, what 
is a compensation case is very dicey, because of the economic 
consequences of nearly every adverse employment action.
    But what this rule would hold is that every time a paycheck 
is issued it renews the limitations period. That means that 
there is effectively no limitations period and an employer can 
be called upon to defend a decision by managers who haven't 
worked there in years, have retired, died, moved away, records 
have been destroyed.
    I mean, the EEOC only requires that employers keep papers 
of this sort, records of this sort for a year, unless there has 
been a charge of discrimination. Once the charge of 
discrimination has been filed, the employer is obligated to 
keep those records until the matter is resolved.
    So once the charge is on file, both parties will have 
access to the information necessary to sort things out. When 
the charge isn't filed, when the charge is delayed in this 
fashion, the employer is at a distinct disadvantage.
    Mr. Davis of Tennessee. Thank you.
    We have heard a number of times today that employers are 
promulgating rules to prohibit rank-and-file employees from 
discussing their pay, their wages and other benefits with one 
another.
    But it is my understanding that it is already prohibited by 
law, specifically under the National Labor Relations Act. Is 
that correct?
    Mr. Mollen. That is correct, Congressman. It is unlawful 
specifically for an employer to have a rule that prohibits 
employees from engaging in concerted activity. The National 
Labor Relations Board has consistently interpreted that to mean 
that you can't have a rule that prohibits employees from 
discussing their pay.
    Mr. Davis of Tennessee. We have also heard testimony today 
that employers may be actively misleading employees or keeping 
the facts from them. And that is unfair, to bar his or her 
suit, if the employer kept in the dark, as it were. What is 
your response to that?
    Mr. Mollen. I agree completely. It is unfair to deny 
someone the opportunity to litigate a case in those 
circumstances.
    But there already is an existing doctrine of law that 
permits district courts to protect plaintiffs who have been 
subjected to that kind of treatment by their employer. We had 
some testimony about that earlier.
    That sort of equitable tolling occurs with some 
regularity--not all the time. It doesn't happen all that 
commonly because employers don't engage in that kind of conduct 
very often, thankfully. But when that conduct does occur, 
courts are empowered to deal with it.
    Mr. Davis of Tennessee. Do you think the Supreme Court 
dealt with this issue in the Ledbetter case?
    Mr. Mollen. Well, the Supreme Court did not deal with 
tolling. It did not deal with the discovery rule. Because those 
issues weren't before the court.
    But one issue that was before the court was an individual 
who knew from 1992 on that there was a pay disparity and didn't 
file a charge until 1998. On those facts, the decision of the 
court seems unexceptional to me. And, in fact, I don't know how 
it could have come out any different.
    Mr. Davis of Tennessee. Thank you. I yield back.
    Mr. Mollen. Thank you, Congressman.
    Mr. Wu. The gentleman's time----
    Ms. Ledbetter. May I respond?
    Mr. Wu. Yes. No, Ms. Ledbetter, please do respond.
    Ms. Ledbetter. Number one, to let Mr. Mollen know that he 
needs to look at the trial transcript again. I was not asked 
out on a date. I was told to go over to the local motel and I 
would be rated number one, or I would go to the bottom of the 
list. I politely got up, excused myself and left the office.
    The next day when I went back to talk with my employer, the 
same man who did the bad evaluations later down the line; he 
wouldn't talk to me. He refused to talk to me, shut the door, 
said, ``You had your chance.''
    Now, he is the same one who evaluated me. Prior to the last 
evaluation that I got, he was the auditor on the floor.
    Now, at trial I don't believe that I remember that their 
lawyers asked for any opportunity to do anything about him 
being deceased. But he was alive when I filed my charge. And 
when I filed my charge, Goodyear was required by law to keep 
all of those records. But at trial, they could not produce not 
one record.
    I have one other point that I would like--I beg your 
pardon--I need to clear up. They keep talking, some people do, 
about why I didn't file a charge and why did I wait until the 
last minute.
    It would have benefited me, early 1980s, to have had a good 
raise and been up there. Because we area managers at Goodyear 
were paid time-and-a-half, double-time and triple-time, if it 
so warranted. I would have been making a lot more money in 
those days, when I had two children in college and I was a 
married woman and I did not want any motel dates with my 
supervisor.
    Also, the EEOC--I had gone, early on, to them, when I 
really suspected that I was being paid less. But I didn't have 
anything to prove it, and they couldn't help me.
    But then they told me that, if I would get one other person 
to sign for an investigation into Goodyear's pay system, that 
they would come in and do a full-fledged audit.
    I could not get anyone to sign because it took two 
signatures, is what I was told, to get the audit. And the other 
female said, ``I must have my job.'' And I said, ``Well, we 
don't have to reveal our name. EEOC won't.'' She said, ``You 
know Goodyear will know who filed the charge, and they will 
retaliate against us, and we will be sorry.''
    I filed a charge in the early 1980s, when all this other 
sexual harassment started. I didn't want to, but I got pushed 
in a corner and I didn't have any choice to keep my job. And 
when I filed that charge, I paid for it for the next 17 years 
of my career.
    Thank you. I appreciate it.
    Mr. Wu. Thank you, Ms. Ledbetter.
    And as temporary chair, I am going to exercise one small 
prerogative which will guarantee that Chairman Miller will 
never let me sit here again. [Laughter.]
    And without prejudice to all the principled employers out 
there--and there are a lot of principled employers--Ms. 
Ledbetter, let me say to you that I think that it takes a lot 
of courage to be in your position, to have taken the position 
that you have.
    And I am going to ask Mr. Henderson, Ms. Mollen and 
Professor Brake to comment. In my days of practice, we 
sometimes represented employers and sometimes represented 
employees, which kind of meant that we were not very good at 
this particular area of law. [Laughter.]
    But, Ms. Ledbetter, I do admire your courage, because the 
advice that we typically gave an employee who was thinking 
about bringing legal action was, ``Think about this very, very 
carefully. And it is highly likely that if you do bring this 
claim, you will not be working for this employer, you will not 
be working for any employer in this particular field. And there 
will be a broad crater. In essence, you will be looking for a 
new career.''
    So, I do admire your courage, Ms. Ledbetter.
    Mr. Henderson, was our advice, way back when, good, bad or 
indifferent, in terms of the cautionary aspects of that advice?
    Mr. Henderson. Mr. Chairman, I think it is wise, always, to 
provide prospective employees, and in this instance employers 
as well, about cautions necessary to encourage a workplace in 
which both employers and employees are treated with fairness.
    Title VII is over 40 years old, Mr. Chairman. It has helped 
to create a regime which, indeed, has encouraged a level of 
activity within the marketplace that has both encouraged 
employers to do the right thing. And, certainly, from the 
perspective of an advocate of the civil rights community, we 
don't condemn all employers. We, in fact, believe that many 
employers would like to follow the rules. And I think there is 
much evidence to suggest that.
