TO:  Editorial Page Editors and Writers
FR:  National Partnership for Women & Families
       National Women’s Law Center
DT:  January 2008
RE: A Matter of Fundamental Fairness, Senate to Consider Fair Pay Restoration Act

The U.S. Supreme Court decision in Ledbetter v. Goodyear last May remains a wrong that urgently needs righting.  In that troubling ruling, a bare majority of a sharply divided Court ruled that employees have only 180 days to challenge employers’ discriminatory pay decisions, regardless of whether the discrimination continues to affect their paychecks. The Court’s narrow interpretation makes it just about impossible for victims of pay discrimination to have their claims considered and thus to seek justice in our courts — regardless of the harshness of the discrimination they face.  Congress should correct this ruling and restore fairness to our workplaces.

To most fair-minded observers, the Ledbetter case was open and shut.  Lilly Ledbetter worked at Goodyear for 19 years, discovered she was being paid less than her male colleagues, filed suit and won a jury verdict of more than $3 million.  But instead of letting that ruling stand, the Supreme Court’s conservative wing, buoyed by the elevation of Justice Alito and Chief Justice Roberts, contradicted decades of case law by finding that Ledbetter’s claim was too late because it was not filed within 180 days of the employer’s original decision to pay her less.  In doing so, the Court not only denied relief to victims of pay discrimination who continue to receive paychecks reduced by discrimination; its decision also allows employers to pocket the windfall resulting from their continuing discrimination.  This decision ignores the impact of pay discrimination on workers, and sets precisely the wrong incentives for employers, encouraging them to hide discrimination for 180 days and rewarding those who successfully do so by insulating them from all further legal challenge.   

Appropriately, the House of Representatives moved quickly to correct the Court’s ruling by passing a bill that restores pre-Ledbetter law and makes clear that the trigger for Title VII’s 180-day statute of limitations can include the payment of a discriminatory paycheck.  But the Senate has not yet finished its work.  After a hearing this morning before the Senate Committee on Health, Education, Labor and Pensions at which witnesses testified powerfully about the need for this legislation, there’s no reason for any further delay.  

We hope that you will editorialize in favor of quick Senate action to pass this legislation.  Pay discrimination is a persistent problem, and often an invisible one because women, people of color, older persons and others often do not know that they are being paid less than their colleagues — let alone that the pay disparity is due to discrimination.  Under the Supreme Court’s Ledbetter decision, the inherent secrecy of pay discrimination becomes a Catch 22 for victims, few of whom will learn they are experiencing pay discrimination in time to do anything about it.  The ruling also is inconsistent with Title VII’s broad mandate to ensure that workplaces operate free of discrimination, and it’s inconsistent with our country’s longstanding commitment to fairness and equal pay for equal work.

The legislation passed by the House and pending in the Senate is a modest and targeted response to the Ledbetter decision. The bill would simply restore the law that existed in virtually every region of the country prior to Ledbetter.  It leaves the statute of limitations intact at 180 days. It leaves in place restrictions in Title VII that deny plaintiffs any right to recover back pay for a period of more than two years before they challenge the discrimination. But it reinstates the principle that each paycheck that is reduced due to discrimination is a discriminatory act that resets the 180-day statute of limitations, thereby reestablishing the incentive for employers to evaluate and correct discriminatory pay decisions.  The legislation both considers the realities of the workplace and respects Congress’ intent to eradicate pay discrimination.

Contrary to claims by its opponents, moreover, the bill does nothing to encourage plaintiffs to sit on their rights and wait for years to challenge known pay discrimination.  That charge is unrealistic, anyway, as few victims of pay discrimination can afford to sit by and take home less pay while discrimination continues and most have too much to lose by waiting given that plaintiffs can recover back pay only for the two years before they file claims. 

Restoring the paycheck accrual rule is the only approach that will serve the goals of anti-discrimination law.  The paycheck accrual rule is a clean, more precise fix that links the charge filing deadline to discriminatory paychecks, which can be documented easily.  By contrast, a discovery rule, which would base the statute of limitations on a plaintiff’s discovery of discrimination, would require a fact-based inquiry in each case to determine what the plaintiff knew and when she/he should have known it.  A discovery rule is an unfamiliar change to the law that does not respond to the problems presented by the Ledbetter decision. 

The Ledbetter ruling was nothing less than an assault on the rights of working women and others who are subject to pay discrimination.  It is a terrible step backward for the country.  Enacting the Fair Pay Restoration Act would make clear that the law means what it says and restore the tools necessary for individuals to effectively protect their rights. 

I hope you will editorialize in favor of this legislation.  If you have questions, please call Sarah Heynen at 202/986-2600 or Jenice Robinson at 202/588-5180. Thank you.