Ledbetter Bill Moves On, Hutchison Amendment Defeated

Just defeated by a vote of mostly partyline vote of 40-55 was Sen. Kay Baily Hutchison’s amendment to S. 181, the Lilly Ledbetter Fair Act. (Roll call vote here.) The amendment would have made sure that complaints and lawsuits were made promptly — a half-year being considered prompt — after the alleged discrimination was learned of, and would have limited the legal claims to those who had actually experienced the discrimination as opposed to anyone “affected.”

The arguments on the Senate floor tend to repeat themselves, invidiously: If you oppose the Ledbetter Act because it does more than merely “fix” the Supreme Court ruling in Ledbetter v. Goodyear Tire and Rubber, will cause of a flood of litigation against business, and discourage the hiring of new employees, you support discrimination against women. So glad to see there’s a new tone in Congress.

Senate Majority Leader Reid says he would like to complete action on the amendments tonight.

Andrew Grossman of the Heritage Foundation outlined the logic behind the Hutchison amendment in a WebMemo today, “Making Ledbetter Better, or At Least Less Bad“:

The most thoughtful alternative to the Ledbetter Act’s approach is embodied in an amendment (SA 25) proposed by Senator Kay Bailey Hutchison (R-TX) and based on her Title VII Fairness Act (S. 166). Rather than allowing any claim–no matter how old, no matter if the plaintiff delayed filing just to gain an upper hand–this amendment would start the limitations period running only when an employee reasonably suspects, or should reasonably suspect, that he or she has been discriminated against.

This kind of filing deadline, known as a “discovery rule,” protects employees who are kept in the dark about pay disparities and the like, while preventing stale claims and gaming of the system. It also preserves the incentive to bring claims quickly so that discrimination is halted sooner, to the benefit not just of the plaintiff but also other potential victims and the public. That, in the end, is what Title VII is all about: ending discrimination.

Oh, Andrew, you just want to discriminate against women.

Seriously, the Grossman memo is excellent, also explaining how the Ledbetter legislation is drafted to maximize the potential payoff for trial lawyers filing speculative lawsuits against employers. One suit begets many others.

UPDATE (1:52 p.m.): In presenting two amendments to limit the discrimination claims to only the affected employee, Sen. Enzi (R-WY) notes repeatedly that the bill was not considered in committee, allowing a mark-up that could have corrected many of the problems with the language.

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