    But there are instances where the playing field is still 
dramatically not leveled. I think what Ms. Ledbetter has done 
is shown a light, if you will, on one aspect of our employment 
practice that we thought had been settled.
    I think Professor Brake talked about the paycheck accrual 
rule that has been in place now for about 20 years. That 
certainly had established a level of expectation on behalf of 
both employees and employers. The Ledbetter decision has now 
unsettled it; it has turned it on its head. And it has put 
employees at a dramatic, profound disadvantage.
    And I think circumstances like those of Ms. Ledbetter are 
likely to be repeated time and again, not by employers who are 
prepared to honor every aspect of the employment practice, 
including, again, of practices in the breach, but employers 
who, rather, are seeking to cut corners, are seeking not to 
monitor the effective staff behavior that we think is 
important, will certainly use the Ledbetter decision to worsen 
that.
    And without Congress making some requirement that employers 
have an obligation to make compensation information transparent 
and readily available to employees, it will be virtually 
impossible to root out the long-term problems that I think the 
Ledbetter decision has encouraged.
    It is an employer protection act that creates a practice 
that does not work to the advantage of a marketplace that is 
governed by a set of rules and expectations that we think are 
important.
    So I think your cautions are well-taken.
    Mr. Wu. Mr. Mollen, was our advice good, bad or 
indifferent?
    Mr. Mollen. I think it is always good advice to tell 
someone contemplating litigation that they should think long 
and hard about it.
    I also think that you would have to be blind not to see 
that retaliation cases do happen, that employers do sometimes 
retaliate. I think there would be disagreement, perhaps, at 
this table about the regularity with which it happens. I happen 
to believe that the vast majority of employers want to comply 
with the statute and treat these issues very sensitively and 
very fairly.
    But I think that it proves too much to say that we have to 
eliminate the limitations period in pay cases because there is 
a potential for retaliation. Retaliation is unlawful. Congress 
has made it so. It has made it subject to punitive and 
compensatory damages.
    We have to trust in the process that Congress created to 
work. The answer to the problem is not to say that we should 
allow an individual to file a suit years or decades later 
because we can't expect them to do otherwise because of the 
fear of retaliation. This issue has come up repeatedly in 
litigation in every circuit, and in every circuit it has been 
repudiated. One has to trust in the mechanism that Congress 
invented.
    By and large, I would say that that mechanism has worked 
extraordinarily well, and that employees and employers are both 
well-served by it. But I don't believe that it is any answer to 
say that we have to abolish the limitations rule that is 
present in Title VII and in every other context that Congress 
legislates in simply because the potential for retaliation 
exists.
    Mr. Wu. Professor Brake, your comments?
    Ms. Brake. Yes, thank you.
    I think your advice was excellent in that----
    Mr. Wu. Thank you. [Laughter.]
    Ms. Brake. [continuing]. Absolutely, the fear of 
retaliation is the number-one reason why people do not file 
complaints. It is well-founded. I am afraid it happens probably 
a terribly often amount of the time.
    And I don't have the data right in front of me, but when I 
did the research, it was a surprising number of charges--I want 
to say the majority; it was very close to that--where if you 
had a discrimination charge filed, you also had a retaliation 
charge filed. It is terribly common.
    Mr. Mollen mentioned that there are enough incentives to 
avoid if there are punitive and compensatory damages. And 
perhaps this is a good time to mention that because of the cap 
on Title VII damages, the combined punitive and compensatory 
damages are limited to $300,000. I would like to know how that 
deters a large employer like Goodyear.
    Back in 1991, when the caps were put into Title VII, it was 
in my view ill-conceived then. Now, 17 years later, it is that 
much more problematic to say that there is adequate incentive 
on employers not to discriminate when we are capping 
compensatory and punitive damages at $300,000 for our nation's 
largest employers.
    Incentives are very important to talk about. We are talking 
about voluntary compliance. One of the major purposes behind 
Title VII is to encourage voluntary compliance.
    That is part of why I find the Ledbetter ruling so 
troubling. An employer like Goodyear should have an incentive 
to not wait for a charge to be filed. Look at your pay scheme. 
We have a persistent gender wage gap in this country. As the 
chairman noted previously, women earn 77 cents on the dollar 
for what men earn.
    Economists have thought to study every possible reason for 
that gap. Nothing they have studied explains it--not education, 
hours worked, experience, occupation, job, health. We can only 
conclude that a good bit of it results from discrimination.
    Employers should be looking at their pay records, looking 
at a situation like Ms. Ledbetter's and saying, ``Wait a 
minute. We don't need to wait for a charge to be filed. 
Something is wrong here. Our only female manager makes less 
than each and every one of the other 15 male managers. We need 
to take a hard look at this. This seems fishy. Let's make sure, 
absolutely sure, we have a non-discriminatory reason that can 
justify this.''
    And you can bet that employer can get the same evidence 
that that jury in Alabama saw and said, ``You don't have a non-
discriminatory reason.''
    So we need to take a hard look at our incentives, because 
we have got to get rid of this gender wage gap.
    Mr. Wu. Thank you, Professor.
    I thank the entire committee for its forbearance.
    The gentleman from Iowa, Mr. Loebsack?
    Mr. Loebsack. Thank you, Mr. Chair.
    As is often the case, I am among the last of the 
questioners. And as a new member, once again I am learning a 
lot at this hearing. And I really appreciate all of you being 
here.
    And I do want to commend Ms. Ledbetter for her courage 
coming today as well.
    And I think we all know that it goes even beyond this kind 
of discrimination. It affects families as well, even middle-
class, I would argue, here in the United States. And this kind 
of discrimination occurs.
    Mr. Henderson, you looked as though you wanted to respond 
to Mr. Mollen's last few comments. Go ahead, please.
    Mr. Henderson. Thank you, Mr. Loebsack. I did. I wanted to 
make one observation.
    I think Mr. Mollen referred a couple of times to efforts at 
promoting legislation as removing the limitation in pay cases. 
And that is simply not right. That is simply unfair.
    We are talking about restoring the status quo ante, a 
process that had been in place now for over 20 years that 
allowed employers and employees to understand how charges of 
pay discrimination would be brought. It is simply not right to 
suggest that we are removing limitations in pay cases and thus 
opening the flood gates to an assortment of cases, many both 
fair and specious.
    What we are doing is restoring the status quo ante. We are 
restoring a procedure that both employees and employers had 
come to expect.
    And I guess one last point. If employers had found this 
rule so burdensome, so threatening to the productivity of their 
businesses, the effort to legislate a different rule would have 
happened year after year after year. We never saw that.
    I guess the argument is that employers had come to expect 
and establish their own human resources practices around these 
established principles. And we want to do is to restore those 
principles.
    Mr. Loebsack. I want to make one comment too. This is 
conjecture on my part; I don't have the evidence for it. And I 
am one of those who often complains when folks don't have the 
numbers to back up their arguments.
