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


 
 IMPACT OF LEDBETTER V. GOODYEAR ON THE EFFECTIVE ENFORCEMENT OF CIVIL 
                              RIGHTS LAWS

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 28, 2007

                               __________

                           Serial No. 110-38

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. SCOTT, Virginia            HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
ROBERT WEXLER, Florida               DARRELL ISSA, California
LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia                STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

ARTUR DAVIS, Alabama                 TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida    MIKE PENCE, Indiana
KEITH ELLISON, Minnesota             DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
ROBERT C. SCOTT, Virginia            JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel

















                            C O N T E N T S

                              ----------                              

                             JUNE 28, 2007

                           OPENING STATEMENT

                                                                   Page
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Artur Davis, a Representative in Congress from the 
  State of Alabama, and Member, Subcommittee on the Constitution, 
  Civil Rights, and Civil Liberties..............................     3
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     4

                               WITNESSES

Ms. Lilly Ledbetter, Jacksonville, AL
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
Ms. Martha Chamallas, Robert J. Lynn Chair in Law, Moritz College 
  of Law, Ohio State University
  Oral Testimony.................................................    31
  Prepared Statement.............................................    33
Mr. Neal D. Mollen, U.S. Chamber of Commerce
  Oral Testimony.................................................    51
  Prepared Statement.............................................    54
Ms. Marcia Greenberger, Co-President, National Women's Law Center
  Oral Testimony.................................................    65

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of Wade Henderson, President and CEO, 
  Leadership Conference on Civil Rights..........................    87
Response to Post-Hearing Questions from Marcia Greenberger, Co-
  President, National Women's Law Center.........................    91


 IMPACT OF LEDBETTER V. GOODYEAR ON THE EFFECTIVE ENFORCEMENT OF CIVIL 
                              RIGHTS LAWS

                              ----------                              


                        THURSDAY, JUNE 28, 2007

                  House of Representatives,
                 Subcommittee on the Constitution, 
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:08 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Davis, Wasserman Schultz, 
Ellison, Scott, Watt, Franks, and Issa.
    Staff present: Heather Sawyer, Majority Counsel; David 
Lachmann, Subcommittee Chief of Staff; Keenan Keller, Majority 
Counsel; Kanya Bennett, Majority Counsel; Susana Gutierrez, 
Professional Staff Member; and Paul Taylor, Minority Counsel.
    Mr. Nadler. Good morning. This hearing of the Subcommittee 
on the Constitution, Civil Rights, and Civil Liberties will 
come to order.
    Today's hearing will examine the Supreme Court's recent 
decision in the case of Ledbetter v. Goodyear and its impact on 
the effective enforcement of the civil rights laws.
    I want to welcome everyone here today. I strongly believe 
in maintaining an open process, and the Subcommittee will 
proceed with its work.
    The Chair will recognize himself for 5 minutes for an 
opening statement.
    Today's hearing examines the Supreme Court's recent 
decision in the case of Ledbetter v. Goodyear in which the 
court severely limited the ability of victims of discrimination 
to seek vindication of their rights as guaranteed under law.
    We will have the opportunity to hear from Lilly Ledbetter 
directly, but I think it is important to point out that the 
question before the court had nothing to do with whether or not 
she had been a victim of intentional discrimination over the 
course of her 19 years at Goodyear or whether she had, in fact, 
suffered harm as a direct result of that intentional unlawful 
discrimination.
    What was at issue was whether it was an act of 
discrimination each time she was paid less than her male 
counterparts solely because of her gender or whether it was 
only the initial decision that counted for the purpose of 
getting past the courthouse door under a discrimination 
complaint.
    I am very concerned that once again the Supreme Court has 
gone out of its way to read our antidiscrimination laws as 
narrowly as possible so as to deny relief to as many victims of 
discrimination as possible. I am particularly disturbed that 
the Congress seems to have addressed this particular issue very 
specifically in the 1991 Civil Rights Restoration Act, and the 
court seems to have ignored that.
    The court has now rewarded employers who successfully 
conceal their discriminatory actions from their employees. That 
is not hard to do when it comes to pay. Unlike the Congress, 
which publishes all salaries quarterly and anyone can look and 
see what any of our aides or we are making by looking at those 
quarterly statements, private business can and does conceal 
from its employees how much each worker is receiving.
    The court's decision is an open invitation to violate the 
law with virtual impunity. The court's narrow reading of the 
180-day rule would also seem to invite more litigation as 
employees rush to court, lest they forfeit any chance of 
redress.
    Perhaps, as Congress did in 1991, we will have to go back 
and clarify the law again and, this time, hope the Supreme 
Court does not ignore the plain words on the paper. If that is 
necessary, so be it.
    I recall being asked once when the court seemed incapable 
or unwilling to follow clear congressional intent on an 
antidiscrimination statute, ``Don't you guys have some 
boilerplate language you can put in there that says `We really 
mean it this time'?'' Well, we really mean it. I think it is 
important that the Congress respond to this decision swiftly 
and effectively.
    Our colleague, the Chairman of the Education and Labor 
Committee, Mr. Miller of California, has introduced legislation 
to try to clarify one more time for the court the intent of 
Congress to provide timely, accessible recourse to victims of 
intentional discrimination. I have co-sponsored it, and I hope 
to have the opportunity to vote for it soon.
    I would appreciate any thoughts or suggestions members of 
the panel might have on how they believe we ought to proceed.
    I want to welcome our witnesses today. I look forward to 
hearing from your testimony.
    The Ranking minority Member is not here yet, so we will 
recognize him when he arrives for his opening statements.
    In the interest of proceeding to our witnesses and mindful 
of our busy schedules, I would ask that other Members submit 
their statements for the record. Without objection, all Members 
will have 5 legislative days to submit an opening statement for 
the record.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing at any time, especially should there be 
votes called on the floor.
    We will now turn to our first panel of witnesses. As we ask 
questions of our witnesses, the Chair will recognize Members in 
the order of their seniority on the Subcommittee, alternating 
between majority, minority, provided that the Member is present 
when his or her turn arrives.
    Members who are not present when their turn begins will be 
recognized after the other Members have had the opportunity to 
ask their questions. The Chair reserves the right to 
accommodate a Member who is unavoidably late or only able to be 
with us for a short time.
    I now recognize the gentleman from Georgia to do the first 
introduction. Did I get it wrong? Alabama? Alabama. I am sorry.
    Mr. Davis. I thank my friend from New Jersey. [Laughter.]
    Thank you, Mr. Chairman, for recognizing me to introduce a 
member of my State, unfortunately not one of my constituents. 
She is about an hour away, but I was near her territory on 
Saturday night.
    Lilly Ledbetter is from the Gadsden area, and she has 
worked at a Goodyear plant for a number of years. This case is 
ultimately about her. She is a very brave, very principled 
woman who did everything that she was asked to do by her 
company. She received exemplary performance evaluations.
    There was only one problem. They were committed to paying 
the men at the company more and, of course, she did not know 
about it for a long, long period of time. She eventually 
followed what was the law in the 11th Circuit and, frankly, the 
prevailing law of the United States by filing within 180 days 
of the last known instance of discriminatory pay an EEOC claim.
    She had her day in court. A jury of her peers in a district 
that is notoriously hostile to our plantiffs in title VII cases 
still found in her favor, and the jury awarded compensatory and 
punitive damages as well as backpay.
    The U.S. Supreme Court changed the rules on her in 
midstream, undercut years of established precedent in law, and 
I am happy to report to you, Ms. Ledbetter, that yesterday the 
Education and Labor Committee voted 25 to 20 to pass a bill 
that will correct what the Supreme Court did in the Ledbetter 
case. I assure you that is very prompt action by a 
congressional Committee.
    The ruling happened just several weeks ago. You and I were 
in Birmingham at our press conference just several weeks ago. 
The Committee on Education and Labor has acted in a prompt 
expeditious fashion. I compliment Chairman Miller for that, and 
I welcome you here today.
    Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    Our next witness is Martha Chamallas, the Robert J. Lynn 
Chair in Law at the Ohio State University, where she teaches 
employment discrimination law, torts and gender in the law. 
With more than 30 years as a law professor, she has written 
numerous articles on gender and race discrimination in 
employment, pay equity and sexual harassment. She has served on 
task forces investigating race and gender bias in the courts 
for the states of Iowa and Pennsylvania.
    Our next witness is Neal Mollen, a partner with the firm of 
Paul Hastings. He is the local office chair of the employment 
law department in Washington and co-chair of the firm's 
appellate practices group. He regularly represents employers 
and employer associations as parties and amici curiae in labor 
and employment matters before the Supreme Court and other 
Federal and State courts. He is an adjunct professor of labor 
law at the Georgetown University Law Center. He appears today 
on behalf of the U.S. Chamber of Commerce.
    Our final witness is Marcia Greenberger, the founder and 
co-president of the National Women's Law Center. Ms. 
Greenberger and the center have worked with the Congress in 
advocating the courts to ensure the rights of women. Ms. 
Greenberger received a presidential appointment to the National 
Skills Standards Board and is currently a member of the 
executive committee of the Leadership Conference on Civil 
Rights, is on the board of directors of the Women's Law and 
Public Policy Fellowship Program, the Religious Coalition for 
Reproductive Choice and the National Student Partnerships, and 
a councilmember of the American Bar Association's section on 
individual rights and responsibilities. In 1972, she started 
and became director of the Women's Rights Project of the Center 
for Law and Social Policy, which became the National Women's 
Law Center in 1981.
    I am pleased to welcome all of you. Your written statements 
will be made part of the record in its entirety.
    I would ask each of you to summarize your testimony in 5 
minutes or less. To help you stay within that time, there is a 
timing light at your table. When 1 minute remains, the light 
will switch from green to yellow, and then to red when the time 
is up.
    And before we go to our first witness, I will now recognize 
for 5 minutes the distinguished gentleman from Arizona, the 
Ranking minority Member, for his opening statement.
    Mr. Franks. Thank you, Mr. Chairman. Thank you for your 
forbearance here.
    I was delayed earlier, but I thank all of you for being 
here. It is a good day. We are looking forward to hearing what 
you have to say.
    Title VII of the Civil Rights Act of 1964 makes it an 
``unlawful employment practice to discriminate against any 
individual with respect to his compensation because of the 
individual's sex.''
    An equally important provision of title VII provides that 
an individual wishing to challenge an employment practice must 
first file a charge with the Equal Employment Opportunity 
Commission, the EEOC. In order to facilitate the timely 
resolution of claims, such a charge must be filed within a 
specified period, either 100 or 300 days, depending upon the 
State. After the alleged unlawful employment practice occurred, 
if the employee does not submit a timely filing to the EEOC, 
the employee may not challenge that practice in court.
    In May, the Supreme Court handed down a case called 
Ledbetter v. Goodyear Tire & Rubber Company, Inc., and in that 
case, the plaintiff, Ms. Ledbetter, filed a charge of pay 
discrimination with the EEOC 19 years after a decision was 
allegedly made to pay her less than her male colleagues.
    Ms. Ledbetter argued that her 1998 filing with the EEOC, 
was timely regarding the decision that allegedly occurred 19 
years earlier because the effect of that decision 19 years 
earlier was to keep her salary lower than it should have been 
until the present day.
    The Supreme Court properly rejected that claim, relied on 
the clear terms of the statute and held that a claim of 
discrimination must be brought within 180 or 300 days of the 
discriminatory act, not up to 20 years later when there was no 
evidence that Goodyear was currently making any discriminatory 
decisions.
    The court appropriately held that, ``Ledbetter's claim 
would shift intent from one act to a later act that was not 
performed with bias or discriminatory motive. The effect of 
this shift would be to impose liability in the absence of the 
requisite discriminatory intent. The statutes of limitation 
serve a policy of repose. They represent a pervasive 
legislative judgment that it is unjust to fail to put the 
adversary on notice to defend within a specified period of time 
and the right to be free of stale claims.''
    The EEOC filing deadline protects employees and employers 
from the burden of defending claims arising from employment 
decisions that are long past. Congress clearly intended to 
encourage the prompt processing of all charges of employment 
discrimination.
    The court also stated that it was proper to impose a 
statute of limitations on discrimination claims because 
``evidence relating to intent may quickly fade with time, and 
the passage of time may seriously diminish the ability of the 
parties and the fact finder to reconstruct what actually 
happened.''
    A person making a claim of discrimination will always be 
able to tell their side of the story, but, over time, an 
employer has less and less ability to tell its story, as 
managers quit, retire or die, and businesses are reorganized, 
taken apart or sold. Consequently, the timely filing of 
discrimination claims is essential.
    In fact, the court concluded that this case illustrates the 
problems created by tardy lawsuits.
    To put the case in context, at her trial, Ms. Ledbetter 
challenged every one of her employee evaluations and associated 
pay increases all the way back to 1979 when she started working 
at Goodyear. Most of her complaints centered on the actions of 
a single manager whom she claimed 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 and could not possibly have told the jury that he 
never asked Ms. Ledbetter on a date at all or that he never 
made a discriminatory compensation decision.
    The Ledbetter decision simply applied long-established 
precedent and a proper reading of the statutory text to what it 
appropriately called a tardy lawsuit. These claims were known 
to Ms. Ledbetter at the time they occurred 19 years earlier. 
That is not the proper way to bring a lawsuit. People should 
bring their claims when they know they have them.
    The Supreme Court upheld that principle. In so doing, it 
helped protect both victims and the accused by providing both 
sides and the judges who decide these cases with fresh 
available evidence that is absolutely essential to a just 
result.
    And, Mr. Chairman, with that, I look forward to hearing 
from all our witnesses today. Thank you.
    Mr. Nadler. Thank you.
    We will now hear from our first witness. Ms. Ledbetter, you 
may proceed.

