Ledbetter Act: Now Anyone ‘Affected’ Will Be Able to Sue

From Sen. Kay Bailey Hutchison’s floor statement Wednesday on S. 181, the Lilly Ledbetter Fair Pay Act:

[In] the bill before us there is a major change in common law and in tort law that has also been a part of our legal system and our case law since the beginning of law in our country and in other countries that have the types of laws we do; and that is that a tort accrues a right to the person who is offended or damaged or hurt by another action. It does not accrue to another person who is affected by or might be considered affected by this claim.

Now, there are exceptions to that. But in the main, it is, I think, essential, if we are going to have a statute of limitations that goes beyond the act itself–and in this case it would be 6 months, which is the law today–that it accrue to the person actually injured, the employee, and not some other person on behalf of the person who did not bring the case.

Under the Mikulski bill, the Ledbetter Act, a new right has been given to a person who may not be the person with the injury. So it could be a case where the person dies after working at a place of employment, a business. The person dies, and within 6 months of that person’s last paycheck and subsequent death, some other person–an heir, a child, a mother, a father–could bring a case, which the person who has allegedly been discriminated against chose not to bring or did not bring. In such an absurd case, possible under the Ledbetter bill, you do not even have the person discriminated against to testify.

I think this is a very big hole in the concept of fair play that our legal system tries to provide. By saying “other affected parties,” I think we have opened up a whole new right and possible class of plaintiffs that has not been contemplated before and could achieve an inequitable result.

Also, from the Pennsylvania Labor and Employment Blog, “Record Retention Nightmare Created by Ledbetter Fair Pay Act .” (Hat tap: Point of Law.)

UPDATE (10:40 a.m.): The Enzi amendments are designed to narrow the scope of the change, allowing claims ONLY by the victim, not “other affected parties”:

  • Enzi Amendment No. 28, to clarify standing.
    Page S710
  • Enzi Amendment No. 29, to clarify standing.
    Page S711


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