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More on the Ledbetter Fair Pay Act, rewriting legal principles

The Senate today continues its debate on S. 181, the Lilly Ledbetter Fair Pay Act, which inspires the most opposition among the business community for its elimination of the statutes of limitations in filing pay discrimination complaints under Title VII of the Civil Rights Act. Instead of requiring a complaint within 180 days of the alleged offense, the time limit is renewed every time the supposed victim receives a paycheck. With those standards, an employee could conceivably file a complaint 20, 30 years after the discrimination supposedly occurred. What business can defend against that?

But there's something equally or even more radical in this legislation, which supporters claim is a limited corrective to the U.S. Supreme Court in Ledbetter v. Goodyear Tire and Rubber. No longer is it only the alleged victim of the discriminatory act who has legal standing, it's anyone who is affected.


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.

When an individual is affected?

Sen. Kay Bailey Hutchison (R-TX) has submitted a substitute amendment to the bill. In her floor statement yesterday she clearly made the point:

[In] the bill before us there is a major change in common law and in tort law that has also been a part of our legal system and our case law since the beginning of law in our country and in other countries that have the types of laws we do; and that is that a tort accrues a right to the person who is offended or damaged or hurt by another action. It does not accrue to another person who is affected by or might be considered affected by this claim.

Now, there are exceptions to that. But in the main, it is, I think, essential, if we are going to have a statute of limitations that goes beyond the act itself--and in this case it would be 6 months, which is the law today--that it accrue to the person actually injured, the employee, and not some other person on behalf of the person who did not bring the case.

Under the Mikulski bill, the Ledbetter Act, a new right has been given to a person who may not be the person with the injury. So it could be a case where the person dies after working at a place of employment, a business. The person dies, and within 6 months of that person's last paycheck and subsequent death, some other person--an heir, a child, a mother, a father--could bring a case, which the person who has allegedly been discriminated against chose not to bring or did not bring. In such an absurd case, possible under the Ledbetter bill, you do not even have the person discriminated against to testify.

So much for the bill being a "narrow fix" of the Supreme Court ruling.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.