         TESTIMONY OF LILLY LEDBETTER, JACKSONVILLE, AL

    Ms. Ledbetter. Good morning. 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 does not. 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.
    My story began in 1979 when Goodyear hired me to work as 
supervisor in their tire plant in Gadsden, AL. Toward the end 
of my career, I got the feeling that maybe I was not 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 the EEOC just before I retired, 
I found out that while I was earning about $3,700 per month, 
all the men were earning between $4,300 and $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 backpay, mental anguish and 
punitive damages. I can tell you that was a good moment.
    It showed that the jury took my civil rights seriously and 
was not going to stand for a big company like Goodyear taking 
advantage of a chance to pay me less than others just because I 
was a woman, and it seemed like a large enough award that a big 
company like Goodyear might feel the sting and think better of 
it before discriminating like that again.
    I was very disappointed, however, when the trial judge was 
forced to reduce that award to the $300,000 statutory cap. It 
felt like the law was sending a message that what Goodyear did 
was only 10 percent as serious as the jury and I thought it 
was.
    I am not a lawyer, but I am told that most of the time, the 
law does not put an arbitrary cap like that on the amount a 
defendant has to pay for mental anguish or punitive damages. I 
do not see why a company like Goodyear should get better 
treatment just because it broke a law protecting workers 
against discrimination instead of some other kind of law.
    But, in the end, 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 did not know what 
the men were getting paid and even if I had no way to prove the 
decision was discrimination.
    Justice Ginsburg hit the nail on the head when she said 
that the majority's rule just does not make sense in the real 
world. You cannot expect people to go around asking their 
coworkers how much money 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.
    Every paycheck I received, I got less than what I was 
entitled to under the law. The Supreme Court said that this 
does not count as illegal discrimination, but it sure feels 
like discrimination when you are on the receiving end of that 
smaller paycheck and you are trying to support your family with 
less money than what the men are getting paid for doing the 
same job.
    According to the Supreme Court, if you do not figure things 
out right away, the company can treat you like a second-class 
citizen for the rest of your career. That is not 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.
    My case is over, and it is too bad that the Supreme Court 
decided the way that it did. I hope, though, that Congress will 
not 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 prepared statement of Ms. Ledbetter follows:]
                 Prepared Statement of Lilly Ledbetter

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                              ATTACHMENTS

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Nadler. Thank you.
    Professor Chamallas, you are recognized for 5 minutes.

  TESTIMONY OF MARTHA CHAMALLAS, ROBERT J. LYNN CHAIR IN LAW, 
          MORITZ COLLEGE OF LAW, OHIO STATE UNIVERSITY

    Ms. Chamallas. Thank you, Mr. Chairman, Ranking Member 
Franks. I very much appreciate this opportunity to testify on 
the impact of the Ledbetter decision.
    My written testimony discusses the statute of limitations 
problem, and I will not address that issue now. Instead, I want 
to use my time to indicate why I think that Congress should 
lift the caps on compensatory and punitive damages currently 
imposed by title VII and by the ADA. The Ledbetter case itself 
dramatically illustrates the need for this reform.
    The jury awarded Lilly Ledbetter over $3.5 million in 
compensatory and punitive damages. Because of the title VII 
cap, however, her damages were reduced to $300,000, a sum the 
trial court regarded as well below that which would be 
sufficient to punish and deter Goodyear from discriminating in 
the future.
    Title VII set the $300,000 cap for employers with more than 
500 employees, even very large employers such as Goodyear who 
employ more than 75,000 workers.
    The title VII cap is particularly harsh because it is a 
combined cap on both compensatory and punitive damages. The 
caps are inequitable because they interfere with the two 
primary purposes of title VII: to prevent and deter 
discrimination and to make victims whole for their injuries.
    Because of their very nature, caps on damages do not serve 
to screen out meritless claims or otherwise streamline 
litigation. Instead, they have their greatest impact in two 
types of case.
    The first type of case, the plaintiff is able to prove that 
because he suffered severe harm, he deserves a large award for 
compensatory damages beyond the capped amount. A good example 
is a recent disability discrimination case brought by Ulysses 
Hudson against the Department of Homeland Security.
    Hudson proved that his supervisor stalked and harassed him, 
made threats to damage his property and repeatedly 
discriminated against him because of his disability. As a 
result of his cruel treatment, Hudson was unable to return to 
work, was forced to file bankruptcy and, through medical 
testimony, establish that he suffered post-traumatic stress 
disorder, anxiety and depression.
    The jury recognized the severity of this harm and awarded 
$1.5 million in compensatory damages. Because of the caps, 
however, the trial court reduced the award to $300,000 
representing only 20 percent of the damages as assessed by the 
jury.
    In the second type of case in which the caps are 
inequitable, the plaintiff is able to prove that because her 
employer was guilty of reprehensible behavior, she should be 
able to receive a punitive damages award sizeable enough to 
deter the employer from discriminating in the future.
    In a 1977 Kansas case, for example, the plaintiff, Sharon 
Deters, proved that her manager created a sexually hostile 
environment by persistently ignoring her complaints of 
harassment by co-employees. Rather than punishing the 
harassers, the manager excused their conduct, telling Deters 
that the harassers were revenue producers and she was not a 
revenue producer. The manager even attempted to convince Deters 
that being called the F word and the C word was just part of 
the roughness of the job.
    The jury awarded Deters $1 million dollars in punitive 
damages. Because of the title VII caps, however, the court 
again was forced to reduce the award only to $300,000, even 
though the defendant was a multibillion-dollar company who 
would not feel the sting from such a small award.
    The courts themselves have recognized that the title VII 
caps undermine the deterrent effect of the law. In the 
disability case against Wal-Mart in which a judge was forced to 
slash a $5 million punitive damages award to $300,000, the 
court stated that, ``Although the reduction respected the law, 
it did not achieve a just result.''
    He noted that for corporate behemoths such as Wal-Mart, 
such a small punitive damages award had virtually no deterrent 
value, given that Wal-Mart's total net sales in 2004, for 
example, were $256 billion and that it thus took only 37 
seconds to achieve a sales equal to the $300,000 it was 
required to pay to the plaintiff.
    The caps also affect plaintiffs who sue for religious 
discrimination. In one egregious case of religious 
discrimination, Albert Johnson, the plaintiff, was subjected to 
a hostile environment by his supervisor. The supervisor was 
annoyed that Johnson had asked for Sundays off. He called 
Johnson a religious freak and told him he was tired of his 
religious B.S., and he made fun of Johnson's religion in highly 
insensitive and lewd terms.
    The jury awarded Johnson $400,000 for compensatory damages 
and $750,000 for punitive damages. Again, the award was reduced 
to $300,000 to stay within the cap.
    Now it is interesting because, in this case, Johnson's jury 
award for the $400,000 in compensatory damages was itself over 
the capped amount, the reduction had the effect of totally 
wiping out the punitive damages and, with it, any chance of a 
deterrent effect.
    Lifting the caps would not lead to disproportionate 
liability. Under title VII, damages are only awarded in cases 
of intentional discrimination. Employers who have not 
deliberately violated the civil rights laws are thus required 
only to afford plaintiffs equitable relief.
    Moreover, since the 1999 ruling in the Kolstadt case in the 
Supreme Court, plaintiffs can recover punitive damages only in 
a very small subset of cases in which they prove not only 
intentional discrimination, but also that the employer acted 
with malice or reckless indifference to the plaintiff's 
federally protected rights and the evidence shows that the 
employer did not even make good faith efforts to enforce the 
company's antidiscrimination policy.
    These strict limits show that title VII's enforcement 
scheme is very different from common law tort, which sometimes 
allows compensatory and punitive damages in negligence and 
strict liability cases.
    Since 1991, the legal landscape has changed considerably. 
Lifting the caps would allow discrimination victims who have 
suffered the most to receive fair awards.
    And finally, I would like to say that lifting the cap would 
help those that were injured the most and would hold the worst 
offenders accountable.
    Thank you very much.
    [The prepared statement of Ms. Chamallas follows:]
                 Prepared Statement of Martha Chamallas

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Nadler. Thank you.
    I now recognize Mr. Mollen for 5 minutes.