    But one of the things I suspect--and I thank Mr. Hare for 
making his comments about the utopia that supposedly is out 
there that isn't out there.
    One of my concerns is that in this increasingly globalized 
economy in which we find ourselves here in the United States in 
particular, and where companies are competing on a global basis 
and they often use that as an excuse for what I would consider 
to be less than adequate practices with respect to their 
employees, I have a lot of concerns about how that will have an 
effect also on the very issues that we are talking about here.
    I am not saying it is going to make matters worse. But I 
have a concern that it might. Because they may say in the 
future, ``Well, you know, we are competing globally''--they 
won't say that necessarily in a court of law, obviously--``and 
that is why we discriminated.'' But I have a real concern that 
that, in fact, may happen increasingly down the line.
    And, Mr. Mollen, when you talked about the employer being 
at a distinct disadvantage under certain rules, I don't 
understand that. Because it isn't the case, is it, that an 
employer is presumed guilty in any of these cases? How is it 
that an employer is at a distinct disadvantage? I don't 
understand that.
    Mr. Mollen. I think this is a perfect example--that is, the 
piece of litigation we are here talking about.
    The testimony at trial was that Ms. Ledbetter knew as early 
as 1992, or believed, that she had been the victim of pay bias, 
and that she had information about what other people made as of 
1994, and yet she waited until 1998 to file the charge.
    And again, she testified as to statements, practices, 
occurrences, incidents that occurred at trial. And there was no 
one there to contradict that testimony.
    It is fundamentally unfair, as we recognize in criminal 
law, as we recognize in nearly every area of civil law. We have 
these statutes of limitations for a reason.
    And what the paycheck rule does is it suggests that, every 
time the mechanical process of cutting a check occurs, that it 
is an evergreen limitations period; it never ends, until the 
individual leaves the workplace.
    Now, you also asked whether there are consequences stemming 
from globalization and corporate reorganizations and that sort 
of thing. I think that there are. And they have to do with the 
tenure with which the average American works for a given 
employer.
    I mean, we are a highly mobile society. What that means for 
an employer is, if it doesn't get noticed, a potential 
discrimination claim, early, the chances that the people the 
employer needs to put on a full defense will actually be around 
by the time the case gets litigated are very small. Because 
people quit. They take different jobs. Companies reorganize. 
They spin off entities. There are all kinds of corporate 
transactions that will occur that will distance the defendant 
at trial from the individuals that it needs to defend the case.
    This is just one example, but it happens all the time.
    Thank you.
    Mr. Loebsack. My time is up. Thank you.
    Mr. Wu. The gentleman from Virginia, Mr. Scott?
    Mr. Scott. Well, thank you, Mr. Chairman.
    Mr. Mollen, is it your understanding that, after this case, 
there is a 180-day rule? Is it still 180 days from the act, or 
180 days from discovery?
    Mr. Mollen. It is 180 days from the discriminatory 
employment practice which the court defined as the decision 
being communicated to the individual.
    Mr. Scott. Okay, now----
    Mr. Mollen. And it is 300 days in most jurisdictions.
    Mr. Scott. Well, okay, let's get to the 300 days. If, under 
this 300-day rule, do you have to file it with the state within 
their state rules?
    Mr. Mollen. The universal practice--I say universal; I 
believe that it is universal practice for those charges to be 
cross-filed instantaneously, so that, if you filed with the 
Virginia fair employment practices agency, it would 
automatically be cross-filed with the EEOC.
    So yes, effectively, it is 300 days.
    Mr. Scott. Well, maybe, if Virginia has the 60-day rule and 
you miss that, have you messed up your federal rule? You can 
skip the entire Virginia process and go straight to the 
federal?
    Mr. Mollen. Correct. You can always go to the----
    Mr. Scott. Is that your understanding, Ms. Brake?
    Mr. Mollen. You can always go to the EEOC.
    Mr. Scott. Even though you skipped the state process?
    Mr. Mollen. They are going to do it for you, Congressman. 
The EEOC is going to cross-file it with the state agency.
    Mr. Scott. If you forget to file in the state, you have 300 
days with the EEOC?
    Mr. Mollen. As I understand it, yes, Congressman, the EEOC 
is going to take care of that for you.
    Mr. Scott. Is that your understanding, Ms. Brake?
    Ms. Brake. It is terribly complicated. I believe to get the 
benefit of the 300 days, you would have to file in both, with 
the state also.
    Mr. Scott. And if you miss the state deadline, can you 
still file within the 300 days with the EEOC?
    Ms. Brake. [Off-mike.]
    Mr. Scott. Okay, well, let's get back to the----
    Mr. Wu. We are going to have to ask you to use the mike, 
Professor.
    Mr. Scott. Whatever the deadline is, if you haven't 
discovered within the 180 days that you have been discriminated 
against, by the time you find out, it is too late.
    Is that right, Ms. Brake?
    Ms. Brake. Congressman, that is exactly the problem. We do 
not know how a discovery rule would apply here. The court's 
decision simply said----
    Mr. Scott. Well, he said it is the act, so we are not even 
talking about discovery.
    Ms. Brake. [continuing]. When the decision is made and 
communicated. The Supreme Court's opinion does not even say 
what has to be communicated. It may well be all that has to 
be----
    Mr. Scott. You got your paycheck.
    Ms. Brake. Yes. Here is your raise, 5 percent.
    Mr. Scott. Okay, now, Ms. Ledbetter is a supervisor. Is 
there a difference in your right to discuss your wages with 
your fellow employees if you are a supervisor or an hourly wage 
worker? Is there a difference in your right to get salary 
information from your colleagues?
    Chairman Miller [presiding]. We need to bring the mike down 
to Ms. Ledbetter.
    Oh, I am sorry, were you asking Ms. Brake?
    Mr. Scott. Yes.
    Chairman Miller. Professor Brake?
    I am sorry, I thought you were asking Ms. Ledbetter.
    Ms. Brake. Congressman, I must confess that I do not know 
the intricacies of the National Labor Relations Act. I do 
believe it is correct, as Mr. Mollen said, that that act does 
bar employer rules that ban at least wage-level employees 
discussing their salaries.
    I would note, however, that there have been studies showing 
that one-third of private-sector employees nevertheless by 
policy forbid employees from discussing wages.
    Mr. Scott. Okay.
    Mr. Mollen, is there any question in your mind that this 
decision would affect not only gender cases, but race, religion 
and national origin?
    Mr. Mollen. I do believe that the court's opinion is going 
to be applied across the board, correct.
    Mr. Scott. And if you get past that the employees didn't 
figure out that all the whites got raises, none of the blacks 
got raises within 180 days, that they could continue that 
practice and Title VII couldn't cure it in the future?
    Mr. Mollen. I am not sure I follow the question, 
Congressman.
