Results matching “ledbetter "equal pay act"”

One last push for the misnamed Paycheck Fairness Act - PointOfLaw Forum

Senate Majority Leader Harry Reid on Monday, Sept. 13, introduced S. 3772, the Paycheck Fairness Act, giving new, election-season impetus for the bill that would encourage lawsuits against employers.

The House passed its own version, H.R. 12, in January 2009 in tandem with the Lilly Ledbetter Fair Pay Act, which removed statutes of limitations on employment pay suits. Reid's bill supplants the one introduced by Sen. Hillary Clinton (D-NY), S. 182, before she became Secretary of State.

Free market advocates oppose the bill for government's interference in supply and demand and contracts, well summarized by Hans Bader of the Competitive Enterprise Institute as "[forcing] employers to pay some people equal amounts for doing unequal work." (Washington Examiner, Aug. 4, "Paycheck Fairness Act would mandate equal pay for unequal work, triggering flood of lawsuits.")

Business groups also object to the legislation's provisions that would encourage more lawsuits against employers. As the National Association of Manufacturers' "key vote" letter opposing the House bill summarized:

By removing all limits to punitive and compensatory damage awards on claims made under the Equal Pay Act (EPA), the Paycheck Fairness Act (H.R. 12) would expose employers to increased threats of litigation - even when unintentional pay disparities may have occurred. Its passage would likely prompt many employers to purchase additional legal liability insurance, increasing their costs and decreasing their ability to raise wages, increase benefits or hire new U.S. House of Representatives workers. In fact, it is difficult to imagine a scenario in which the bill would not lead to lower wages and fewer jobs.

The White House has stepped up its advocacy for the bill, with adviser Valerie Jarrett having an op-ed published in The Washington Post promoting the bill, "Closing the wage gap: It's a matter of survival for working families" adding some "it's a matter of life or death!" hyperbole to the usual "women only make 77 cents for every dollar a man makes" misrepresentation. Thankfully, Diana Furchtgott-Roth is always prepared with a factual refutation as in this letter, "After almost 50 years, the gender gap in pay still resonates."

UPDATE (4:40 p.m.): The head lobbyist for the Association of American University Women had a meeting with Senate Majority Leader Harry Reid this afternoon on the issue, or so her Twitter report has it.

The Senate Health, Education, Labor, and Pensions Committee on Thursday, March 11, holds a hearing, "A Fair Share for All: Pay Equity in the New American Workplace." The hearing marks the re-emergence of the Paycheck Fairness Act in Congress, in this case, S.182, to amend the Fair Labor Standards Act of 1938 (FLSA) known as the Equal Pay Act to increase liability and penalties for gender-based wage discrimination. For example, the bill:


  • Makes employers who violate sex discrimination prohibitions liable in a civil action for either compensatory or (except for the federal government) punitive damages.

  • States that any action brought to enforce the prohibition against sex discrimination may be maintained as a class action in which individuals may be joined as party plaintiffs without their written consent.

  • Authorizes the Secretary of Labor (Secretary) to seek additional compensatory or punitive damages in a sex discrimination action.

The House passed its own version, H.R. 12, along with the Lilly Ledbetter Fair Pay Act on Jan. 9, 2009. The House sponsor, Rep. Rosa DeLauro (D-CT), is the first witness at Thursday's hearing, which also includes testimony from an economist from the Center for American Progress, as well as Deborah Frett, CEO of the Business and Professional Women's Foundation, who contends women are underrepresented in "green jobs." We hope to hear the employers' perspective from Jane McFetridge, the managing partner of Jackson Lewis' Chicago office.

The 2008 presidential and congressional campaigns featured impassioned activism tied to the Ledbetter legislation, and the new push for the Paycheck Fairness Act comes just as that kind of political enthusiasm is needed for the 2010 elections.

Hans Bader on Ledbetter/PFA - PointOfLaw Forum

Legislate in haste, repent at leisure:

The trial lawyers will score another major victory [Friday], by obtaining House passage of two bills backed by Obama that will greatly expand the ability to sue employers. One, the Ledbetter Fair Pay Act , would effectively get rid of the statute of limitations in pay discrimination cases. The other, the Paycheck Fairness Act , would pressure some employers to pay people performing different jobs with very different working conditions the same pay , if the different jobs are predominantly held by different sexes, and the different jobs are deemed comparable based on specified statutory criteria.

