Fair Pay, Fair Play

Wednesday, April 23, 2008

FOR NEARLY a year, employees have been living under a legal scheme that makes it exceedingly difficult for them to seek redress for pay discrimination. The Senate today has the opportunity to consider legislation that would remedy the situation. Lawmakers should agree to an up-or-down vote on the matter and, with a few minor changes in the language, they should pass it.

Last May, the Supreme Court ruled in Ledbetter v. Goodyear that employees who believe they've been paid less because of their sex, race, religion or national origin have 180 days after an employer makes a discriminatory pay decision to file a complaint with the Equal Employment Opportunity Commission. While it is a legally defensible reading of the law, the decision is impractical. Because of the highly secretive nature of pay decisions, most employees rarely know at the time that they're being given short shrift, meaning they would be likely to miss the filing deadline and be barred from pursuing their claims. Before the 5 to 4 Supreme Court decision, the majority of the federal appeals courts and the EEOC considered every paycheck that reflected discriminatory pay as triggering a new opportunity to file a grievance; the bill now before the Senate essentially would restore this approach. The bill, which the White House unfortunately subjected to a veto threat yesterday, would also keep in place provisions that cap damages at $300,000 and prevent workers from collecting more than two years' worth of back pay.

Business leaders argue that the paycheck trigger would allow employees to "sit on their rights" and wait to file suit until years have passed in order to make it more difficult for companies to defend against old allegations. This argument is utterly without merit. In the first place, those who know -- or have strong suspicions -- that they're being discriminated against are unlikely to stay silent and continue to receive what they believe are unjustifiably and illegally low paychecks. Second, the new legislation would allow a paycheck to trigger a new opportunity to file suit only if that paycheck continues to reflect discriminatory pay. The Congressional Budget Office concluded that it's unlikely that many more claims of pay discrimination would be filed under the legislation than were filed before the Supreme Court eliminated the paycheck trigger in 2007.

Before passing the Lilly Ledbetter Fair Pay Act, lawmakers should tweak some of the language to close possible loopholes that could have unintended consequences. For example, lawmakers should clean up language that could be read to allow someone other than the employee to bring the Title VII claim. Minor changes aside, the legislation restores to workers a fair shot at making their case when they suspect they've been the victim of discrimination in pay.

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