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

    Mr. Mollen. Thank you, Mr. Chairman, Mr. Ranking Member 
Franks, Members of the Committee. Thank you for 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 decision in Ledbetter v. Goodyear Tire & 
Rubber.
    I had the privilege of serving as counsel of record for the 
Chamber in the National Federation of Independent Business in 
the Ledbetter case.
    The Chamber unequivocally supports equal employment 
opportunities for all, and it also supports and promotes the 
implementation of fair and appropriate mechanisms to achieve 
that critical societal goal.
    When Congress passed title VII, it selected cooperation and 
voluntary compliance as the preferred means for achieving that 
result, with vigorous enforcement in court by private parties 
and the EEOC when those voluntary efforts fail. It seems 
evident to me that Congress's chosen enforcement scheme has 
been vindicated over the intervening 43 years. The Ledbetter 
decision emphatically endorsed that statutory process.
    The rule emanating from Ledbetter is a simple one: 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 process of investigation, 
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 the period of 
limitations was renewed every time she received a paycheck and, 
thus, that she was entitled to wait until she retired to raise 
her claim to bias. 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, the Ledbetter decision recognized the profound 
unfairness inherent in a 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 
why it did what it did first to the EEOC and the charging party 
and then perhaps later to a jury.
    To do so, it has to rely on the existence of documents and 
the availability of witnesses, memories of individuals, neither 
of which is permanent. If a disappointed employee can wait for 
many years before raising a claim of discrimination, the effort 
could leave an employer effectively unable to defend itself in 
any sort of meaningful way.
    Perhaps most importantly, the paycheck rule is antithetical 
to the principle goal of title VII which is eradicating 
discrimination. When a charge is filed promptly after an 
allegedly discriminatory decision, the decision maker can be 
confronted by the employer, and if misconduct is discovered, he 
or she can be disciplined, can be removed from decision-making 
authority or can be terminated.
    When the charge is delayed by a period of years, however, 
the decision maker is very likely to remain in place. There is 
an increased risk in that circumstance that the misconduct will 
be repeated and that others will suffer the same fate. Only 
prompt action can root out this sort of serious misconduct and 
prevent injuries to others.
    If the goal of title VII is eliminating discrimination and 
not encouraging stale lawsuits, the paycheck rule cannot be 
justified.
    Now critics of Ledbetter have suggested that workers do not 
often have sufficient information to conclude that 
discrimination has occurred in time to meet the filing 
deadlines. I think there are a couple of responses to this.
    First and foremost, the legislation currently being 
considered is not limited to or even primarily about that sort 
of circumstance. By embracing the paycheck rule, the 
legislation explicitly and unambiguously authorizes those who 
do have all of the pertinent information to delay for years or 
decades before bringing suit. Rather than solving the perceived 
problem, the legislation creates another larger one.
    Second, it is not common in my experience as an employment 
lawyer for someone to claim that they have worked for years on 
end without having any inkling that discrimination has 
occurred, and that plainly was not the case in Ledbetter. It is 
undisputed that Ms. Ledbetter had all the information that she 
needed to file a charge of discrimination years before she did 
so. That, in my experience, is a far more common scenario.
    Third, 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 has engaged in 
concealment, as referred to by the Chairman in his opening 
statement, and prevented the individual from learning the 
information necessary to file a charge.
    Finally, Ledbetter critics seem to be confusing the 
threshold standard for filing a lawsuit with a much lower 
standard for filing a charge of discrimination.
    To file a lawsuit in Federal court, one has to be able to 
attest that after reasonable inquiry, the allegations contained 
in the complaint have evidentiary support. This threshold 
requirement does not apply to the administrative charge of 
discrimination.
    The charge does not initiate litigation. It begins a fact-
finding process in which the EEOC goes to the employer for 
precisely the sort of comparative pay information that 
individuals may not have access to. Through this process, the 
truth usually comes out, and the parties are able to mediate 
their dispute.
    Voluntary compliance and conciliation is the process 
Congress envisioned when it enacted title VII, and in the 
ensuing decades, it has produced remarkable results. That 
process cannot work if the employee sits on the sidelines for 
decades before raising the complaint.
    The statute of limitations are an expression of society's 
principled collective judgment that it is unfair to call upon 
an employer 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 societal value.
    Accordingly, the chamber does not support proposals that 
would reverse or limit the decision handed down in Ledbetter.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Mollen follows:]
                  Prepared Statement of Neal D. Mollen

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Nadler. Thank you.
    Ms. Greenberger, you are recognized for 5 minutes.

