Kennedy Wants to Move Pay Discrimination Bill Forward

Capitol Hill attention is focused on cobbling together an economic stimulus package that Congress hopes will help stave off a recession.

Following that bill, Sen. Edward Kennedy, D-Massachusetts, wants to move to the top of the Senate agenda a pay discrimination measure designed to overturn a recent Supreme Court ruling.

Kennedy’s bill, the Fair Pay Restoration Act, would allow workers to file pay discrimination cases within 180 days of any paycheck they receive that has allegedly been reduced because of bias.

Last spring, a 5-4 Supreme Court majority ruled that the federal statute of limitations requires workers to take action within 180 days of the original discriminatory decision.

Kennedy chaired a Senate Health, Education, Labor and Pensions Committee hearing about the bill on Thursday, January 24. The next step will be either a committee or Senate floor vote after the Presidents Day recess. The bill is on the Senate calendar, according to Kennedy.

“We’re going to get action on it, one way or another,” Kennedy said after the hearing.

It’s too early to tell whether Senate Republicans will filibuster the bill, as they did last year with a measure that would make it easier for workers to organize a union.

Republicans “wouldn’t be opposed to alternatives” to Kennedy’s bill, according to a GOP committee staffer who requested anonymity because he’s not authorized to speak on the record.
Kennedy’s measure is a response to the controversial Supreme Court ruling in a case involving Lilly Ledbetter, a former floor manager at a Goodyear Tire & Rubber Co. plant in Gadsden, Alabama.

Ledbetter, who started with Goodyear in 1979, claims the company paid her less than male co-workers for the same job over the course of her nearly 20-year tenure. When she retired, Ledbetter was paid $3,727 per month, while the lowest-paid male manager received $4,286.

Ledbetter filed a claim with the Equal Employment Opportunity Commission in March 1998—after she got an anonymous tip about the pay disparity. A jury ruled in favor of Ledbetter, awarding her back pay and $3 million in compensatory and punitive damages.

But the Supreme Court held that Goodyear was not liable because Ledbetter did not take action within 180 days of the first instance of discrimination.

In a scorching dissenting opinion, Justice Ruth Bader Ginsburg said that the court majority failed to understand the realities of today’s workplace—where pay information is secret and evidence of discrimination builds up over long periods of time. She challenged Congress to clarify the federal statute of limitations.

On July 31, the House passed a bill similar to Kennedy’s in a 225-199 vote. President Bush has vowed to veto the bill.

“Ledbetter was a textbook case of pay discrimination,” Kennedy said at the January 24 hearing. “The court’s decision gives employers free rein to continue such discrimination, and it leaves workers powerless to stop it. The result defies both justice and common sense.”

Corporate advocates warned that the bill would make companies liable for stale cases that stretch back decades, making it difficult to gather evidence and mount a defense. In Ledbetter’s case, one of the potential witnesses, her supervisor, died before the trial.

Eric Dreiband, a lawyer with Akin Gump, testified that the bill would force companies to implement “incredibly costly record keeping,” foster “unanticipated and potentially limitless monetary penalties,” and create pension liability.

“Everybody here is opposed to discrimination in any form,” Sen. Johnny Isakson, R-Georgia, said after the hearing. “I’m also opposed to opening the door in perpetuity to frivolous lawsuits.”

Opponents of the bill assert that Ledbetter dallied after her first inkling about pay discrepancies in the early 1990s.

In her Senate testimony, Ledbetter said she had suspected that she was making less than her male counterparts but couldn’t make a case until she received the anonymous note about company pay scales in 1998.

“There is no way I would have waited,” if she had known sooner, she said. “I would have wanted that time-and-a-half and overtime pay.”

As Ledbetter visits Washington to promote the bill inspired by her Supreme Court case, she knows that it won’t directly benefit her.

“Goodyear may never have to pay me what it cheated me out of,” she said. “But if this bill passes, I’ll have an even richer reward because I’ll know that my daughters and granddaughters, and all workers, will get a better deal.”

—Mark Schoeff Jr.