On July 31, 2007 the U.S. House of Representatives passed the “Ledbetter Fair Pay Act,” H.R. 2831. This bill would amend several federal employment discrimination statutes to specify that an unlawful employment practice occurs each time an employee receives pay resulting from a discriminatory compensation decision.

The potentially affected statutes include:

  • Title VII of the Civil Right Act of 1964,
  • The Age Discrimination in Employment Act,
  • The Americans with Disabilities Act, and
  • The Rehabilitation Act of 1973.

This legislation, which the House passed by a vote of 225-199, is intended to counter the U.S. Supreme Court’s recent decision in Ledbetter v. Goodyear Tire & Rubber Co. In this case, the plaintiff claimed that she was discriminated against by being paid less than her male counterparts, despite having more seniority and superior performance reviews. In finding for the employer, the Court held that, to challenge an original pay decision as discriminatory, a plaintiff must file a pay discrimination charge within 180 or 300 days (depending on the jurisdiction) after the original discriminatory decision. The Court stated that the 180- or 300-day period is triggered when the pay decision is made and communicated to the employee, not each time the employee receives a subsequent paycheck.

The Democratic majority in the House sought to counter the Ledbetter decision because it believed the Court ignored the fact that it can take much longer than 180 or 300 days for a potential plaintiff to discover that he or she has been discriminated against. This delay stems from the reality that individuals do not often openly discuss their salaries with others in the workplace. As a result, the House Democrats believe that each paycheck should be seen as a continuation of the original discriminatory pay decision and should thus restart the relevant time period within which a charge may be filed.

Opponents of the bill argue that the legislation would effectively remove the statute of limitations for discrimination suits based on original discriminatory pay decisions. Currently, to challenge an original pay decision as discriminatory, a plaintiff must file a charge within 180 or 300 days after the original pay decision was made. Under the new legislation, every paycheck received by the plaintiff would restart the time period for the original pay decision. It should be noted that, even under Ledbetter, an employee may challenge any paycheck as being discriminatory in itself by filing a charge within 180 or 300 days after receiving the paycheck.

The bill has not yet been passed by the Senate, where it will surely face harsh criticism from conservatives. In addition, the White House has stated that if the bill came to President Bush for his signature, his advisers would recommend a veto. Such a veto would likely be effective because the legislation does not have enough support in either the House or Senate to override a presidential veto.