Fair Pay

Trying to explain the significance of the Lilly Ledbetter Fair Pay Act passed by Congress this past week made me realize there must still be quite a bit of confusion out there about the meaning of this legislation. Most informed people seem to know it was passed to overturn a recent Supreme Court decision that denied a claim by a female employee that she was not paid as well as her male counterparts. Less well known is that the Supreme Court case was based on an interpretation of the statute of limitations as it applies in statutory sex discrimination cases under Title VII of the Civil Rights Act of 1964. More specifically, the issue was whether the employer's act of discrimination was the negative evaluations Lilly Ledbetter received in the past (which she had proved resulted in part from discrimination). These evaluations caused her to receive lower pay than similarly-situated men. Alternatively, the act of discrimination could be viewed as the ongoing practice of paying her less than those men, i.e., as ongoing discriminatory treatment. The Supreme Court held that it was the former, and therefore her claim was barred because it was brought outside the limitations period applicable to the act of discrimination at issue.



It is interesting that this issue was never resolved at the Supreme Court level before 2007, even though it has potentially been around since 1964. That suggests that the problem confronted by Ledbetter, while significant, does not arise that often. In Ledbetter's case, it may have arisen because her case was only allowed to proceed under Title VII instead of the Equal Pay Act, which would ordinarily provide a remedy for pay disparities based on sex. What is also interesting is that this case, even though its effect seems quite limited, became something of a cause celebre. The new Congress and the new administration made it one of their first priorities to reverse this case. That suggests that the new Congress, while interested in broader civil rights enforcement, is also interested in asserting its power and sending a sharp message to the Supreme Court. No more messing around with commonly-accepted interpretations of legislation in a way that seems to defeat their remedial purposes! The Supreme Court can now expect to be slapped down whenever that occurs again.