    Mr. Scott. If all the whites got raises, none of the blacks 
got raises, and the blacks didn't figure it out for 181 days, 
or 301 days, whatever it is, that they can't bring a suit under 
Title VII?
    Mr. Mollen. Ledbetter does not decide that question. I 
think you are getting at the----
    Mr. Scott. What does it decide?
    Mr. Mollen. I think that you are getting at the discovery 
rule.
    Mr. Scott. Right.
    Mr. Mollen. And what the majority opinion says is, we have 
no occasion to discuss the discovery rule or whether it would 
apply in this context.
    Mr. Scott. Okay. So my first question was whether it was 
180 days from the discriminatory act or the 180 days from 
discovery. You said the act. Now you are back to discovery.
    Mr. Mollen. Again, the court can only decide the case that 
is before it. The facts before the court indicated that the 
complainant in this case knew about the disparities and didn't 
file within the statutory timeframe.
    The court noted the possibility that in another case, that 
knowledge would have been lacking, and said, ``It is not before 
us today. We have noted it in the past. We have no occasion 
here today to say whether this discovery rule applies.''
    Mr. Scott. And it was never an issue, as Ms. Brake 
indicated, because the paycheck would renew the act.
    But if there is not a discovery rule, and you figured out--
well, let me just say with the discovery rule or not, so you 
discovered it, didn't do anything about it. The next year you 
are continuing to have all the whites being paid more than all 
the blacks. Are you telling me that there is no way to 
prospectively cure that under Title VII?
    Mr. Mollen. Well, first of all, there are a lot of 
different questions sort of bundled together there. If there 
were----
    Mr. Scott. They decide to give all the blacks one salary, 
all the whites another. Three hundred days go by. What can you 
do under Title VII under this?
    Mr. Mollen. Undoubtedly, there would be new employees who 
would be in a position to challenge that subsequent decision. 
So----
    Mr. Scott. Those employees could not challenge it under 
your interpretation of this--is that your feeling, Ms. Brake?
    I think she understands what the question is.
    You are sitting up there with a policy where all the blacks 
are getting paid less than all the whites, and they let 300 
days go by, and there is nothing they can do about it under 
Title VII?
    Ms. Brake. Congressman, I do believe that that is the 
implication of the Ledbetter decision.
    Mr. Mollen. If I might, Mr. Chairman, the same point could 
be made with respect to nearly every civil action in which 
Congress has legislated. If you have a personal injury case and 
you know about the injury and you don't bring your lawsuit 
within the requisite period of time, you are not able to, even 
though the damage or the effects of that action will----
    Mr. Scott. Yes, but you are not continuing the injury with 
every paycheck. They are not continuing to discriminate against 
you every week, paying all the whites more than all the blacks, 
week after week after week.
    Mr. Mollen. You are coming very close, Congressman, to 
describing the Bazemore case. And the Bazemore case is a 
special rule. And I think what the Ledbetter court said is that 
Bazemore is good law. And when you have that sort of facially 
discriminatory compensation system, it is discriminatory every 
time it is applied.
    Chairman Miller. The gentleman's time has expired.
    Ms. Ledbetter. Mr. Chairman, may I respond?
    Chairman Miller. Yes, Ms. Ledbetter, responding to Mr. 
Scott?
    Ms. Ledbetter. Mr. Mollen said that I knew back in 1992. I 
want to clarify this, once and for all. I did not know, in 
1992, that I made less money. I suspected I did, but I had no 
way of knowing.
    And then, in 1994, I didn't know for sure until I got that 
note. And I didn't know for sure then. Somebody just scribbled 
me a note.
    And then, later, it was brought out at trial that I was 
mailed an evaluation form that applied to my department, with 
my other peers, where we were evaluated and given the money and 
the rate. And I had never seen one of those before.
    But I just wanted to clarify that I did not know.
    And to wait for 19 years to file a suit, it wouldn't be a 
good idea, because it would be much more to my advantage to 
have filed early on in my career and try to correct something. 
But I didn't know at the time that it was so far out of 
balance.
    And I believe that a company like Goodyear, as large as 
they are and with the resources they have, they should be in 
compliance with every federal regulation. Because, for one 
thing, they are a government supplier. They should be in 
compliance, and then they wouldn't have to worry about anyone.
    And this is not an easy thing to do, to bring this before 
you.
    Chairman Miller. Thank you.
    Mr. Hare?
    Mr. Hare. Thank you, Mr. Chairman, for indulging me another 
5 minutes here.
    Ms. Ledbetter, we keep hearing about the Supreme Court 
case. But the lower courts ruled in your favor, am I correct?
    Ms. Ledbetter. Yes, sir.
    Mr. Hare. Okay. And, you know, you have been hearing a lot 
of this. And it is interesting. We know that the experts and 
people asking questions--but this had to have cost you 
thousands of dollars, I am assuming, thousands of dollars over 
this period of years.
    Ms. Ledbetter. Yes, sir. It has been a long haul and 9 
years to pursue this. It is very taxing on one to have to go 
through this. And most people don't want to do this. They just 
want to fit in, do their job to the best of their ability and 
go forward.
    Mr. Hare. Well, I just want to say, first of all, I commend 
you for your courage. I think it is a sad day for this country 
when we have discrimination that the lower courts said 
happened, you went through the process, and then we get the 
Supreme Court saying you didn't file in a timely fashion, when 
you didn't even know until you got it in an anonymous note 
handed to you.
    But the bottom line, it seems to me--and I just would be 
interested in, you know, Professor Brake, your opinion on 
this--I mean, this is nothing new here. There are hundreds of 
cases, if not thousands of cases, of discrimination on the part 
of employers against women and against minorities.
    If we don't pass this law and we don't do something to 
correct what happened to Ms. Ledbetter, are we not just saying 
to the companies, you know, ``Recess has just begun, so go out 
and here is the playing field''? I mean, how, in heaven's name, 
if we don't do this, aren't we really just asking to make the 
situation much worse than it already is?
    And I guess the question is, is it as bad as I think it is? 
Because I think it is pretty bad, from what I have been hearing 
not just today but what we have been seeing for years and 
years.
    Ms. Brake. Congressman, I have to agree with you. It is a 
terrible situation we are left with, with this ruling, unless 
Congress steps in to act.
    It is crucial that we have strong pay discrimination laws 
in this country. We know we have a gender wage gap. We know 
there is pay discrimination out there not just on the basis on 
sex, but also on the basis of race, age, of course, 
disability--all of these other laws that are tied to Title VII 
filing requirements and will be stuck with the Ledbetter 
problem as well.
    And I would note that--something that did come up in the 
ranking member's comments at the beginning--there is another 
statute out there, the Equal Pay Act. And yet, as I have 
detailed in my written testimony, we cannot assume that 
everything is still going to be okay just because the Equal Pay 
Act is out there.
