Ledbetter in Congress: the limits of a narrow legislative override.

• Author: Eidmann, Kathryn A.

INTRODUCTION

In Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court held that an employee was barred from suing her employer for pay discrimination under Title VII. (1) The plaintiff, Lilly Ledbetter, was a twenty-year employee of Goodyear who, over the course of her employment, repeatedly received lower raises than her male counterparts because supervisors had given her negative evaluations due to her sex. (2) By the end of her employment at Goodyear, Ledbetter's salary was significantly lower than those of any of her male peers. (3) The Supreme Court, however, held that Ledbetter could not recover because she failed to comply with the Equal Employment Opportunity Commission (EEOC) charge provision, which requires that plaintiffs file claims of employment discrimination with the EEOC within 180 days of the discriminatory act before they may sue under Title VII. (4) The Court held that only the initial pay-setting decisions themselves constituted discrete acts of discrimination; subsequent paychecks were merely "adverse effects" lacking the intent required to establish disparate treatment. (5)

In response, Congress is considering legislation to override the Ledbetter decision by clarifying that under Title VII, a discrete discriminatory act occurs each time an employee is affected by a discriminatory compensation decision. The Lilly Ledbetter Fair Pay Act of 2007 ("Fair Pay Act") passed the House on July 31, 2007, and provides in part that "an unlawful employment practice occurs, with respect to discrimination in compensation ... when an individual is affected by application of a discriminatory compensation decision or other practice...." (6) A substantively similar bill, the Fair Pay Act of 2007, has been introduced in the Senate and is currently being considered by the Committee on Health, Education, Labor, and Pensions. (7) While this Comment discusses the Fair Pay Act as passed by the House, its analysis applies to both versions of the bill, which would have similar effect.

This Comment argues that amending Title VII only with respect to pay discrimination will hinder future plaintiffs in bringing nonwage discrimination claims and will promote future narrowing of the doctrine interpreting Title VII's EEOC charge provision. These consequences contravene both Congress's purpose in enacting the override legislation and past congressional understandings of Title VII. (8) Congress should therefore expand the scope of its legislative override to make clear that each application of a discriminatory policy, whether or not related to compensation, constitutes an unlawful employment practice.

The Fair Pay Act's limitations are symptomatic of a broader flaw in congressional overrides of judicial decisions: when Congress passes legislation focused too narrowly on the factual context of the judicial decision it is designed to override, it may have adverse consequences. For example, future courts may interpret a partial override to signal that Congress endorses the holding except with regard to one specific factual context. Courts may consequently continue to apply the holding in other factual contexts and as a precedent for future development of the doctrine. To avoid these consequences, Congress should better anticipate the way in which future courts will apply a proposed legislative override to other factual contexts and future doctrinal development.

1. THE FAIR PAY ACT'S EFFECT ON FUTURE TITLE VII PLAINTIFFS

   The text of the Fair Pay Act leaves intact Ledbetter's essential holding that "[a] new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination." (9) Future courts, reading the Fair Pay Act to repudiate the principles of Ledbetter only with respect to pay discrimination, likely will continue to bar relief to similarly situated Title VII plaintiffs with non-wage-related claims. For example, plaintiffs affected by non-wage-related intentionally discriminatory policies will still be unable to sue under Title VII unless they file an EEOC charge within 180 or 300 days of the adoption of the policy. (10)

   Several courts have already cited Ledbetter as a bar to suits that do not involve pay discrimination claims. (11) For example, in a contraceptive equity case in the Eighth Circuit, a class of plaintiffs sued AT&T under Title VII for failure to provide contraceptive benefits to its employees. (12) The named plaintiff filed a charge with the EEOC after being denied insurance coverage for contraceptives, but not within three hundred days of the initial adoption of the policy excluding contraceptive coverage from all employee health benefits packages. (13) Although the district court initially found for the plaintiff, when AT&T filed a motion to reconsider summary judgment following another major contraceptive equity decision, (14) it also argued that plaintiffs failed to file a timely EEOC charge under Ledbetter, which had been decided after the district court's initial ruling. (15) Even though the EEOC charge provision was ultimately not dispositive in the case, (16) this type of case, hinging on the application of an intentionally discriminatory policy, will continue to be particularly vulnerable to Ledbetter's reach after the passage of the Fair Pay Act.

   The Fair Pay Act's narrow language will not prevent courts from...