[House Report 110-237]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-237
======================================================================
LILLY LEDBETTER FAIR PAY ACT OF 2007
_______
July 18, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. George Miller of California, from the Committee on Education and
Labor, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2831]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 2831) to amend title VII of the Civil Rights Act
of 1964, the Age Discrimination in Employment Act of 1967, the
Americans With Disabilities Act of 1990, and the Rehabilitation
Act of 1973 to clarify that a discriminatory compensation
decision or other practice that is unlawful under such Acts
occurs each time compensation is paid pursuant to the
discriminatory compensation decision or other practice, and for
other purposes, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Lilly Ledbetter Fair Pay Act of
2007''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The Supreme Court in Ledbetter v. Goodyear Tire & Rubber
Co., No. 05-1074 (May 29, 2007), significantly impairs
statutory protections against discrimination in compensation
that Congress established and that have been bedrock principles
of American law for decades. The Ledbetter decision undermines
those statutory protections by unduly restricting the time
period in which victims of discrimination can challenge and
recover for discriminatory compensation decisions or other
practices, contrary to the intent of Congress.
(2) The limitation imposed by the Court on the filing of
discriminatory compensation claims ignores the reality of wage
discrimination and is at odds with the robust application of
the civil rights laws that Congress intended.
(3) With regard to any charges of discrimination under any
law, nothing in this Act is intended to preclude or limit an
aggrieved person's right to introduce evidence of unlawful
employment practices that have occurred outside the time for
filing a charge of discrimination.
(4) This Act is not intended to change current law treatment
of when pension distributions are considered paid.
SEC. 3. DISCRIMINATION IN COMPENSATION BECAUSE OF RACE, COLOR,
RELIGION, SEX, OR NATIONAL ORIGIN.
Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-
5(e)) is amended by adding at the end the following:
``(3)(A) For purposes of this section, an unlawful employment
practice occurs, with respect to discrimination in compensation
in violation of this title, when a discriminatory compensation
decision or other practice is adopted, when an individual
becomes subject to a discriminatory compensation decision or
other practice, or when an individual is affected by
application of a discriminatory compensation decision or other
practice, including each time wages, benefits, or other
compensation is paid, resulting in whole or in part from such a
decision or other practice.
``(B) In addition to any relief authorized by section 1977a
of the Revised Statutes (42 U.S.C. 1981a), liability may accrue
and an aggrieved person may obtain relief as provided in
subsection (g)(1), including recovery of back pay for up to two
years preceding the filing of the charge, where the unlawful
employment practices that have occurred during the charge
filing period are similar or related to unlawful employment
practices with regard to discrimination in compensation that
occurred outside the time for filing a charge.''.
SEC. 4. DISCRIMINATION IN COMPENSATION BECAUSE OF AGE.
Section 7(d) of the Age Discrimination in Employment Act of 1967
(29 U.S.C. 626(d)) is amended--
(1) by redesignating paragraphs (1) and (2) as subparagraphs
(A) and (B), respectively; and
(2) by striking ``(d)'' and inserting 11(d)(1)'';
(3) in the third sentence, by striking ``Upon'' and inserting
the following: ``(2) Upon''; and
(4) by adding at the end the following:
``(3) For purposes of this section, an unlawful practice
occurs, with respect to discrimination in compensation in
violation of this Act, when a discriminatory compensation
decision or other practice is adopted, when a person becomes
subject to a discriminatory compensation decision or other
practice, or when a person is affected by application of a
discriminatory compensation decision or other practice,
including each time wages, benefits, or other compensation is
paid, resulting in whole or in part from such a decision or
other practice.''.
SEC. 5. APPLICATION TO OTHER LAWS.
(a) Americans With Disabilities Act of 1990.--The amendment made by
section 3 shall apply to claims of discrimination in compensation
brought under title I and section 503 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12111 et seq., 12203), pursuant to
section 107(a) of such Act (42 U.S.C. 12117(a)), which adopts the
powers, remedies, and procedures set forth in section 706 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-5).
(b) Rehabilitation Act of 1973.--The amendments made by section 3
shall apply to claims of discrimination in compensation brought under
sections 501 and 504 of the Rehabilitation Act of 1973 (29 U.S.C. 791,
794), pursuant to--
(1) sections 501(g) and 504(d) of such Act (29 U.S.C. 791(g),
794(d)), respectively, which adopt the standards applied under
title I of the Americans with Disabilities Act of 1990 for
determining whether a violation has occurred in a complaint
alleging employment discrimination; and (2) paragraphs (1) and
(2) of section 505(a) of such Act (29 U.S.C. 794a(a)) (as
amended by subsection (c)).
(c) Conforming Amendments.--
(1) Rehabilitation Act of 1973.--Section 505(a) of the
Rehabilitation Act of 1973 (29 U.S.C. 794a(a)) is amended--
(A) in paragraph (1), by inserting after ``(42 U.S.C.
2000e-5 (f) through (k))'' the following: ``(and the
application of section 706(e)(3) (42 U.S.C. 2000e-
5(e)(3)) to claims of discrimination in
compensation)''; and
(B) in paragraph (2), by inserting after ``1964'' the
following: ``(42 U.S.C. 2000d et seq.) (and in
subsections (e)(3) of section 706 of such Act (42
1U.S.C. 2000e5), applied to claims of discrimination in
compensation)''.
(2) Civil Rights Act of 1964.--Section 717 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-16) is amended by adding at
the end the following:
``(f) Section 706(e)(3) shall apply to complaints of discrimination
in compensation under this section.''.
(3) Age Discrimination Act of 1967.--Section 15(f) of the Age
Discrimination in Employment Act of 1967 (29 U.S.C. 633a(f)) is
amended by striking ``of section'' and inserting ``of sections
7(d)(3) and''.
SEC. 6. EFFECTIVE DATE.
This Act, and the amendments made by this Act, take effect as if
enacted on May 28, 2007 and apply to all claims of discrimination in
compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.), the Age Discrimination in Employment Act of 1967 (29
U.S.C. 621 et seq.), title I and section 503 of the Americans with
Disabilities Act of 1990, and sections 501 and 504 of the
Rehabilitation Act of 1973, that are pending on or after that date.
Purpose
H.R. 2831, the Lilly Ledbetter Fair Pay Act of 2007, seeks
to reverse the Supreme Court's May 29, 2007, ruling in
Ledbetter v. Goodyear, which dramatically restricted the time
period for filing pay discrimination claims under Title VII and
made it more difficult for workers to stand up for their basic
rights at work. Under this bill, every discriminatory paycheck
or other compensation resulting, in whole or in part, from an
earlier discriminatory pay decision or other practice would
constitute an actionable violation of Title VII, the Americans
with Disabilities Act, the Rehabilitation Act, and the Age
Discrimination in Employment Act, regardless of whether the
decision or other practice to provide the discriminatory
compensation was adopted outside the filing period for a claim.
Committee Action Including Legislative History and Votes in Committee
110TH CONGRESS
First hearing: Ensuring equal pay for women
On April 24, 2007, the Committee on Education and Labor
conducted a hearing on gender based wage discrimination. At
this hearing, ``Strengthening the Middle Class: Ensuring Equal
Pay for Women,'' the Committee heard testimony describing the
scope and causes of gender based wage disparity, examining why
women currently earn 77 cents for every dollar earned by a
man.\1\ Witnesses included Representative Rosa DeLauro (D-CT);
Representative Eleanor Holmes-Norton (D-DC Del.); Catherine
Hill, Research Director at the American Association of
University Women; Heather Boushey, Senior Economist for the
Center for Economic and Policy Research; Dedra Farmer,
plaintiff in the Wal-Mart sex discrimination class-action
lawsuit; and Diana Furchtgott-Roth, Director of the Center for
Employment Policy at the Hudson Institute.
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\1\U.S. Census Bureau, U.S. Bureau of Labor Statistics, Annual
Demographic Survey (Aug. 2006).
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Second hearing: Title VII and wage discrimination
On June 12, 2007, the Committee on Education and Labor
conducted a hearing on the Supreme Court's decision in
Ledbetter v. Goodyear Tire & Rubber Co.\2\ The hearing,
``Justice Denied? The Supreme Court's Ledbetter v. Goodyear
Employment Discrimination Decision,'' examined the effects the
Supreme Court's decision will have on the ability of
discrimination victims to assert their rights, particularly in
cases involving compensation discrimination. Witnesses
testified, inter alia, that the Court's ruling ignored the
realities of pay discrimination and is contrary to the intent
of Title VII. These witnesses stated that Congress must develop
a legislative fix to clarify that the protections under Title
VII of the Civil Rights Act, the Age Discrimination in
Employment Act (ADEA),\3\ the Americans with Disabilities Act
(ADA)\4\ and the Rehabilitation Act,\5\ extend not only to
discriminatory pay decisions and practices, but to every
paycheck that results from discriminatory pay decisions and
practices. Witnesses included Lilly Ledbetter, plaintiff in
Ledbetter v. Goodyear; Wade Henderson, President and CEO of the
Leadership Conference on Civil Rights; Deborah Brake, professor
at the University of Pittsburgh School of Law; and Neal Mollen,
on behalf of the U.S. Chamber of Commerce.
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\2\127 S.Ct. 2162 (May 29, 2007).
\3\29 U.S.C. Sec. Sec. 621 et seq.
\4\42 U.S.C. Sec. Sec. 12101 et seq.
\5\29 U.S.C. Sec. Sec. 791, 793-94.
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Introduction of the Ledbetter Fair Pay Act of 2007
On June 22, 2007, the Ledbetter Fair Pay Act of 2007, H.R.
2831, was introduced by Representative George Miller (D-CA) and
was referred to the Education and Labor Committee.
Full Committee Mark-up of the Ledbetter Fair Pay Act of 2007
On June 27, 2007, the Committee on Education and Labor met
to markup H.R. 2831. The Committee adopted by voice vote an
amendment in the nature of a substitute offered by Chairman
George Miller. Two other amendments were offered and debated.
None of those amendments were adopted. The Committee voted to
favorably report H.R. 2831, by a vote of 25-20.
The Miller amendment in the nature of a substitute
contained minor technical changes and the following
modifications to H.R. 2831:
The Short Title of the bill was modified to read
the ``Lilly Ledbetter Fair Pay Act of 2007.''
The provision in H.R. 2831 creating a new Section
706(e)(3)(B) of the Civil Rights Act was removed. This
provision clarified that a person, after having already filed a
charge of pay discrimination, would not have to keep filing new
charges with each new paycheck. Upon further examination of
this provision, the Committee believes it is self-evident that
new charges would not need to be filed with each new paycheck
or other similar or related instance of pay discrimination in
order to ensure that those instances are also challengeable in
the pursuit of the initial charge. Thus, this language is not
necessary and was removed.
As a result of the elimination of 706(e)(3)(B),
paragraph (C), clarifying that persons bringing pay
discrimination claims are entitled to up to two years of back
pay recovery, was redesignated as paragraph (B).
What would have been the new Section 7(d)(3)(B) of
the ADEA clarifying that new charges need not be refiled with
each paycheck was also eliminated for the same reasons as the
Title VII provision.
A fourth finding was added to clarify that the
bill, in reversing Ledbetter, was not intended to change
current law with respect to when pension distributions are
considered paid.
Representative Charles Boustany (R-LA) offered an amendment
in the nature of a substitute which would have amended the bill
so that it applies only to cases in which the employer
intentionally discriminates against an employee with regards to
a discriminatory compensation decision or other unlawful
practice. H.R. 2831, however, is drawn narrowly to define
when--for purposes of the 180-day (or 300-day) statute of
limitations\6\--an unlawful employment practice (already
defined by Title VII) ``occurs.'' The Boustany amendment was
defeated by a vote of 18-24.
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\6\The 180-day statute of limitations is extended to 300 days when
an employee first files a charge with a state's equivalent of the Equal
Employment Opportunity Commission (EEOC). While Title VII has a 180 (or
300) day statute of limitations, it allows recovery of up to two years
of backpay, along with other, compensatory and punitive damages.
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Representative Ric Keller (R-FL) offered an amendment in
the nature of a substitute which would have struck ``other
practices'' from the Act. H.R. 2831 refers to ``decisions or
other practices'' related to compensation in order to capture
the wide gamut of compensation practices, from single, discrete
decisions about pay to arrangements, schemes, systems, or other
practices related to pay. Eliminating ``other practices'' would
have resulted in a bill that fails to reverse Ledbetter,
particularly with any hairsplitting definition of
``compensation decision.'' ``Other practices'' captures the
fact pattern in Ledbetter, where sex-based performance
evaluations were used in conjunction with a performance-based
pay system to effectuate the discriminatory pay. The amendment
was defeated by a vote of 20-25.
Summary
The Lilly Ledbetter Fair Pay Act of 2007, H.R. 2831, would
clarify that when it comes to discriminatory pay, the
protections of Title VII of the Civil Rights Act, the Age
Discrimination in Employment Act\7\ (ADEA), the American with
Disabilities Act\8\ (ADA) and the Rehabilitation Act,\9\ extend
to every paycheck or other compensation that results from
discriminatory pay decisions and practices.
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\7\29 U.S.C. Sec. Sec. 621 et seq.
\8\42 U.S.C. Sec. Sec. 12101 et seq.
\9\29 U.S.C. Sec. Sec. 791, 793-94.
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The legislation is designed to rectify the May 29, 2007,
Supreme Court decision in Ledbetter v. Goodyear. Under H.R.
2831, every paycheck or other compensation resulting, in whole
or in part, from an earlier discriminatory pay decision or
other practice would constitute a violation of Title VII, which
guards against discrimination on the basis of race, sex, color,
national origin, and religion.\10\ Each discriminatory paycheck
would start the clock for filing a charge. As long as workers
file their charges (as Ledbetter herself did) within 180 days
of a discriminatory paycheck, their charges will be considered
timely.
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\10\42 U.S.C. Sec. 2000e-2(a).
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The Act also clarifies that, with pay discrimination, an
employee is entitled to up to two years of back pay as provided
in Title VII already--not just 180 days of back pay, as
insinuated in Ledbetter and recent revisions of the EEOC
compliance manual.
Finally, H.R. 2831 ensures that these simple reforms extend
to the ADEA, the ADA and the Rehabilitation Act to provide
these same protections for victims of age and disability
discrimination.
Statement and Committee Views
The Committee on Education and Labor of the 110th Congress
is committed to protecting the rights of American workers and
to ensuring that they have adequate remedies if they are
discriminated against in the workplace. More than 40 years
after the passage of the Civil Rights Act of 1964, the Supreme
Court has weakened the nondiscrimination protections afforded
to American workers through its decision in Ledbetter v.
Goodyear. The Congress must respond.
In Ledbetter, the Court held that under Title VII,
employees must file a claim of discrimination within 180 days
of the alleged unlawful employment practice, which runs from
the initial decision to pay an employee less because of his or
her race, color, religion, sex or national origin. The result
is fundamentally unfair to victims of pay discrimination who
may lose their right to challenge a discriminatory compensation
action even though it is on-going but may be unknown. While
workers know immediately when they are fired, refused
employment or denied a promotion or transfer, the secrecy and
confidentiality associated with employees' salaries make pay
discrimination difficult to detect.
The Lilly Ledbetter Fair Pay Act of 2007 seeks to reverse
the Supreme Court's decision and restore prior law. The Act
clarifies that when it comes to discriminatory pay, the
protections of Title VII of the Civil Rights Act, the ADEA, the
ADA and the Rehabilitation Act, extend not only to these
discriminatory pay decisions and practices but to every
paycheck that results from those pay decisions and practices.
Finally, the Act ensures that anyone alleging discriminatory
pay can recover up to 2 years of back pay, as already provided
under Title VII, regardless of whether the back pay accrued
outside of the statute of limitations for filing the charge.