    The Equal Pay Act operates based on a paycheck accrual 
rule. It is not stuck with the Ledbetter ruling. But it is very 
narrow in its coverage for sex-based discrimination in pay. I 
point out the problems with just being stuck with that act in 
my written testimony.
    And, of course, it does not even cover race-based 
discrimination in pay or the other kinds of discrimination that 
the Ledbetter ruling leaves us with unless Congress acts.
    And so there is a real sense of deja vu here, I think, in 
terms of what Congress is being asked to do. Because this is 
almost identical to the Lorance decision, which Congress 
overturned in 1991.
    You know, Mr. Mollen keeps saying, ``Well, there will be no 
statute of limitations.'' That is simply not what we are urging 
Congress to do. Of course there will be a statute of 
limitations.
    But as with Lorance, apparently Congress needs to again 
tell the court that when you have a discriminatory decision 
that came maybe a while back but it is being reapplied into the 
present and re-effectuated with present actions by the 
employer, as with the application of a discriminatory seniority 
system and as with paychecks that keep incorporating pay 
discrimination, presently paying a woman less because of her 
sex, Congress apparently needs to tell the court again, such 
claims are not time-barred. We are talking about a plaintiff 
proving that, ``Right now, currently, I am making less because 
I am a woman.''
    Mr. Hare. Well, just in conclusion, I certainly hope that 
we--and I know that we are a much better country, that will 
allow people to have the opportunity for due process.
    And with all due respect to Mr. Mollen, what happened to 
you is happening to people as we speak. It is going to continue 
to happen.
    And I certainly think taking and doing what some 
companies--not all--what some companies are doing to people and 
then playing the end-run game by running the statute of 
limitations, and then blaming the employee--``It is the 
employee's fault that they lost the case from being 
discriminated against''--I think not only is it wrong, it is 
insulting to the person that filed the claim.
    Thank you, Mr. Chairman.
    Chairman Miller. Thank you.
    Professor Brake, I would like to follow up on your response 
to Mr. Hare for a second. And I think we have all, sort of, 
talked around this point, and I just want to see if we have 
some clarity here.
    One of the questions here is, with this 180 days--we don't 
dispute 180 days or we don't dispute 300 days, but the question 
is, the court seemed to say that it runs from the time of the 
discriminatory act, the decision made here, whether it was 
because of the work evaluation or whether it was the setting of 
the pay scale, what have you.
    If you don't discover it, you are gone. I mean, you have 
180 days to figure out that you might be being treated 
differently, in this case because you are a woman.
    Ms. Brake. Sir, I would say that is correct, with the 
caveat that we don't know the lower courts will start doing 
now, if at anything, with the discovery rule in terms of when 
someone figures it out.
    Chairman Miller. No, but I mean----
    Ms. Brake. We don't know, but, yes, there is certainly a 
risk. The Supreme Court hasn't even said there is a discovery 
rule. It is applied in many jurisdictions very strictly, so 
that what you said may well be an accurate statement of the 
law, post-Ledbetter; that 180 days, the raise comes down, the 
time expires, you can never challenge it. That may well be the 
case, even if there is absolutely no way that you could have 
known that you had experienced pay discrimination.
    Chairman Miller. I mean, you know, there are a lot of 
situations, it seems to me--and I think Justice Ginsberg, sort 
of, touched on it--there are a lot of situations where people 
are really, you know, happier that they got the job.
    And they may work for a considerable period of time not 
knowing that they might have been even been hired at a 
differential pay scale for whatever, because they are a woman, 
because they are African-American or what have you. And they 
really don't have the ability or the wherewithal to ask these 
kinds of questions.
    If you are a single parent, if you are the only wage in the 
household--people come to the workplace with all different 
situations: Ms. Ledbetter talked about having a handicapped 
child, taking care of a parent, trying to struggle with their 
family, their divorce. All of these situations impact people, 
and it impacts their standing to raise objections or to work 
off a sense, an intuition that, ``I may be being treated 
differently, but I don't want to risk the job.''
    So I think the idea that the burden falls on you to 
discover the initial act and decipher it in terms of your own 
situation, and then to act in a timely fashion--you know, I 
just don't think--I mean, I don't know what these justices did 
before they got to the Supreme Court, but I worked in a lot of 
refineries. I worked on a lot of merchant ships. I worked in a 
lot of environments where, with all due respect, ``You don't 
like our way; try the highway.''
    I never asked those questions when I was young and working 
and raising a family. I needed those jobs.
    Mr. Scott. Would the gentleman yield?
    Chairman Miller. So I just don't quite get how the average 
employee is supposed to put all this at risk, or even decipher 
it in the first 180 days. They may be the victims of a policy 
they had no way of knowing.
    And maybe everybody else at the workplace is in on the 
game. It would not be unusual, in my circumstance in 
California, that Mexican-Americans would be hired at lower 
wages and everybody, kind of, knows it because they don't have 
status. Everybody else is in on the game, but nobody is saying 
a damn thing. But I am supposed to figure it out.
    Yes, I yield to the gentleman.
    Mr. Scott. You are really asking two questions there. One, 
how are you going to find out? And two, if you are in that 
situation, need the job, and have found out----
    Chairman Miller. What do you do?
    Mr. Scott. And so you start working, you know they are 
paying you less, and you just put up with it. Three years from 
now, you just say, ``I am not going to put with this. You all 
are paying me less than everybody else, just because of my 
race.'' What? You can never bring a case again? I mean, you 
have got to put up with----
    Chairman Miller. Well, that is what we have to wrestle 
with. I mean, you raise----
    Mr. Scott. So there are two questions. One is, how do you 
find out? And, two, after you found out, do you have to 
continue working for lower wages forever?
    Mr. Andrews. Will the chairman yield?
    Chairman Miller. I yield to the gentleman from New Jersey.
    Mr. Andrews. Another point which Mr. Scott's comments bring 
to mind is that very often, under the discovery rule, the issue 
is whether the plaintiff knew or should have known that they 
had the claim.
    And you have put yourself in a very difficult situation 
here, where a court might say that the employee should have 
exercised more due diligence and found out that they were the 
victim of a discriminatory act, which is an awfully heavy 
burden to put on someone who is already at a position of 
disadvantage.
    So, frankly, I think the paycheck-to-paycheck doctrine is a 
lot stronger in protecting the rights of people to make a 
claim.
    Ms. Woolsey. Would the gentleman yield to me, just for a 
minute?
    Mr. Andrews. Yes.
    Ms. Woolsey. We also have to remember that when Ms. 
Ledbetter retired, she is continuing to be discriminated 
against because her Social Security, her pension, if they even 
have one, is all based on her earnings as a worker. And that is 
that much less than her peers who are going to retire at a 
higher rate, anyway.
    So this goes on and on for her. We have got to fix it.
    Chairman Miller. Thank you.
    Mr. Keller?
    Mr. Keller. Well, thank you.
    I just want to thank all the witnesses, Ms. Ledbetter 
especially, for being here.
