“News” stories on legislation often read like lazy summaries of press releases put out by the bill’s sponsors. That’s particularly true for so-called “equal pay” legislation, even if it would lead to inequities and frivolous lawsuits.
The Gannett News service is claiming that the controversial Paycheck Fairness Act, which passed the House late last week, simply “elevates the status of gender-based pay discrimination lawsuits to the same level as lawsuits filed by those claiming discrimination based on race, age, or disability.” That echoes press releases by the bill’s sponsors.
But it’s not true. The bill would pressure employers to pay employees in predominantly-female jobs with pleasant working conditions the same as employees in predominantly-male jobs with unpleasant working conditions. Moreover, it would allow people alleging gender-based discrimination to recover damages unavailable to people facing racial, age, or disability discrimination, such as uncapped punitive damages for unintentional “disparate impact” “discrimination” (where a neutral employer practice negatively impacts more women than men, or more minorities than whites).
Federal civil rights law has never permitted punitive damages for unintentional discrimination. It did not permit any punitive damages for most forms of discrimination until 1991, and since then, has limited compensatory and punitive damages in most cases to $300,000. But Gannett News wrongly claims that the Paycheck Fairness Act is simply putting gender discrimination on the same footing as other forms of discrimination by eliminating “the cap on punitive and compensatory damages that has been in place since the early 1990s.” See Brian Tumulty, Clinton’s Last Hurrah: Women’s Pay Fairness, Gannett News, Jan. 13, 2009.
Editorials pushing “pay equity” bills are even worse. They contain blatant errors about Supreme Court’s 2007 Ledbetter v. Goodyear decision on equal pay, which held that a 180-day deadline applied to some pay discrimination claims brought under Title VII of the Civil Rights Act (a longer deadline applies under other laws, such as the Equal Pay Act, which usually gives employees three years to sue).
One recent editorial claimed that Lilly Ledbetter was not allowed to sue more than 180 days after her first unequal paycheck even though “she did not know she was being discriminated against until near the end of her career when she sued.” Another claimed that under the Supreme Court’s Ledbetter ruling, “any employer that could hide discrimination for six months could get away with it.”
In reality, as leading employment lawyer David Copus points out, Ledbetter’s claim was rejected only because she waited for years after suspecting discrimination to sue. See David Copus, “Pay Discrimination Claims After Ledbetter,” Defense Counsel Journal, Volume 75, page 300 (Oct. 1, 2008).
As Copus notes, “Ledbetter admitted at her deposition that ‘different people that [she] worked for along the way had always told [her] that [her] pay was extremely low.’ She recalled that her manager told her in 1992 that her pay was lower than that of other Area Managers, and that by 1994 or 1995, she had learned the amount of the difference. In 1995, Ledbetter told her supervisor that she ‘needed to earn an increase in pay’ because she ‘wanted to get in line with where [her] peers were, because . . . at that time [she] knew definitely that they were all making a thousand [dollars] at least more per month.’” Yet she waited to sue until shortly before she retired, and after the supervisor she accused of discrimination died!
Given Ledbetter’s tardiness and longstanding knowledge that she might have been discriminated against, her lawyer didn’t even claim that she could take advantage of the Supreme Court’s exceptions to the deadlines for workers whose employers conceal evidence of discrimination, leaving them unaware of discrimination, such as “equitable tolling” and “estoppel.”
But in spite of that, the Supreme Court went out of its way to leave such exceptions to the deadline intact, by noting that “Ledbetter should have filed an EEOC charge within 180 days after each alleged discriminatory pay decision was made and communicated to her.’” The Supreme Court also pointedly noted that the plaintiff could have sought relief instead under the Equal Pay Act, which has a three-year deadline for suing (the plaintiff’s lawyer admitted to the Supreme Court that he erred by dropping her Equal Pay Act claim!). It certainly did not rule, as the Los Angeles Times claimed, that “any employer that could hide discrimination for six months could get away with it.” See Editorial, “The Lilly Ledbetter Fair Pay Act Is Back,” Los Angeles Times, Jan. 10, 2009.
But Congress is now on the verge of passing a bill that would essentially eliminate the deadline for suing in pay discrimination cases, the Lilly Ledbetter Fair Pay Act. The bill passed the House on January 9, after supporters falsely claimed that the Supreme Court had imposed a rigid, 180-day deadline for bringing discrimination claims.
On the Ledbetter issue, a fair and simple compromise, in line with rules in other areas of litigation, would be a “discovery rule,” whereby the time for filing would run from when the individual knew or should have known of possible discrimination. Words lawyers can and will fight over in specific cases, no doubt, but what else is new? Judges and juries will decide — it is what we call an “objective standard.” But it should apply to all discrimination claims. Pay discrimination is not so unique in sometimes being less than obvious. Another reasonable reform might be extending the short limitations period — across the board for discrimination claims. 180 or 300 days (depending on state law) is not much time compared to statutes of limitations for almost any other type of legal claim.
Today, the Senate minority leader, Mitch McConnell, announced compromise legislation that follows (and may even go beyond) the suggestion made above by the prominent employment lawyer George Lenard — to allow the deadline to run from when an employee was aware of the discrimination.
But my guess is that the Senate majority, for political reasons, will reject that rule, and more or less get rid of the deadline instead.
That's too bad, since if George Lenard's suggestion had been made long ago, before the Ledbetter decision had become a political wedge (and campaign) issue in the 2008 campaign, whoever had proposed it might have been able to peel off enough swing votes to keep the more radical Ledbetter bill from becoming law instead.
just stopped by.Gotta love msn, very fine stuff. Thank you…chao
A wise man once said, “workers of the world unite!” and I add “and don’t vote against your pocketbook. Obama ‘08 is working………
The first bill signed by Obama was the Lilly Ledbetter Fair Pay Act, which was actually written by trial lawyers and was introduced in Congress to allow lawsuits on “discriminatory” pay to women. The “law” treats each paycheck as an act of discrimination basically, opening the floodgates for lots of $500-an-hour parasites known as lawyers. Also, because each suit is a “civil rights action,” anyone sued may have to pay the costs of litigation if they lose, which will send additional millions to groups like the fascist ACLU (which has for decades refused to help Wil Hetherington) and cause companies to cave in and appear guilty, which will only gin up more public support for more such lawsuits.
So while Obama-mama is stealing a trillion dollars from us and promising jobs and an economic recovery, he’s just given the scum of the earth another license to steal from companies that will actually cost us jobs — unless you are an immoral, sociopathic attorney.
All this increases further our total tax liabilities — and the unseen lawyer tax — by up to 80% of gross pay, in some cases. And even those who don’t pay income taxes, or who think they don’t, pay FICA and state, county and city sales taxes and other new feudal era contrivances.