Implications of Ledbetter for Workers' Civil Rights
Title VII makes it an ``unlawful employment practice'' for
an employer to discriminate ``against any individual with
respect to his compensation . . . because of such individual's
race, color, religion, sex or national origin.''\11\
Individuals challenging an employment practice as
discriminatory are required to file a charge with the Equal
Employment Opportunity Commission (EEOC) within 180 days, or
300 days depending on the state, ``after the alleged practice
occurred.''\12\ Failure to timely file a charge with the EEOC
constitutes a forfeiture of an employee's right to raise a
claim in court.
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\11\42 U.S.C. Sec. 2000e-2(a).
\12\Id.
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In fiscal year 2006, individuals filed over 800 charges of
unlawful, sex-based pay discrimination with the EEOC.\13\ If
Congress does not act to overturn the Ledbetter decision, it
will become more difficult for employees to bring pay
discrimination claims under Title VII, and countless
meritorious claims will never be adjudicated.\14\ By holding
that the original discriminatory decision ``triggers'' the EEOC
charging period (i.e. statute of limitations), and a new
charging period does not commence upon the receipt of each and
every paycheck perpetuating the past discrimination, the
employer is forever insulated from liability once the initial
180-day period has passed even though it continues to pay
discriminatory compensation.\15\ Consequently, the rule adopted
by the Court leaves victims of pay discrimination without
recourse, even though they continue to receive discriminatory
pay for work currently performed.\16\
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\13\The Lilly Ledbetter Fair Pay Act of 2007, Hearing Before the
Education and Labor Committee, 110th Cong., 1st Sess. (2007) (written
testimony of Wade Henderson, President and CEO of the Leadership
Conference on Civil Rights, at 6) [hereinafter Henderson Testimony].
\14\Id.
\15\The Lilly Ledbetter Fair Pay Act of 2007, Hearing Before the
Education and Labor Committee, 110th Cong., 1st Sess. (2007) (written
testimony of Deborah Brake, Law Professor at the University of
Pittsburg Law School, at 4) [hereinafter Brake Testimony].
\16\Ledbetter, supra note 2 at 2184 (Ginsburg dissent). See also,
Brake Testimony at 12. Brake notes that ``employers would be hard-
pressed to complain that overturning the Ledbetter decision would place
unfair burdens on employers, since employers have lived with the
paycheck accrual rule until this very decision.''
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Under Ledbetter, victims of pay discrimination, unless they
file within 180 days of the initial discriminatory pay
decision, are forced to live with discriminatory paychecks if
they want to keep their job. Ledbetter requires that a victim
of pay discrimination must quickly perceive that a
discriminatory decision was made and promptly report it, within
the 180-day statute of limitations.
Pay discrimination is difficult to detect
The Ledbetter decision ignores the reality that pay
discrimination is incredibly difficult to detect. Employees
often have no access to the kinds of information necessary to
raise a suspicion of pay discrimination, including company-wide
salary data. In fact, workplace norms often discourage
conversations among employees about salaries. One-third of
private sector employers have adopted specific rules
prohibiting employees from discussing their wages with co-
workers.\17\ Only one in ten employers has adopted a pay
openness policy.\18\
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\17\Henderson Testimony at 3.
\18\Id.
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In addition, pay discrimination is rarely accompanied by
circumstances suggestive of bias.\19\ In fact, a discriminatory
pay gap may begin not with a change in a female employee's pay,
but rather with a decision to increase the pay of male
colleagues. Unlike hiring, firing, promotion and demotion
decisions where an individual immediately knows that she has
suffered an adverse employment action, there is often no
clearly adverse employment event that occurs with a
discriminatory pay decision. A pay-setting decision, unless it
implements a pay cut, is unlikely to be viewed as
discrimination at the time that it occurs. For example, an
employee who learns that she is about to receive a four-percent
raise would have no reason to suspect pay discrimination when
she does not know about the raises her colleagues earned.\20\
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\19\Brake Testimony at 4.
\20\Id. at 5.
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If uncorrected, pay discrimination worsens over time
Discriminatory pay decisions are not separate and distinct
from the paychecks that follow them.\21\ In her dissent,
Justice Ginsburg noted that ``case law demonstrates that it is
not unusual for employees to work for an employer for quite
some time before learning of a gender disparity in pay.''\22\
Each pay decision builds on the prior one, and unless
corrected, discriminatory pay decisions can be magnified by
subsequent percentage-based adjustments. Consequently, what
would at first appear to be a minor pay disparity could expand
over the course of an employee's career, even if subsequent
raises are determined in a nondiscriminatory fashion.\23\ By
the time the discrimination becomes apparent and unmistakable,
under Ledbetter, the victim of pay discrimination would find
her Title VII claims foreclosed.\24\
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\21\Brake Testimony, at 1.
\22\Ledbetter, supra note 2 at 2181. See also, Brake Testimony, at
6.
\23\Brake Testimony, at 2.
\24\See also Linda Babcock and Sara Laschever, ``Women Don't Ask:
Negotiations and the Gender Divide'' (2003) (demonstrating how a
discriminatory pay decision can continue to produce an increasing pay
disparity throughout an individual's career). See also, Brake
Testimony, at 2.
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Employees lose their rights if they assert a pay
discrimination claim too early
The Ledbetter decision creates a Catch-22 for employees. If
an employee does not file a charge within 180 days of a
discriminatory pay decision, she loses the right to challenge
it. But if an employee complains to an employer too soon--that
is, without adequate factual and legal foundation\25\--she can
be fired with no legal recourse. In Clark County School
District v. Breeden,\26\ the Supreme Court held that an
employee who opposes what she believes to be unlawful
discrimination is protected only if she has a ``reasonable
belief'' that the practice she opposes in fact violates Title
VII. Otherwise, Title VII's retaliation protections do not
reach her, and she may be fired. To avoid this situation after
Ledbetter, an employee should file directly with the EEOC as
soon as possible, without talking to the employer, despite the
fact that the law tries to encourage informal conciliation
between employer and employee to avoid conflict and litigation.
Neither employers nor employees benefit from such a post-
Ledbetter scheme.
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\25\Ledbetter, supra note 2, at 2182. To establish a pay
discrimination claim, it may take a pattern of substantial pay
disparities and time to investigate the relevant facts in order to
demonstrate a legally sufficient inference that the gap is due to
gender bias, rather than to some legitimate nondiscriminatory reason
such as performance or experience. In an effort to meet the 180-day
statute of limitations, an employee may be motivated to complain to her
employer at the first sign of a pay gap; however she may lack an
adequate foundation for a reasonable belief that the gap is because of
gender discrimination.
\26\532 U.S. 268 (2001).
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Other implications of the Ledbetter decision
The Ledbetter decision extends to Title VII pay
discrimination cases affecting not only women, but also those
involving race, color, national origin, and religion. If
undisturbed, the Ledbetter decision may also affect pay
discrimination under parallel employment discrimination
statutes that are patterned on Title VII, such as the ADEA or
the ADA.\27\
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\27\Henderson Testimony, at 4.
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Wade Henderson, President and CEO of the Leadership
Conference on Civil Rights, testified before the Education and
Labor Committee's June 12, 2007 hearing and stated that while
the Ledbetter decision is part of the Court's recent pattern of
limiting both access to the courts and remedies available to
victims of discrimination,\28\ the Ledbetter decision on its
own weakens basic protections in ways that Congress never
intended.
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\28\Id. at 6. In his testimony, Henderson highlights that under
recent Supreme Court rulings: older workers can no longer recover money
damages for employment discrimination based on age if they are employed
by the state (Kimel v. FL. Board of Regents, 528 U.S. 62 (2000)); state
workers can no longer recover money damages if their employers violate
minimum wage and overtime laws (Alden v. Maine, 527 U.S. 706 (1999));
and workers can now be required to give up their right to sue in court
for discrimination as a condition of employment (Circuit City Stores v.
Adams, 532 U.S. 105 (2001)).
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For example, Henderson notes the case Goodwin v. General
Motors Corporation.\29\ In Goodwin, an African-American woman
was promoted to a labor representative position with a salary
that was approximately $300 to $500 less than other similarly
situated employees. The pay disparity increased over time,
until she was being paid $547 less per month than the next
lowest paid representative. Due to the company's
confidentiality policy, Goodwin did not discover the disparity
until she was anonymously given a printout of the salary
roster. While the district court initially dismissed her Title
VII race discrimination claim, the Tenth Circuit reversed and
remanded the case, holding that discriminatory salary payments
constitute fresh violations of Title VII and each action of
pay-based discrimination was independent for purposes of the
statutory time of limitations.\30\ Under Ledbetter, Goodwin
would have been barred from raising her claim.
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\29\275 F.3d 1005 (10th Cir. 2002).
\30\Id. See also, Henderson Testimony at 5-6.
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The Court's analysis in Ledbetter also stands contrary to
the EEOC's interpretation and application of Title VII, which
previously permitted employees to challenge continuing pay
discrimination as long as one paycheck that pays the employee
less because of sex falls within the limitations period.\31\
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\31\EEOC Compliance Manual, Sec. 2-IV-C(1)(a). See also, Ledbetter
supra note 2, at 2185. (Ginsburg dissent) (citing EEOC administrative
rulings and litigation positions permitting employees to challenge any
discriminatory paychecks received within the limitations period).
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It is true that victims of sex-based pay discrimination can
alternatively raise a claim under the Equal Pay Act (EPA).
However, utilizing the EPA is not a solution to the loss of
rights presented by Ledbetter. First, under the EPA plaintiffs
have a different evidentiary standard than under Title VII.\32\
An EPA claimant must rely on an opposite sex comparator--that
she performed the same work or ``equal'' work as higher paid
males--while Title VII claims do not require comparators so
long as there is other evidence of discrimination such as that
the female worker would have been paid more had she been a
man.\33\ Furthermore, the remedies under Title VII are more
comprehensive than those under the EPA. While the EPA allows
recovery of two years of backpay, or three years where the pay
disparity was willful, Title VII allows two years of backpay,
compensatory damages, and punitive damages. Moreover, the EPA
is not available to victims of race, color, national origin,
religion, age, or disability discrimination.
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\32\``Overview of the Equal Pay Act,'' American Association of
University Women (AAUW), available at: http://www.aauw.org/laf/library/
payequity_epa.cfm. Employers can affirmatively defend and justify
unequal pay if it is based on: (1) seniority systems; (2) merit
systems; (3) systems that measure earnings by quality or quantity of
production; or (4) ``any factor other than sex.'' Historically, courts
have interpreted the ``any factor other than sex'' criteria so broadly
that it embraces an almost limitless number of factors, so long as they
do not involve sex.
\33\Id.
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Under H.R. 2831 employers will continue to have adequate
legal protections against employees who unreasonably delay
filing a pay discrimination suit and they do not need the
protections of the Ledbetter decision.\34\ Opponents of H.R.
2831 allege that it is necessary to treat pay discrimination as
a discrete act to protect employers from the burden of
defending claims arising from employment decisions that are
long past.\35\ This argument is fundamentally flawed. First,
pay discrimination like the kind Lilly Ledbetter suffered is
not long past. With each paycheck that Ledbetter was paid less,
she was a victim of discrimination. Second, employers who
allege that they are disadvantaged by an unreasonable or
prejudicial delay have adequate legal protections.
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\34\Brake Testimony, at 10.
\35\Ledbetter, supra note 2 at 2185.
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As Justice Ginsburg notes in her dissent, ``doctrines such
as waiver, estoppel, and equitable tolling allow [the Court] to
honor Title VII's remedial purpose without negating the
particular purpose of the filing requirement, to give notice to
the employer.\36\ Furthermore, employers can raise a defense of
laches. Professor Brake notes that, ``lower courts have applied
the defense of laches to cut off a plaintiff's right to sue
where the employee has delayed unreasonably in filing her
claim, even if the employee has met the filing requirements for
Title VII.''\37\
---------------------------------------------------------------------------
\36\Id. at 2186.
\37\Brake Testimony, at 11.
---------------------------------------------------------------------------
Victims of pay discrimination have no incentive to delay
filing a charge under H.R. 2831. Opponents of this legislation
argue that it would encourage plaintiffs to sit on their right
to sue, and put the employer at a disadvantage when a case is
finally filed. This assertion is entirely without merit. A
victim of discrimination has no incentive to delay in ending
that discrimination. Opponents argue that a victim will allow
discrimination to continue for years, and make it difficult for
an employer to defend against old claims of discrimination. It
would be nonsensical for a victim to allow discriminatory
paychecks to pile up over years. In the example of a ten year
old claim, since the back pay award is limited to two years, a
victim would have to decide to forfeit eight years of back pay.
Furthermore, there is no merit to the argument that a delay in
bringing charges unfairly disadvantages the employer. It is the
employee who bears the burden of proof. The passage of time
only makes that burden of proof more difficult for the
employee.
H.R. 2831 maintains the 180/300 day statute of limitations
for filing discrimination charges. It does not extend that time
limit. To have a viable claim, a victim of pay discrimination
must file a charge within 180/300 days of receiving
discriminatory pay. If the discriminatory pay was received more
than 180/300 days ago--because, for example, the employee left
employment and is no longer receiving compensation from this
employer or because the employer rectified the discriminatory
pay and now has been paying the employee in a nondiscriminatory
and lawful fashion for at least 180/300 days--a charge would be
untimely under this bill. Rather than encouraging employers to
hide the ball, run out the clock, and continue reaping the
financial rewards of paying someone less for discriminatory
reasons, as is the incentive under the Ledbetter decision, H.R.
2831 is designed to encourage employers to stop paying
individuals in an unlawful, discriminatory fashion. Such
incentive to stop discrimination existed in law prior to
Ledbetter.
PAY DISCRIMINATION CASE LAW PRIOR TO THE LEDBETTER DECISION
The Supreme Court in Ledbetter rejected prior law that
every discriminatory paycheck is a new violation. The Court
replaced it with a rule requiring that employees challenge each
and every discriminatory pay decision within Title VII's short
statutory limitation period, or lose forever the ability to
challenge ongoing pay discrimination that results from an
earlier decision.\38\ Until the Ledbetter case, lower courts
across the country had allowed plaintiffs to challenge
discriminatory paychecks received within the limitations
period, regardless of when the discriminatory pay decision was
first made, in cases involving pattern-or-practice claims and
individual claims.\39\
---------------------------------------------------------------------------
\38\Id. at 1.
\39\Id. at 13.
---------------------------------------------------------------------------
The Supreme Court in Bazemore v. Friday--Each week's
paycheck is actionable
In 1986, the Supreme Court decided the case of Bazemore v.
Friday,\40\ which involved unequal pay for black and white
employees. Despite the fact that the discriminatory pay
decision was made before the passage of Title VII, the Court
found a violation of Title VII because the employer had
perpetuated the unequal pay and ``was under an obligation to
eradicate salary disparities based on race that began prior to
the effective date of Title VII.''\41\ The Court held that each
and every paycheck that perpetuated the past discrimination was
actionable not because the paychecks were `related' to the
decision made outside the statute of limitations, but because
they discriminated each and every time they were issued.
According to the Court, ``each week's paycheck that delivered
less to a black than to a similarly situated white is a wrong
actionable under Title VII . . .''\42\
---------------------------------------------------------------------------
\40\478 U.S. 385 (1986). This case was decided Per Curiam.
\41\Id. at 397.
\42\Id. at 395.
