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When in doubt, sue -- Senate passes Ledbetter bill

The U.S. Senate yesterday passed S. 181, the Lilly Ledbetter Fair Pay Act, sold politically as a limited fix to the U.S. Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber, disallowing an employee's pay discrimination complaint because she brought it after (years after) the clearly written 180-day statute of limitation expired. The vote was 61-36, with five Republicans voting in support and no Democrats voting in opposition. (Roll call.)

Defeated was an amendment by Sen. Mike Enzi (R-WY) to clarify standing so only the allegedly discriminated employee could bring suit, not just somebody "affected" by the consequences of the discrimination. Table (killed) was an amendment by Sen. Johnny Isakson (R-GA) to limit the law's application to claims resulting from discriminatory compensation decisions that occurred after the act's adoption; the law will now allow the filing of claims years, even decades old. An amendment by Sen. Specter to provide a rule of construction was tabled. And the substitute amendment by Sen. Hutchison (R-TX) was defeated on a partyline-minus-one vote (Snowe being the Republican).

In short, any amendment to limit the opportunities for speculative, excessive and "creative" lawsuits was defeated. Sen. Enzi noted several times the bill was run to the floor without any committee hearings that could have allowed more debate, consensus amendments and some bit of restraint. (Enzi is the ranking Republican on the HELP Committee, chaired by Sen. Kennedy.) The end result is surely a wave of new discrimination lawsuits against employers, increasing the marginal costs of new hires.

President Obama will surely sign the bill. Lilly Ledbetter became a cause celebre for Democrats and organized labor during the campaign, and she joined the President-elect on pre-inaugural train ride to Washington.

P.S. Much was made by Senate supporters of the new, positive tone of the debate. Here's Senator Byron Dorgan recalling the "night of terror" in Occoquan Prison in 1917, when suffragettes were brutally beaten. The point being...

UPDATE (10:30 a.m.): It appears the House will vote on the Senate version of the bill next week, dropping its own version that included the politically problematic Paycheck Fairness Act language, i.e., the stalking horse for comparable worth.

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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.