[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
Available on the Internet:
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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.]