TESTIMONY OF MARCIA GREENBERGER, CO-PRESIDENT, NATIONAL WOMEN'S 
                           LAW CENTER

    Ms. Greenberger. Thank you. I am Marcia Greenberger, co-
president of the National Women's Law Center, and I very much 
appreciate the opportunity to testify here today on behalf of 
the Leadership Conference on Civil Rights to discuss the 
important ramifications of the Ledbetter decision.
    And I would ask that the full statement of Wade Henderson, 
the president and CEO of the Leadership Conference, who was 
unable to be here today, be submitted and be part of the 
record.
    Mr. Nadler. Without objection.
    Ms. Greenberger. Thank you very much.
    As has been discussed and, Mr. Chairman, as you have 
eloquently described, the Ledbetter decision has had enormous 
adverse implications for those who face discrimination on the 
basis of their sex, race, national origin, age, disability and 
religion, and, certainly, I think it is very difficult for 
anyone sitting in this room not to be moved by the courage that 
was shown by Ms. Ledbetter and the injustice----
    Mr. Nadler. Apparently, it was not for the 20 Members of 
the Education and Labor Committee.
    Ms. Greenberger. Well, it is very distressing that that is 
the case, and I have to say in response to that that it is all 
well and good for those to say that they oppose discrimination 
in the workplace, but if they also oppose having laws that 
actually give us the tools to eliminate that discrimination, 
then those words of support for the ultimate goal ring hollow, 
and that is what I think those who unfortunately oppose the 
legislation that was marked up in the Committee yesterday would 
cause to happen.
    What we have here and we have been talking about is a 
statute of limitations. In fact, there is a statute of 
limitations that would apply in title VII cases and would 
remain unchanged. Plaintiffs who suffer discrimination can only 
recover for a limited period of time, going back just a few 
years from the time that they complain of the pay 
discrimination at issue, and that would have been and was a 
limitation in the amount that Ms. Ledbetter was awarded by the 
jury and by the judge below.
    What is at issue here, obviously, is when the actual 
complaint of the discrimination has to be made, and I must say, 
with all due respect to Mr. Mollen, that what we have here is a 
situation of Goodyear benefiting every paycheck month after 
month, year after year. How could Goodyear justify the fact 
that it knew it was paying all of its male employees similarly 
situated to Ms. Ledbetter so much more money every month than 
Goodyear was paying her?
    As Ms. Ledbetter pointed out, not only is she suffering 
those consequences today with lower pension benefits, with 
Goodyear pocketing the amount of money that she and her family 
should be having right now, but, for all those years, Goodyear 
was pocketing the amount of money they should have paid her 
that she should have been able to accumulate in her savings and 
use for herself or her family, and they are the ones who have 
been enriched by this decision unfairly, and they are the ones 
who are not being held accountable for their current actions by 
this 5-4 decision by the Supreme Court.
    I have a second point I want to make, and that is in 
bringing a lawsuit, it is the plaintiff who has a very high 
burden to show that discrimination, to prove the 
discrimination. It is not the defendant who has the burden of 
proving that the discrimination did not exist. It is the 
plaintiff, especially in the courts these days, who has an 
extremely difficult burden of showing that the discrimination 
did exist.
    The fact that Ms. Ledbetter was able to show such severe 
and unfair discrimination that she suffered and that was 
reflected in the jury award and the judge's--the trial judge 
who heard the testimony--own comments and reaction to the case 
is testimony to how strong her case was, how she was able to 
meet that burden, how weak the case was for Goodyear, not based 
on one manager, but based on each time that she was getting 
that paycheck and each time that Goodyear had to know--someone 
had to know--that they were working out a paycheck that was 
lower for her, and, obviously, someone gave her that anonymous 
piece of paper because it was known by Goodyear up until the 
present time when she filed that complaint.
    I have another point to make, and that has to do with the 
issue of retaliation. Mr. Mollen properly pointed to the fact 
that we would like employees to come forward and to try to work 
out claims of discrimination and file complaints, but we know, 
all of us who live in the real world, that if one is the only 
woman in the job and is suffering retaliation and is dealing 
with harassment, to willy nilly expect this person to file a 
complaint with the Equal Employment Opportunity Commission 
while she is trying to keep her job and without her having a 
sense that she has a slam-dunk case, as we have heard that term 
being used, to just see if she can rely upon the goodwill of 
Goodyear to work it out is very naive, and, therefore, simply 
filing early complaints is not realistic.
    And I would like to close also with respect to this damages 
issue. The caps have not only allowed Goodyear to take a 
pitiful amount of money, $300,000, a billion-dollar company, as 
a cost of doing business, a piddling cost of doing business, to 
continue to pocket that discriminatory pay, but also that cap 
reduces the ability for each kind of discrimination, not just 
the pay decimation, but any subsequent retaliation would have 
been able to be done to Ms. Ledbetter and other employees like 
her all within the cap. So they could retaliate with impunity.
    And, therefore, that is why this whole case shows that the 
180-day fix needs to be made and that these arbitrary caps 
which reduce the ability to get full relief and have full 
enforcement of title VII also have to be changed.
    And finally, if you would indulge me for one last very 
quick point, we do not have caps right now for certain victims 
of employment discrimination under section 1981, but we do have 
caps for other victims. It has become a defense for women of 
color to be told by employers, ``Oh, no, we are not 
discriminating against you on the basis of your race. We are 
discriminating against you on the basis of your gender, and 
that is why we do not owe you a full recompense for the injury 
you suffered.'' That is simply unacceptable.
    Thank you.
    Mr. Nadler. Thank you.
    We will begin the question period. The Chair will yield 
himself 5 minutes for questioning.
    Let me just say that I am totally offended by this. I am 
offended by Mr. Mollen's arguments. I am offended by the 
actions of the Supreme Court. I am offended by the fact that 
certain types of discrimination are capped and certain types 
are not. We have had everything we could get, we could do. We 
have barely managed to stave off further caps from being 
extended over the years.
    Let me ask a few questions.
    Ms. Ledbetter, when did you first realize that you were 
being discriminated against?
    Ms. Ledbetter. I suspected earlier in my career that I 
might be getting less based on the fact that I heard my male 
peers talking about how much overtime dollars they had earned 
versus mine. Well, I could calculate a month, you know, how 
much money mine was.
    Mr. Nadler. Why didn't you file a lawsuit at that point?
    Ms. Ledbetter. I did not have any proof. I went to----
    Mr. Nadler. Thank you.
    Mr. Mollen, given the fact that Ms. Ledbetter did not think 
she had proof until later, how can you say that admitted cases 
of discrimination should be time barred well before the 
plaintiff either knows about it or could prove it?
    Mr. Mollen. Well, there are actually a couple of questions 
embedded in that. Let me see if I can take them one at a time. 
First of all, I think that the testimony that Ms. Ledbetter 
gave at trial was that she began to believe that she had been 
the victim of bias in 1992, that she got this document that she 
referred to in her opening statement, and----
    Mr. Nadler. Excuse me. Do not go through the facts of the 
case. I asked you a question, and I only have 5 minutes so 
please answer the question specifically. How can you say, since 
suspicion is not sufficient, proof is necessary? Is it not the 
case that very often it will take a long time to find the 
proof?
    Mr. Mollen. I think you are operating under a false 
understanding of what is required to file a charge. You do not 
need proof. The whole idea is to go to the EEOC to begin an 
investigatory process.
    Mr. Nadler. But if you file without proof, are you not 
subject to retaliation and all kinds of other things----
    Mr. Mollen. Well----
    Mr. Nadler [continuing]. In the real world as opposed to 
the fantasy world?
    Mr. Mollen. Mr. Chairman, there is no question that 
retaliation does occur occasionally, but that is a very 
different problem.
    Mr. Nadler. Don't you think that the prospect of 
retaliation might inhibit people who are not lawyers, who are 
simple workers, from filing lawsuits when perhaps they should?
    Mr. Mollen. The answer then would be to eliminate all 
statutes of limitation for title VII, not just for pay cases, 
but all----
    Mr. Nadler. All right. So we agree with that.
    Mr. Mollen. That would be a disaster, Mr. Chairman, and 
when Congress passed this statute in 1964----
    Mr. Nadler. You have answered the question.
    Ms. Greenberger, lawfully, could we make any legislative 
fix retroactive so that Ms. Ledbetter could benefit from it?
    Ms. Greenberger. Well, I would not even call it retroactive 
because it has often been the case that Congress has made a 
statute effective as of a particular date when a decision has 
come down in order to cover that case and cases going forward 
and----
    Mr. Nadler. We can make it effective----
    Ms. Greenberger [continuing]. Cases that are pending.
    Mr. Nadler. So we can make it effective January 1, 2007, or 
January 1, 1995.
    Ms. Greenberger. Yes.
    Mr. Nadler. Okay.
    Ms. Greenberger. Yes, you could, but, certainly, if it were 
effective to cover Ms. Ledbetter's case, I would not view that 
as being retroactive.
    Mr. Nadler. I appreciate that.
    Mr. Mollen, you talked about case law as if the Supreme 
Court were following prior case law. Prior case law is 
completely the opposite. Oh, we have a whole bunch of cases. 
And, in fact, in the Bazemore case, which I am sure you are 
familiar with, made very clear that each paycheck is continuing 
discrimination, and as Ms. Greenberger pointed out, that is 
equitable because, whether they knew about the initial decision 
20 years ago or never, they certainly knew that they were 
paying people differently every time they made out the payroll.
    In the Lorance case, the Supreme Court went the other way 
and Congress came back in 1991 and said, ``Oh, no, you do not. 
Every different paycheck.'' In the 1991 Civil Rights 
Restoration Act, Congress was very clear on that.
    So how can you say that we would now depart that the 
Supreme Court is following stated precedents?
    Mr. Mollen. Well, first of all, I think that the lower 
courts were divided on how to treat Bazemore. I do not believe 
that they were all uniform in their treatment of Bazemore.
    Second of all, I think if you look at both the Lorance 
decision, but, more importantly, the Evans decision----
    Mr. Nadler. So Lorance decision was overturned by Congress, 
so we should not look at that.
    Mr. Mollen. With respect to seniority systems, it had 
nothing to do with pay.
    Mr. Nadler. You do not think that it had to do with when 
you could file a discrimination suit based on seniority.
    Mr. Mollen. Regarding a----
    Mr. Nadler. Yes. You do not think that that showed 
congressional intent in this field?
    Mr. Mollen. I do not believe that it affected this at all, 
no. It was a different section.
    Mr. Nadler. Ms. Greenberger, would you comment on that? Did 
that show congressional intent----
    Ms. Greenberger. Well, in fact, as Justice Ginsburg pointed 
out in the dissent, the legislative history of the Civil Rights 
Act explicitly said it was fixing Lorance that had to do with 
seniority, but the reasoning of Lorance was entirely wrong and, 
therefore, Congress was expecting--and this was explicitly in 
the legislative history of the Civil Rights Act of 1991--the 
Supreme Court to understand that in fixing the one bad 
decision, it was also fixing the faulty reasoning.
    Mr. Nadler. Thank you.
    Mr. Mollen, one final question. Since it is your position 
that the 180 days should be interpreted from the first time a 
decision was made and since it is obvious that pay scales are 
usually confidential, do you think it would be right--and if 
not, why not--and isn't the only other way other than changing 
the Supreme Court decision to require that perhaps pay be 
publicized as it is in the public sector?
    Mr. Mollen. I think that there are a variety of mechanisms, 
including that one, that Congress could consider to----
    Mr. Nadler. You would think that that would be a good idea, 
to require that everyone's pay in the private sector be public?
    Mr. Mollen. I think that there are a variety of 
mechanisms----
    Mr. Nadler. Would you endorse that position?
    Mr. Mollen. No, I would not endorse that position. There 
would be----
    Mr. Nadler. Because?
    Mr. Mollen [continuing]. Problems with that particular 
position. You know, if we think that the Internet distracts 
from productivity in business today, publishing the salaries of 
every worker would be a nightmare from the employers' 
standpoint. However----
    Mr. Nadler. So let me ask you one last question then. Would 
you at least concede that the 180 days should not begin until 
the person discovered that there was pay discrimination?
    Mr. Mollen. Well, I think you and I would differ about when 
that discovery----
    Mr. Nadler. Well, whenever that happens, would you concede 
that point?
    Mr. Mollen. Mr. Chairman, I do not think that the law ought 
to require somebody to do something that they cannot do.
    Mr. Nadler. Well, that is what it does right now under this 
decision.
    Mr. Mollen. I do not believe that is the case. In fact, 
Justice Alito, in his opinion, expressly said, ``We are not 
dealing with a case in which the individual was in the dark 
about the pay.''
    As I was saying earlier, Ms. Ledbetter's testimony both at 
