Nothing Fair About the “Fair Pay Act”

The proposed “Lilly Ledbetter Fair Pay Act” would get rid of the short 180-day deadline for bringing pay discrimination claims that applies under some federal laws, like Title VII.  As I point out in today’s New York Times, that’s unnecessary, since another law, the Equal Pay Act, has a longer 3-year deadline for bringing claims (and other discrimination laws like 42 USC 1981 often have even longer deadlines, like 4 years).  My letter disagreeing with the New York Times’ editorial in support of the law also points out that the proposed “Fair Pay Act” would allow not just employees, but certain third parties, to sue over alleged pay discrimination, making it harder to negotiate settlements.  (The EEOC can sue even if an employee chooses alternative means to settle the dispute, like arbitration.  The bill would change current law to allow even some third parties other than the EEOC to sue).

In the Washington Post, David Drachsler, Vice Chair of the Virginia Council on Human Rights, debunks the Washington Post’s mistaken endorsement of the bill, noting that it would “permit an employee to file a pay discrimination lawsuit years after the pay decision was made, even if the employee was aware of that decision. Indeed, in Lilly Ledbetter’s case, her lower pay, compared with that of men doing similar work, was caused by low performance evaluations of which she was aware years before she filed her charge” of discrimination.

Effectively, the Fair Pay Act would abolish the statute of limitations, by potentially allowing an employee to sue forever as long as she receives a paycheck or pension payment that is supposedly affected by an alleged act of discrimination that occurred decades earlier.  That would allow stale claims of discrimination to be brought long after the alleged discriminator has died, leaving the employer unable to defend itself through exculpatory evidence or rebuttal testimony.

I earlier discussed the bill, which has 56 supporters in the Senate, here, and the dishonest and sensationalistic way that reporters and editorial cartoonists are covering the issue here.