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The new Congress convenes, trial lawyer lobby smiles

The 111th Congress convenes at noon today, and House Democratic leadership is starting the week with two bills that appeal to their core constituencies but send the business community into conniptions. The two pieces of legislation -- the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act -- are priorities for organized labor, liberal women's advocacy groups, and the plaintiff's bar.

The Ledbetter bill (see POL's many earlier posts) is sold as a fix of the Supreme Court's decision in Ledbetter v. Goodyear Tire and Rubber. In its May 2007 ruling, (opinion here) the court said the employment law requires the filing of wage discrimination claims within a specified period of time. But rather than a limited fix, the bill would lift all statutes of limitations on such discrimination claims, inviting a flood of lawsuits on old, unprovable but potentially expensive claims that employers would find it hard to defend against.

It sounds like this year's bill is the same as the 110th Congress' legislation,  H.R. 2381, passed the House, 225-199, in July 2007.

The Paycheck Fairness Act is potentially worse, in that creates many new grounds for litigation in a supposed effort to fight gender discrimination. The bill, H.R. 1338 in the 110th Congress, passed in July 2008 by a vote of 247-178. It would:

  • Eliminate current caps on punitive and compensatory damages in claims made under the Equal Pay Act;
  • Expose employers to unlimited punitive and compensatory damage awards when unintentional pay disparities have occurred;
  • Eliminate key employer defenses for pay disparities;
  • Prohibit employers from disciplining or discharging employees for publicly disclosing sensitive wage information; and,
  • Mandate new federal government "guidelines" about the relative worth of different types of jobs.

In its original form, the legislation also included the old "comparable worth" guidelines.

We're now hearing that the bills will be debated under a closed rule, probably Thursday, indicating that quick passage rather than measured deliberation is the goal. Once both pass, they'll be combined into a single bill to send to the Senate, so perhaps this politicking is intended less as a reward to the trial lawyers and labor than a signal to the Senate to get moving.

In any case, a combined Ledbetter Paycheck Fairness and Sue Your Boss Act will certainly galvanize business opposition, even as many business groups are trying to work cooperatively with the new Obama Administration.

There are so many messages being sent, but clearly one of those messages goes to the plaintiff's bar. It's "Thank You."

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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.