---------------------------------------------------------------------------
The circuit courts of appeal--Each new paycheck is a
separate wrong
Under Bazemore and until Ledbetter reached the Eleventh
Circuit, circuit courts understood Title VII to prohibit
discriminatory disparities in pay occurring within the statute
of limitations, even if the disparity began outside that
statute of limitations. This was true for both pattern or
practice cases and individual cases of pay disparity.\43\
---------------------------------------------------------------------------
\43\See e.g., Brindley-Obu v. Hughes Training, Inc. 26 F.3d 336
(4th Cir. 1994); Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d 164
(8th Cir. 1995) (en banc); Gibbs v. Pierce County Law Enforcement
Support Agency, 785 F.2d 1396 (9th Cir. 1986); Goodwin v. GMC, 275 F.3d
1005 (10th Cir. 2002); Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005);
Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999).
---------------------------------------------------------------------------
In 2002, the Supreme Court decision in National Railroad
Passenger Corp. v. Morgan, a hostile work environment case
under Title VII, distinguished between ``hostile work
environment'' cases and ``discrete act'' cases. The Court
explained that ``[d]iscrete acts such as termination, failure
to promote, denial of transfer, or refusal to hire are easy to
identify. Each incident of discrimination and each retaliatory
adverse employment decision constitutes a separate actionable
`unlawful employment practice.''' A hostile work environment
claim, however, is of a different nature from these discrete
acts. According to the Court, ``[i]t does not matter, for
purposes of the statute, that some of the component acts of the
hostile work environment fall outside the statutory time
period. Provided that an act contributing to the claim falls
within the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes of
determining liability.''
With Morgan, the circuits found further support for the
rule that every discriminatory paycheck is a new violation of
the law. The Second Circuit, for example, explained that
``discriminatory pay scales are not continuing violations . . .
Instead, such scales involve a number of individual and
separate wrongs rather than one course of wrongful action . . .
And, each repetition of wrongful conduct may, as Morgan taught,
be the basis of a separate cause of action for which suit must
be brought within the limitations period beginning with its
occurrence. A salary structure that was discriminating before
the statute of limitations passed is not cured of that
illegality after that time passed, and can form the basis of a
suit if a paycheck resulting from such a discriminatory pay
scale is delivered during the statutory period.''\44\
---------------------------------------------------------------------------
\44\Forsyth v. Federation Employment and Guidance Service, 409 F.3d
565, 573 (2d Cir. 2005) (citing Bazemore and Morgan).
---------------------------------------------------------------------------
Likewise, the Seventh Circuit found that a discriminatory
pay claim was timely, based on paychecks received during the
statutory time period derived from a failure to grant a raise
that occurred three years prior, explaining: ``We conclude that
the rule of Bazemore . . ., to the effect that each new
paycheck is a separate wrong (recently affirmed in . . . Morgan
. . .), governs this case . . .''\45\ Other circuits applied
Bazemore and Morgan in the same way.\46\
---------------------------------------------------------------------------
\45\Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007, 1009 (7th
Cir. 2003).
\46\See, e.g., Tademe v. Saint Cloud State Univ., 328 F.3d 982, 989
(8th Cir. 2003); Williams v. Giant Food, Inc., 370 F.3d 423, 429 (4th
Cir. 2004); Davidson v. America Online, Inc., 337 F.3d 1179, 1186 (10th
Cir. 2003); Shea v. Rice, 409 F.3d 448, 453-54 (D.C. Cir. 2005).
---------------------------------------------------------------------------
The EEOC--Repeated discriminatory paychecks can be
challenged
The EEOC's compliance manual reflects the pre-Ledbetter
rule on pay discrimination. Its latest revision following
Morgan explained:
In . . . Morgan, the Supreme Court ruled that the
timeliness of a charge depends upon whether it involves
a discrete act or a hostile work environment claim . .
. A discrete act, such as the failure to hire or
promote, termination, or denial of transfer, is
independently actionable if it is the subject of a
timely charge. Such acts must be challenged within 180/
300 days of the date that the charging party received
unequivocal written or oral notification of the action,
regardless of the action's effective date . . .
Repeated occurrences of the same discriminatory
employment action, such as discriminatory paychecks,
can be challenged as long as one discriminatory act
occurred within the charge filing period.\47\
---------------------------------------------------------------------------
\47\EEOC Compliance Manual, ``Threshold Issues: Timeliness''
Section 2-IV.C (July 21, 2005).
The EEOC's view is consistent with case law, Title VII, and
the intent of Congress. Accordingly, the EEOC filed an amicus
brief arguing for the timeliness of the plaintiff's charge in
Ledbetter when the case went before the Eleventh Circuit.
Congressional Intent--Generalizing the rule in Bazemore
As the dissent in Ledbetter pointed out, congressional
intent with respect to cases such as Ledbetter was clarified in
the 1991 Civil Rights Act. There, Congress explicitly reversed
the Supreme Court decision in Lorance v. AT&T Technologies,\48\
which involved the application of a discriminatory seniority
system. While the legislative answer to Lorance, Section 112 of
the Act, dealt only with seniority systems, ``Congress made
clear (1) its view that this Court had unduly contracted the
scope of protection afforded by Title VII and other civil
rights statutes, and (2) its aim to generalize the ruling in
Bazemore.''\49\ For example, the Sponsors' Interpretative
Memorandum in 1991 explained: ``This legislation should be
interpreted as disapproving the extension of [Lorance] to
contexts outside of seniority systems.''\50\ In Lorance, the
Court found that the statute of limitations started running at
the time the employer adopted the seniority system and did not
restart when the effects of that system were felt. In Section
112 of the 1991 Civil Rights Act, in response to Lorance,
Congress clarified that an unlawful employment practice occurs
with respect to discriminatory seniority systems when such a
system is adopted, when a person becomes subject to it, and
when a person is injured by its application.
---------------------------------------------------------------------------
\48\490 U.S. 900 (1989). This decision was a 5-3 decision with
Justice O'Connor taking no part. Justice Scalia wrote for the majority,
which included Justices Rehnquist, White, Stevens and Kennedy. Justices
Marshall and Blackmun dissented.
\49\Ledbetter, supra note 2, at 11.
\50\Id., at 11-12 (quoting 137 Cong. Rec. 29046, 29407 (1991)).
---------------------------------------------------------------------------
THE LEDBETTER DECISION
On May 29, 2007, the Court decided the case of Ledbetter v.
Goodyear Tire & Rubber Co., Inc.\51\ In a 5-4 decision authored
by Justice Alito,\52\ the Court rejected Lily Ledbetter's
argument that each paycheck she received reflected a lower
salary due to past sex discrimination and therefore constituted
a new violation of Title VII.\53\ Instead, the Court held that
the 180-day statute of limitations ran from the day the
discriminatory decision was made and that ``a new violation
does not occur and a new charging period does not commence upon
the occurrence of subsequent nondiscriminatory acts that entail
effects from the past discrimination.''\54\
---------------------------------------------------------------------------
\51\Ledbetter, supra note 2.
\52\Justices Roberts, Scalia, Thomas and Kennedy concurred, while
Justices Ginsburg, Breyer, Souter and Stevens dissented.
\53\42 U.S.C. section 2000e-2(a).
\54\Ledbetter, supra note 2, at 2162.
---------------------------------------------------------------------------
Facts of the case
Lily Ledbetter was a female production supervisor at the
Goodyear plant in Gadsden, Alabama.\55\ She worked there from
1979 to 1998--a period of 19 years--when she retired.\56\ Six
months prior to her retirement, Ledbetter filed a charge with
the EEOC, alleging various acts of sex discrimination.\57\ At
trial a jury found that Goodyear illegally discriminated
against her on the basis of her sex.\58\ Some of the evidence
showed:
---------------------------------------------------------------------------
\55\Id. at 2178.
\56\Id.
\57\Id.
\58\Id.
---------------------------------------------------------------------------
Her supervisor admitted that Ledbetter's pay,
during one year, fell below the minimum threshold for her
position.\59\
---------------------------------------------------------------------------
\59\Id. at 2187.
---------------------------------------------------------------------------
While Goodyear claimed the pay disparity was due
to poor performance, her supervisor admitted that Ledbetter
received the ``Top Performance Award'' in 1996.\60\
---------------------------------------------------------------------------
\60\Id.
---------------------------------------------------------------------------
Testimony was presented showing a supervisor--who
evaluated Ledbetter in 1997 and whose evaluation led to her
most recent raise denial--was openly biased against women.\61\
---------------------------------------------------------------------------
\61\Id.
---------------------------------------------------------------------------
Two women who had worked as managers at the plant
told the jury that they had been subjected to pervasive
discrimination and were paid less than the men they
supervised.\62\
---------------------------------------------------------------------------
\62\Id.
---------------------------------------------------------------------------
Discriminatory animus was present throughout
Ledbetter's career. Near the end, a plant manager told
Ledbetter that ``the plant did not need women, that [women]
didn't help it, [and] caused problems.''\63\
---------------------------------------------------------------------------
\63\Id. at 2187.
---------------------------------------------------------------------------
Initially in line with the salaries of men
performing the same work, Ledbetter's salary fell 15 to 40
percent behind her male counterparts after excessive
evaluations and percentage-based pay adjustments.\64\
---------------------------------------------------------------------------
\64\Id. at 2181.
---------------------------------------------------------------------------
The Alabama jury awarded Ledbetter $223,776 in backpay,
$4,662 in compensatory damages and $3,285,979 in punitive
damages. The trial court reduced the backpay award to $60,000,
and reduced the punitive and compensatory damages in accordance
with the statutory cap adopted in the 1991 Civil Rights Act, to
$295,338.\65\
---------------------------------------------------------------------------
\65\Ledbetter v. Goodyear, Brief of Appellant, Lilly Ledbetter,
2005 U.S. Briefs 1074 at 1078 (Sept. 7, 2006).
---------------------------------------------------------------------------
Goodyear appealed the case to the Eleventh Circuit Court of
Appeals, which overturned the verdict.\66\ Unlike the rule
utilized by other circuits hitherto, the Eleventh Circuit found
that the operative act of discrimination was the decision what
to pay Ledbetter not the act of issuing paychecks. Looking only
at the pay decisions made within the 180 days prior to filing
the EEOC charge, the Appeals Court concluded that there was
insufficient evidence to prove that Goodyear acted with
discriminatory intent.\67\ As a consequence, Lily Ledbetter
appealed to the Supreme Court and asked the Court to resolve
the following question:
---------------------------------------------------------------------------
\66\Ledbetter, supra 2 at 2166.
\67\Id.
---------------------------------------------------------------------------
Whether and under what circumstances a plaintiff may
bring an action under Title VII of the Civil Rights Act
of 1964 alleging equal pay discrimination when the
disparate pay is received during the statutory
limitations period, but is the result of intentionally
discriminatory pay decisions that occurred outside the
limitations period.\68\
---------------------------------------------------------------------------
\68\Id.
Ms. Ledbetter argued that her Title VII pay discrimination
claim was timely filed with the EEOC because: the paychecks
issued to her during the 180 day period each constituted a
separate act of discrimination, and the 1998 decision denying
her a raise was unlawful because it perpetuated the
discriminatory pay decision from previous years.\69\
---------------------------------------------------------------------------
\69\Jody Feder, Pay Discrimination Claims Under Title VII of the
Civil Rights Act: A Legal Analysis of the Supreme Court's Decision in
Ledbetter v. Goodyear Tire & Rubber Co., Inc., Congressional Research
Service (June 28, 2007).
---------------------------------------------------------------------------
The majority decision
The Supreme Court held that Ledbetter's case was time-
barred because no discriminatory acts had taken place within
the 180-day statute of limitations period. It found that Title
VII claims alleging disparate treatment require evidence of
discriminatory intent and that there was none within the
charging period. The fact that Ledbetter may have been
currently suffering from discriminatory paychecks based on past
discrimination was not enough to save her claim.
The Court relied heavily on the Lorance Court's finding
that the plaintiffs had not alleged that the new seniority rule
at issue treated men and women differently or that the rule had
been applied in a discriminatory manner. The Court explained
that the complaint of the Lorance plaintiffs was that the rule
was adopted with discriminatory intent, while the Lorance
decision held that the ``EEOC charging period ran from the time
when the discrete act of alleged intentional discrimination
occurred, not from the date when the effects of this practice
were felt.''\70\
---------------------------------------------------------------------------
\70\Id. at 2168.
---------------------------------------------------------------------------
This reliance on Lorance came despite Congress's explicit
reversal of that decision in 1991 and the legislative history
of that reversal, directing the courts to interpret it as not
just a reversal of that decision but a disapproval of that
approach in cases beyond seniority systems.\71\
---------------------------------------------------------------------------
\71\The majority opinion also relied heavily upon the decisions in
United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) and Delaware State
College v. Ricks, 449 U.S. 250 (1980), neither of which were pay
discrimination cases but involved ``single, immediately identifiable''
acts of discrimination--a constructive discharge and a denial of
tenure--qualitatively different from the ``repetitive, cumulative
discriminatory employment practice'' that is involved in pay
discrimination cases.
---------------------------------------------------------------------------
The Court was particularly focused on the issue of
discriminatory intent noting that Ledbetter made no claim that
the ``intentionally discriminatory conduct occurred during the
charging period or that the discriminatory decision that
occurred prior to that period were not communicated to
her.''\72\ And it rejected Ledbetter's argument that Goodyear's
conduct during the charging period gave ``present effect'' to
its discriminatory conduct before the charging period, holding
that ``Ledbetter should have filed an EEOC charge within 180
days after each allegedly discriminatory pay decision was made
and communicated to her.''\73\
---------------------------------------------------------------------------
\72\Ledbetter, supra note 2 at 2169.
\73\Id. at 2170.
---------------------------------------------------------------------------
The dissent
Justice Ginsburg was joined by Justices Stevens, Breyer and
Souter in a strongly-worded dissent. Unlike the majority, she
found that the Court's decision in Bazemore applied to
Ledbetter's situation:
Paychecks perpetuating past discrimination . . . are
actionable not simply because they are `related' to a
decision made outside the charge-filing period . . .
but because they discriminate anew each time they
issue.\74\
---------------------------------------------------------------------------
\74\Ledbetter, supra note 2 at 2179.
She also found the Morgan decision to be equally
applicable. The Morgan decision, she argued distinguished (for
purposes of Title VII's timely filing requirement) between
unlawful actions of two kinds: `discrete acts' that are `easy
to identify' as discriminatory and acts that are cumulative in
impact such as hostile environment claims. According to Morgan,
``if an act contributing to the claim occurs within the filing
period, the entire period of the hostile environment may be
considered by a court for purposes of determining
liability.''\75\
---------------------------------------------------------------------------
\75\Id. at 2180.
---------------------------------------------------------------------------
Justice Ginsburg then explained that pay disparities:
have a closer kinship to hostile environment claims
than to charges of a single episode of discrimination.
Though component acts fell outside the charge-filing
period, with each new paycheck, Goodyear contributed
incrementally to the accumulating harm.\76\
---------------------------------------------------------------------------
\76\2181.
She also pointed out that pay discrimination is not easy to
identify and distinguished it from other types of employment
discrimination. Unlike the worker who immediately knows that
she is denied a promotion or transfer which someone else gains,
compensation disparities are often hidden from sight.
Management does not publish employee pay levels. One-third of
companies even prohibit employees from discussing their pay
with each other. Goodyear, for example, kept salaries
confidential. Moreover, pay disparities are even more difficult
to discern where a female employee is not denied a raise but
her male counterparts are given larger ones.
Justice Ginsburg accused the majority of either not
comprehending or being indifferent to the insidious nature of
pay discrimination and found that its opinion was inconsistent
with the overall anti-discrimination purpose of Title VII. She
explicitly called on Congress to reverse the Court's decision:
``the ball is in Congress' court.''\77\
---------------------------------------------------------------------------
\77\Id. at 2188.
