Senate Hearing Held On Bills To Reverse Key Supreme Court Decisions

The first bill signed into law within days following President Barack Obama's inauguration was the Lilly Ledbetter Fair Pay Act. This law extended the statute of limitations for filing charges of discrimination in compensation beyond the statutory 180/300 days from the alleged discriminatory act by making each new pay check a separate violation triggering a new period of charge filing (even if it was decades after the act in question). The law reversed the U.S. Su-preme Court's 5-4 decision in Lilly Ledbetter v. Goodyear Tire & Rubber Co. It was passed without congressional hearings or even a mark-up in a congressional committee.

On October 7, the Senate Finance Committee served warning that two other Supreme Court decisions may suffer the same fate. In Adams v. Circuit City, the justices approved mandatory pre-dispute arbitration agreements of employment law disputes in lieu of litigation. In Gross v. FBL Financial Services, the Court excluded mixed motive analyses in Age Discrimination in Employment Act (ADEA) cases.

Circuit City would be reversed by the Arbitration Fairness Act of 2009 (H.R.1020/S.931), which prohibits mandatory pre-dispute arbitration agreements for employment, consumer, or franchise disputes, or disputes arising under civil rights laws. Gross would be reversed by the Protecting Older Workers from Discrimination Act of 2009 (H.R.3721/S.1756), which would authorize mixed motive analyses under all federal employment law statutes, including the ADEA.

Michael Fox, a shareholder in Ogletree Deakins' Austin office, was called to testify before the Senate Judiciary Committee as an expert witness based on his extensive experience with jury trials and arbitration litigation. His written testimony provided a strong defense of arbitration of employment claims as well as support for the Supreme Court's "common sense" limitation of the mixed motive instruction in jury trials under the ADEA.

Fox noted that the mixed motive analysis was designed for bench trials, not jury trials, but was continued after the 1991 Civil Rights Act Amendments added jury trials to Title VII. It was not, however, added to the ADEA. Based on the "spotty record" of mixed motive instructions in Title VII cases, Fox stated that it would be a tragic mistake to add it to the ADEA, much less the entirety of the federal employment laws, where it would be confusing to juries. He stated that the pretext analysis made mixed motive instructions unnecessary.

If not this year, certainly early in the 2010 election year would be a politically opportune time for sponsors to rush a vote on both bills, claiming to protect older workers and those who do not want to be subject to mandatory arbitration agreements. The business community should be more prepared for these bills than they were for the Lilly Ledbetter Fair Pay Act.