(Note: Dan Schwartz anticipates the Ledbetter speech and examines pay issues and legislation at Walter Olson's other website, Overlawyered, here. The more light that shines, the better....)
Today is Women's Equality Day, the kind of observance that prompts a presidential proclamation and various didactic exercises among the political classes. Democrats are highlighting the day at the Denver convention with the theme, "Renewing America's Promise," with women union leaders, union activists, and elected officials speaking. On today's convention agenda for a prime evening speaking spot, right before the keynoter, Mark Warner, is Lilly Ledbetter. As the schedule describes her:
Her actions against Goodyear Tire led to the passage of the Fair Pay Restoration Act
Actually, it's spelled "Lilly Ledbetter." And while the Ledbetter Fair Pay Act, H.R. 2831, did pass the House by a 225-199 vote on July 31, 2007, it was stopped in the Senate in April on a failed cloture vote, 56-42.
Tonight's lead-up, Ledbetter's remarks and the media commentary will no doubt contain similar misrepresentations, with the errors serving the cause of bad legislation that will prevent discrimination claims from being resolved quickly, in the process prompting a new wave of litigation.
Ledbetter filed a complaint against Goodyear for wage discrimination, making it with the EEOC within the 180 days of the alleged violation. But in subsequent litigation, she provided evidence of many years of unfair pay, arguing that the original act of discrimination was compounded with every paycheck. The U.S. Supreme Court eventually ruled 5-4 against Ledbetter in May 2007, determining that even though the unequal pay may be received with each new paycheck, the statute of limitations on filing a claim begins to run when the alleged illegal pay discrimination first occurred. The majority differentiated between acts that are intentionally discriminatory, such as pay decisions, and acts that are nondiscriminatory and that entail adverse effects resulting from the past discrimination.
Ted Frank commented at NPR's "Talking Justice" site, "The Ledbetter case and the Lilly Ledbetter Fair Pay Act":
This should be noncontroversial. Statutes of limitations are important for justice. Without a statute of limitations, someone can sue for very old alleged injuries, and a defendant would not have a fair chance to defend herself. (Ledbetter sued over her pay after she was retired!) Memories fade, evidentiary documents are discarded, people change employers. If an employee can wait until a middle manager of years ago died before accusing the company of discrimination, justice is impossible. Yet some in Congress, upset at the result in Ledbetter , propose a statute that would entirely abolish the statute of limitations. The House even passed such a law, though the Senate refrained once President Bush threatened to veto the bill. Ironically, no change in the law was necessary for Ledbetter to recover. As Hans Bader notes , and the five-justice majority stated, there already exists a law that would have permitted Ledbetter to sue. The Equal Pay Act specifically bans sex discrimination in pay and has a longer statute of limitations. But Ledbetter's attorney chose to sue under the more difficult law, Title VII.
And now the Ledbetter legislation would do away with statutes of limitations altogether. As 33 business trade associations wrote the Senate in April:
This legislation, which was not marked up by the Senate HELP Committee, goes far beyond the scope of the Ledbetter decision. It eliminates any time limitations for claims of employment discrimination in most cases. In doing so, it removes an important incentive to prompt surfacing and resolution of potential claims. The expansive bill would also apply a new cause of action to family members of a victim of alleged discrimination while impacting vacation benefits, health care costs, pensions, life insurance and other forms of "compensation".
H.R. 2831 will invite frivolous claims 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.
The point about the legislation discouraging prompt resolution of employment claims is important. Employers of businesses with multiple sites might well not know of discrimination problems unless the cases are brought to their attention.
So Ms. Ledbetter's convention appearance tonight is a great political opportunity for those who believe more laws, more litigation and more anger at business will help the average worker and the U.S. economy. We hope they counterarguments are at least acknowledged.