---------------------------------------------------------------------------
CONGRESS'S ACTION TODAY
Just as Congress was forced to act to reverse Lorance in
1991, Congress is forced to act today to reverse Ledbetter in
order to ensure the robust application of Title VII (and other
laws) to fully protect workers from discrimination.
Congressional action to reassert the viability of
discrimination claims with respect to pay is particularly
timely now, with recent reports that the gender gap in pay is
not improving. An April 2007 study, for example, conducted by
the American Association of University Women (``AAUW''),
confirmed found that women who are only one year out of college
make 80 percent of what men earn, and 10 years later, make only
69 percent.\78\
---------------------------------------------------------------------------
\78\Strengthening the Middle Class: Ensuring Equal Pay for Equal
Work, Hearing Before the Education and Labor Committee, 110th Cong.,
1st Sess. (2007) (written testimony of Catherine Hill, Research
Director at the American Association of University Women, at 1)
[hereinafter Hill Testimony]. The AAUW's analysis further demonstrated
that women full-time workers earn less than men full-time workers in
nearly every field they work, although the size of the gap varies.
After controlling for factors like major, occupation, industry, sector,
hours worked, workplace flexibility, experience, educational
attainment, enrollment status, grade point average, institution
selectivity, age, race/ethnicity, region, marital status and children,
a five percent difference in the earnings of male and female college
graduates is unexplained. AAUW's analysis showed that (controlling for
this similar set of factors), ten years after graduation there is a
twelve percent difference in the earnings of recent male and female
college graduates that is unexplained and attributable only to gender.
---------------------------------------------------------------------------
H.R. 2831 is designed to be a narrow reversal of the
Ledbetter decision, without upsetting any other current law. It
is also yet another disapproval of the approach used by the
Court in both Lorance, which has already been reversed by
Congress, and Ledbetter, which is reversed with this bill. The
Committee cannot envision every fact pattern in which charges
might be brought within 180/300 days of an act that effectuates
a past decision to discriminate. Application of the seniority
system in Lorance was one; paycheck issuance in Ledbetter was
another. By rejecting the Court's holdings in these cases, the
Congress rejects the Court's underlying idea that the statute
of limitations starts to run upon the mere decision to
discriminate and not also upon the employer's effectuation of
that discriminatory decision. An employer who decides to
discriminate based on pay should be subject to challenge with
every repeated instance of the employer effectuating that
decision. Present and future instances of discrimination must
not be immunized by a cramped reading of when an unlawful
employment practice occurs for purposes of the statute of
limitations. Pay discrimination occurs both when an employer
decides to discriminate and then when the employer actually
discriminates. Victims of pay discrimination are entitled to
justice with each paycheck.
Section-by-Section Analysis
The following is a section-by-section analysis of the
Amendment in the Nature of a Substitute offered by Chairman
Miller and accepted by the Committee. The changes made by that
Amendment to H.R. 2831 are specified earlier in this report.
Section 1. Provides that the short title is the ``Lilly
Ledbetter Fair Pay Act of 2007.''
Section 2. Provides several congressional findings.
The first finding expresses Congress's disapproval of the
ruling in Ledbetter.
The second finding explains that the Ledbetter decision is
inconsistent with both the realities of wage discrimination and
the robust application of nondiscrimination law that Congress
intended.
The third finding clarifies the intent that this bill does
not preclude or limit the introduction of evidence of unlawful
employment practices occurring outside the statutory time
period. Negative inferences about what evidence of unlawful
employment practices may be considered should not be drawn from
any of the bill's provisions.
The fourth finding clarifies the intent that this bill does
not change current law treatment of when pension distributions
are considered paid. While the bill includes benefits as a form
of compensation which could trigger the statute of limitations
when paid, the bill does not intend to alter how current law
treats the question of when such benefits are considered paid.
For example, case law treats the receipt of repeated pension
checks under a defined benefit plan to be qualitatively
different from the receipt of paychecks.\79\ One court has
explained: ``Paychecks are payments for a prior term of work.
For example, an employee works for a week, then the salary
structure is applied and the paycheck is issued. Pension
checks, however, are based on a pension structure that is
applied only once, when the employee retires, and the pension
checks merely flow from that single application.''\80\
Accordingly under this rule, pension distributions would be
considered paid upon entering retirement and not upon the
issuance of each annuity check.
---------------------------------------------------------------------------
\79\See, e.g., Florida v. Long, 487 U.S. 223, 239 (1988).
\80\Maki v. Allete, Inc., 383 F.3d 740, 744 (8th Cir. 2004).
---------------------------------------------------------------------------
Section 3. Amends the Civil Rights Act of 1964 in order to
reverse Ledbetter. Specifically, this section adds a new
Section 706(e)(3)(A) to clarify that an unlawful employment
practice occurs, with respect to compensation discrimination,
when a discriminatory compensation decision or other practice
is adopted, when a person becomes subject to a discriminatory
compensation decision or other practice, or when an individual
is affected by application of a discriminatory compensation
decision or other practice, including each time wages,
benefits, or other compensation is paid, resulting in whole or
in part from such a decision or other practice. This section is
the core reversal of the Ledbetter decision. Under this
provision, Lilly Ledbetter would have had a timely-filed charge
against her employer. She filed her charge within 180 days of
receiving a paycheck resulting in whole or in part from an
earlier discriminatory compensation practice, namely, sex-based
performance evaluations in conjunction with a performance-based
pay system resulting in discriminatorily lower pay throughout
her career.
Differences between this provision and the Lorance
legislative fix for seniority systems, Section 706(e)(2),
provide greater clarity and ensure that Ledbetter is fully and
clearly reversed. First, this provision is not limited to
intentional discrimination but deals with all compensation
discrimination in violation of Title VII, to ensure that
Ledbetter is not later utilized to limit employees' rights with
respect to any kinds of compensation discrimination in
violation of Title VII. Second, while the Lorance legislative
fix switches between using ``individual'' and ``aggrieved
person,'' this provision uses the word ``individual''
consistently throughout the language for consistency's sake.
There is no substantive difference here between ``individual''
and ``aggrieved person.'' Third, while the Lorance legislative
fix uses the phrase ``when an aggrieved person is injured,''
this provision uses the phrase ``when an individual is
affected.'' There is no substantive difference between
``injured'' and ``affected,'' except that ``affected'' is
simpler and clearer than ``injured'' when the Court has placed
such emphasis, for purposes of what is actionable, on a
mistaken disjuncture between the discriminatory decision (the
pay decision) and subsequent acts effectuating that
discriminatory decision (the paycheck).
This section also adds a new Section 706(e)(3)(B) to the
Act. This new section clarifies that victims of pay
discrimination are entitled to the full back pay amount
available--up to two years of back pay as already provided
under Section 706(g)(1). This section is added to ensure that
back pay in cases such as Ledbetter are not limited to 180
days. The statute of limitations period and the back pay
recovery period are two separate periods in the Act.
Section 4. Amends the Age Discrimination in Employment Act
(ADEA) to provide for the same statute of limitations triggers
as provided in the Civil Rights Act of 1964 amendments in
Section 3. There is no reason why a fair paycheck rule should
be limited to discrimination cases under Title VII. It should
be noted that Section 4 does not include a provision clarifying
recovery as in Section 3. Such provision is not necessary here,
since the ADEA operates under a different recovery scheme from
Title VII which was not called into question by Ledbetter.
Section 5. Provides that the changes made to the Civil
Rights Act of 1964 in Section 3 are applicable to the Americans
with Disabilities Act and the Rehabilitation Act, ensuring that
victims of pay discrimination because of their disability are
covered by this bill. This section also provides conforming
amendments which ensure that federal employees are covered by
the bill's provisions.
Section 6. Provides an effective date for the bill.
Specifically, the bill takes effect as if enacted on May 28,
2007, the day before the Ledbetter decision, and applies to all
claims of discrimination pending on or after that date. This
effective date ensures that no pending or future claims, not
yet finally adjudicated, are affected by the Ledbetter ruling.
Explanation of Amendments
The Amendment in the Nature of a Substitute is explained in
the body of this report.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act, requires a description of the application
of this bill to the legislative branch. H.R. 2831's changes to
the Civil Rights Act of 1964, the Americans with Disabilities
Act, the Rehabilitation Act, and the Age Discrimination in
Employment Act apply to employees of the legislative branch in
the same way they apply to employees of the private sector and
federal government employees, to the extent that current law
applies these acts to various legislative branch employees. A
variety of statutes and provisions in current law, by way of
reference, operate to apply nondiscrimination laws to
legislative branch employees, such as the Equal Employment
Opportunity Act of 1972, Title III of the 1991 Civil Rights
Act, and Section 117(a) of the 1991 Civil Rights Act.
Regulatory Impact Statement
As H.R. 2831 merely reverses a Supreme Court decision to
return to prior law which had already been accepted by lower
courts and the EEOC, the Committee has determined that H.R.
2831 will have minimal impact on the regulatory burden.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates.
(The CBO letter will address this issue)
Earmark Statement
H.R. 2831 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
Roll Call
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
New Budget Authority and CBO Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 and with respect to
requirements of 3(c)(3) of rule XIII of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following estimate for
H.R. 980 from the Director of the Congressional Budget Office:
July 12, 2007.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2831, the Lilly
Ledbetter Fair Pay Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Peter R. Orszag.
Enclosure.
H.R. 2831--Lilly Ledbetter Fair Pay Act of 2007
H.R. 2831 would effectively reverse a recent Supreme Court
decision (Ledbetter v. Goodyear Tire and Rubber Co., No. 05-
1074, May 29, 2007) that addressed the time period during which
employees may file claims for pay discrimination. The Court
ruled that the statute of limitations for such claims begins
when the original discriminatory act occurs and is communicated
to the employee. Under H.R. 2831, the statute of limitations
would begin whenever an employee receives any wages, benefits,
or other compensation affected by the alleged discriminatory
act.
H.R. 2831 would not establish a new cause of action for
claims of pay discrimination. Because many variables influence
the filing of a claim for pay discrimination, CBO expects that
the bill would not significantly affect the number of filings
with the Equal Employment Opportunity Commission (EEOC). Based
on information from that agency, CBO estimates the H.R. 2831
would not significantly increase costs to the EEOC or to the
federal courts over the 2008-2012 period. Enacting the bill
would not affect revenues or direct spending.
Section 4 of the Unfunded Mandates Reform Act of 1995
excludes from the application of that act legislative
provisions that enforce statutory rights that prohibit
discrimination on the basis of race, color, religion, sex,
national origin, age, handicap, or disability. CBO has
determined that H.R. 2831 falls within that exclusion and has
not reviewed the bill for intergovernmental or private-sector
mandates.
The CBO staff contact for this estimate is Mark Grabowicz.
This estimate was approved by Robert A. Sunshine, Assistant
Director for Budget Analysis.
Statement of General Performance Goals and Objectives
In accordance with Clause 3(c) of House rule XIII, the goal
of H.R. 2831 is to protect individuals from discrimination in
pay on the basis of sex, race, color, national origin,
religion, age, or disability, by reversing the Supreme Court's
Ledbetter decision.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress in the
Constitution to enact the law proposed by H.R. 2831. The
Committee believes that the amendments made by this bill which
would clarify that the protections under Title VII of the Civil
Rights Act, the Age Discrimination in Employment Act (ADEA),
the Americans with Disabilities Act (ADA) and the
Rehabilitation Act, extend not only to discriminatory pay
decisions and practices but to every paycheck that results from
discriminatory pay decisions and practices are within Congress'
authority under the Equal Protection Clause, Commerce Clause,
and Due Process Clause.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 2831.
However, clause 3(d)(3)(B) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
CIVIL RIGHTS ACT OF 1964
* * * * * * *
TITLE VII--EQUAL EMPLOYMENT OPPORTUNITY
* * * * * * *
PREVENTION OF UNLAWFUL EMPLOYMENT PRACTICES
Sec. 706. (a) * * *
* * * * * * *
(e)(1) * * *
* * * * * * *
(3)(A) For purposes of this section, an unlawful employment
practice occurs, with respect to discrimination in compensation
in violation of this title, when a discriminatory compensation
decision or other practice is adopted, when an individual
becomes subject to a discriminatory compensation decision or
other practice, or when an individual is affected by
application of a discriminatory compensation decision or other
practice, including each time wages, benefits, or other
compensation is paid, resulting in whole or in part from such a
decision or other practice.
(B) In addition to any relief authorized by section 1977a
of the Revised Statutes (42 U.S.C. 1981a), liability may accrue
and an aggrieved person may obtain relief as provided in
subsection (g)(1), including recovery of back pay for up to two
years preceding the filing of the charge, where the unlawful
employment practices that have occurred during the charge
filing period are similar or related to unlawful employment
practices with regard to discrimination in compensation that
occurred outside the time for filing a charge.
* * * * * * *
NONDISCRIMINATION IN FEDERAL GOVERNMENT EMPLOYMENT
Sec. 717. (a) * * *
* * * * * * *
(f) Section 706(e)(3) shall apply to complaints of
discrimination in compensation under this section.
* * * * * * *
------
AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967
* * * * * * *
RECORDKEEPING, INVESTIGATION, AND ENFORCEMENT
Sec. 7. (a) * * *
* * * * * * *
(d)(1) No civil action may be commenced by an individual
under this section until 60 days after a charge alleging
unlawful discrimination has been filed with the Secretary. Such
a charge shall be filed--
[(1)] (A) within 180 days after the alleged unlawful
practice occurred; or
[(2)] (B) in a case to which section 14(b) applies,
within 300 days after the alleged unlawful practice
occurred, or within 30 days after receipt by the
individual of notice of termination of proceedings
under State law, whichever is earlier.
[Upon]
(2) Upon receiving such a charge, the Secretary shall
promptly notify all persons named in such charge as prospective
defendants in the action and shall promptly seek to eliminate
any alleged unlawful practice by informal methods of
conciliation, conference, and persuasion.
(3) For purposes of this section, an unlawful practice
occurs, with respect to discrimination in compensation in
violation of this Act, when a discriminatory compensation
decision or other practice is adopted, when a person becomes
subject to a discriminatory compensation decision or other
practice, or when a person is affected by application of a
discriminatory compensation decision or other practice,
including each time wages, benefits, or other compensation is
paid, resulting in whole or in part from such a decision or
other practice.
* * * * * * *
NONDISCRIMINATION ON ACCOUNT OF AGE IN FEDERAL GOVERNMENT EMPLOYMENT
Sec. 15. (a) * * *
* * * * * * *
(f) Any personnel action of any department, agency, or
other entity referred to in subsection (a) of this section
shall not be subject to, or affected by, any provision of this
Act, other than the provisions [of section] of sections 7(d)(3)
and 12(b) of this Act and the provisions of this section.
* * * * * * *
REHABILITATION ACT OF 1973
* * * * * * *
TITLE V--RIGHTS AND ADVOCACY
* * * * * * *
REMEDIES AND ATTORNEYS' FEES
Sec. 505. (a)(1) The remedies, procedures, and rights set
forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-16), including the application of sections 706(f) through
706(k) (42 U.S.C. 2000e-5 (f) through (k)) (and the application
of section 706(e)(3) (42 U.S.C. 2000e-5(e)(3)) to claims of
discrimination in compensation), shall be available, with
respect to any complaint under section 501 of this Act, to any
employee or applicant for employment aggrieved by the final
disposition of such complaint, or by the failure to take final
action on such complaint. In fashioning an equitable or
affirmative action remedy under such section, a court may take
into account the reasonableness of the cost of any necessary
work place accommodation, and the availability of alternatives
therefor or other appropriate relief in order to achieve an
equitable and appropriate remedy.
(2) The remedies, procedures, and rights set forth in title
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)
(and in subsections (e)(3) of section 706 of such Act (42
U.S.C. 2000e-5), applied to claims of discrimination in
compensation) shall be available to any person aggrieved by any
act or failure to act by any recipient of Federal assistance or
Federal provider of such assistance under section 504 of this
Act.