trial and in the hearing before Education and Labor was that 
she knew years before----
    Mr. Nadler. So you think that under this case, if you could 
show that you did not know about it, the 180 days does not 
start to run until then?
    Mr. Mollen. It is not a belief. It is what Justice Alito 
said in the opinion.
    Mr. Nadler. Thank you very much.
    The time of the Chairman has expired. The gentleman from 
Arizona is recognized for 5 minutes.
    Ms. Ledbetter. Mr. Chairman?
    Mr. Nadler. My time has expired. The gentleman from Arizona 
is recognized for 5 minutes.
    Mr. Franks. Thank you, Mr. Chairman.
    Mr. Chairman, reserving the right to reclaim my time, I 
would like to give Ms. Ledbetter a chance to say what she 
wanted to say.
    Ms. Ledbetter. Thank you, sir.
    What I wanted to respond to there quickly is I had gone to 
EEOC earlier when I really suspected I was getting paid less. 
EEOC told me that I would have to have two signatures for them 
to do an investigation into Goodyear, and I could not get the 
other female at the time to sign because she was afraid of 
losing her job, even though we were assured by EEOC Goodyear 
would not know who signed the requirement to investigate.
    But she said, ``You know they will know who signed for the 
investigation,'' the two women, and I could not get any 
investigation into it, and I had no proof. I could not tell 
them, ``I think I am being paid less,'' other than to get the 
investigation, and I needed two signatures, and I could not get 
it.
    Mr. Franks. Thank you, Ms. Ledbetter.
    Ms. Ledbetter. Thank you.
    Mr. Franks. Mr. Mollen, in the Ledbetter case, the Supreme 
Court held that ``the statutes of limitation serve a policy of 
repose. They represent a pervasive legislative judgment that it 
is unjust to put the adversary on notice to defend within a 
specified period of time and that to be free of stale claims, 
time ultimately comes to prevail over the right to prosecute 
them.''
    The EEOC filing deadline protects employers from the burden 
of defending claims arising from employment decisions that are 
long past. Congress clearly intended to encourage the prompt 
processing of all charges of employment discrimination. There 
is just no way to avoid that.
    Do you not believe that Congress should continue to 
encourage the prompt processing of all charges of employment 
discrimination, and what would be the practical effect of 
failing to do so?
    Mr. Mollen. I do, Congressman Franks. I think that it is 
essential to the effective operation of the statute, and I want 
to come back just very briefly to the discussion that I had 
with the Chairman.
    The Ledbetter decision did not have anything to do with the 
circumstance in which somebody was prevented from learning 
about the information necessary to file a charge. That is a 
very different circumstance, and, frankly, I think it is one 
that Congress might reasonably investigate.
    The legislation that has been proposed here does not apply 
simply to people who had no reason to know. It applies to 
everyone. It applies to someone who is told on the first day of 
their employment, ``We are going to pay you less because of 
your race or your sex,'' and who sits on that information for a 
period of 20 years before filing a charge.
    That, I think, is what the Ledbetter opinion was referring 
to when it says, ``Look, if we cannot get these things resolved 
quickly, it is going to be very difficult for the processes of 
the act to work. If they are raised quickly the parties can sit 
down together and mediate that kind of dispute. Investigation 
occurs through the auspices of the EEOC, and the parties can 
talk about that kind of dispute.
    When they are caught early, those kinds of disputes are 
nearly always resolved in the mediation and conciliation 
process. When the thing goes on for 20 years, it makes it 
almost impossible for the employer even to find out what 
happened.
    The Chairman referred earlier to admitted cases of 
discrimination, but I think really that is putting the cart 
before the horse because we do not get to a knowledge of what 
actually happened until there is a trial, and if the trial 
occurs at a time when the employer is unable to defend itself, 
then we do not really know what happened. That is the whole 
point.
    Mr. Franks. Well, Mr. Mollen, I am, you know, just trying 
to think from an employer's perspective. You know, first of 
all, it has to be said just for clarity, even though I suppose 
it is redundant, that discriminating against anyone on the 
basis of their religion or sex or other things of that nature 
is reprehensible, and all of us understand that.
    But in order to reach a just ability to even respond to 
that effectively, isn't it necessary to have some type of 
statute of limitations even for the sake of clarity for both 
parties, and what, again, would be the practical effect of 
failing to have that? In other words, if this legislation were 
to pass, what would this do to the employment mechanism 
essentially ubiquitous in America?
    Mr. Mollen. It makes it almost impossible for employers to 
gather the evidence that they need in order to determine 
whether what the charging party is saying is true and, if it is 
not, to mount an effective defense.
    There are instances, by the way, in which that delay will 
work to the detriment of the charging party, and I think that 
that has been said here already today. And I do not want to 
retry Ms. Ledbetter's case because, frankly, I was not there, 
and we have a sort of skewed view of the facts because the 
company was not able to put forward its defense.
    But what she alleged was that this particular manager had 
made improper advances to her, and when she rebuffed them, she 
paid a price for that, which, as you say, is a repugnant sort 
of activity, but he was not there to say, ``I never did that. 
That is not how it happened,'' and ``Here is why I made the 
salary decisions that I made with respect to Ms. Ledbetter.''
    Mr. Franks. Mr. Mollen, let me crowd one more, if I could. 
In terms of protecting those people who are discriminated 
against in the fashion that has been under discussion today, 
isn't it possible that if we put legislation like this that 
just completely throws the doors wide open where confusion 
becomes the byword, that there will probably be opportunities 
for those who have not been discriminated to make outrageous 
cases that cannot possibly be searched out in the process 
simply because of the stale evidence, and then those who are 
genuinely being discriminated against are kind of lost in all 
that process?
    Mr. Mollen. I think that the search for truth and justice 
is served on all sides by having these matters addressed 
promptly. And, yes, it is true, the longer these things are 
delayed, the more likely it is that the undeserving will 
recover and that the deserving will not. It is just a terrible 
state of affairs, and to have a blanket rule that permits 
essentially an evergreen limitations period, irrespective of 
the circumstance of the charging party, really strikes me as 
being nonsensical.
    Mr. Franks. Thank you, Mr. Chairman.
    Mr. Nadler. The gentleman from Alabama is recognized for 5 
minutes.
    Mr. Davis. Of course. Thank you for putting me in the right 
place, Mr. Chairman.
    Mr. Nadler. I would never put you in your place in the---- 
[Laughter.]
    Mr. Davis. I will settle for either one, Mr. Chairman.
    Let me try to make three quick points in the time that I 
have, and let me start, Mr. Mollen, with your observation.
    One of the things that I think bothers those of us on this 
side of the dais about the ruling is when you interpret a 
statute, when you interpret legal precedents, it is very easy 
to get lost in the dry abstractions around the words, and it is 
very easy to get lost in the theory.
    All legal regimes trigger incentives toward conduct or 
disincentives toward other conduct. Ms. Greenberger made that 
point. We can either have a title VII regime that, frankly, 
makes it harder to bring these cases, or we can have one that 
makes it easier. But you cannot just stop at that.
    A title VII regime that makes it harder to bring these 
cases will inevitably encourage employers to be more willing to 
engage in discrimination. Class example. In this instance, if 
you adopt the Ledbetter rule and you apply it, the wily 
discriminator, the company that is somewhat shrewd in its 
discrimination, can say, ``Look, if we can disguise our pay 
practices for a long enough period of time, we can get away 
with it. We can make an initial decision to pay women less than 
men, disguise it, make sure nobody knows about it, and, 
frankly, once the 180 days passed after that decision, we are 
home free.'' That will produce more discrimination, and none of 
us think that is a good thing.
    Now the second point that I want to make--Mr. Mollen, my 
friend from Arizona, was speaking from the employer's 
perspective, so let me speak from the employee's perspective--
is the legal standard that the court announces, but you endorse 
in Ledbetter would also, I think, create a hair trigger. You 
have testified today that, well, if someone has a suspicion 
that they are not being paid properly, they ought to 
immediately go and file an EEOC complaint.
    Mr. Mollen is probably the only person on the panel who I 
think has practiced plaintiff's employment law and defense 
employment law. I have done both in phases in my life before I 
came to this work.
    I cannot imagine that that is the world that you and the 
chamber really want. If the legal standard is such that you 
have to file a claim within 180 days of your suspicion of 
backpay being discriminatory, instead of waiting until the last 
discriminatory check, that would mean that if John says to 
Peter who says to Mary who says to Stewart who writes a note to 
John that there may be a difference in the pay, I have got to 
go in and file my EEOC complaint.
    Plaintiffs' lawyers are pretty smart. The advice they are 
going to start giving to their clients right now is, ``If you 
have any suspicion whatsoever that you are not being paid the 
same, go in and file an EEOC complaint.''
    Frankly, right when I was practicing plaintiffs work, I 
would say to my clients, ``Let me see what evidence you have. 
Let me see whether you have any proof that the EEOC might find 
persuasive or that a court might find persuasive.'' I never 
said to a plaintiff, ``I do not really care about the facts. 
Let's just hurry in and get this claim filed.''
    You are creating a world where a shrewd plaintiff's lawyer 
has every incentive to send someone into the process of filing 
a complaint when they know very little beyond rumor or 
innuendo. That will not be a good world for the defense bar.
    The final point that I want to make before I invite you all 
to respond to some of this, I am concerned--Ms. Greenberger, I 
would really like you to address this--as I read Ledbetter. I 
think an argument could be made that it could be far more 
sweeping than backpay claims. The Ledbetter analysis is of 
title VII and I think may have implications for the doctrine of 
continuing discrimination in other contexts, for example, in 
hospital environment claims that may be brought based on race 
or gender.
    I could see this Supreme Court in particular, Mr. Mollen, 
taking the position that if you are alleging hostile 
environment over a period of time, you have to bring a 
complaint within 180 days of the first hostile act. I could see 
that being interpreted very easily from this case, and if that 
is the case, once again, you create a situation that is very 
unsettling to the law that we have today.
    The final point that I would make--I would like to see if 
Ms. Greenberger first would try to find some way to make sure 
that Ms. Ledbetter herself is able to get relief from this 
case--is I think it would be a mistake if the Congress were to 
correct this ruling that I think is a wrong one, but, frankly, 
have future litigants benefit from it, but not her because 
understand the state of uncertainty today. All over the 
country, courts are trying to figure out, the EEOC is trying to 
figure out, litigants are trying to figure out the meaning and 
the relevance of Ledbetter.
    Every day and moment that goes by, there are cases that are 
at risk of being dismissed and thrown out because of this 
ruling. So, when Congress comes up with the fix, we need to 
make sure that all the women and all the African-Americans who 
may be affected by this gap are not left without a remedy.
    Ms. Greenberger, would you like to respond to some of that?
    Mr. Nadler. The gentleman's time has expired. The time of 
the gentleman has expired.
    Ms. Greenberger, Mr. Mollen may answer the questions.
    Ms. Greenberger. Okay. Well, certainly, as I said, making 
the effective date early enough to cover all pending cases as 
of the time of the decision and including Ms. Ledbetter's 
decision is perfectly acceptable, proper and should certainly 
be done for all the reasons that you said.
    Secondly, with respect to having the issue that you raised 
about a plaintiff's lawyer urging people to file complaints 
early without evidence, I think it puts plaintiffs' lawyers in 
an impossible position. We have had major fights in the courts, 
with Justice Alito fortunately not prevailing in the Burlington 
case this term, trying to cut back on retaliation protections 
and a number of judges being very hostile to retaliation cases 
and real protection with respect to retaliation.
    So the idea that somebody who has a general suspicion 
without facts should be filing an EEOC charge, I would find 
that to be very surprising from an employer's point of view, 
and very few plaintiffs' lawyers would want to put their own 
time and effort into representing somebody who had no facts to 
begin with that really could demonstrate a strong case.
    It is extremely difficult for plaintiffs to meet a burden 
of proof. Most plaintiffs' lawyers are reluctant to take on a 
matter at all unless there is a very strong case to begin with, 
though that is in response to the second important point you 
made about going in early to file a charge without the real 
facts to the EEOC.
    Also, it is really living in the Never Never Land to think 
that the EEOC then goes and investigates all the charges that 
it gets to figure out what the real facts are, as Mr. Mollen 
seemed to imply. We all know that there is an extraordinary 
