[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
-------
U.S. GOVERNMENT PRINTING OFFICE
36-346 PDF WASHINGTON DC: 2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP,
Washington, DC 20402-0001
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]