Ledbetter Fair Pay Act stalls in the Senate

The Senate has blocked the advance of H.R. 2831, the "Ledbetter Fair Pay Act"; cloture failed 56-42. The legislation aims to abrogate the effects of the Supreme Court's ruling in Ledbetter v. Goodyear, 127 S.Ct. 2162 (2007), that issuing a paycheque, as opposed to a decision setting the amount of that cheque, is not the discrete "unlawful employment practice" that begins Title VII's filing period. See 42 U.S.C. § 2000e-5(e); National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002).

Our previous coverage of Ledbetter begins with this post. Therein, I explained that the nub of the case is that Title VII (which provides a cause of action for employees who have been discriminated against) requires that a would-be plaintiff first file a complaint with EEOC "within an exceedingly narrow time window: in most cases ... a mere 180 days after the discriminatory event." As Justice Stevens put it in Mohasco Corp v. Silver, 447 U.S. 807 (1982), “it seems clear that … [imposing statute of limitations] represented a judgment [by Congress] that most genuine claims of discrimination would be promptly asserted and that the costs associated with processing and defending stale or dormant claims outweigh the federal interest in guaranteeing a remedy to every victim of discrimination.” Id. at 820. Ledbetter's problem was that she didn't file within 180 days of any decision affecting the value of her paycheque, which left her to argue that the seemingly ministerial act of cutting a paycheque is in itself a discrete unlawful act, starting a new 180-day window. The court rejected this "fruit of the poisoned tree" approach, and for reasons explained fully in my earlier post, I think that decision was the only coherent way to read Title VII as it then stood.

"Mercifully short on ... silly posturing," H.R. 2831 would amend § 2000e5(e), conforming it to Ledbetter's argument (the litigant's argument, that is, not the case's). Section 3 provides that a discrete unlawful practice triggering a filing period begins not only "when a discriminatory compensation decision or other practice is adopted," which is the only sensible reading of the existing text, but also at any times that an individual "becomes subject" to such a decision or is "affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

The argument for a filing period on Title VII claims is, as the WaPo story linked above reports, the White House's argument against H.R. 2831: the bill "would effectively eliminate the deadline for filing lawsuits over pay discrimination and subject businesses to claims over decisions long past." I think that's right, by-and-large. "'Time limits for civil rights cases make sense, so that companies don't have to defend themselves against charges that should have been raised long ago, instead of postponed until evidence has vanished and memories have faded.'" (I agree with Sen. Hutchison, however, who's quoted in the same story: I don't oppose elongating the present filing period, within reason, I just wouldn't infinitely protract it, which is to informally abolish it, as H.R. 2831 would do.) But then again, as the Ledbetter dissent correctly noted, discrimination in regard to pay, versus other discriminatory acts, may not be immediately apparent: "[w]hen an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Compensation disparities, in contrast, are often hidden from sight. It is not unusual, ... for management to decline to publish employee pay levels, or for employees to keep private their own salaries." Such was certainly true in Ledbetter: "Goodyear kept salaries confidential; employees had only limited access to information regarding their colleagues’ earnings." So a rule that charges must be filed within 180 days of a pay-setting act tainted by discriminatory intent is problematic, in that it is not "[i]n tune with the realities of wage discrimination," as the dissent put it.

How to resolve these competing equities? I would suggest that this is a tempest in a teapot. A reasonable discovery rule serves both interests, and does so within the spirit of the existing statutory compromise.1

The two closely-connected points I'd make are these. First, the Ledbetter court expressly held open the possibility that a discovery rule may toll the filing period. Slip op. at n.10. If the filing period tolls, as the court has strongly suggested it would, see Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982), legislation is unnecessary. Second, if legislation is thought desirable -- perhaps motivated by fears that a "wait and see what the court does" approach may lead to plaintiffs (even if a trivial number: no number is trivial when it includes you) falling through the cracks -- a narrower approach than H.R. 2831 seems wiser. Congress need not cross its fingers and hope that the court will give effect to a discovery rule; it can impose one. For example, AEDPA imposes something we might also characterize as a filing period; one who wishes to challenge his incarceration by a state through a federal habeas proceeding must file his case within a year of final judgment. 28 U.S.C. § 2244(d)(1). But the commencement of that filing period is subject to something akin to a discovery rule, §§ 2244(d)(1)(C) and (D), and the filing period tolls while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending," § 2244(d)(2).

As I've suggested in a different context (although I think the principle applies here, too), when there are legitimate concerns on both sides of the ledger, the best approach is to move cautiously. "[I]nstead of guessing at what seems to be a plausible result and writing off whatever harms might accrue if you're wrong, wait and see what happens in practice." As applicable here, I would prefer that if Congress really must do something, its next step should be to impose a statutory discovery rule on the existing Title VII structure (perhaps double the filing period, too) - and see what happens. Maybe this narrower rule won't work in practice - but why should that militate against trying it first? Legislators often tend to adopt a breathless "last train out of town" attitude; there's a sense that this bill must definitively resolve issue X and all its ancillary issues - now. That's not only misguided, it's actually an impediment to the development of good rules - better is not the enemy of best, but sometimes best is the enemy of better. We've seen that repeatedly in the abortion arena; a bill that incorporates not only reasonable regulations that would pass easily ("better") is loaded down with regulations that would effect something approaching a total ban ("best" - from the perspective of proponents), with the result that no progress of any kind is made. Here, the concern isn't garnering sufficient support, but rather, that it's not entirely clear whether the kitchen sink approach really is "best," and maybe "better" - i.e. a narrower rule that can also command broader support as a compromise position - is better than taking the risk that "best" will turn out to be "worse."

1. 1. This should not be overread. In this post, I dismissed as "weird" the criticism of H.R. 2831 that it "would all but eliminate a statute of limitations, which was not Congress's original intent...." Even if we thought that "the original intent of the legislature in passing a piece of legislation [should] govern[] a court in interpreting a law," I noted, "it most certainly doesn't bind a subsequent Congress amending that law." (Emphasis deleted and footnote omitted).