Fait Accompli?: Where the Supreme Court and Equal Pay Meet a Narrow Legislative Override Under the Lilly Ledbetter Fair Pay Act

• Publication year: 2010

SEATTLE UNIVERSITY LAW REVIEWVolume 34, No. 1FALL 2010

COMMENTS

Fait Accompli?: Where the Supreme Court and Equal Pay Meet a Narrow Legislative Override under the Lilly Ledbetter Fair Pay Act

Megan Coluccio(fn*)

I. Introduction

Barack Obama's 2008 presidential campaign promise of change quickly materialized. Emblematic of this change, on January 29, 2009, President Obama signed his first major piece of legislation, the Lilly Ledbetter Fair Pay Act.(fn1)

The Act directly answers the employment-discrimination case Led-better v. Goodyear Tire and Rubber Co.(fn2) In a 5-4 decision authored by Justice Samuel Alito, the Supreme Court held that employers cannot be sued under Title VII of the Civil Rights Act over gender-based or race-based pay discrimination if the claims are based on decisions made by the employer 180 days or more prior to filing.(fn3) Relying in part on its holding in National Railroad Passenger Corp. v. Morgan, the Supreme Court held that a new statute of limitations was not triggered with each individual paycheck a claimant receives after the initial limitations period has lapsed.(fn4) Since Lilly Ledbetter did not file timely Equal Employment Opportunity Commission (EEOC) charges regarding her employer's discriminatory pay decisions in the past,(fn5) Ledbetter's claim was not cognizable.(fn6)

Title VII of the Civil Rights Act requires a plaintiff to file a discrimination charge against an employer within 180 days(fn7) "after the alleged unlawful employment practice occurred."(fn8) The Lilly Ledbetter Fair Pay Act addresses the particular application of Title VII's charge-filing requirement.(fn9) Stating that "unlawful employment practice occurs, with respect to discrimination in compensation . . . each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a [discriminatory] decision," the Act's charge-filing period begins anew regardless of when the employee's compensation was initially set at a discriminatory rate.(fn10) Consequently, virtually every time individuals realize their employer's decision to pay them less, the charge-filing period begins to run.(fn11)

The Act repudiates what Justice Ruth Bader Ginsburg referred to as a "cramped" majority reading of Title VII's charge-filing requirement in Ledbetter.(fn12) In doing so, the Act accounts for the problem Ledbetter encountered when bringing her claim-that potential plaintiffs often will not discover that their employers are paying them less than other employees until years later.(fn13) Supporters of the bill, including the EEOC's Acting Chairman, Stuart Ishimaru, noted that "the [A]ct is a victory for . . . all workers across the country who are shortchanged by receiving unequal pay for performing equal work."(fn14)

While many praise the Lilly Ledbetter Fair Pay Act as "restoring the status quo," others criticize the Act for potentially exposing employers to a great deal of legal liability.(fn15) Some commentators deem the Act a "trial lawyer giveaway," an "economic stimulus" for trial attorneys.(fn16) In addition, the U.S. Chamber of Commerce expressed concern about the increase in litigation that could result from the Act.(fn17)

But such criticisms are misguided. The Act does not change the requirements of a valid Title VII claim beyond the terms of the claim-filing period.(fn18) Plaintiffs must still overcome the difficulties inherent in obtaining the proof necessary to make a sufficient discrimination claim under Title VII.(fn19) In practice, since plaintiffs still carry the burden of proving a discrimination claim, the Act will not alter the landscape of employment-discrimination litigation even if more claims arise as a result of the amendments to Title VII.

The Lilly Ledbetter Fair Pay Act has many possible implications. The central claim of this Comment is that, while the congressional action passing the Act was correct, the terms of the Act must be narrowly construed to avoid further restrictive legislative action on Title VII claims.(fn20) In other words, this Comment recommends that the Lilly Ledbetter Fair Pay Act should be restricted to current payment schemes to prevent a flood of claims unwarranted by Congress's narrow amendment to Title VII of the Civil Rights Act.

