Fair Pay, the Right Way

Tuesday, August 14, 2007

BEFORE LEAVING for its August recess, the House of Representatives approved legislation to blunt the impact of a Supreme Court ruling that severely constricted the opportunity for workers to seek redress in court for pay discrimination. The legislation is needed, but the House included provisions that could unnecessarily burden employers. These problems should be addressed in the Senate, where a companion bill has been filed.

The legislation is a reaction to the Supreme Court's decision in Ledbetter v. Goodyear, in which it ruled that workers must file pay discrimination grievances with the Equal Employment Opportunity Commission within 180 days of an employer's discriminatory pay decision. The ruling, while a defensible reading of the law, is impractical. How is a worker to know -- essentially at the moment her employer makes a pay decision -- that she's unfairly being paid less than her male counterparts? Employers jealously guard pay information, and credible specifics about who's being paid what are rarely the subject of lunchroom chit-chat.

The House legislation allows workers to file grievances within 180 days of receiving a paycheck that reflects a discriminatory pay decision -- even if the initial decision itself was made years before. Every paycheck, in other words, becomes a possible trigger for filing a complaint. This isn't as terrible as some business squawking might lead you to believe: It was a standard that was in use in many parts of the country before the Supreme Court decision, without dire consequences, and businesses would still be protected from abusive claims by existing provisions that cap punitive damages at $300,000 and prevent workers from collecting more than two years' worth of back pay.

Still, the House bill would all but eliminate a statute of limitations, which was not Congress's original intent, and the Senate should consider whether something other than a paycheck trigger may be fairer. One possibility: adopting a "reasonable person" standard. That would allow a worker to file a claim beyond the 180 days now mandated by the court's decision, but not beyond the point where a court could conclude that a "reasonable person" could have or should have been aware of the discrimination. Senators should also eliminate language in the House bill that could be read to allow someone other than the worker to bring a discrimination claim. It should also tighten language that would allow pay discrimination claims that are based on non-pay personnel decisions, such as a transfer to a different job that brings with it a different, but not necessarily discriminatory, compensation scheme.

© 2007 The Washington Post Company