The Lilly Ledbetter Fair Pay Act (H.R. 11, S. 181) would allow
pay discrimination lawsuits to proceed years or even decades after
alleged discrimination took place, opening the courts to stale
claims and discouraging individuals from taking prompt action to
end discrimination. In this way, its effects would be far broader
than to remedy the perceived injustice of Ledbetter v. Goodyear
Tire & Rubber Co., in which the Supreme Court held that an
allegedly discriminatory pay decision made 15 years prior to filing
suit did not satisfy Title VII's 180-day limitations period. If
Congress wishes to open the door to more pay discrimination claims,
it ought to do so in a way that minimizes the likelihood of abuse
of the law.
The most thoughtful alternative to the Ledbetter Act's approach
is embodied in an amendment (SA 25) proposed by Senator Kay Bailey
Hutchison (R-TX) and based on her Title VII Fairness Act (S. 166).
Rather than allowing any claim--no matter how old, no matter if the
plaintiff delayed filing just to gain an upper hand--this amendment
would start the limitations period running only when an employee
reasonably suspects, or should reasonably suspect, that he or she
has been discriminated against.
This kind of filing deadline, known as a "discovery rule,"
protects employees who are kept in the dark about pay disparities
and the like, while preventing stale claims and gaming of the
system. It also preserves the incentive to bring claims quickly so
that discrimination is halted sooner, to the benefit not just of
the plaintiff but also other potential victims and the public.
That, in the end, is what Title VII is all about: ending
The Ledbetter Act, in contrast, has less to do with stamping out
discriminatory practices than making money for plaintiff's
attorneys. By eliminating the filing deadline, it would actually
undermine the law's strong incentive to resolve cases quickly, and
instead encourage savvy parties to strategically delay suit. While
they sit on their claims, the passage of time would drive up
damages available in court and allow defensive evidence to fade. In
this way, other victims who are unaware of discrimination would
continue to suffer its effects, while the would-be plaintiff games
the law for private gain.
The easiest and most straightforward way to avoid these
consequences is to retain a strict limitations period. Two
amendments (SA 28, SA 29) sponsored by Senator Mike Enzi (R-WY)
would accomplish this by limiting the Ledbetter Act to when a
discriminatory compensation decision is adopted or when an employee
becomes "subject" to a such a decision, but not when an employee is
"affected" by it--a much vaguer standard. This approach would
retain a clear limitations period, blocking stale claims and
abusive legal tactics.
The Ledbetter Act is so alluring to trial lawyers because Title
VII claims, unlike those under other laws, allow for punitive
damages in addition to make-up pay. (Indeed, Lilly Ledbetter
actually abandoned an easier-to-prove and not time-limited claim
under the Equal Pay Act, which does not offer punitives.) There is
also the possibility of follow-on lawsuits. A single legal victory
against an employer could provide the fodder for scores of lawsuits
by similarly situated employees and former employees receiving
benefits, each alleging a pattern of discrimination affecting pay,
as evidenced by the previous lawsuits.
In particular, three words in the legislation that have received
little attention would be particularly conducive to this sort of
abuse. Rather than focusing on discriminatory pay decisions, the
Ledbetter Act would include within the definition of an unlawful
employment practice "a discriminatory compensation decision or
other practice." This loose language would allow trial lawyers to
channel potentially all discrimination claims, no matter how
tenuously related to compensation, through the Ledbetter Act,
thereby evading Title VII's and the Age Discrimination in
Employment Act's (ADEA) limitations periods entirely. In this way,
nearly any alleged discrimination could be the subject of claims
brought years after the fact--a recipe for abuse.
To prevent such abuses, Congress should strike the "or other
practice" language each time that it appears in the Ledbetter Act.
An amendment brought by Senator Arlen Specter (R-PA) adopts this
Another amendment (SA 26) by Specter is specifically targeted at
preventing gaming of the statute. It would make clear that the
Ledbetter Act does not preclude certain defenses to strategic
behavior such as laches, waiver, and estoppel. Though inferior to a
clear limitations period, these defenses provide at least some
protection against legal abuses such as delaying suit to gain an
advantage, destroying defensive evidence, and running up
Protecting Workers from Discrimination
If Congress is serious about protecting workers from
discrimination, it should consider more thoughtful proposals than
effectively eliminating Title VII's and the ADEA's limitations
periods, which could actually be counterproductive to achieving
equality. But if its primary aim is to line trial lawyers' pockets,
that is probably the course it will take.
Andrew M. Grossman is
Senior Legal Policy Analyst in the Center for Legal and Judicial
Studies at The Heritage Foundation.