    I represented many very large employers in employment-
related cases, and I can tell you, having seen it firsthand, 
there are many people--most, in fact, have an absolutely zero 
tolerance for the type of conduct that you are describing.
    As you know, in our law of sexual harassment, there are two 
kinds. There is the hostile environment: Someone tells an 
inappropriate dirty joke, for example. And there is the quid 
pro quo: ``Go down to the hotel with me or else you are going 
to be placed at the bottom of the pile.'' And that is, by far, 
the most egregious and the most offensive.
    And the whole reason behind the statutes of limitations 
are, we want people to bring these claims in a timely manner 
before witnesses' memories fade. And in this case, the key 
witness is dead. And so, it is an example of why we need to 
have appropriate statutes of limitations, whatever they are.
    We have had a hearing today on a pretty narrow issue, as to 
when that statute of limitations begins to run, when it is 
appropriately told.
    But, Ms. Ledbetter, I think the biggest concern I have with 
reading your testimony is the issue of sexual harassment. And 
even though getting paid slightly less when you feel deserved 
more is certainly very important, the fact that you were a 
victim of the most egregious kind of sexual harassment is the 
thing most concerning to me.
    And so, I know that you were here to testify about a narrow 
issue, but, as someone who has been through the experience, as 
we look at the employment laws, do you have any advice to us, 
within the realm of sexual harassment, as to how we might write 
the laws to be fairer to people who are put in a position such 
as you?
    Ms. Ledbetter. Yes, sir, I would. The sexual harassment 
that started in the early 1980s, that I testified to, about 
``go down to the motel,'' not a date, I tried to work through 
that. I exited the manager's office, and I tried to continue 
doing my job and stay out of their way, keep my head down and 
keep working.
    But I worked in a very hostile environment. And I was 
blamed for causing trouble. Even the plant manager told me, he 
said, ``You are a troublemaker, and we don't want women in this 
plant.'' He said, in fact, ``A tire factory is not a place for 
a woman.''
    And that environment is very difficult to work in. And when 
you start trying to prove, as the only female at the time 
working there, that you have been sexually harassed, it is very 
difficult.
    In fact, when I filed the charge on another deal in the 
early 1980s, they said, ``You go home. We will let you know 
when you can come back to work.'' And ``You are nothing but a 
troublemaker,'' was what my boss told me. And I said, ``Are you 
sending the gentleman home too?'' He said, ``Oh, no.'' He said, 
``He has been working here, and he has done a good job, and he 
can't lose his job because of something you have charged him 
with.''
    But I had witnesses at the time. But by the time they 
started the investigation, somehow those witnesses had 
disappeared. In other words, they no longer wanted to testify.
    Mr. Keller. And when you first filed your EEOC complaint, 
was that in the early 1980s, about the hotel remark?
    Ms. Ledbetter. That was about sexual harassment on the 
floor, and ``You have got to go to bed with me or you won't 
keep working here.''
    Mr. Keller. The timeframe, though, that was roughly the 
early 1980s?
    Ms. Ledbetter. ``I will get your job.''
    And then, I called the EEOC from a payphone, and I talked 
to a manager or whoever I spoke with into putting my case on 
file, because I knew that they were going to fire me, for 
whatever unknown reason, if I didn't stop it.
    Mr. Keller. And as you sit here, as someone who has had all 
these life experiences, as you look back, when you first heard 
the offensive comment about ``go to the hotel with me,'' if you 
had it to do all over again, would you have pursued a sexual 
harassment claim then, as opposed to just merely going back to 
work with the agreement that that guy wouldn't be your 
supervisor anymore?
    Ms. Ledbetter. Well, basically, that is what I asked for at 
the EEOC, was to give me my manager's job back, and I would not 
be working for that gentleman. I was told I had a case, and 
they gave me the right to sue. But at the time, I did not want 
to sue anybody. I didn't want to do it this time. So when you 
get backed into a corner, sometimes you have to do things that 
you don't want to do.
    And I would like to point out, too, that what Ms. Woolsey 
said a while ago, about my retirement, my contributory 
retirement that I participated in, my 401(k), the bonuses, the 
overtime, all go back to in the 1980s when I was shorted on my 
money and I never knew that I was so low-paid.
    My money would have been much greater, like the men, if I 
had known that. And I certainly wouldn't have sat on it for 17 
years, especially as hard as I was struggling, because I worked 
every hour of overtime that I possibly could work.
    And at the trial, I would like to bring up, too, there were 
three of my three previous managers that directly supervised 
me, testified in court--and they couldn't say that I was that 
bad. It is like somebody brought up here today, why would you 
keep an employee for 19 years if they are that bad?
    Mr. Keller. Well, thank you very much for being here, and 
thank you for your testimony.
    Ms. Ledbetter. Thank you. I appreciate the privilege to 
respond to you. Thank you, sir.
    Mr. Keller. You bet.
    Chairman Miller. Thank you.
    I don't mean to keep you here longer, but just on this one 
question, I mean, in this case, the jury found discrimination. 
And the suggestion is that somehow the statute of limitations, 
the finding of the court is that this is right, because 
otherwise you can hang on. And in this case, a supervisor died.
    By the same token, the employer can hold on to the 
discrimination, keep it secret, and the employee quits; the 
employee gets hit by a truck.
    I mean, I don't quite get why, you know, the suggestion is 
here that the court is right because, as you suggested, Mr. 
Mollen, that people die and memories fade and the rest of that. 
Well, it seems the advantage runs the other direction as well.
    Mr. Mollen. Well----
    Chairman Miller. So if we can make a discriminatory 
decision, we can keep it secret, chances are we can get away 
with it. There is a turnover in the workforce, then we have got 
our unit costs down, so to speak.
    Mr. Mollen. Well, there are a couple of comments.
    First of all, the Supreme Court didn't have anything to say 
with the merits of the case. I mean, we are only talking about 
the statute of limitations.
    Chairman Miller. I understand that.
    Mr. Mollen. Okay.
    Second of all, whether we would have had the same jury 
verdict had all of the witnesses and all of the documents been 
available and fresh, we just don't know.
    Chairman Miller. So that would be true if we had all of the 
workers who might have been discriminated against, who had gone 
on and left and moved across the country and couldn't find for 
discovery and all the rest of that.
    Mr. Mollen. There is no question that the unavailability of 
evidence can work to the disadvantage of both litigants. And I 
think that is why Congress wisely chose a brief limitations 
period.
    In this particular case, though--and I think it typically 
works to the disadvantage of the employer, for reasons that are 
amply demonstrated by this particular case.
    Ms. Ledbetter testified, I am quite sure, with rather 
compelling detail, about conversations she had about incidents 
that occurred as to which there were no other witnesses 
available to testify. And so that testimony essentially went in 
unrebutted. I don't think, under those circumstances, it can be 
very surprising that the jury returned a verdict for her.