backlog. The EEOC does not begin to investigate anything but a 
teeny percentage of the complaints that it gets.
    So people who file charges with EEOC routinely, if they do 
not want them to be dead letter, get a right-to-sue letter, 
then they have to go to court with the burden of having to go 
forward without any access to any information anyway.
    So this has nothing to do with the real world.
    And I do want to get back to the caps issue because it is 
so interrelated. As you pointed out, who would want a situation 
where the incentives were on the employer to delay and to 
retaliate and to try to keep people from going forward?
    But that is exactly what the combination of this 180-day 
ruling and the caps have created here so that Goodyear, by 
keeping things quiet, by making people afraid of coming 
forward, by harassing women, by paying them less, by keeping 
that system going forward, was never at risk of having to ever 
really own up to or pay for its employment discrimination 
because of those caps.
    And the caps, when Congress passed them in 1991, it was 
taking a step forward. We now have over 15 years. Those caps 
have eroded in value, as ridiculous as they were even at the 
time, because, for some employers, they start at $50,000 total, 
for the caps no matter how egregious or how extreme the 
discrimination. That for the employment cost index has gone up 
67 percent over that period of time, so these caps are a joke.
    Mr. Nadler. These caps are not indexed to inflation.
    Ms. Greenberger. I'll say.
    Mr. Nadler. Thank you.
    Mr. Mollen?
    Mr. Mollen. Congressman Davis, let me see if I can address 
your questions quickly in some sort of order here.
    First of all, you expressed a concern that the Ledbetter 
rule might be applied more broadly to harassment cases. The 
Ledbetter case decision embraced and built upon the court's 
Morgan against Amtrak case from 2002, which established a 
separate rule, sui generis rule for harassment cases. So I 
think that that fear is misplaced.
    Second, you talked about the incentive that an employer 
would have for disguising, obfuscating, preventing employees 
from knowing about discrimination. As I said in my opening, 
there are rules currently in place regarding tolling the 
limitations period for just that kind of conduct. An employer 
rule that prohibits employees from discussing their 
compensation is likely unlawful under the National Labor 
Relations Act. So I think that there are already a number of 
prophylactic rules in place to deal with that situation.
    Third, regarding the hair trigger problem that you referred 
to, I am sure that my friends at the chamber would be very 
unhappy if anything I said here suggested that they would like 
to see a flood of new litigation. However, the fact of the 
matter is that these problems cannot be resolved short of 
litigation unless they are raised early.
    So I think that it is to the good for everyone if the goal 
is to eradicate discrimination, then we all benefit when these 
matters are raised early rather than late, and if Congress 
adopts a rule that gives incentive and license to individuals 
to wait for years or decades before raising them, we are going 
to have more litigation, not less.
    And finally, with respect to the role of the EEOC in 
investigating this, we get information requests at my firm 
regarding every charge that is filed. Now I am not going to 
claim that the EEOC investigates all the charges equally or 
that they put as much effort into all of them as they do 
uniformly across the board, but I get information requests from 
the EEOC with respect to every charge that is filed against one 
of my clients, and we produce the information.
    If that information discloses the sort of disparities that 
are questionable, that charge is going be carried forward. What 
very typically happens is that when the data is produced, the 
EEOC investigator looks at it and finds that there are very 
good substantial business reasons for the disparities and the 
matter dies with a quick mediation session or a no probable 
cause finding by the EEOC, and that is the way the process was 
designed to work.
    Thank you, Mr. Chairman.
    Mr. Nadler. The gentleman from California is recognized for 
5 minutes.
    Mr. Issa. Thank you, Mr. Chairman.
    I think this is an important hearing, and I think it is an 
important hearing for two reasons.
    Ms. Ledbetter, I think you are getting here what you did 
not get in court essentially, an opportunity to say there was 
discrimination, an opportunity without consideration, if you 
will, of the merits, an opportunity to be considered to have 
been discriminated against. I am not going to make a judgment 
decision based on your testimony or anyone else about whether 
you were discriminated against, but, certainly, I would say 
that, in my opinion, today, you are getting, except for money 
damages, what you believe you deserve.
    Having said that, I do believe there is a strong principle 
here, and, Mr. Mollen, I would like to give you more time to 
elaborate, the basic principle that everything we do, with the 
exceptions against exceptions of Holocaust-related activities, 
crimes against humanity, first-degree murder, and I think we 
also do kidnapping, they basically have relatively short times 
in which to bring a case, and I am looking and saying, if an 
armed robber is free and clear after a decade or 2, most civil 
suits are done in a year, 2, 3, maybe 4 in some States--that, 
in fact, for better or worse, you have a limited time, and that 
is fair to both sides.
    And I certainly believe that the other part of it is that 
the longer a discrimination practice goes on without being 
alleged, without getting into the process, the more companies, 
in fact, can be going the wrong direction.
    So I for one think that the question here today and that I 
hope we are dealing with is whether or not the time limits are 
reasonable and whether or not they should be adhered to 
strictly. I believe the latter. I am happy to hear your 
comments on whether or not some easing of the times would be of 
any value.
    Mr. Mollen. Well, thank you, Congressman, for the question. 
I have to tread carefully here because I am here on behalf of 
the Chamber of Commerce, and we have not really discussed what 
fix they might prefer with respect to the time, if any.
    I did point out when I testified in front of the Education 
and Labor Committee that currently there is a distinction 
between States that do and do not have fair employment practice 
agencies, 180 days in the cases where no such agency exists and 
300 for those that do.
    The vast majority of employees in this country work in 
States, in jurisdictions where the limitation is 300 days. It 
seems to me that the distinction that Congress made in 1964 
between those kinds of States may not be sensible any longer 
and ought to be examined.
    Now, whether 300 days is long enough, I think that that is 
a valid question for this Committee and the Congress as a whole 
to investigate. But I think there has to be an effective date. 
There has to be a cutoff date. And, as you point out, 
Congressman, there is with respect to nearly every cause of 
action. Even the most opprobrious behavior that can be pursued 
civilly has a connected statute of limitations.
    Mr. Issa. And I want to give others a chance to comment on 
this. I would like your dates, if you will, but isn't 1 year 
one of the shortest--365 days, so to speak--periods that we 
allow for the statute to toll or to run out on any civil 
procedure? Isn't it generally longer, at least 1 year?
    Does anyone see a problem because I for one think that it 
is perhaps too short, and I have been an employer, and I, 
certainly, like everybody else, have had somebody who--never 
successfully--quit or left and they included that in their 
reasons of things they thought. So, in your opinion of anyone, 
including Ms. Ledbetter, is there any reason that 365 days, 1 
year, like most other litigation would not be a reasonable 
point for Congress to consider moving to?
    Yes, ma'am? Professor?
    Ms. Chamallas. I would like to note that with respect to 
claims like tort claims, generally, the statute of limitations 
runs from 2 to 5 years, and so something like 180 days and 380 
days is an exceptionally short time for a statute of 
limitations.
    However, I think it is very important to note that in cases 
of pay discrimination, there has been a statute of limitations 
starting to run from when the last discriminatory paycheck was 
received by the plaintiff. This is the classic example of a 
continuing violation.
    So it does seem to me that the Ledbetter decision upset 
settled law and that, regardless of the kind of fix, which I 
think is very necessary, that Congress should do with respect 
to the general statute of limitations, it is very important 
that with respect to pay discrimination in which there are 
continuing violations, where there is a pattern of incremental 
harm that compounds over time very much like the hostile 
environment situation, that the statute of limitations begins 
to run only when the employer has stopped benefiting from its 
illegal discrimination, that is when the last paycheck tainted 
by discrimination has been----
    Mr. Issa. I know my time has expired. Does anyone else want 
to talk about the latches that essentially this creates under 
the Ledbetter decision?
    Mr. Nadler. The time of the gentleman has expired. A 
witness may----
    Mr. Issa. I just want to----
    Mr. Nadler. A witness may answer the question if one of the 
witnesses wants to.
    Ms. Greenberger. I just want to say, Congressman, that I 
think that the statute of limitations term is a confusing term 
because there is a statute of limitations in title VII that 
really has not been at issue here at all which has to do with 
how far back you can go in recovering for the discrimination 
that you are suffering.
    So Ms. Ledbetter is and would under any statutory fix be 
limited in terms of how far back she could go of the number of 
years of backpay that she was denied because of the existing 
statute of limitations that applies.
    What we are talking about here is, in essence, really an 
exhaustion requirement which is not usual in many laws, where 
you must file a complaint or exhaust your administrative 
remedies with the Equal Employment Opportunity Commission or 
your State agency before you can go into court. Many, many 
statutes, many civil rights statutes and other statutes have no 
such requirement to begin with, so that full 180-day thing, 
which has to do with the exhaustion requirement, is an 
exception to begin with.
    And as the professor said, what changed here is the EEOC 
for many, many years consistently and in Ms. Ledbetter's case 
below argued that the discrimination continued and did not stop 
until that last paycheck, and that is when you begin to think 
about when that 180 days begins, as short as it is, and because 
every paycheck was another instance of discrimination, then we 
deal with the 180 day issue from the last paycheck.
    The EEOC did not participate in the Supreme Court. The 
Administration changed the position of the government in the 
Supreme Court for the first time, but this 180-day every 
paycheck principle has been what has been in place for decades.
    Mr. Nadler. The time of the gentleman has expired.
    I now recognize the gentlelady from Florida for 5 minutes.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman.
    I am going to speak as the only woman that serves on this 
entire Subcommittee, but also as the non-lawyer on our side of 
the aisle, and so forgive my plain English as opposed to the 
legal terminology that some of very learned colleagues have 
used.
    And the reason that I am even qualifying what I am saying 
at the beginning is that, Mr. Mollen, under your description of 
the way the world should work, if I were hired by a company in 
January, like I was essentially when my constituents hired me 
in January and I was sworn in, it is June now.
    So I would have immediately upon being hired by my new 
employer or promoted to a new position had to suspect and 
investigate under a 180-day statute of limitation whether or 
not I might be discriminated against in order to be able to 
preserve the possibility of my pursuing a claim and then pursue 
it within that 6-month period.
    That is just completely unrealistic and, quite frankly, it 
is hostile to the environment that is a new beginning that you 
begin when you are hired or promoted. So I would like you to 
address that. I mean, how would that possibly work or be 
realistic in the real world?
    And then, you know, I have been, on top of the time I have 
been here, in public office in my State legislature and now in 
Congress for 14 years, and I have heard time and again the U.S. 
Chamber of Commerce, the Florida Chamber of Commerce argue 
against the cottage industry of lawyers that exist where the 
law is designed to make it so that lawyers have an interest in 
going after plaintiffs, enticing them to file claims, and 
essentially what you are arguing with the logic that you are 
using is that that is the scheme that we should establish and 
promote.
    Can you respond to both of those things because I do not 
see how what you are suggesting is realistic for an employee?
    Mr. Mollen. Okay. I would be happy to respond.
    Taking the second question first, as I said earlier, it is 
not the Chamber's view and I do not think any employers' view 
that generating more litigation is a good thing. However, the 
statutory scheme that Congress devised when it passed title VII 
was to have these matters raised first administratively in a 
process where they can be resolved voluntarily.
    And so the hope and aim of the statute, and I think the 
remarkable success of the statute over the last 43 years is 
that has encouraged individuals to raise these issues early and 
have them resolved at a time when the expense for resolving 
them is relatively limited and positions have not hardened so 
much that they go forward.
    Ms. Wasserman Schultz. Can I interrupt you for a second and 
ask you a question?
    Mr. Mollen. Of course.
    Ms. Wasserman Schultz. Because I have heard the Chamber 
argue the opposite when it comes to ADA claims because I have 
been sympathetic to the Chamber's argument that there are 
lawyers that shop through businesses, that go through business 
districts looking for ADA violations, and then encourage 