Supporters of these bills have relied heavily on false claims about what the Supreme Court held in its Ledbetter decision, which did not adopt, as the bills' supporters claim, a rigid 180-day deadline for bringing pay discrimination cases . (There is a 3-year deadline under the Equal Pay Act , and the 180-day deadline under Title VII, which is simply one alternative avenue for bringing wage discrimination claims, is not rigid , but is subject to equitable "tolling "). False attacks on opponents of the bill were a staple of the 2008 presidential campaign, which featured TV ads from Obama, and mass mailings by state Democratic Parties, falsely claiming that McCain backed wage discrimination against women , simply because he did not support these two bills. Amazingly, the McCain campaign did almost nothing to counter those attacks.

We've often noted the press's lack of curiosity about the interaction between the Equal Pay Act and the issue the Court faced in Ledbetter. More today from a WSJ editorial.

The new Congress convenes, trial lawyer lobby smiles - PointOfLaw Forum

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."

Legal issues in Congress in the month ahead - PointOfLaw Forum

Politico's The Crypt blog publishes the e-mail from the Senate Democratic Caucus on the issues leadership intends to address before adjourning (one target date is September 26). Energy figures prominently, and the entire list is shaped by electoral politics, of course.

Those issues with the most direct effect on business-related litigation (save for judge confirmations), priorities as identified by the Senate Majority Leader:  

  • Americans with Disabilities Restoration Act: Business groups like my employer, the National Association of Manufacturers, have reached a modus vivendi with disability advocates and accept the legal burdens represented by the legislation. The Heritage Foundation is much more critical, although it finds the Senate version, S. 3406, far preferable for business than the version that passed the House, H.R. 3195.
  • Equal pay legislation, i.e., the Ledbetter legislation, which would eliminate statutes of limitation in employment discrimination suits and wreak other legal mischief. The Senate failed to envoke cloture on H.R. 2831 in April, and another run at the bill would remind voters of Sen. Obama's support and Sen. McCain's opposition. For previous posts on the subject, go here.
  • Federal media shield, i.e., the Free Flow of Information Act. Senator Reid pushed S. 2035 to a cloture vote right before the August recess but Republicans blocked consideration to increase pressure for a vote on energy legislation. The major media continue to lobby for the federal media shield (c.g. this L.A. Times editorial and this Atlanta Journal-Constitution op-ed from the head of the Society of Professional Journalists, "Shield law needed, not for press, but for democracy"), so Senate action can be seen as an effort to shore up the base.

And that appears to be it, although it wouldn't be surprising to see an anti-binding-arbitration measure slip through someplace.

UPDATE (3 p.m.): Now that we look at it again, Politico's speculation notwithstanding, it's possible that Sen. Reid's e-mail referred to the Paycheck Fairness Act, H.R. 1338, which passed the House on August 1. Among other things, it would lift the cap on punitive damages for suits filed under the Equal Pay Act. Daniel Schwartz recently wrote about the legislation at Overlawyered.com.

Lilly Ledbetter, the convention address - PointOfLaw Forum

(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:

Lily Ledbetter

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.

Obama's equal pay gambit - PointOfLaw Forum

In a presumed effort to appeal to female "Clinton voters," Barack Obama today criticized Senator McCain for being unwilling "to stand up for equal pay as president":

Democrat Barack Obama, determined to win over female voters, talked Monday about the women who helped shape his life in arguing that he would be a better proponent of equal pay than Republican John McCain.

The presumed Democratic nominee toured a baking facility and chatted with female workers about their economic challenges.

Sen. Obama told how he was raised by a single mother and his grandmother, who made sacrifices to support their family. He told them that Sen. McCain opposed legislation earlier this year that would have made it easier for women to sue their employers for pay discrimination. Obama supported the bill.

"I'll continue to stand up for equal pay as president -- Senator McCain won't, and that's a real difference in this election," Obama said.

McCain has said he supports equal pay for women but had said the measure would lead to more lawsuits.

The measure in question is none other than H.R. 2831, the "Lilly Ledbetter Fair Pay Act of 2007," with which PointofLaw readers should be very familiar.

