Alaska Employment Law

“This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose… Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.”

Justice Ruth Bader Ginsburg read these words on May 29, 2007, in her dissent in Ledbetter v. Goodyear Tire & Rubber Co., Inc. In editorials the very next day, the Washington Post and New York Times both urged Congress to follow her suggestion by overturning the ruling legislatively.

The Democratic Congressional leadership immediately took up the gauntlet. Senators Ted Kennedy (D-MA), Hilary Clinton (D-NY), Barbara Mikulski (D-MD), Barack Obama (D-IL), and Tom Harkin (D-IA), along with a number of House Members, quickly announced their intentions to introduce bills to overturn the decision. Their staff began coordinating efforts to draft appropriate legislation for a “Ledbetter fix.” Both the employment (Health, Education, Labor & Pensions in the Senate, Education & Labor in the House) and judiciary committees wanted to have a hand in it. An ever-expanding list of employment and civil rights groups (including NELA) had numerous meetings, teleconferences, and e-mail exchanges with one another and with Congressional staff.

In the meantime, the House Education and Labor Committee held hearing on the Ledbetter decision for June 12, 2007. The Committee heard the testimony of Lilly Ledbetter, Wade Henderson of the Leadership Council for Civil Rights, and Deborah Brake of the University of Pittsburgh Law School. Mr. Henderson and Professor Brake argued that the Court’s 5-4 decision eviscerates the ability of employees to sue for discriminatory pay practices under Title VII, and they urged Congress to reverse the ruling and reinstate the status quo ante. Neil Mollen testified for the Chamber of Commerce, supporting the Court’s new interpretation of the law, citing fairness to the employer regarding the production of evidence. Brake rebutted this notion by explaining that the burden of proof would still rest on the employee.

A number of Members of the Committee were very engaged in the testimony. For example, Representative Rob Andrews (D-NJ) was able to get Mollen to admit that the result of the Ledbetter decision — that an employee who discovers pay discrimination even one day after the statute of limitations runs out is barred from taking legal action — is unfair.

The text of the bill is still being worked, but is expected soon.

From National Employment Lawyers Association, “On the Hill.”