plaintiffs to file them. Well, under your argument, in that 
scenario, you say we should not have a cottage industry like 
that and we should tighten the ADA to prevent situations like 
that, you know, allowing lawyers to aggressively pursue 
businesses with ADA claims.
    But in this case, you are saying, no, no, no, which is the 
argument that people who have ADA claims make. Under your 
argument in this scenario, we should encourage employees to 
work it out, but under ADA claims, we should not.
    Mr. Mollen. Well, they are two very different things.
    First of all, I think that talking to folks and trying to 
get things worked out without litigation is a good thing under 
any statutory regime. That is the first thing.
    The second thing, I think that your reference to the ADA is 
the accessibility standards under the statute, not the 
employment standards. That is that there are lawyers out there 
who go looking for buildings that may or may not be accessible.
    The difference is that in the employment context, there is 
an existing relationship between the employer and the employee. 
When Congress passed title VII and devised this system, it 
determined that the best way to have these matters resolved and 
maintain that employment relationship was to have them raised 
early and disposed of at a time when, again, the fever pitch 
had not been reached and they can be resolved voluntarily.
    They are not all going to be resolved that way. I happen to 
think that a rule that encourages people to raise these matters 
as early as possible is going to lead to less litigation, not 
more litigation.
    Ms. Wasserman Schultz. You know, with all due respect, you 
are not a woman and you are never going to be a woman, and you 
are never going to be in the situation that Ms. Ledbetter was 
in along with her colleagues to be able to understand the 
intimidation and the feeling of trepidation over the 
possibility of losing her job if she raised the issue and tried 
to work it out. That is just not realistic.
    And, Ms. Greenberger, if you could address my question as 
well, I would appreciate it.
    Ms. Greenberger. Well, I am so admiring of Ms. Ledbetter 
for her determination for the stellar career and the really 
groundbreaking job that she did for so many years in such 
difficult circumstances, and it is very angering to think about 
the reduction in pay that she had to suffer through all those 
years with her family and to see that unresolved. I certainly 
hope, as we discussed earlier, in her set of circumstances, if 
her case is pending in any way now, that Congress is able to 
fix this for her, too.
    To go back to your point, though, about how unrealistic it 
is, Mr. Mollen talked about that this is an administrative 
scheme to try to resolve matters as quickly as possible. 
Obviously, it is not possible the minute that somebody comes in 
to a workplace for them, even if they knew about the 
discrimination, which they certainly mostly do not, to try to 
resolve it.
    And, secondly, if they get a job which was a difficult job 
for them to get to begin with and they need that job to support 
themselves and their families, who would tell them to go the 
next day and file a complaint against their employer when you 
do not even necessarily have all of the facts rather than hope 
that you could work it out?
    The Supreme Court on top of everything else in 2001 in a 
decision said you are not protected against retaliation if you 
file the complaint with EEOC and you did not have enough 
evidence to constitute a ``reasonable belief,'' that that 
complaint was valid, a cutback on retaliation principles, as I 
said, already.
    So we have our employees in an impossible spot and, again, 
to bring it back to these caps that are so ineffective at this 
point now,16 year after they were put into place and they were 
mighty modest to begin with, every incentive is on the employer 
to retaliate and keep people from learning or from acting on 
what they find.
    Mr. Nadler. Thank you.
    The time of the gentlelady has expired. The gentleman from 
Minnesota is recognized for 5 minutes.
    Mr. Ellison. Thank you, Mr. Chair.
    Ms. Ledbetter, I just want to express my admiration for 
you. I think you are a hero. I know you would rather just have 
no discrimination have ever happened, and you would rather just 
have your money if it had to happen, but, unfortunately, you 
are thrust into being the nationally known figure standing up 
for the rights of people, which I think we all owe you a debt 
of gratitude for.
    I think you can help me understand the decision. I happen 
to be a lawyer, but I still just sort of need a little help 
here. Maybe I am a little slow.
    How come, Ms. Greenberger, if we are going to apply the 
180-day rule, Ms. Ledbetter did not at least get the pay that 
she should have received that the Court of Appeals thought that 
she had coming? Why would the Supreme Court say she gets 
nothing?
    Ms. Greenberger. Well, it was the trial court, and, 
basically, what the Supreme Court 5-4--and I think that four 
justices of the Supreme Court were in your shoes in having a 
hard time trying to figure out how the five came to that 
conclusion themselves--decided that even though she did file 
within this very short timeframe within the last paychecks that 
she got, that that was not soon enough and that the minute that 
it was clear many years ago, even though she did not know it, 
that she was suffering discrimination, that is when she should 
have divined the discrimination was happening, that is when she 
should have complained, and forget the fact that the 
discrimination was re-occurring with every single paycheck that 
she was getting.
    Mr. Ellison. What about that, Mr. Mollen? I mean, I think 
the decision was wrongly decided, I will agree, but don't you 
think that she at least should have got the pay that she should 
have received going back 180 days at least?
    Mr. Mollen. No, Congressman.
    Mr. Ellison. Why not?
    Mr. Mollen. Here is why.
    Mr. Ellison. I mean, you agree each check was an act of 
discrimination?
    Mr. Mollen. Well, I think that that is----
    Mr. Ellison. Based on the facts that you said you already 
agree with----
    Mr. Mollen. No.
    Mr. Ellison. I thought I heard you say that there was 
admitted discrimination.
    Mr. Mollen. No. I was actually----
    Mr. Ellison. You say there was not?
    Mr. Mollen. I was actually quoting the Chairman who claimed 
there was admitted discrimination.
    Here is the distinction that the court attempted to make or 
did make. The court has distinguished both in Ledbetter and in 
a long line of prior cases between decisions and consequences, 
and the court has said that the time begins to run the decision 
has been made and communicated, not when the consequences come 
home to the----
    Mr. Ellison. So just assume with me then that each check 
where Ms. Ledbetter did not get her pay because of her gender, 
her sex. Are we saying that an employer can continue 
discriminatory behavior, I mean, can renew it every single 
month?
    Mr. Mollen. I mean, I think this is where you and I may 
disagree, where we are struggling.
    Mr. Ellison. I am asking you to assume that there was 
discrimination----
    Mr. Mollen. Okay.
    Mr. Ellison [continuing]. That it was because of her sex 
and she got paid less because of it. Why at least doesn't she 
get her 180 days, given that each new check is another 
opportunity to tell her, ``You are less and you are going to 
get paid less because you are a woman.''
    Mr. Mollen. Because just as statutes of limitation act to 
cut off valid claims in every other form of civil action, they 
do here. If you are injured in a personal injury suit----
    Mr. Ellison. Good example, Mr. Mollen, because if I get 
injured in a personal injury suit, that is a discrete, isolated 
point in time, and then if I do not act on it within a certain 
amount of time, then, you know, I deal with that.
    But the employer could have rectified the discriminatory 
pay every check she ever got. They could have said, ``You know 
what? We have been basically sticking you for the last--I do 
not know--15 years, but today we are going to stop it and you 
are going to get your pay just like the men do.'' They are the 
ones who continued the discriminatory behavior.
    Ms. Greenberger, why doesn't that analysis work?
    Ms. Greenberger. I think it works, as I have to say, even 
to this day. You know, Goodyear is a multibillion-dollar 
company, and I would have thought that if the idea is just 
bring this inequity to Goodyear's attention, they will fix it, 
I am waiting to hear. I mean, we may have problems----
    Mr. Ellison. Ms. Greenberger, I am sorry to interrupt you 
because Lord knows I would love to hear what you have to say, 
but that yellow light means I am going to be done in a moment. 
I just want to ask you, have we defeated sex discrimination in 
American employment?
    Ms. Greenberger. Well, were only that the case. When you 
look at the----
    Mr. Ellison. Have we defeated racism?
    Ms. Greenberger. When you look at the pay discrimination 
and the pay gaps for gender, for race, and certainly women of 
color who bear a double burden, we have a long way yet to go. 
When we look at glass ceilings that still exist in this 
country, we have a long way to go.
    When you ask the American public, as public opinion surveys 
have, do they see a real problem of pay discrimination, off the 
charts in the support to combat pay discrimination in this 
country because people know how unfair it is and how much it 
still exists. This is just a major, major step backward.
    Mr. Ellison. Thank you very much, ma'am.
    And I thank all of you for your work.
    Mr. Nadler. Thank you. The time of the gentleman has 
expired.
    The gentleman from Virginia is recognized for 5 minutes.
    Mr. Scott. Thank you.
    Mr. Chairman, we had a hearing in the Education and 
Workforce Committee and had about the same panel. So EEOC 
jurisdiction is actually in the Education and Workforce 
Committee, and that is why they had a hearing. We are 
considering the civil rights implications of the decision, so, 
of course, we have jurisdiction over the same problem.
    Let me just ask Mr. Mollen a question. If Ms. Ledbetter 
were to prevail, if we passed the bill, she would still have to 
show that the paycheck she received was, in fact, 
discriminatory. Is that right?
    Mr. Mollen. It is good to see you again, Congressman.
    Yes, I believe that if the legislation that has been 
proposed becomes law that the burden of the plaintiff would be 
to show that there is a disparity due to bias in the paycheck.
    Mr. Scott. Right.
    Mr. Mollen. I do think that its application to Ms. 
Ledbetter would be retroactive and probably unconstitutional, 
but I take your point.
    Mr. Scott. Well, let me ask the professor a question. Is 
there any precedent for retroactively passing legislation that 
would reverse the results for an unsuccessful plaintiff in 
private litigation?
    Ms. Chamallas. I basically agree with what Marcia 
Greenberger said, that with respect to remedial legislation 
like this, that there is precedent because it is not 
retroactive with respect to this pending group of cases. So I 
think it would be possible and constitutional for Congress to 
do this.
    Mr. Scott. In her case?
    Ms. Chamallas. Yes.
    Mr. Scott. Okay. Now, Mr. Mollen, we asked you this 
question before. We do not know whether the discovery rule is 
the law of the land or not. Is that right?
    Mr. Mollen. We know that the Supreme Court refused to reach 
that question, correct.
    Mr. Scott. Okay. Professor, do you know what the law of the 
land is on the discovery rule?
    Ms. Chamallas. The lower courts have generally held that 
the discovery rule can be applied in title VII cases, but the 
Supreme Court expressly reserved that question. So there is 
uncertainty, and----
    Mr. Scott. So, based on the law that we have now, if we 
lose on the discovery rule, in fact, the employer could have 
the ball for 180 days and be free and clear for that employee 
forever.
    Ms. Chamallas. That is the harshest feature of the 
Ledbetter ruling, and I must say that there is also uncertainty 
as to how to apply the discovery rule, and the standards to be 
followed for the discovery rule. So it is certainly no help to 
victims of pay discrimination to know that perhaps in some rare 
cases they can be successful by relying on a rule that the 
Supreme Court has not yet totally endorsed.
    Mr. Scott. Well, if we do not have a discovery rule and we 
do not pass legislation to allow each discriminatory paycheck 
to renew the statute, would it be the fact that an employee 
could be discriminated against, hide the ball for 180 days, and 
then the employee inquire, ``Why am I being paid less than 
everybody else around here?'' and the answers were just right 
between the eyes, ``Well, you are Black'' or ``You are a woman, 
and we just decided to pay you less.''
    Would there be any remedy if we do not fix the Ledbetter 
ruling? Would there be any remedy, even injunctive relief 
available, to stoop the discrimination if we do not fix this 
decision?
    Ms. Chamallas. No. We need to fix the Ledbetter decision.
    Mr. Scott. And if we do not fix it, would it not be true 
that the employer could tell the person that, ``Yes, you are 
being discriminated against, but you waited 180 days, and there 
is nothing you can do, you have no remedy, not even injunction 
relief.''
    Ms. Chamallas. That is correct because under the Ledbetter 
decision, the employee has only the 180 days from the very 
first decision to discriminate against that employee, so after, 
even though the paychecks are tainted by discrimination, 
essentially the discrimination is no longer actionable in 
court, and the employer has then no incentive to go back and 
look at its pay scale and say, ``Have we engaged in pay 
equity?''
    Mr. Scott. And since people talk about disruption, is it 
not true everybody thought there was a paycheck rule to begin 
with? I mean, does this decision come as a surprise in most 
jurisdictions?
    Ms. Chamallas. Yes. In fact, I must say that as a law 
professor, when I teach this area of the law, I use the 
Bazemore case and the example of pay discrimination that 
continues over time and builds and accumulates as an example of 
a continuing violation that is well accepted by the courts.
    Mr. Scott. Wait, Mr. Chairman.
    So that means that most people thought there was, in fact, 