    Now, they may have returned a verdict for her anyway. You 
know, I don't know----
    Chairman Miller. Yes, but we can Monday-morning-quarterback 
every jury verdict in the country. And we do. [Laughter.]
    Mr. Mollen. Well, we can't know, sitting here today, what 
the trial would have looked like or what a jury would have 
concluded if this case had been prosecuted as Congress intended 
with respect to the limitations period. We just don't know.
    But I think what we do know, and what Congress has said, 
sort of, as policy matter, regarding Title VII and all kinds of 
other civil actions, is that we know, as a fact, that memories 
fade and that the availability of evidence diminishes with 
time. And that is why we have these limitations periods.
    Now, it has been suggested that I am wrong when I suggest 
that the paycheck rule effectively eliminates the statute of 
limitations. But it is hard for me to look at it any other way. 
Because, basically, what you are saying is that, as long as a 
paycheck is cut and you file a charge within 300 days of that 
last paycheck, it is a timely suit. And effectively, that means 
that there is limitations period.
    Mr. Scott. Well, Mr. Chairman?
    Chairman Miller. Yes?
    Mr. Scott. Can I follow up?
    Chairman Miller. Mr. Scott?
    Mr. Scott. There is a limitation of 2 years. Is that right, 
Ms. Brake?
    Ms. Brake. On back pay, that is correct.
    Mr. Mollen. Not on liability, compensatory or punitive 
damages; only with respect to back pay.
    Mr. Scott. Well, if you are continuing your--I mean, but it 
is not--you filed within 180 or 300 days or continuing 
discrimination, which you have to show, that the paycheck 
represented a continuation of the discrimination. Is that 
right?
    Mr. Mollen. Well, it is the continuation of the 
distinction. But what the court had said in Ledbetter----
    Mr. Scott. The distinction being that you are getting paid 
less solely because of your race?
    Mr. Mollen. Well, what the court said in Ledbetter--and, 
Congressman, I understand that you and I are just going to 
disagree about this, but Ledbetter----
    Mr. Scott. Well, I am not sure we are disagreeing. I am 
just trying to find out what you are saying.
    Mr. Mollen. What Ledbetter said is that the discriminatory 
act is the decision to pay less, not the cutting of a paycheck. 
And just like virtually any other cause of action----
    Chairman Miller. But if I don't know that that act has 
taken place, but I am subject to the reduced pay, and I don't 
find out within 180 days, I am out of luck, under this 
decision.
    Mr. Mollen. But the courts expressly said it wasn't 
reaching the discovery rule question because it didn't have to 
in this case; because, in this case, there was sufficient 
information available to Ms. Ledbetter to require her, in the 
court's view, to go to the EEOC.
    The court expressly said there may be a case out there in 
which the individual doesn't know, and there may be an occasion 
for us to decide whether the discovery rule or something like 
it applies in that context.
    But the Supreme Court can only decide the cases that are 
before it. And it would have been an advisory opinion for the 
court to reach out and offer an opinion on whether the 
discovery rule applies to Title VII cases. It simply wasn't 
before them.
    Chairman Miller. Professor Brake, you look like you----
    Mr. Scott. Well, while she is getting her mike--so we are 
doing this piece by piece. First of all, you knock this out; 
the next time you come back with a no discovery rule, and then 
you would have solved all your problems.
    Ms. Brake. Well, if I could just say, the discovery rule is 
no answer to this problem. The last thing we want, in every 
single pay case, is to have a mini-trial, in every pay case, 
about what the plaintiff knew and when, and whether that would 
have been enough to make a reasonable person know that they had 
a pay claim.
    That would be great billable hours for lawyers on both 
sides of the case, but that is a terrible rule in terms of how 
workable it is and in terms of the EEOC applying that rule 
every single time.
    Mr. Scott. And there are two questions. One, whether or not 
you knew and whether that statute ran; but if you knew and just 
put up with it for 300 days and you will be continually paid at 
the reduced rate, and there is nothing that Title VII can ever 
to get you straight.
    Ms. Brake. Yes, that is exactly right.
    Mr. Scott. Is that right, Mr. Mollen?
    Mr. Mollen. Again, that is precisely what happens in 
virtually every other context. If you have been injured by----
    Mr. Scott. And you said that you tried to get some 
situation where you could--if there is some facial 
discrimination, you can prove that blacks are being 
discriminated against but are not being facial, then there is 
still that class of employees that cannot do anything because 
they knew they were getting underpaid for more than 300 days.
    Mr. Mollen. Congressman, maybe if you could indulge me for 
30 seconds, a hypothetical.
    If your neighbor built a fence on your property and you 
knew that he had encroached on your property and you didn't act 
promptly enough, you don't have a cause of action. In other 
words, you had a cause of action, you slept on your rights, you 
didn't file suit in time.
    The fact that it continues to be on your property may be a 
continuing injury to you, but the cause of action accrues from 
the time that the individual built the fence.
    So what the Ledbetter rule does is treat discrimination 
cases like the----
    Mr. Scott. But I don't think that is right. If it is on my 
land, I can get rid of that fence.
    Mr. Mollen. If you act promptly. If you don't----
    Mr. Scott. No, no, no. If you don't, then it becomes his 
land.
    Mr. Mollen. Exactly.
    Mr. Scott. Okay. If it is his land, then it is his fence on 
his land. So long as it is my land, I can get rid of that 
fence. [Laughter.]
    Mr. Henderson. Mr. Scott, you know, for Mr. Mollen to say, 
sort of, adverse possession as a basis for doing a comparable 
analysis to employer-employee rights is simply not right.
    This is really more akin to a contract of adhesion. An 
employee who is at a disadvantage has gotten a job; in this 
instance, as the case of Ms. Ledbetter, wants to hold onto the 
job. She is doing everything she can to do that.
    This is not a situation where you are dealing with parties 
of equal basis, with equal resources and an ability to use 
established practices to best advantage. That is number one.
    Number two, Ledbetter is not riding on a whole-cloth 
circumstance for the first time, a case of first impression. 
This is changing an established rule of law that had been in 
place for over 20 years, that both employees and employers had 
come to rely upon as a basis for engaging in action in the 
workplace. This decision represents a dramatic change to that 
established rule.
    Mr. Mollen would like to characterize this as, you know, an 
open process in which a flood gate of lawsuits will come about. 
There is no evidence of that.
    Nor is there any evidence that the pre-existing rule was so 
burdensome to employers that they sought relief by coming to 
Congress to get you to change the paycheck accrual rule year 
after year after year since Title VII was enacted. That is 
certainly not the case over the past 20 years. Mr. Mollen knows 
that.
    This really does represent a dramatic change. We are trying 
to restore the status quo ante. We think it is the only way to 
give employees some legitimate basis to compete effectively in 
the workplace against the kind of discrimination that 
unfortunately Ms. Ledbetter suffered from.