* * * * * * *
Committee Correspondence
None.
MINORITY VIEWS
INTRODUCTION
On May 29, 2007, the Supreme Court issued its decision in
Ledbetter v. Goodyear Tire & Rubber Company, Inc.\1\ At issue
before the Court was whether a former employee may sue her
former employer under Title VII of the Civil Rights Act of 1964
for pay discrimination if she claims that a discriminatory pay
decision occurred outside of the relevant statute of
limitations, but is still given effect by virtue of the fact
that she continues to receive lower pay. Relying on well-
established precedent under Title VII, the Court held that an
employee in this position cannot sue her employer for an
otherwise time-barred discriminatory pay action, even if the
effects of such discrimination are still reflected in her pay
today. In so doing, the Court gave meaning to the legislative
text of the Civil Rights Act of 1964; Congress's intent in
choosing and enacting the language it did; and the strong
policy interests of fairness and finality reflected in those
Congressional choices.
---------------------------------------------------------------------------
\1\Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S.__, 127
S. Ct. 2162 (2007) (hereinafter ``Ledbetter'' or ``the Ledbetter
decision'').
---------------------------------------------------------------------------
The proposition of whether Ledbetter was properly decided
is a question on which Members on both sides of the aisle, in
good conscience and in good faith, can disagree. Similarly, the
question of whether the Court's decision in the case should be
reversed, limited, or modified, is subject to legitimate
debate. What is beyond legitimate debate or question is the
fact that despite its supporters' claims to the contrary, H.R.
2831, the so-called ``Ledbetter Fair Pay Act,'' goes far beyond
the mere reversal of the Court's decision in that case. As
detailed herein, H.R. 2831 is not a narrowly-drawn bill that
merely reverses the result of one court case, or even a class
of similar cases. Simply put, H.R. 2831 virtually eliminates
the statute of limitations with respect to almost every claim
of discrimination available under federal law, and potentially
broadens the scope and application of civil rights laws to
entirely new fact patterns, practices, and claims. It is no
exaggeration to say that H.R. 2831 represents the most
comprehensive revision to our nation's civil rights laws to be
given serious consideration by the Committee in almost two
decades.
The vast scope of the changes embodied in H.R. 2831 makes
its premature and ill-advised consideration all the more
irresponsible and objectionable. Indeed, in many instances,
even the bill's supporters appear unclear as to the intent and
certainly the effect of the bill's provisions, a concern
highlighted by the fact that the bill was introduced and rushed
to full Committee markup in five days, without the benefit of
legislative consideration via the hearing process, stakeholder
comment and review, or subcommittee consideration. H.R. 2831 is
bad policy, compounded by bad process, and for the reasons set
forth below we oppose its passage.
BACKGROUND: TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 makes it an
unlawful employment practice, inter alia, for an employer to
discriminate ``against any individual with respect to his [or
her] compensation . . . because of such individual's . . .
sex.''\2\ Generally, an individual wishing to challenge an
employment practice under Title VII (whether it be a
termination, the denial of a promotion, a pay decision, or
other adverse employment action) must first file a charge with
the Equal Employment Opportunity Commission (EEOC) within 180
days after the alleged unlawful employment practice
occurred.\3\ If an employee does not submit a timely EEOC
charge, the employee may not later challenge the subject
employment practice in court. The period of time running from
the date of an act of discrimination to the date on which a
charge must be filed is commonly referred to as the ``charging
period.''
---------------------------------------------------------------------------
\2\42 U. S. C. Sec. 2000e-2(a)(1).
\3\ In states where a state agency has a work-sharing agreement
with the EEOC and where potential discrimination may be covered by
state law as well, the time for filing a charge of discrimination is
extended to 300 days. See 42 U.S.C. Sec. 2000e-5(e)(1).
---------------------------------------------------------------------------
LEDBETTER V. GOODYEAR TIRE & RUBBER COMPANY
Lilly Ledbetter worked for Goodyear Tire and Rubber Company
at its Gadsden, Alabama, plant from 1979 until 1998. During
much of this time, salaried employees at the plant were given
or denied raises based on their supervisors' evaluation of
their performance. In March 1998, Ledbetter submitted a
questionnaire to the EEOC alleging certain acts of sex
discrimination, and in July of that year she filed a formal
EEOC charge. After taking early retirement in November 1998,
Ms. Ledbetter filed suit against Goodyear in court, including,
among other things, a Title VII pay discrimination claim and a
claim under the Equal Pay Act.\4\ The lower court ruled in
favor of Goodyear on several of Ms. Ledbetter's claims,
including her Equal Pay Act claim, but allowed others,
including her Title VII pay discrimination claim, to proceed to
trial.
---------------------------------------------------------------------------
\4\See generally 29 U.S.C Sec. 206(d).
---------------------------------------------------------------------------
At trial, Ms. Ledbetter introduced evidence that during the
course of her nineteen years of employment at Goodyear, several
supervisors had given her poor evaluations because of her sex
(although it appears that many of these claims turned
principally on the misconduct of a single supervisor whom Ms.
Ledbetter claims retaliated against her in the early 1980s and
mid-1990s for rejecting his sexual advances; by the time the
case went to trial, this supervisor had died). Ms. Ledbetter
argued that as a result of these evaluations her pay was not
increased as much as it would have been if she had been
evaluated fairly, and that these past pay decisions continued
to affect the amount of her pay throughout her employment.
Notably (and as discussed in further detail below), she did not
appear to claim that the alleged discrimination on which she
based her suit in 1998 was unknown to her at the time it
occurred in the 1980s and 1990s.
At trial, Goodyear maintained that Ms. Ledbetter's
evaluations had been nondiscriminatory. The jury found in her
favor and awarded her back pay and damages.\5\ Goodyear, on
appeal, contended that Ms. Ledbetter's pay discrimination claim
was time-barred with respect to all pay decisions made prior to
September 26, 1997 (180 days before she filed her charge at the
EEOC), and that it committed no discriminatory act relating to
her pay after that date.
---------------------------------------------------------------------------
\5\ The jury awarded Ms. Ledbetter $223,776 in back pay, $4,662 in
compensatory damages, and $3.3 million in punitive damages. The trial
court reduced the back pay award to $60,000, and capped compensatory
damages at $300,000 pursuant to the Civil Rights Act of 1991 (which
generally sets for limits damages other than back pay).
---------------------------------------------------------------------------
The Court of Appeals for the Eleventh Circuit held that a
Title VII pay discrimination claim cannot be based on any pay
decision that occurred prior to the last pay decision that
affected the employee's pay during the charging period. Put
more simply, the court found that any pay decision made more
than 180 days prior to Ms. Ledbetter filing her charge with the
EEOC could not provide the basis for a claim of discrimination.
The court then concluded that there was insufficient evidence
to prove that Goodyear had acted with discriminatory intent in
making the only two pay decisions that occurred within that
time span, namely, a decision made in 1997 to deny Ms.
Ledbetter a raise and a similar decision made in 1998. Thus,
the Appeals Court found in the company's favor and vacated the
jury's verdict.
Ms. Ledbetter appealed her case to the Supreme Court, but
did not seek review of the Court of Appeals' holdings regarding
the sufficiency of the evidence in relation to the 1997 and
1998 pay decisions. Rather, she sought review of the following
question:
Whether and under what circumstances a plaintiff may
bring an action under Title VII of the Civil Rights Act
of 1964 alleging illegal pay discrimination when the
disparate pay is received during the statutory
limitations period, but is the result of intentionally
discriminatory pay decisions that occurred out-side the
limitations period?
THE SUPREME COURT'S RULING
On May 29, 2007, in a five to four decision,\6\ the Supreme
Court held that Ms. Ledbetter's claims were not timely. In
arriving at its ruling, the Court's majority stressed two
points. First, the Court stressed that its holding in Ledbetter
was consistent with its prior rulings on the question of when
the statute of limitations begins to toll for a discrete act of
discrimination. Second, the Court went on at length to note
that its decision was compelled by the terms of the statute of
limitations included in Title VII by Congress, and that
Congress plainly had given special attention to the policy
choices underlying a short statute of limitations. As the Court
observed:
---------------------------------------------------------------------------
\6\Justice Alito wrote the majority decision, in which he was
joined by Chief Justice Roberts, and Justices Scalia, Kennedy, and
Thomas.
Statutes of limitations 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 that `the
right to be free of stale claims in time comes to
prevail over the right to prosecute them.''' The EEOC
filing deadline ``protect[s] employers from the burden
of defending claims arising from employment decisions
that are long past.'' Certainly, the 180-day EEOC
charging deadline is short by any measure, but ``[b]y
choosing what are obviously quite short deadlines,
Congress clearly intended to encourage the prompt
processing of all charges of employment
discrimination.'' This short deadline reflects
Congress' strong preference for the prompt resolution
of employment discrimination allegations through
---------------------------------------------------------------------------
voluntary conciliation and cooperation.\7\
\7\127 S. Ct. at 2170-71 (citations omitted).
Based on this reasoning, the Court held that Ms. Ledbetter
could not base a claim in 1998 on alleged discrimination which
occurred outside of the 180-day charging period, even if such
discrimination ``tainted'' her wages today. The Court affirmed
the Eleventh Circuit's decision in favor of Goodyear.
In dissent, Justice Ginsberg\8\ argued that pay disparities
are ``significantly different'' than other adverse employment
actions such as termination and failure to promote, which she
believed involve ``fully communicated discrete acts.'' In
contrast, Justice Ginsburg wrote, ``[p]ay disparities often
occur, as they did in Ledbetter's case, in small increments;
cause to suspect that discrimination is at work develops only
over time,'' Ginsburg said.\9\ She asserted that under Supreme
Court precedent ``the unlawful practice is the current payment
of salaries infected by gender-based (or race-based)
discrimination--a practice that occurs whenever a paycheck
delivers less to a woman than to a similarly situated
man.''\10\
---------------------------------------------------------------------------
\8\Justice Ginsburg was joined by Justices Stephens, Souter, and
Breyer in her dissent. Significant media attention has been paid to the
fact that Justice Ginsburg read her dissent from the bench, an unusual
occurrence, if not one of substantive import.
\9\127 S. Ct. at 2178-79.
\10\Id. at 2179 (citation omitted).
---------------------------------------------------------------------------
Finally, Justice Ginsburg's dissent suggested that an
employer might ``conceal'' pay discrimination, or otherwise
make it difficult for an employee to be on notice that he or
she was the victim of discrimination. In that light, it is
worth noting that the Court's majority opinion expressly left
open the question of whether Title VII claims are amenable to a
``discovery rule.''\11\ The Court did note, however, that in
Ms. Ledbetter's case, there was no indication that a
``discovery rule'' would have changed the outcome--Ms.
Ledbetter herself did not claim that the discrimination she
alleged to have been the victim of in the 1980s and 1990s was
unknown to or hidden from her.\12\
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\11\A ``discovery rule'' generally provides that the statute of
limitations on a claim begins to run when a plaintiff is on notice (or
reasonably should be on notice) of a potential claim, and is intended
to ensure that meritorious claims are not time-barred simply because a
defendant conceals facts or otherwise attempts to ``run out the clock''
on a plaintiff's claim.
\12\See 127 S. Ct. at 2177 n. 10.
---------------------------------------------------------------------------
Almost immediately upon its announcement, the Ledbetter
decision was met with criticism from plaintiffs' advocates, the
trial bar, and others in the civil rights community, who
claimed that the decision represented a radical departure from
established law validating the ``paycheck rule.'' The Supreme
Court's decision ``severely weakens remedies for employees who
have faced wage discrimination and represents a flawed
interpretation of our civil rights laws,'' said the National
Women's Law Center.\13\ ``Not only does the ruling ignore the
reality of pay discrimination, it also cripples the law's
intent to address it, and undermines the incentive for
employers to prevent and correct it.\14\ ``The National
Partnership for Women & Families described the decision as ``a
painful and costly step backward for the nation and a deep
disappointment to those of us who want to see strong measures
in place to give all workers meaningful protections against
discrimination.''\15\
---------------------------------------------------------------------------
\13\``Supreme Court Rules 5-4 Filing Period Applies to Each
Discrete Pay Decision,'' Daily Labor Report, No. 103 (May 30, 2007)
(BNA) at AA-1.
\14\Id.
\15\Id.
---------------------------------------------------------------------------
In contrast, the employer community has generally supported
the Supreme Court's ruling in Ledbetter, noting, as did the
Court's majority, that the holding is directly in line with
judicial precedent as to when a cause of action for
discrimination accrues and when it is time-barred. Moreover,
employer groups have posited that that the decision may
encourage employees to file pay discrimination charges earlier
so that pay disputes can be resolved before documents are gone
and memories have faded. Moreover, they note, filing a charge
gets the attention of the employer and allows the EEOC to
investigate and conciliate, which in many instances may result
in a pay increase for the employee or otherwise reveal a bona
fide reason for the pay disparity.
COMMITTEE ON EDUCATION AND LABOR HEARING ON LEDBETTER V. GOODYEAR
DECISION
On June 12, 2007, the Committee on Education and Labor held
a hearing entitled ``Justice Denied? The Implications of the
Supreme Court's Ledbetter v. Goodyear Employment Discrimination
Decision.'' At that hearing, Ms. Ledbetter herself testified,
as did an academic, a representative of civil rights groups,
and Neal D. Mollen, the attorney who represented the United
States Chamber of Commerce as amicus curiae in the Ledbetter
case and testified at the hearing on their behalf. The hearing
focused on the policy issues arising from the Ledbetter
decision, but did not focus on any particular piece of
legislation or proposed legislative solution. Mr. Mollen
testified as to the Court's reasoning in Ledbetter, as well as
the fundamental policy issues advanced served by the Court's
decision. In his own words:
[The] ``paycheck'' limitations rule, soundly and
expressly rejected in Ledbetter, would have utterly
frustrated Congress' design for attempting to resolve
such matters, at least in the first instance, without
litigation.
Moreover, in order to embrace this ``paycheck'' rule,
the Supreme Court would have been required to renounce
a rule announced in a long line of well-understood
cases regarding the application of rules of limitation
under Title VII. The Court had repeatedly held that the
statute's limitations period begins to run when the
alleged discriminatory decision is made and
communicated, not when the complainant feels the
consequences of that decision. For the Court to
overrule this precedent or for the Congress to
supersede this settled law with legislation would
promote instability and confusion in the law.
Finally and perhaps most importantly, the Ledbetter
decision recognized the profound unfairness inherent in
a limitations rule that would permit an individual to
sleep on his or her rights for years, or even decades,
before raising a claim of discrimination. To defend
itself against a claim of discrimination, an employer
must be in a position to explain--first to the EEOC and
the charging party, and perhaps later to a jury--the
reasons it had for making the challenged decisions. To
do so, it must rely on the existence of documents and
the memories of people, neither of which is permanent.
If a disappointed employee can wait for many years
before raising a claim of discrimination, as Ms.
Ledbetter did in this case, he or she can ``wait out''
the employer, i.e., ensure that the employer is
effectively unable to offer any meaningful defense to
the claim. That, the Court properly held, is patently
unfair. It does not serve Congress' goal--eliminating
discrimination to substitute a game of ``gotcha'' for
the investigation and conciliation Congress envisioned.
Statutes of limitation are an expression of society's
principled, collective judgment that is it unfair to
call upon a defendant to answer serious charges when
placed at such a disadvantage. A rule that
``refreshes'' the period of limitations with every
paycheck received to permit a challenge to every
decision that contributed to current pay cannot be
squared with this important societal value.\16\
---------------------------------------------------------------------------
\16\Testimony of Paul D. Mollen, testifying on behalf of the U.S.