As we've pointed out here (and the justices themselves pointed out in Ledbetter), the plaintiff in the epnoymous case could have had a potentially valid suit had her attorney bothered to file under the Equal Pay Act, which remains in force. The legislation Obama supports and McCain opposes is nothing more than a sop to Trial Lawyers, Inc., which would open up decades-old employment actions to judicial review (as well as expanding the scope of potential litigation to non-compensation decisions and the scope of potential litigants to non-employees).

Fortunately, Obama doesn't seem to be arguing his case by reference to his far-more-extreme piece of legislation that would institute national "comparable worth."

Eric Posner on Ledbetter Act - PointOfLaw Forum

Slate's Eric Posner provides a devastating rebuttal to the overwrought claims of Dahlia Lithwick about the misnamed Lilly Ledbetter Fair Pay Act. He leaves out an important argument, which I noted for the Justice Talking blog: existing law, the Equal Pay Act, already permits lawsuits with a longer statute of limitations than 180 days, and Ledbetter's suit failed because she used the wrong statute.

Fair Pay, Fair Play and Fair Limitations - PointOfLaw Forum

Hans Bader of the Competitive Enterprise Institute takes a look at today's Washington Post editorial, "Fair Pay, Fair Play," calling for passage of the Ledbetter Fair Pay Act, and finds certain facts and legal context missing. Again. From the Open Market blog:

The Post seems completely unaware of the existence of another law, the Equal Pay Act, that already has a generous deadline (3 years) for bringing pay discrimination claims.

In Ledbetter v. Goodyear (2007), the Supreme Court enforced the explicit 180-day deadline for bringing discrimination claims under Title VII, ruling that Lilly Ledbetter's pay discrimination suit under Title VII was untimely because she brought it long after 180 days had elapsed. But the court specifically noted in a footnote that the plaintiff had (for unknown reasons) dropped her claim under the Equal Pay Act -- which has a longer deadline (3 years) for suing. Liberal court reporters deliberately ignored the footnote and the very existence of the Equal Pay Act in order to cynically create the false impression that the Supreme Court's enforcing the Title VII deadline as written would leave women without any redress for sex-based pay discrimination after 180 days had passed.

Good legal issues to discuss once the Senate takes up the bill.

As for the political context, from FoxNews.com, "McConnell Complains About Delay in Senate Vote So Candidates Can Return." From the minority leader:

Now, look, we understand people have to run for president and are not likely to be here much of the time. But to have the schedule of the Senate completely revolve around the schedule of the Democratic presidential candidates strikes me as particularly ridiculous.


"Exhibit A in Painting Court as Too Far Right" - PointOfLaw Forum

The Washington Post documents some of the doings of the great P.R. machine that's geared up to keep the Ledbetter case before the public as a way of demonizing the current makeup of the U.S. Supreme Court. (The usual defenders of judicial independence against oversimplified populist attacks seem to have fallen silent). Still no word about why the Equal Pay Act wouldn't offer a way to sue over current pay differentials, if that's indeed the point of the campaign.

Supreme Court enforces pay-bias deadline - PointOfLaw Forum

By a 5-4 margin in Ledbetter v. Goodyear Tire and Rubber (PDF), the Supreme Court has ruled that the 180-day deadline for filing a discrimination lawsuit cannot be stretched to serve as the basis of the filing of suits today based on the lingering effects of employment decisions taken years ago. Hans Bader at CEI asks a question some major news organizations didn't seem to think worth asking: why didn't Ms. Ledbetter choose to sue under the Equal Pay Act, a separate federal statute that might have seemed more directly helpful in staking her complaint? And James Taranto seeks to vindicate the character of former Justice O'Connor from the insulting presumption that she would reflexively have voted in favor of a female plaintiff in an employment-bias case.

P.S. More at Volokh, from David Bernstein and Orin Kerr. Hans Bader has more on the O'Connor angle, noting that "Justice O�Connor rigorously enforced statutes of limitations, and she wasn�t the swing-vote on the Supreme Court in statute of limitations cases. A man, Justice Clarence Thomas, was." And Carolyn Elefant notes reactions from Profs. Secunda (critical of the majority reasoning) and Runkel (finds majority persuasive). The New York Times reacts, as is its wont, with an overwrought and silly editorial.

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