    Mr. Scott. Well, Mr. Chairman, I think we can sum this up 
by just agreeing, Mr. Mollen, that if people in a worksite know 
that they are being underpaid and figure they need their jobs 
desperately and don't want to risk it and sleep through 180 or 
300 days and you get to the 301st day, that group of employees 
can forever be underpaid solely because of their race.
    Is that your understanding, unless we fix this?
    Mr. Mollen. If the employees know that their legal rights 
have been invaded and don't act upon them, they will lose the 
right to sue on it, just like they will in virtually every 
other civil context.
    Mr. Scott. Okay. Let's say that we just want to make sure 
everybody knows what is going on here. And so there is no 
recourse under Title VII for that group of African-American 
employees to ever rectify the fact that all the blacks are 
being underpaid and that they have provable cases of 
discrimination. Once they let that 300th day go, they will 
forever be underpaid, and there is no recourse under Title VII?
    Mr. Mollen. I have to disagree with that, Congressman. 
Because that is the Bazemore case, which was reaffirmed----
    Mr. Scott. If you have a provable case of discrimination 
that is ongoing, you get another paycheck----
    Mr. Mollen. If you have a facially discriminatory----
    Mr. Scott. Not facial. You can prove the discrimination. 
They don't say it, but that is just the way it is. All of those 
employees have been underpaid because of their race, or you can 
prove that they have been discriminated against. As long as 
they work there, there is no recourse under Title VII.
    Mr. Mollen. You are positing a circumstance that is 
difficult to imagine--that is, that it is not facially 
discriminatory, but it is----
    Mr. Scott. Well, Ledbetter, she was ongoing, and she found 
out--let's assume she knew and didn't file. She would have to 
stay there for years on end underpaid; nothing you can do.
    Mr. Mollen. That is correct, Congressman. I agree with 
that.
    But the circumstance you posited was all blacks being 
treated in one way, all whites being treated in a superior way. 
In that context, I think it would be hard to imagine a context 
in which----
    Mr. Scott. Okay. Suppose they didn't discriminate against 
all the blacks, and the half can show they were underpaid. 
Anybody----
    Chairman Miller. Okay. We are going to stop the 
hypotheticals here for a second because Professor Brake wants 
to jump in here.
    Ms. Brake. I do. Thank you. I am still stuck on the 
neighbor putting a fence on your yard. I just can't let it go.
    I have to say that is nothing like a discriminatory pay 
decision. It is visible. It is in the open. You see when it 
goes up. Perhaps then you could be accused of sitting on your 
rights.
    Under the court's decision in Ledbetter, if you get a 3 
percent raise every year and your male colleagues get a 4 
percent raise every year--and let's assume that you know that, 
the unusual situation where that is disclosed--but let's say 
you know it. You are getting a 3 percent raise, your male 
colleagues are getting a 4 percent raise. Under the court's 
decision in Ledbetter, you would have to challenge every single 
3 percent raise every 180 days after you learn that that is 
your raise.
    That is a rule that is a recipe for the gender-based wage 
gap. Because that difference in 3 and 4 percent piles up. It is 
compounded. It is not the same fence on your lawn every day. It 
changes every year. The gap grows between your salary and your 
male colleagues'.
    And it may well be a sensible, reasonable employee who 
decides, ``I am not going to court over a 3 percent versus a 4 
percent raise. I have got to keep my job.'' But after 10 years 
of that, you look at your salary and you see a $10,000 gap with 
your male colleagues that is not explained by any non-
discriminatory reason.
    Under the Ledbetter ruling, too bad; you are stuck with 
that. And that is a terrible result, as a matter of policy.
    And I will say one last thing: In response to all of this 
hardship on employees that you all have been talking about, the 
hardship of learning about the discrimination and the hardship 
of challenging it, and all of the same things Justice Ginsberg 
talked about in her dissent, Justice Alito's only response to 
that is to say, ``Well, that is a matter of policy.''
    There is the one place where I might agree with him, in 
that opinion, when he says then--of course, I believe that 
legally, all of that was clearly decided the wrong way--but the 
one place where I agree with him in that decision, insofar as 
it is a matter of policy, he is right that it is for Congress 
to look at that.
    Congress needs to look at these policies and decide if that 
is the result that they want.
    Chairman Miller. And that is where we will leave it.
    Thank you very much for your time. You have been very 
generous with your time here this afternoon. I want to thank 
all of you for your contributions to our better understanding, 
and my colleagues for sticking it out. Thank you.
    With that, the committee will stand adjourned.
    But we will give the members 14 days to submit additional 
materials for the hearing record. And if members do have 
follow-up questions in writing, we will send them to the 
witnesses and ask that you might respond.
    Thank you.
    [The prepared statement of Mr. Altmire follows:]

Prepared Statement of Hon. Jason Altmire, a Representative in Congress 
                     From the State of Pennsylvania

    Thank you, Mr. Chairman, for holding this hearing on the Supreme 
Court's decision in Ledbetter v. Goodyear, and possible congressional 
action in response to that decision.
    In the Ledbetter v. Goodyear decision the Supreme Court held that 
the 180-day statute of limitation, found in Title VII of the Civil 
Rights Act of 1964, begins on the date of the employer's discriminatory 
pay decision. Thus, the court dismissed Lilly Ledbetter's claim because 
she did not file a complaint with the Equal Employment Opportunity 
Commission within 180 days of Goodyear's first decision to pay her less 
based on her gender.
    Writing for the four justices who dissented from the majority, 
Justice Ginsburg argued that the majority decision was seriously 
flawed. She stated that each paycheck that is affected by the original 
discriminatory decision perpetuates that discrimination. Therefore, she 
concluded that each paycheck Ms. Ledbetter received from Goodyear 
violated Title VII anew, and that the 180-day statute of limitation 
should have begun when Ms. Ledbetter received her final pay check from 
Goodyear.
    Furthermore, Justice Ginsburg argued that the majority's decision 
did not recognize the realities of pay discrimination. In particular, 
Justice Ginsburg pointed out that there was no way for Ms. Ledbetter to 
know she had been discriminated against when the discriminatory 
decision was first made, because she was not aware what her coworkers 
were being paid. In fact, Ms. Ledbetter was not aware she had been 
discriminated against for several years. Thus, beginning the 180-day 
statute of limitation on the date of the discriminatory decision 
effectively prevented her from ever being able to make a claim.
    It is crucial that Congress ensure that all people who experience 
pay discrimination are provided with recourse through our legal system. 
However, we must also ensure that some reasonable statute of limitation 
is in place, so that employers can effectively defend themselves 
against pay discrimination claims. As this committee considers possible 
legislative action on this issue, I look forward to working with 
members on both sides of the aisle to determine the appropriate balance 
of these concerns.
    Thank you again, Mr. Chairman, I yield back the balance of my time.
                                 ______
                                 
    [Whereupon, at 4:43 p.m., the committee was adjourned.]

                                 
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