Chamber of Commerce, Committee on Education and Labor Hearing,
``Justice Denied? The Implications of the Supreme Court's Ledbetter v.
Goodyear Employment Discrimination Decision,'' (June 12, 2007)
(hereinafter, ``Mollen Testimony'' ) at 3-4 (emphasis added).
Mr. Mollen, an employment law practitioner with decades of
experience, explained to the Committee why, in particular, the
policy underlying decisions as to the appropriate time period
in which to bring a claim should be given particular attention
in the context of employment-related lawsuits. As Mr. Mollen
---------------------------------------------------------------------------
testified:
The interest in repose is particularly compelling in
the employment setting. To defeat a claim of
discrimination, an employer must be able to articulate
its rationale for the challenged decision, and to do so
convincingly. In an employment discrimination case, the
employer attempts to show at trial that it had good
reason for treating the plaintiff in the way it did,
and the plaintiff tries to show that the employer's
explanation is unworthy of credence; the jury must
decide whom to believe. In many, if not most, trials,
the testimony devolves to a ``he said/she said'' battle
of recollections, and the most vivid rendition of
events usually prevails.
An employer 's ability to tell its story dissipates
sharply as time passes. Memories fade; managers quit,
retire or die, business units are reorganized,
disassembled, or sold; tasks are centralized,
dispersed, or abandoned altogether. Unless an employer
receives prompt notice that it will be called upon to
defend a specific decision or describe a series of
events, it will have no ``opportunity to gather and
preserve the evidence with which to sustain [itself] .
. .'' That is precisely why Congress wisely selected
relatively brief periods of limitation for filing
administrative charges under Title VII.
This problem is becoming ever more acute for
employers, exacerbated by trends in employee mobility,
mergers, expansions, acquisitions, reductions-in-force,
divestitures and reorganizations. When a dispute in the
workplace is raised promptly as Congress intended, most
or all of the decision-makers, witnesses, and human
resources representatives an employer will need to
consult and to tell its story convincingly are likely
to still be working for the defendant employer at the
time of a trial, or at least the employer will usually
be able to locate them. The employer's ability to
muster a defense dwindles, however, as the challenged
decision recedes into the past . . .
The fact that an employer may keep some employment
records documenting decisions affecting pay is of
little comfort. First, in practice, employers rarely
record detailed explanations on paper as to why one
employee might have received an incrementally lower or
higher pay increase than his or her co-worker. Unlike
terminations, which are relatively rare and therefore
are usually documented thoroughly at the time, most
employers make compensation decisions about every one
of their employees every year. The employer can hardly
be expected to write extended narratives explaining the
rationale for every one of those decisions for every
employee, or record comparisons between and among all
of the other similarly situated employees--i.e., why
Employee A got a 3.5% increase and Employee B got 4%.
Second, even if this kind of documentation existed,
the ``story line'' of an employment decision cannot be
told at trial solely with a few pieces of paper. Few
defendants are likely to prevail at a trial--even when
the challenged decision was entirely bias-free--by
meeting the live, detailed, and often emotional
testimony of the plaintiff with a few words recorded on
a document . . .
Thus, the limitations periods selected by Congress in
enacting Title VII are rooted in notions of fundamental
fairness that are the hallmarks of our American system
of justice. The American people are fair. They want
individuals to have an opportunity to raise their
concerns and, where their legal rights have been
invaded, a process through which they can seek redress.
But they also believe--correctly--that an injured party
has to act with reasonable dispatch in pressing his or
her claims. It violates the most basic notions of
justice to allow an individual--even one who may have
been subjected to discrimination--to wait until the
employer is essentially defenseless to raise the
allegation. \17\
---------------------------------------------------------------------------
\17\Id. at 5-7 (emphasis added; citation omitted).
Insofar as no legislative proposal was pending before the
witnesses, the Committee was not able to ascertain the views of
any witness, stakeholder, or interested party as to what
specific language to reverse the Ledbetter decision or adopt a
``paycheck rule'' more broadly might look like. These witnesses
were not able to offer their views as to whether H.R. 2831
accomplishes these goals, does less than that, or does more
than that, insofar as that bill was not introduced until ten
days after the hearing.
H.R. 2831, THE LEDBETTER FAIR PAY ACT
On the afternoon of Friday, June 22, 2007, Chairman Miller
introduced H.R. 2831, the ``Ledbetter Fair Pay Act of 2007,''
legislation which its supporters purport is a ``narrowly
drawn'' bill simply intended to overturn the Supreme Court's
Ledbetter decision. The afternoon of the June 22 was the first
time that Minority Members and staff were afforded the
opportunity to review legislative text ostensibly relating to
the Supreme Court's Ledbetter decision.
In general, H.R. 2831 amends four different statutes (Title
VII of the Civil Rights Act of 1964, which applies to
discrimination on the basis of race, color, religion, sex, or
national origin; the Age Discrimination in Employment Act,
which prohibits discrimination on the basis of age; and the
Americans with Disabilities Act and its precursor, the National
Rehabilitation Act, which both prohibit discrimination on the
basis of disability). With respect to each of these statutes,
H.R. 2831 would:
Eliminate the statute of limitations and EEOC
charging requirements for any claim of discrimination, no
matter how long ago, that could be characterized as an
(undefined) ``discriminatory compensation decision or other
practice.'' H.R. 2831 allow an individual to bring a claim of
discrimination where he or she alleges to have been the victim
of a ``discriminatory compensation decision or other practice''
at any of the following times: (a) the time the decision or
practice is adopted; (b) the time an individual became
``subject to'' the decision or practice; or (c) the time an
individual is ``affected by'' application of the decision or
practice, ``including each time wages, benefits, or other
compensation is paid, resulting in whole or in part from such a
decision or other practice.''\18\ There is no limit on how many
years into the future a plaintiff may bring a claim, or as to
how many years a future plaintiff can look backward (e.g., with
respect to, for example, pension benefits, a plaintiff retiring
in 2057 could bring a claim of discrimination based on pay
decisions made on her first day of employment fifty years ago
in 2007).
---------------------------------------------------------------------------
\18\See H.R. 2831 (as introduced) Sec. 3, proposed subparagraph
3(a).
---------------------------------------------------------------------------
Allow an ``aggrieved person'' who files a charge
of discrimination to challenge ``similar or related instances''
of discrimination that occur after the filing of the initial
charge, without having to file a subsequent charge with the
EEOC;''\19\ and
---------------------------------------------------------------------------
\19\See id. Sec. 3, proposed subparagraph 3(b).
---------------------------------------------------------------------------
Provide that an aggrieved person could obtain
damages and relief, including recovery of back pay for up to
two years preceding the filing of a charge with the EEOC, where
discrimination that occurred during the charging period was
``similar or related to'' (an undefined term) claims of
discrimination that would be otherwise barred by the statute of
limitations.\20\
---------------------------------------------------------------------------
\20\See id. Sec. 3, proposed subparagraph 3(c).
---------------------------------------------------------------------------
H.R. 2831 appears to have been written to expressly revive
plaintiff Ledbetter's claim in the lower court: the bill
applies retroactively to all cases that were pending on May 28,
2007--the day before the Supreme Court disposed of Ms.
Ledbetter's claim.
LEGISLATIVE ACTIVITY
No hearing on H.R. 2831 was held in the Committee on
Education and Labor subcommittee of jurisdiction, the
Subcommittee on Health, Employment, Labor and Pensions.
No hearing on H.R. 2831 was held in the Committee on
Education and Labor.\21\
---------------------------------------------------------------------------
\21\The Majority would appear to imply in their Views, see supra,
that the Committee on Education and Labor's hearing on June 12, 2007,
concerning the policy implications of the Ledbetter decision is an
adequate substitute for a legislative hearing on the specific language
and proposed statutory amendment set forth in H.R. 2831. As
demonstrated by the range of unanswered questions raised by and the
unknown consequences resulting from the precise language used in the
bill (discussed more fully below), plainly, it is not. Moreover,
insofar as H.R. 2831 purports to be a reversal of the Supreme Court's
Ledbetter decision, the Majority's attempt to portray as part of the
legislative history of this bill a Committee hearing held five weeks
prior to the issuance of the Court's decision (an April 24 hearing
entitled ``Strengthening the Middle Class: Ensuring Equal Pay for
Women''), which in no way even purported to be a discussion of the
statute-of-limitations issues raised by the pending Ledbetter case,
strains credulity at best.
---------------------------------------------------------------------------
The Subcommittee on Health, Employment, Labor, and Pensions
did not meet to consider or mark up H.R. 2831.
On Wednesday, June 27, 2007, five days after its
introduction, the Committee on Education and Labor met to
consider and mark up H.R. 2831. An Amendment in the Nature of a
Substitute offered by Mr. Miller was adopted without objection.
Amendments to the Miller Substitute offered by Representatives
Boustany and Keller were rejected on roll call votes of 18 to
24 and 20 to 25, respectively. The Committee favorably reported
H.R. 2831, as amended by the Miller Amendment in the Nature of
a Substitute, on a roll call vote of 25 to 20. Republican
Members were unanimous in their opposition to reporting the
bill favorably to the House of Representatives.
REPUBLICAN VIEWS
Committee Republicans are united in their opposition to
intentional discrimination and their support of Title VII's
protection from and prohibition of discrimination in the
workplace. Committee Republicans are equally united, however,
in their opposition to the fundamentally flawed legislation
that is H.R. 2831.
Stripped of its rhetoric and the characterization of the
bill by its supporters notwithstanding, H.R. 2831 positively
eliminates the statute of limitations and EEOC charging
requirements contained in current law with respect to almost
every conceivable claim of discrimination one can imagine. It
allows an employee--or any individual who can arguably claim to
be ``affected'' by an allegedly discriminatory decision
relating to compensation, wages, benefits--or any other
practice--to sue for discrimination that may have occurred
years or even decades in the past.
As set forth below, H.R. 2831 is fundamentally flawed on
almost every level. It proceeds from faulty assumptions; it
adopts flawed new constructions of law; and it expands the
scope of liability under our nation's civil rights laws
exponentially. The bill's failings as a matter of substantive
policy are magnified by the failure of process which has led to
its hasty consideration, and which does a grave disservice to
the thoughtful and deliberate legislative process for which
this Committee in particular has come to be known. H.R. 2831
should be rejected by the House.
Courts have long been divided as to the propriety of the so-called
``paycheck rule''
As a preliminary matter, H.R. 2831's supporters proceed
from the flawed premise that the Supreme Court's decision in
Ledbetter reversed well-settled law, or in some fashion
rejected a ``paycheck rule'' that had been applied universally,
uniformly, and without question or confusion by courts
administering and interpreting federal civil rights laws. H.R.
2831's supporters may wish that this was the case; they may
even believe that this was the case--but they are alone in
doing so.
No plainer evidence of this can be found than in the court
filings made on behalf of the plaintiff in the case, Ms.
Ledbetter herself, which recognized that federal courts had
come to vastly differing conclusions about whether and how the
paycheck rule was the proper application of law under Title
VII. As Ms. Ledbetter's attorneys argued to the Supreme Court:
The courts of appeals are divided over the proper
analysis and resolution of disparate pay claims like
Ledbetter's in light of National Railroad Passenger
Corp v. Morgan, 536 U.S. 101 (2002) and Bazemore v.
Friday, 478 U.S. 385 (1986). Some courts hold that an
employee may challenge disparate paychecks received
during the limitations period if the paycheck
implements and carries forward into the limitation
period discriminatory decisions made by her employer at
any point in the past. Other decisions permit employees
to challenge such disparities in pay only if they can
demonstrate that the disparity arises from
independently illegal decisions made during the
limitations period itself or, at most, from the
employer's most recent pay decision. . . .
Although the conflict in circuits is most clear in
the decisions of the Second, Eleventh, and D.C.
Circuits, the proper treatment of disparate pay claims
under Morgan and Bazemore has generated considerable
conflict and confusion in other circuits as well.\22\
---------------------------------------------------------------------------
\22\Brief of Petitioner Lilly Ledbetter, Petition for a Writ of
Certiorari, Ledbetter v. Goodyear Tire and Rubber Company, Inc., No.
05. __ (February 17, 2006) at 9, 13 (emphasis added).
H.R. 2831's proponents find no support for the proposition
that a ``paycheck rule'' was, pre-Ledbetter, the well-settled
law of the land in the holding of various federal circuit and
district courts. Indeed, as recognized by the parties to
Ledbetter, practitioners, and the Supreme Court itself, courts
have come to widely differing conclusions as to the proper
application and/or limitation of a ``paycheck rule'' as applied
to claims of discrimination under federal law.\23\ The elision
of this point by the bill's supporters is not one alone on
which to base opposition, but it underscores that with respect
to H.R. 2831, the claims of the bill's proponents are too often
at odds with--if not plainly contradicted by--the facts and law
at hand.
---------------------------------------------------------------------------
\23\Compare, e.g., Elmenayer v. ABF Freight Syst., Inc., 318 F.3d
130 (2d Cir. 2003), Forsyth v. Federation Employment Guidance Service,
409 F.3d 565 (2d Cir. 2005), Anderson v. Zubieta, 180 F.3d 329 (D.C.
Cir. 1999), & Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005) with Dasgupta
v. University of Wisconsin Board of Regents, 121 F.3d 1138 (7th Cir.
1997), Hildebrandt v. Illinois Department of Natural Resources, 347
F.3d 1014 (7th Cir. 2003) & Ledbetter v. Goodyear Tire & Rubber Co,
Inc., 421 F.3d 1169 (11th Cir. 2005).
---------------------------------------------------------------------------
H.R. 2831 eliminates the statute of limitation for virtually all
discrimination claims
Foremost, H.R. 2831 would eliminate the statute of
limitations and charging requirements with respect to any
``discriminatory compensation decision or practice . . . each
time wages, benefits, or other compensation is paid, resulting
in whole or in part from such a decision.''\24\ Nowhere in the
text of the Civil Rights Act (nor in any of the other statutes
amended by this bill) is the phrase ``discriminatory
compensation decision'' defined or limited. Thus, at the
outset, the bill's provisions extend to any claim of
discrimination that concerns not only allegations of ``pay
discrimination'' resulting in a lower paycheck, but also to any
claim alleging that some decision by an employer at some point
in time resulted in some diminution in whole or in part of some
pension or other benefit. Under the express language of the
bill, a claim of discrimination can be brought years after an
employment decision is made, or even years after employment
ends, if the employee claims that his or her compensation is
less than it would have been but for alleged discrimination
long in the past.
---------------------------------------------------------------------------
\24\H.R. 2831 Sec. 3, proposed subparagraph 3(a).
---------------------------------------------------------------------------
An example of the broad scope of H.R. 2831, and the
consequences (intended or not) that is poses for employers, is
helpful. Assume that under the law as it stands today, post-
Ledbetter, an employee is hired on January 1, 2008. One year
later, on January 1, 2009, the employee has an annual review,
and is given a raise that she later feels is discriminatory.
Under current law, the employee would have 180 days (or perhaps
300, depending on the state in which she works) to file a
charge of discrimination--roughly July 1 or November 1 of
2009--with the EEOC or state agency. This time could be
conceivably extended by a court if it was equitable to do so
(for example, if there was evidence that the employer concealed
information from the employee, or unlawfully prohibited the
employee from asking questions about her raise). In this case,
the employer is put on notice that the pay decision is being
challenged, and the EEOC is able to immediately investigate
while witnesses are available, recollections are fresh, and
supporting documents and paperwork are available. If the
employee is able to prove discrimination, he or she is entitled
to recover damages, including back pay and other benefits.
