House Passes Ledbetter Act

The US House of Representatives has taken the first step in reversing the disgraceful Ledbetter decision, which held that only the initial act to offer discriminatory pay checks, but not the disparate checks themselves, constituted illegitimate discrimination under Title VII. As a result, the 180-300 day deadline for filing suit would apply to the original decision to discriminate, but not the actual discrimination itself. The net effect was to make it nearly impossible for these suits to be filed, because the evidence of pay disparity would only manifest itself as years passed and the pay inequality grew more acute--but this would be after the statute of limitations expired. Even the arch-conservative Captain Ed admitted that this created an unreasonable policy burden on women, who would need to find out what their male co-workers were being paid, ascertain a discriminatory motive, gather enough evidence to make the case ripe, all in less than a year after the first decision was made.

The vote was 225-199, along mostly party lines. Democrats picked up Chris Shays of Connecticut and Don Young (!) of Alaska. We lost Reps. Dan Boren of Oklahoma, Allen Boyd of Florida, Nancy Boyda of Kansas, Bud Cramer of Alabama, Nick Lampson of Texas and Tim Mahoney of Florida.

Unfortunately, this was the easy part. Most people expect the Senate to pose a tougher test, and President Bush has threatened a veto.

The National Association of Manufacturers has been throwing a fit over at its blog, but me thinks they doth spin too much. Here's their press release:

he National Association of Manufacturers (NAM) expressed deep concern today about U.S. House – passed legislation that would make it more difficult for employers to rectify cases of discrimination and pave the way to endless litigation against businesses.

The Ledbetter Fair Pay Act of 2007 (H.R. 2831) is intended to reverse a recent U.S. Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber Company, which upheld statutory language that lawsuits alleging discrimination must be filed within a reasonable time frame (currently 180-300 days).

“Our members are committed to preventing discrimination of any kind in the workplace, but allowing people to file claims for things that happened years in the past won’t resolve or prevent further discrimination,” said Jason Straczewski, NAM director of employment and labor policy. “If discrimination is occurring, then employers have a genuine concern for rectifying the situation. Filing a complaint years after an incident works against this process, making it harder for a company to take action to prevent future problems.”

Straczewski also stressed that reasonable time constraints on filing ensures that witnesses and information regarding a case is still available. “Essentially, this legislation would open the door to lawsuits that employers cannot defend – where witnesses are unavailable and data is not obtainable. In a case like that, no one wins,” Straczewski added.

The last point is at least vaguely tenable--it may be difficult to find witnesses and original documents on why the original pay discrimination decision was made. It's unclear to me, however, if that will hurt the defendants or the complainant more, as the woman suing will be just as unable to find documentation supporting her claim of discrimination as the company will be in finding defenses. But this argument is hardly controlling, and in any event its buried underneath a mountain of foolishness The law would make it "more difficult for employers to rectify cases of discrimination"? What? How? It doesn't say, and that's a counter-intuitive claim, to say the least. They sort of argue that filing claims later would prevent companies from taking action against the problem, but a) it's entirely unclear why and b) it rests on the rather sad assumption that companies will only react to problems of discrimination while under threat of litigation. Here's a flash--maybe the companies the NAM represents could make efforts to end discrimination independent of their legal liability? After all, they have a "genuine concern" about the issue.

But more importantly, the NAM argument dodges the key assertion being made in favor of the bill: that every time someone receives a pay check that is smaller than her co-workers due to her gender, that's a unique instance of sex discrimination. I'm boggled that this is even controversial, and once that very simple argument is accepted, then all those crocodile tears Straczewski sheds over how the incidents are occurring "years in the past" moot. The incidents are occurring now, the discrimination is happening now, and the victims have the right to sue now.

I could take potshots at the NAM all day, but their an industry lobbying group, so I guess it's understandable (but still disappointing) that they'll go the hack route, rather than work progressively to make discrimination in their ranks a thing of the past. I'd rather do things with their cooperation, but in two years when we have the House, Senate, and Presidency, I'm perfectly happy to steamroller them if we have to.