This Comment argues the Lilly Ledbetter Fair Pay Act's consequences will be minimally felt, so long as the Act is narrowly construed. This Comment proceeds in four parts. Part II suggests congressional action was appropriate after the Supreme Court's Ledbetter decision and discusses the political and legislative debate leading to the Act. Part III analyzes the Act in application, exploring its meaning, implications, and function. Part IV argues that the concerns and consequences arising from the enactment of the Act can be alleviated and avoided by a narrow interpretation of its amendment to Title VII of the Civil Rights Act. Finally, Part V recommends a narrow interpretation of the Act that will ensure that employment-litigation rates will not drastically increase, will solve the problems posed by current paycheck schemes, and will finally realize fair pay for all Americans.

II. Ledbetter v. Goodyear Tire and Rubber Co. and the Aftermath

The signing of the Lilly Ledbetter Fair Pay Act embodies a climactic moment in an ongoing struggle between Congress and the courts to define the meanings of the civil rights statutes in a variety of contexts.(fn21) Despite the fact that the core issue of the Ledbetter case turned on a statute of limitations technicality, the case, nonetheless, captured the nation's attention.(fn22) Lilly Ledbetter's compelling personal story garnered an outcry of support and effectuated federal legislation.

This Part profiles the events leading up to enactment of the Act. First, I explore Lilly Ledbetter's personal experience during her employment at Goodyear. Second, I follow the progression of Ledbetter's federal court claim, ultimately ending at the Supreme Court's decision. Third, I discuss the political aftermath of the Supreme Court's decision in Ledbetter and examine the Act as it was signed into law. Finally, I analyze the employment-litigation landscape immediately prior to the Act's implementation to set the context in which the Act went into effect.

A. Lilly Ledbetter

In 1979, Lilly Ledbetter began working as an overnight supervisor(fn23) at the Goodyear tire production plant in Gadsden, Alabama.(fn24) Ledbetter worked at Goodyear for the next nineteen years.(fn25) During the course of Ledbetter's employment at Goodyear, approximately eighty people held the same position, but only a handful were women.(fn26) Ledbetter found that it was difficult to fit in amongst her predominantly male col-leagues.(fn27) Eventually, Ledbetter complained to the company about how she was treated by her male supervisors.(fn28) In addition, she filed a complaint with the EEOC.(fn29) Though her supervisor was reassigned, Ledbet-ter experienced continued feelings of isolation and patterns of discrimi-nation,(fn30) as some co-workers refused to talk to her, and she was excluded from important management meetings.(fn31)

For years, Ledbetter was paid less than male employees working at the same level.(fn32) In 1997, Ledbetter was the only female manager at the plant but was earning less than the lowest-paid male employee in the department. (fn33) At the time Ledbetter started working at Goodyear in 1979, all the managers were paid the same amount regardless of gender, so Ledbetter knew she was earning the same amount as the male managers.(fn34) But things changed when Goodyear switched to a new performance-based pay system.(fn35) The new pay system meant that people doing the same jobs could get paid differently, and the company kept all compensation information confidential.(fn36)

Over the course of the next several years, Ledbetter's pay rate changed.(fn37) After some time, Ledbetter suspected she was not earning as much as male employees.(fn38) Hearing rumors that some men were being paid as much as $20,000 a year for overtime work, Ledbetter volunteered for the same amount of overtime as those men.(fn39) When Ledbetter did not receive anything near that $20,000 range in overtime pay, she "figured their salaries must be higher than [hers], but [she] didn't have any proof-just rumors."(fn40)

Eventually, Ledbetter obtained the proof she needed. One of Led-better's managers "told [Ledbetter] that [she] was in fact, getting paid less than the mandatory minimum salary put out in the Goodyear rules."(fn41) Viewed annually, Ledbetter earned anywhere from 15-40% less than her male counterparts, and "this pay gap, which resulted from receiving smaller raises than the men, 'added and multiplied' over the years."(fn42) According to Ledbetter, conclusive evidence of the pay disparities between Ledbetter and her male counterparts arrived "when someone anonymously left a piece of paper in [her] mailbox at work, showing what [she] got paid and what three other male managers were getting paid."(fn43)

Shortly after receiving this information, Ledbetter filed another complaint of discrimination with the EEOC in 1998.(fn44) Ledbetter, now nearly seventy years old, filed her EEOC complaint after she was transferred from her management job to a job requiring her to lift eighty-pound tires for an entire shift.(fn45) From Ledbetter's perspective, this was retribution for filing her...