Applying the same set of facts under H.R. 2831, an employee
is hired on January 1, 2008, and receives a pay adjustment that
he feels is discriminatory on January 1, 2009. The employee
remains employed at that company for the next forty years, and
every year has an annual review where his salary is adjusted
upward on a percentage basis--at no time does the employee
claim (or does evidence suggest) that any of these subsequent
reviews are discriminatory. The employee retires in 2049 and
receives a final paycheck. Under H.R. 2831, the employee now
has 180/300 days to file a claim of discrimination relating
back to the only discriminatory act ever claimed--his first pay
adjustment in 2009, forty years ago--on the theory that even if
he got a fair review every year thereafter, he still makes less
than he would have had he gotten a fair review in 2009. Indeed,
if post-retirement the employee receives a monthly pension that
was in some way based on his salary, the employee can bring a
claim even further in the future, based on a pension allegedly
``tainted'' by a discriminatory decision forty years ago.
In light of the potentially radical change to civil rights
law embodied in H.R. 2831, it is hardly surprising that
representatives of employers providing jobs to millions of
Americans are united in their opposition to this bill, and,
equally important, deeply concerned with the unanswered
questions and unintended consequences the bill portends:
While we strongly oppose unlawful discrimination in
any form, the Ledbetter Fair Pay Act virtually
eliminates any time limitations for claims of
employment discrimination. In doing so, the legislation
invites stale claims and frivolous litigation when
unwarranted litigation is already an issue under
current discrimination laws. In fact, the Equal
Employment Opportunity Commission reported that it
found reasonable cause in only 5.3% of the over 75,000
charges of discrimination that it received in FY2006
and found absolutely no cause for discrimination in
over 60% of the charges (amounting to 45,500 ``no
cause'' charges). A study of previous years' statistics
yields similar results.
When Congress passed Title VII of the Civil Rights
Act, the Age Discrimination in Employment Act and the
Americans with Disabilities Act, it created limits on
the period of time under which an individual may file
an employment charge. These limits promote rapid
resolution of employment claims and quick remedial
actions by employers where appropriate. The limitations
also balance competing interests by providing
plaintiffs a reasonable time to file charges while
preventing courts and employers from facing stale
claims in which the truth is difficult to ascertain
because evidence is lost, memories have faded and
witnesses have disappeared. We urge that you preserve
this balance that has existed in civil rights law for
over 40 years.
In addition, we are dismayed that this bill appears
to go well beyond the issues raised in the Supreme
Court's recent decision in Ledbetter v. Goodyear Tire &
Rubber Co. It is critical that legislation of this
complexity and with the potential for such significant
impact be carefully considered and not rushed through
only days after its introduction.\25\
---------------------------------------------------------------------------
\25\Letter to Chairman George Miller and Ranking Republican Member
Howard P. ``Buck McKeon,'' dated June 27, 2007 urging opposition to
H.R. 2831 from the American Bakers Association, American Hotel and
Lodging Association, College and University Professional Association
for Human Resources, HR Policy Association, International Foodservice
Distributors Association, International Franchise Association,
International Public Management Association for Human Resources,
National Association of Manufacturers, National Association of
Wholesaler-Distributors, National Public Employer Labor Relations
Association, National Restaurant Association, National Retail
Federation, Retail Industry Leaders Association, Society for Human
Resource Management, and U.S. Chamber of Commerce (emphasis added). In
addition to these groups, the National Federation of Independent
Business has advised the Committee of its opposition to H.R. 2831.
Committee Republicans share the concerns, both substantive
and procedural, raised by these parties, and object to the
hasty consideration of legislation which, whether intended or
not, will result in an exponential increase in potentially
frivolous litigation, and in any case directly upsets a balance
that has been maintained under civil rights law for more than
four decades.
H.R. 2831 eliminates the statute of limitations in virtually all claims
of discrimination
H.R. 2831 does not merely eliminate statutes of limitation
with respect to allegations of discrimination relating to pay
decisions--the issue before the Court in Ledbetter--or even to
allegations relating to the setting of wages or other benefits.
Rather, it expressly eliminates the statute of limitations with
respect to any allegedly discrimination resulting from a
``discriminatory compensation decision or other practice.''\26\
---------------------------------------------------------------------------
\26\H.R. 2831, Sec. 3 proposed subparagraph 3(a).
---------------------------------------------------------------------------
As explained at the Committee's June 12 hearing, even in
the absence of broad and undefined ``other practice'' language,
almost any alleged act of discrimination can be characterized
to have consequences for an employee's pay and thus result in
an ``individual [being] affected by application of a
discriminatory compensation decision'' under the bill: ``Nearly
every form of adverse employment action has an impact on
compensation--denied promotions, demotions, transfers,
reassignments, tenure decisions, suspensions and other
discipline--they all have the potential to affect pay.''\27\
---------------------------------------------------------------------------
\27\Mollen Testimony at 8.
---------------------------------------------------------------------------
The ``other practice'' clause contained in the text of the
bill serves only to make explicit that which most would have
understand was implied from a plain reading of the bill--that
H.R. 2831 has the effect of eliminating the statute of
limitations and charging requirements for almost every
conceivable claim of workplace discrimination.
H.R. 2831 modifies established law standards without explanation or
definition
As detailed more fully in the discussion of the Boustany
Amendment set forth below, in 1991, Congress enacted amendments
to the Civil Rights Act of 1964 that were intended, among other
things, to reverse certain decisions of the Supreme Court,
specifically (among others), Lorance v. AT&T Technologies,
Inc.\28\ In 1991, Congress amended the Civil Rights Act to
overturn Lorance, by adopting a new section 706(e)(2), which
provides that:
---------------------------------------------------------------------------
\28\490 U.S. 900 (1989).
For purposes of this section, an unlawful employment
practice occurs, with respect to a seniority system
that has been adopted for an intentionally
discriminatory purpose in violation of this subchapter
(whether or not that discriminatory purpose is apparent
on the face of the seniority provision), when the
seniority system is adopted, when an individual becomes
subject to the seniority system, or when a person
aggrieved is injured by the application of the
seniority system or provision of the system.\29\
---------------------------------------------------------------------------
\29\42 U.S.C. Sec. 2000e-5(e)(2) (emphasis added).
In crafting the language of H.R. 2831, it is clear that the
bill's supporters have attempted to model the language they
propose to use to overturn Ledbetter on the section 706(e)(2)
language that was used to overturn Lorance. The operative
---------------------------------------------------------------------------
section of H.R. 2831 provides:
For purposes of this section, an unlawful employment
practice occurs, with respect to discrimination in
compensation in violation of this title, when a
discriminatory compensation decision or other practice
is adopted, when an individual becomes subject to a
discriminatory compensation decision or other practice,
or when an individual is affected by application of a
discriminatory compensation decision or other practice,
including each time wages, benefits, or other
compensation is paid, resulting in whole or in part
from such a decision or other practice.\30\
---------------------------------------------------------------------------
\30\H.R. 2831 Sec. 3(a) (emphasis added). See also id. Sec. 4(a)
(making corresponding changes in Age Discrimination in Employment Act).
While modeled on the language of section 706(e)(2), on its
face, the language of H.R. 2831 differs in two substantive
respects.\31\ First, the bill--as contrasted with the law--
applies not to ``person[s] aggrieved'' by alleged violation of
the statute, but rather to a broader universe of
``individuals''--there is no requirement that such individual
be ``aggrieved.'' Second, and plainly more questionable,
section 706(e)(2) of existing law provides relief to a party
that is ``injured'' by discrimination in the workplace. H.R.
2831, in contrast, extends relief to those merely ``affected
by'' such alleged discrimination. It is clear that the universe
of persons ``affected by'' a decision is far broader than the
universe of persons ``injured by'' a decision--what delimits
that expansion?\32\
---------------------------------------------------------------------------
\31\The Majority's Views, see Section by Section, supra, appears to
attempt to argue that there is no ``substantive difference'' between a
``person aggrieved'' by a practice or ``an individual,'' or between a
person ``injured by'' or ``affected by'' same. That argument fails, on
its face, on several fronts. First, the drafters' intent as expressed
in legislative history notwithstanding, in both instances the latter
term is far broader than the former. More to the point, barely a few
words later, the Majority argues that ``affected'' is ``simpler and
clearer'' than ``injured''--at some point, the drafters need make up
their collective minds--the term has either the same meaning, or it
doesn't. Finally, as noted in the text above, a reviewing court is now
left with the riddle of what Congress meant when it enacted different
language in different places in the same statute, while its supporters
apparently debate internally whether and what the purpose of that
different language is.
\32\At markup, bill supporters attempted to argue that such
individuals would be limited in bringing claims of discrimination by
courts through application of the doctrine of ``standing.'' Such an
argument misses the mark. The standing doctrine provides that a party
may bring a claim in federal court under a particular statute if that
party can show that he or she has suffered some injury, and is
generally within the confines of that class of individuals whom the
statute protects. Where, as here, a statute expressly affords relief to
an ``individual . . . affected by'' an allegedly discriminatory
compensation decision, to say that courts would use the standing
doctrine to disallow plaintiffs to bring claims where they allege that
they are ``individuals affected by'' alleged discriminatory
compensation decision and have thereby suffered some injury is circular
logic, at best. See Black's Law Dictionary (8th Ed. 2004) (defining
standing as ``a party's right to make a legal claim or seek judicial
enforcement of a duty or right'').
---------------------------------------------------------------------------
Again, a hypothetical serves to illustrate some of the
unanswered questions raised by H.R. 2831. Assume that an
individual starts working at an employer, Employer A, on
January 1, 2008, and one year later, January 1, 2009, receives
a pay raise that the employee some years later comes to believe
is discriminatory. In the interim, the individual receives
annual percentage increases over the next five years--there is
no claim that these raises were discriminatory, but at the end
of his employment with Employer A, the employee believes that
his compensation is lower in total amount than it would have
been absent alleged discrimination. The employee leaves
Employer A on December 31, 2014.
Employer B hires the worker on January 1, 2015, and sets
his starting salary based, at least in part, on the worker's
prior final salary at Employer A. The individual works for
Employer B for ten years and retires from Employer B in 2025,
with no allegation discriminatory acts and regular annual
raises at any time. In 2035, the employee reaches age 65 and
begins receiving retirement benefits from both Employers A and
B.
Under the bill, in 2015, can the employee bring a challenge
against Employer A for his initial act of discrimination in
2009? Going further, can he bring a claim against Employer A in
2020, on the basis that he is ``affected by application of a
discriminatory compensation decision or other practice''
because he is receiving a lower salary from Employer B than he
otherwise would have because of Employer A's decision ten years
earlier? Is Employer A responsible for Employer B's independent
determination of the individual's worth? In the absence of an
express ``intent'' requirement in the bill, can Employer B be
subject to a charge in 2015 or beyond, because it arguably
perpetuated, albeit unintentionally, a discriminatory act
committed by a prior employers? Are decisions made by Employer
A twenty-five years ago, or Employer B fifteen years ago, now
``revived'' and subject to challenge when the employee begins
receiving his pension benefits? Were such claims viable or
dormant all those years in between? The answer to almost every
one of these questions is pointedly unknown.
Committee Republicans are similarly concerned with
provisions in the bill that eliminate the statute of
limitations and charging requirements and expressly extend
liability, not only for acts of discrimination for which the
employer is charged, but also ``similar or related to'' acts
which are, by definition, time-barred under the statute.\33\
``Similar or related to'' is nowhere defined in the text of
H.R. 2831, nor elsewhere in applicable civil rights statutes.
By definition, this phrase expands the universe of actionable
discrimination from a discrete act (even if only broadly
defined as a ``discriminatory compensation decision or other
practice'') to include a range of other unspecified acts that
range far beyond those of which the employer has been put on
notice by virtue of an EEOC charge.
---------------------------------------------------------------------------
\33\See H.R. 2831, as introduced, Sec. 3 proposed subparagraph (c)
(redesignated as proposed subparagraph (b) in the Miller Amendment in
the Nature of a Substitute discussed infra).
---------------------------------------------------------------------------
On their face, these textual choices raise serious
questions--are they intended to expand liability or application
of the statute's protections? If so, to whom, and in what
fashion? If not, what policy argument justifies choosing
different language in one section of the bill than another--
particularly where a reviewing court, applying canons of
statutory construction, is bound to view Congress's decision to
use different language as implying some substantive import?
Again, these questions--which may be susceptible to reasonable
answers--are left unanswered, and the consequences of the bill
remain unknown. At markup, H.R. 2831's proponents were
unwilling or unable to address these fundamental concerns with
the text of the bill; this alone suggests that further
consideration of this bill in the absence of legislative
examination is premature and irresponsible.
H.R. 2831 is not limited to claims of intentional discrimination such
as Ledbetter
H.R. 2831 does not limit itself to cases of ``intentional''
discrimination--the set of facts at issue in Ledbetter, Indeed,
as detailed below in discussion of the rejected Boustany
Amendment, by utilizing cognate language in Section 706(e)(2),
but expressly removing the requirement of an ``intentionally
discriminatory purpose,'' H.R. 2831 can be fairly read and
construed to eliminate the statute of limitations and charging
requirements with respect not only to cases of intentional
discrimination, but with respect to cases alleging liability on
the theory of non-intentional ``disparate impact''
discrimination.\34\
---------------------------------------------------------------------------
\34\In general, there are two theories of liability under Title VII
and related civil rights laws. First, liability under Title VII may lie
where an employer intentionally discriminates against an employee or
class of employees, or otherwise treats an employee differently because
he or she is in a protected class. In those cases, the plaintiff has
the burden to prove that the employer acted with the intent to
discriminate. Alternately, liability may be found where an employer
adopts a facially neutral practice, but one which has disproportionate
adverse consequences for employees in a protected class (for example,
an employer requires applicants to take a test that while neutral on
its face, disqualifies a disproportionate number of female applicants).
In those instances, an employee need not show that the employer
intended to discriminate against employees in a protected class, only
that its policy or practice has the unintended effect of doing so. An
employer may defend against such a claim be showing that it has a valid
business necessity that justifies the use of its policy. Thus, in
disparate impact cases, an employee need not prove ``intent.''
---------------------------------------------------------------------------
Indeed, as set forth in the Majority's Views, supra, the
fundamental contradiction of the bill's supporters is made
clear with reference to this issue alone--compare the language
in the Majority View's discussion at Congress's Action Today
(``H.R. 2831 is designed to be a narrow reversal of the
Ledbetter decision . . .'') with that in Section by Section
(``[T]his provision is not limited to intentional
discrimination but deals with all compensation discrimination
in violation of Title VII . . .'' (emphasis added)).
Application of this bill to an entire class of cases which
in no way were addressed in the Court's Ledbetter decision
potentially allows for claimants to allege, years after the
fact, that facially neutral, nondiscriminatory pay systems
``unfairly'' pay some workers more than others, and thus
violate Title VII or other civil rights laws. Such a claim
radically expands the scope of liability under Title VII. More
to the point, it goes far beyond the facts presented and
decision rendered in the Ledbetter case, and should be
rejected.
H.R. 2831 could result in drastic consequences for pension and other
benefit plans
Committee Republicans are deeply troubled by the
significant concerns H.R. 2831 raises with respect to the
sponsorship and administration of pension benefit and welfare
plans under the Employee Retirement Income Security Act of 1974
(``ERISA''). These concerns were highlighted to the Committee
as it prepared for markup by way of comment from the American
Benefits Council (the ``Council''), who implored the Committee
to not approve H.R. 2831 until its consequences were more fully
understood. The text of the Council's appeal is set forth in
its entirety below (emphasis added):
American Benefits Council,
June 26, 2007.
Dear Chairman Miller and Ranking Member McKeon: I am
writing today on behalf of the American Benefits Council to
express concern regarding proposed legislation (H.R. 2831) to
overrule the Supreme Court's Ledbetter v. Goodyear Tire &
Rubber Co. decision.
