January 2012

“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.