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Paycheck Fairness Act: Rep. Rosa DeLauro Provides Some Context

Posted in Legislative Developments

Earlier this month, I provided a legislative update on the Paycheck Fairness Act bill, which passed the U.S. House of Representatives. Long-time Congresswoman Rosa DeLauro (D-Conn, 3rd) has been a leading sponsor of the bill and she has a long and distinguished career in the House. 

Yesterday, Rep. DeLauro issued a column in the Huffington Post about the bill.  Front and center in her discussion is the case of Lilly Ledbetter and her lawsuit against Goodyear Tire & Rubber Company that went before the U.S. Supreme Court.  

As a result, Rep. DeLauro says that the bill would close the "loopholes" in the law.

On Thursday July 31st, the House of Representatives took the next step to correct this injustice by passing H.R. 1338, the Paycheck Fairness Act by a vote of 247-178. This vote was about ensuring that women who work hard and productively and carry a full range of family responsibilities are paid at a rate they are entitled. So many employers and companies do the right thing as a matter of course, but passing this bill says that this is now a matter of right and wrong, that discrimination is unacceptable anywhere and we are all diminished when we fall short. We have the chance to make all men and women whole and contribute to the richness of America. 

What’s fascinating is the fact that the Ledbetter case has gotten intertwined in the political arena (in fact, Ms. Ledbetter will be a featured speaker at the Democratic National Convention on Tuesday).  The issue in Ledbetter case was, in many ways, a technical question of how far back an employee should be able to go to challenge past pay practices — in other words, about deadlines and "statute of limitations".  The Supreme Court said that the 180-day deadline found in the statute should apply. 

Should the statute of limitations remain at 180 days? 1 year? 2 years? 5 years? 20 years?  I don’t suggest to know what the right answer is.  Ultimately, the answer to that question will help shape the Paycheck Fairness Act bill’s final outcome and it should be the one that the politicians focus on. 

Employers would certainly like shorter statute of limitations and have good arguments that because supervisors leave, short statute of limitations prevent stale claims from being brought. But employees have decent arguments that a longer statute of limitations should apply because discriminatory pay practices are often learned of only after they occur. 

For employers, the debate over the Paycheck Fairness Act is one worth paying attention to because the real-world consequence of the bill’s passage (whether now or next year) will be to increase the importance of documenting pay practices and to give employers another reason to preserve such documents for future litigation.   

Hopefully, as the bill progresses, we’ll see more debate on the pros and cons on having longer deadlines to file suits.

Lastly, employers should not lose sight of other potential claims that can still arise, regardless of what happens with the Paycheck Fairness Act legislation. Indeed, the irony of the Ledbetter case is that there already exists a law that would have permitted Ledbetter to sue. The Equal Pay Act specifically addresses pay disparity and has a longer statute of limitations. But for some reason, Ledbetter’s attorney chose to sue under the all-purpose anti-discrimination law, Title VII, thus dooming her claims.

(H/T: Rep. DeLauro cross-posted her statement at My Left Nutmeg)

  • http://hrwench.blogspot.com Jenn Barnes / HR Wench

    Perhaps we should focus on what is or isn’t a discriminatory act instead of the statute of limitations. If the Supremes would have held that each paycheck Ms. Ledbetter was given was indeed a discriminatory act (since it was blatantly tied to the initial and subsequent pay discrimination by setting the rate in whole or part due to her gender) then she would have been well within the 180 day requirement.

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