The Council is a public policy organization representing
principally Fortune 500 companies and other organizations that
assist employers of all sizes in providing benefits to
employees. Collectively, the Council's members either sponsor
directly or provide services to retirement and health plans
that cover more than 100 million Americans. The Council's area
of expertise is in the employee benefits area, and accordingly
we limit our letter to the possible effect of the proposed
legislation on benefit programs.
Under the proposed legislation, each payment of
compensation or benefits that is lower because of past
discrimination is arguably a separate act of discrimination.
Under this interpretation of the proposed legislation, an
employee could file a charge or sue within the required period
(180 days in the Ledbetter case) after each payment, without
regard to when the actual act of discrimination that caused the
compensation or benefits to be lower occurred. That actual act
could have occurred 30 or 40 or more years earlier.
This proposed legislation could possibly raise very serious
retirement plan issues. For example, assume that the actual act
of discrimination occurred 30 years ago. Assume further that
the individuals who allegedly discriminated are all deceased,
and the claim of discrimination is based purely on oral
statements. In that case, the company may have no effective way
to defend the case, which hardly seems fair. Our question is:
how would a judgment in favor of the plaintiff affect the
company's retirement plan? If the company maintains a defined
benefit plan that calculates benefits based on an employee 's
final average pay, would the plan need to recalculate the
plaintiffs benefit based on the revised pay, which could be
substantially higher? What if the lawsuit is a class action, so
that large numbers of plan participants could be making the
same claim for much higher benefits? In that case, the plan
could become woefully underfunded, undermining the retirement
security of thousands of other plan participants.
We also note that, under the proposed legislation, a claim
could arguably be made by an individual who retired many years
ago and is now claiming an increased pension based on a plan
benefit formula that has not been in effect for a long time.
The burdens of recreating both old data and old benefit
formulas in order to recalculate that individual's benefits
would be immense, yet would arguably be required by the
legislation.
We have other questions regarding the possible effect of
the legislation on 401(k) plans, 403(b) plans (generally
maintained by schools and charities), and 457 plans maintained
by state and local governments. To what extent would such plans
have to recalculate benefits payable to the plaintiffs? If the
employer needs to fund enormous additional benefits for the
plaintiffs, would the employer be effectively forced to reduce
or eliminate contributions for others?
We are writing to ask you not to act until the possible
ramifications of the bill are fully understood. We understand
the concerns that led to the drafting of this proposed
legislation. On the other hand, we are also very mindful of the
severe practical problems created by the legislation in its
current form. We strongly urge you to fully explore the
practical, technical and policy issues before moving forward on
legislation that could have far-reaching and unintended
consequences.
Sincerely,
James A. Klein,
President.
Committee Republicans are gravely concerned with the
potential effects of H.R. 2831 on defined benefit, defined
contribution, and other pension and welfare benefit plans both
in the near term and far into the future. The concerns raised
by the American Benefits Council and others suggest that H.R.
2831, as written, could potentially undermine the solvency of
pension plans far into the future, and thereby risk the
financial and retirement of security of millions of American
workers and retirees. As discussed in further detail below, the
response of the bill's supporters--including in the Findings
section of the bill one non-binding sentence that does not
purport to address substantively these issues--is wholly
insufficient to allay these concerns.
H.R. 2831 does grave harm to the committee legislative process, and is
flawed as a result
Finally, we express again our grave concern with the
failure of process that has led to consideration of H.R. 2831
in a hasty and uninformed fashion. The rush of this legislation
from introduction to consideration and markup barely twenty-
four business hours later need not be recounted. What bears
note, and lays bare the failure of the process, is the
comparison of this exercise to Congress's last substantive
debate over Civil Rights Act amendments in 1990 and 1991. At
that time, in response to decisions by the Supreme Court
construing Title VII in 1989, Congress undertook thorough
examination of legislative proposals to address those decisions
and other issues that had arisen under the Civil Rights Act.
The debate over amendment of the Civil Rights Act spanned
two Congresses, and more than two years.\35\ Legislative
proposals were the subject of days of hearings in multiple
committees and subcommittees of jurisdiction. They were marked
up in subcommittees and full committees through days of
thoughtful consideration. At the conclusion of nearly two years
of thoughtful deliberation, Congress sent to the President the
most comprehensive overhaul of our nation's civil rights laws
in decades, which were signed into law. These revisions
continue to protect millions of Americans from discrimination
in the workplace today. The contrast of that legislative
process with the process that has sent H.R. 2831 to the House
for consideration less than a week after it was introduced is
profound and ominous.
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\35\See, e.g., legislative histories of H.R. 4000 & S. 2104 (101st
Congress); H.R. 1 & S. 1745 (102nd Congress).
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AMENDMENTS OFFERED IN COMMITTEE
Miller Amendment in the nature of a substitute
The Miller Substitute, which was adopted without objection,
made three changes to the text of H.R. 2831 as introduced.
First, it changed the short title of the bill. Second, it
deleted in two instances language in the introduced bill which
would have allowed an aggrieved person who filed a charge of
discrimination to challenge ``similar or related instances'' of
discrimination that occur after the filing of an initial charge
with the EEOC without having to file a subsequent charge with
the agency. Finally, the Miller Substitute included a single
sentence in the findings section presumably intended to address
the bill's potentially devastating consequences on defined
benefit and defined contribution pension plans and other
employee benefit schemes discussed above.
The finding contained in the Miller Substitute provides
that the bill ``is not intended to change current law treatment
of when pension distributions are considered paid.''\36\
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\36\Amendment in the Nature of a Substitute, offered by
Representative George Miller, Committee on Education and Labor
Consideration of H.R. 2831, the ``Ledbetter Fair Pay Act of 2007,''
June 27, 2007, Sec. 2, finding (4).
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It does not require extended debate to dispose of the
notion that this single sentence--a non-binding, non-
substantive finding relating to the bill's intent--does nothing
to address the substantive concerns with the bill's effect on
pension and other benefit plans set forth above. Indeed, it is
of little interest what the bill's ``intent'' is, where its
express and operative language provides that the statute of
limitations for bringing a claim of discrimination is
eliminated for claims ``each time that wages, benefits, or
other compensation is paid'' which result ``in whole or in
part'' from an alleged discriminatory practice.\37\
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\37\Moreover, the Majority's ``finding'' language in this instance
appears to suggest that the current state of the law as to when a
pension distribution is considered paid is at all clear, simple,
universally applied to all pension plans, or, ultimately, relevant to
the issue at hand. For instance, in the very case cited by the Majority
for the proposition that pension checks are ``qualitatively different''
than paychecks, see supra, the Supreme Court expressly limited its
holding to the facts at hand, and noted that different sets of facts
with respect to a particular pension plan would likely result in
differing outcomes. See Florida v. Long, 487 U.S. 223, 240 (1988)
(applying principles of Arizona Governing Committee for Tax Deferred
Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073 (1983)
and concluding that ``[a] different case, and a different assessment of
retroactivity, might result under pension plan structures which do not
provide retirees with a contractual right to a fixed level of benefits
or rate of return on contributions.''). See also, e.g., Spirt v.
Teachers Ins. and Annuity Ass'n, 735 F.2d 23, 27 (2d Cir. 1984)
(distinguishing Court's application of Norris principles) & Florida v.
Long, 487 U.S. at 240 (recognizing different outcomes and continuing
validity of Spirt).
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More to the point, even accepting arguendo that the
finding--were it to be given substantive meaning by a reviewing
court--addressed issues raised with the question of when a
cause of action relating to pension benefits accrues under the
bill, the language does nothing, implicitly or explicitly, to
address fundamental concerns relating to the potential
liability of pension and welfare benefit plans decades into the
future when a plaintiff or class of plaintiffs brings a claim
for benefits under the plan.
In short, this provision of the Miller Substitute is,
charitably, an insufficient resolution to some of the most
troubling issues relating to pensions and benefits raised by
the substantive provisions of H.R. 2831.
Boustany Amendment to preserve intent requirement
There is no debate that the facts of the Ledbetter case
presented to the Supreme Court a question of intentional
discrimination. Ms. Ledbetter alleged that her employer had,
purposefully, discriminated against her because she was a
woman, in violation of Title VII. That was the Title VII claim
litigated in the lower court, and the case presented to and
decided by the Supreme Court.
Historically, in amending Title VII, Congress has drawn
distinction between intentional discrimination and so-called
``disparate impact'' discrimination. Most notably, in 1991
Congress amended the Civil Rights Act to overturn the ruling of
the Supreme Court in Lorance v. AT&T Technologies, Inc.\38\ By
way of brief background, in Lorance, the Court had held that
female employees could not sue in 1982 for damages they
suffered as the result of the company adopting an intentionally
discriminatory seniority system in 1979--those claims were
barred by the statute of limitations. Unsatisfied with this
result, two years later Congress included in the Civil Rights
Act of 1991 a provision expressly overturning Lorance.
Specifically (and as noted supra) Congress added to the Civil
Rights Act of 1964 a new section 706(e)(2) which provides:
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\38\490 U.S. 900 (1989).
For purposes of this section, an unlawful employment
practice occurs, with respect to a seniority system
that has been adopted for an intentionally
discriminatory purpose in violation of this subchapter
(whether or not that discriminatory purpose is apparent
on the face of the seniority provision), when the
seniority system is adopted, when an individual becomes
subject to the seniority system, or when a person
aggrieved is injured by the application of the
seniority system or provision of the system.\39\
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\39\42 U.S.C. Sec. 2000e-5(e)(2).
Thus, under this section, a plaintiff challenging the
legality of an allegedly discriminatory seniority system must
prove that the system was adopted with the intent of
discrimination.
In crafting the language of H.R. 2831, it is clear that the
bill's supporters have attempted to model the language they
propose to use to overturn Ledbetter on the section 706(e)(2)
language that was used to overturn Lorance. The operative
section of H.R. 2831 provides:
For purposes of this section, an unlawful employment
practice occurs, with respect to discrimination in
compensation in violation of this title, when a
discriminatory compensation decision or other practice
is adopted, when an individual becomes subject to a
discriminatory compensation decision or other practice,
or when an individual is affected by application of a
discriminatory compensation decision or other practice,
including each time wages, benefits, or other
compensation is paid, resulting in whole or in part
from such a decision or other practice.\40\
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\40\H.R. 2831 Sec. 3(a). See also id. Sec. 4(a) (making
corresponding changes in Age Discrimination in Employment Act).
Note, however, one key exception: nowhere in the Ledbetter
bill's language is this provision limited to intentional
discrimination, as it was in Lorance and the resulting Civil
Rights Act legislative changes. Indeed, nowhere in the text of
H.R. 2831 bill does the word ``intentional'' appear at all.
Thus, on its face, the Majority's language would appear to
eliminate the statute of limitations not only in cases of
intentional discrimination, but also with respect to cases of
unintentional discrimination, such as claims of ``disparate
impact''--an expansion far broader than the contours of the
Ledbetter case.
For these reasons, during markup, Representative Charles
Boustany offered an amendment that would simply have clarified
that--as was the case of the Court's holding in Ledbetter--the
provisions of the bill would apply only to cases of intentional
discrimination. The Boustany Amendment was narrow and
straightforward, and simply provided that in each instance
where the phrase ``discriminatory compensation practice''
appeared it would be amended to read ``intentionally
discriminatory compensation practice.'' The Boustany Amendment
comports with precedent under section 706(e)(2) and the
legislative language Congress used to overturn the Lorance
case, and would have narrowed the bill (at least with respect
to this issue) to limit the impact of the bill to the sort of
case addressed in the Court's Ledbetter decision.
Notwithstanding the logic and simplicity of this language--
and bill supporters' claims that H.R. 2831 is a ``narrowly
drawn'' bill intended only to overturn the Ledbetter decision--
the Boustany Amendment was rejected on a vote of 18 to 24, with
all Democrats voting against limiting the scope of the bill to
the class of cases entertained in Ledbetter.
Keller Amendment to eliminate unintended consequences of
``other practices''
As noted above, H.R. 2831 would eliminate the statute of
limitations with respect not only to an undefined
``discriminatory compensation decision'' but also with respect
to any ``other practice'' which the individual believes
resulted in pay discrimination. The term ``other practice'' is
nowhere defined within the legislation.
As set forth in detail above, Committee Republicans are
gravely concerned that despite the assertions of its sponsors,
H.R. 2831 represents a vague and overbroad expansion of the
Civil Rights Act. As was noted during the hearing on policy
issues relating to Ledbetter, almost every employment decision
can in some way be linked to an employee's compensation,
benefits, or pay. The ``other practice'' provision of H.R. 2831
serves only to make the bill's expansion of the scope of
liability under the Civil Right Act explicit. On its face the
phrase extends liability far beyond simple pay decisions to
include any ``other practice'' that may affect compensation--
this would include claims of denied promotions, demotions,
transfers, reassignments, tenure decisions, suspensions and
other discipline, all of which could be brought years after the
employee left employment.
Advocates of H.R. 2831 have repeatedly insisted that the
bill is a narrowly-drawn measure intended solely to overturn
the Ledbetter decision. Whether rightly or wrongly decided, all
parties agree that the Ledbetter case addressed the issue of a
discriminatory pay decision--not some allegedly discriminatory
``other practice.'' The lower court found that Ms. Ledbetter
was the victim of a discriminatory compensation decision--not
an ``other practice.'' The Supreme Court rejected Ms.
Ledbetter's claim that the statute of limitations should be
extended in cases where an employee is the victim of a
discriminatory compensation decisions--not some ``other
practice.''
For these reasons, during Committee markup, Representative
Ric Keller offered an amendment that simply would have struck
the phrase ``or other practice'' in each instance it appeared,
thus at least attempting to limit the application of H.R. 2831
to decisions relating to compensation--the practice at issue in
Ledbetter. The Keller Amendment was rejected on a roll call
vote of 20 to 25, with every Democrat present voting against
it. As was the case with the Boustany Amendment, that argument
that H.R. 2831 is a narrowly-drawn bill, tailored only to
reverse the Supreme Court' ruling in Ledbetter, is undone by
Democrat opposition to the Keller Amendment.
CONCLUSION
H.R. 2831 is fundamentally flawed as a matter of policy. As
noted at the outset, one can legitimately debate whether
legislation to modify, limit, or reverse the Supreme Court's
decision in Ledbetter is necessary or prudent. What is beyond
serious debate is the proposition that H.R. 2831 simply
modifies, limits, or reverses Ledbetter. As reported to the
House, this legislation, without question, vitiates the statute
of limitations requirements in a host of federal civil rights
laws. It goes far beyond the facts presented in the Ledbetter
case, and whether by accident or design, makes far more
sweeping changes to our nation's civil rights laws than its
supporters either at best intend or at worst acknowledge.
The unintended consequences of this bill are not yet fully
known, nor are, would we submit based upon the responses of
bill supporters to inquiries at markup, its intended
consequences. The known policy and drafting flaws of this bill
are numerous; the unknown exponentially so. These failings
throw into high relief the complete abandonment and failure of
regular order and the Committee's legislative process, and the
grave disservice done to both by the manner in which the
Committee has considered this bill.
For all of these reasons, we oppose in strongest terms the
passage of H.R. 2831.
Howard P. McKeon.
Thomas Petri.
Peter Hoekstra.
Mike Castle.
Mark Souder.
Vernon J. Ehlers.
Judy Biggert.
Todd R. Platts.
Ric Keller.
Joe Wilson.
John Kline.
Cathy McMorris Rodgers.
K. Marchant.
Tom Price.
Luis Fortuno.
Charles W. Boustany, Jr.
Virginia Foxx.
Randy Kuhl.
Rob Bishop.
David Davis.
Timothy Walberg.
Dean Heller.