a paycheck rule before this decision?
    Ms. Chamallas. Yes.
    Mr. Scott. Okay.
    Ms. Chamallas. It was a well-established rule.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Nadler. By unanimous consent, we will grant the 
gentleman from Minnesota 1 minute.
    Mr. Ellison. Ms. Chamallas, just for the record, I was 
wondering if you would just take a minute to just talk about 
some of the breadth and scope of modern pay discrimination when 
it comes to sex in America today? How serious is the problem?
    And I ask you this question because I would like you to 
give us some context of what happened to Ms. Ledbetter. You 
know, she is not an isolated case. She stands for millions of 
people. Could you elaborate just for a moment, please?
    Ms. Chamallas. Yes. I think in looking at pay 
discrimination, what is most poignant is that there still is a 
very big gap between the earnings of women and men in the 
workforce so that we see that women still make on average only 
77 percent of the salary of men, and so for women employees, 
the pay discrimination issue is absolutely central.
    One other thing that we see is that because salaries and 
wages are not known, many women do not know that they are 
victims of discrimination and only find that out later when 
disparities have become very great. So what we have seen is 
this is a kind of persistent problem that has not been fixed by 
the various civil rights laws that we have and can only be 
compounded by Ledbetter.
    The other thing I will note is that not only is pay 
discrimination economic and the kind of economic harm that 
follows the worker all through her career, including into 
retirement, but it also affects a worker's status because how 
highly one is paid determines a great deal about what their 
working life is like.
    So I think if we asked American women in terms of their 
working conditions, what would they most want this Committee 
and other Committees to address, I think it would be to assure 
that their work is not undervalued.
    Mr. Nadler. Thank you.
    And by unanimous consent, I will grant myself 1 minute to 
ask questions. I would ask Mr. Mollen and Professor Chamallas 
to answer briefly please.
    Mr. Mollen, because of everything you were saying before 
about the burden of proving things from 20 years ago and so 
forth, isn't it true that in any pay discrimination case or any 
case like this, the burden of proof is on the plaintiff?
    Mr. Mollen. It is true, Mr. Chairman. Now the problem--and 
I think that Ms. Ledbetter's case--again, not getting too 
deeply into the facts of her case--is a very good example of 
why that may be an illusion. Ms. Ledbetter testified about 
certain actions, discussions, behavior that occurred to her, 
and there was no way for the employer to rebut that.
    Mr. Nadler. Thank you, Mr. Mollen.
    Professor Chamallas, do you want to comment on that?
    Ms. Chamallas. What was that?
    Mr. Nadler. The fact that the assertion, which I will make, 
that the fact that the plaintiff has the burden of proof 
largely negates the argument of the unfairness to employers of 
the possibility of leaving these cases open for a long time.
    Ms. Chamallas. I think it is crucial because not only is it 
very difficult for the plaintiff to establish intentional 
discrimination, there are all the circumstances surrounding 
intentional pay discrimination, because, after all, it is the 
employer who has all the access to the salary and other 
comparative data. So the plaintiff's burden of proof is very 
difficult, and also it is very difficult for plaintiffs 
generally to succeed in employment discrimination cases. The 
success rate is often well below 50 percent.
    Mr. Nadler. Thank you very much.
    Ms. Wasserman Schultz. Mr. Chairman?
    Mr. Nadler. Yes.
    Ms. Wasserman Schultz. Can I ask unanimous consent for just 
1 minute to address a----
    Mr. Nadler. Certainly. Without objection.
    Ms. Wasserman Schultz. Thank you. And it is just 1 minute.
    Ms. Ledbetter, as a woman who has benefited from the fights 
that generations of women have led before me, I really want to 
thank you for standing up for women and what you are doing 
today and what you did in the Supreme Court to benefit 
generations of women to come, and I truly appreciate it.
    Thank you, Mr. Chairman.
    Mr. Nadler. And----
    Ms. Ledbetter. May I take just a moment to clarify a couple 
of points? As Mr. Mollen referred to, I did ask my superior. He 
told me that I was listening to too much B.S. from the men, to 
go on home and forget it, ``You are just listening to too much 
B.S.'' When I went to EEOC, I needed two signatures because I 
had no proof. Okay.
    Reasonable. It is not reasonable that I would wait 20 years 
to ask about a pay raise or pay differential because I would 
have earned more money. I was paid overtime. I would have 
gotten more overtime. My retirement that I put into would have 
been greater. My 401(k) would have been greater. The amount 
that Goodyear matched would have been larger. There is no 
reasonable way that I would want to sit back and wait.
    Now Goodyear did have a problem with records. In fact, the 
person they are referring to is deceased. He was still working 
when I retired. I had filed my charge before I retired, and the 
judge told Goodyear that they are required by law to retain 
those records until this case is settled. They could not 
produce those at trial because the judge asked for them and 
they did not have them, and one of Goodyear's representatives 
said he did not know what happened to them.
    Mr. Nadler. I thank and----
    Ms. Ledbetter. So thank you, sir.
    Mr. Nadler. Thank you. And let me join the gentlelady in 
expressing our appreciation to you.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses which we will forward and ask the witnesses to 
respond as promptly as you can so that their answers may be 
made part of the record.
    Without objection, all Members who will have 5 legislative 
days to submit any additional materials for inclusion in the 
record.
    With that, I thank the witnesses, I thank the participants, 
and this hearing is adjourned.
    [Whereupon, at 11:50 a.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of Wade Henderson, President and CEO, 
                 Leadership Conference on Civil Rights
    Good Morning. 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 restore the ability of victims of pay 
discrimination to obtain effective remedies, and to end the inequality 
of remedies across classes of victims.
    Lilly Ledbetter, a supervisor at Goodyear Tire & Rubber in Gadsden, 
Alabama, sued her employer for paying her less than its male 
supervisors and a jury found that Goodyear intentionally paid Ms. 
Ledbetter less than her male counterparts for more than 15 years, in 
violation of Title VII of the Civil Rights Act of 1964. Week after 
week, year after year, she was paid less. Significantly less. And this 
disparity was because of her sex. The jury also found Goodyear's 
conduct to be bad enough to warrant an award of compensatory and 
punitive damages totaling $3 million.
    On its face, it looked like Ms. Ledbetter had won. That she had 
finally received compensation for the years of discrimination, 
including the impact on her pension and retirement benefits. But that 
was before the Title VII damages cap and the Supreme Court intervened.
    After the jury awarded Ms. Ledbetter her $3 million, the court was 
required by law to reduce her award to $300,000. Why? In 1991, Congress 
set damages caps in Title VII, which apply to gender, age and 
disability claims only, at $300,000. That amounts to ten percent of 
what the jury believed Ms. Ledbetter should receive, and a drop in the 
bucket to a corporation like Goodyear.
    Two weeks ago, the second shoe dropped. The Supreme Court issued an 
opinion in Ledbetter v. Goodyear Tire & Rubber \1\ which prevented Ms. 
Ledbetter from recovering anything to remedy the discrimination that 
she endured. According to the Court's new rule, Ms. Ledbetter filed her 
discrimination complaint too late. A 5-4 Court held that Title VII's 
requirement that employees file their complaints within 180 days of 
``the alleged unlawful employment practice,'' \2\ means that the 
complaint must be filed within 180 days 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.
---------------------------------------------------------------------------
    \1\ Slip op. No. 05-1074 (U.S. Supreme Court)
    \2\ 42 U.S.C. 2000e et seq.
---------------------------------------------------------------------------
    The Court's ruling on the statute of limitations in Ledbetter is 
fundamentally unfair to victims of pay discrimination. First, 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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
    In addition, the impact of the Title VII caps on Ms. Ledbetter 
clearly illustrates the need to eliminate this arbitrary provision from 
the law.
    Under current law, individuals who prove that they have been the 
victims of intentional discrimination based on sex, disability or 
religion are only able to recover compensatory and punitive damages up 
to a cap of $300,000. This is true no matter how egregious the conduct 
of the discriminator, nor how long the discrimination continued. The 
caps create an artificial ceiling on damages awards that does not exist 
for individuals whose discrimination was based on race or national 
origin. If a person who was discriminated against on the basis of sex 
suffers the same adverse employment consequences as a person 
discriminated against on the basis of race or national origin, why 
should one be eligible to receive more damages than another?
    Moreover, often it is the most severe cases of discrimination that 
are affected by the damages caps. Damages caps, effectively, protect 
the worst offenders while denying relief to those who were harmed the 
most.
    Caps also minimize the deterrent effect of Title VII. If the 
potential liability for sex discrimination is capped, it is manageable 
for corporations. More like a cost of doing business. However, uncapped 
damages, at a minimum, create more of an incentive for employers to 
ensure that their workplaces are free from discrimination. Compensatory 
damages are designed to make the victim whole. If the economic harms 
suffered by the victim of discrimination are greater than the statutory 
cap, it should not be the discrimination victim who is left with less.
    Finally, in employment discrimination cases based on race or 
national origin--where there are no damages caps--we have not seen 
runaway verdicts. This is, in part, due to the numerous existing 
limitations in the current law that guard against improperly high 
verdicts. Courts can use their remitter power to reduce or vacate 
excessive damage awards, and there are constitutional limitations on 
punitive damages.\4\
---------------------------------------------------------------------------
    \4\ BMW of Northern America, Inc. v. Gore, 517 U.S. 559 (1996)
---------------------------------------------------------------------------
    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 \5\ involving discrimination based on 
age and under the Americans with Disabilities Act \6\ involving 
discrimination against individuals with disabilities.
---------------------------------------------------------------------------
    \5\ 29 U.S.C. 621 et seq.
    \6\ 42 U.S.C. 12101 et seq.
---------------------------------------------------------------------------
    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.\7\ 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.\8\ 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.\9\ If the rule in 
Ledbetter had been in effect, the plaintiff would not have been able to 
seek relief.
---------------------------------------------------------------------------
    \7\ 347 F.3d 1007 (7th Cir. 2003)
    \8\ Id. at 1007
    \9\ Id. at 1013
---------------------------------------------------------------------------
    In Goodwin v. General Motors Corp.,\10\ 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.\11\ 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.\12\ 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.'' \13\ 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.
---------------------------------------------------------------------------
    \10\ 275 F.3d 1005 (10th Cir. 2002)
    \11\ Id. at 1008
    \12\ Id.
    \13\ Id. at 1008
---------------------------------------------------------------------------
    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,\14\ state workers can no longer 
recover money damages if their employers violate minimum wage and 
overtime laws; \15\ there is no private right of action to enforce the 
disparate impact regulations of Title VI of the Civil Rights Act of 
1964; \16\ and workers can now be required to give up their right to 
sue in court for discrimination as a condition of employment.\17\ 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.
---------------------------------------------------------------------------
    \14\ Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)
    \15\ Alden v. Maine, 527 U.S. 706 (1999)
    \16\ Alexander v. Sandoval, 532 U.S. 275 (2001)
    \17\ Circuit City Stores v. Adams, 532 U.S. 105 (2001)
---------------------------------------------------------------------------
    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.
    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,\18\ 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,\19\ 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.''
---------------------------------------------------------------------------
    \18\ 490 U.S. 642 (1989)
    \19\ 490 U.S. 228 (1989)
---------------------------------------------------------------------------
    We agree.
    We also reiterate the need to end the disparity in employment 
discrimination law by removing the damages caps that apply to women, 
individuals with disabilities and older Americans under current law. 
The caps undercut enforcement, are unnecessary, and reward the most 
egregious discriminators with a substantial limitation on liability for 
their intentional discriminatory acts.
    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.
    Thank you.
    Response to Post-Hearing Questions from Marcia Greenberger, Co-
                 President, National Women's Law Center

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