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| April 23rd, 2008 |
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Media Contact(s): Mark Eddington or Jared Whitley, (202) 224-5251 |
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HATCH CALLS FAIR PAY RESTORATION ACT MISLEADING AND BAD POLICY
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Washington – Sen. Orrin Hatch (R-Utah) today decried the Fair Pay Restoration Act, calling it a misleading bill that would only boost the pay of trial lawyers.
Speaking before members of the Senate, Hatch took issue with the provision in S. 1843 that would allow workers to sue employers for pay discrimination no matter how long ago the alleged violation occurred.
Sen. Orrin Hatch’s speech on the Senate floor follows:
Mr. President, I rise today in opposition to legislation that would overturn the Supreme Court’s ruling in Ledbetter v. Goodyear Tire. At the outset, let me be perfectly clear about the basis for my opposition to the so-called Fair Pay Restoration Act. I know of no one on either side of the aisle in this Senate who condones any form of unlawful employment discrimination, including pay discrimination.
Indeed, any unlawful employment discrimination under Title VII of the 1964 Civil Rights Act should be confronted promptly and fairly, consistent with the enforcement scheme provided for by the Congress which enacted that law.
Yet, once again we open debate on another magnificently misnamed and misleading bill – the so-called Fair Pay Restoration Act which its proponents claim will “restore” the intent of Congress in enacting the 1964 Civil Rights Act.
In fact, this bill does not restore anything. Certainly not the rights of individuals under the Civil Rights Act and clearly not the statute of limitations set by Congress for the timely filing of unlawful employment discrimination charges, including pay discrimination charges, with the U.S. Equal Employment Opportunity Commission (the EEOC) or similar state agencies.
Congress fully intended the charge-filing period to be 180 days (or 300 days where there are similar state agencies) to encourage prompt, effective investigation, conciliation, and resolution of employment discrimination. It was for that reason that Congress’ carefully chose and designed the current enforcement scheme, which has been consistently upheld by the Supreme Court for more than 40 years.
Over that time, Congress and the courts have wisely encouraged cooperation and voluntary compliance, in the first instance, by the parties themselves and with the timely assistance of the EEOC or similar state agencies, as the preferred method for addressing alleged unlawful employment discrimination.
Where voluntary compliance and conciliation are unsuccessful, Title VII provides for vigorous enforcement by the private parties and the EEOC through litigation.
In other words, voluntary compliance and conciliation first, litigation thereafter whenever necessary.
So, in fact, the so-called Fair Pay Restoration Act does not restore the intent of Congress or the original statute of limitations for the filing of pay discrimination charges, and neither does it restore lost rights under the 1964 Civil Rights Act.
In fact, this bill dramatically expands the charge-filing beyond all recognition and expectations of the Congress which passed the 1964 Civil Rights Act. If this bill were to become law there would be no statute of limitations, no time limit for the filing of alleged pay discrimination charges.
This bill not only expands the statute of limitations for filing charges of alleged unlawful pay discrimination. It also expands the class of individuals who can file such charges. And, beyond reversing the Supreme Court’s Ledbetter decision, which was an intentional discrimination case, this bill expands the time for filing charges involving pay practices which are facially neutral, but could have some type of unintended consequences adverse to women or other protected group.
As to the expansion of charge-filing under the 1964 Civil Rights Act to individuals outside the protected groups, the so-called Fair Pay Restoration Act would eliminate the existing requirement that to have standing there must be an employer-employee or employer-applicant relationship. This bill expands the standing to sue requirements to include individuals affected by application of a discriminatory compensation decision or other practice. This language would appear to include spouse and other relatives, as well as anyone else affected indirectly.
Thus, under this bill, not only could employees and retirees file charges, but so too could relatives even after the employee is dead. I’m not imagining this. In fact, when questioned about whether such a radical expansion of the law’s standing requirements was intended by the bill’s proponents, they responded yes.
Let’s also be candid about the type of pay discrimination alleged. The Ledbetter case involved only claims of intentional discrimination or disparate treatment of individuals in a protected group. This bill would apply also to unintentional discrimination – so-called disparate impact discrimination. Those are cases where the pay practices are neutral and non-discriminatory on their face, but through statistical analysis such pay practices may illustrate an unintended, attenuated disparate impact on a protected group.
Indeed, the challenged pay practices may not have been intentionally, or even have had a disparate impact at the time, but sometime later a social scientist or statistician may assert that the pay practices subsequently may have had an adverse impact on one group or another.
Thus, in fact this bill goes well beyond simply reversing the Supreme Court’s decision in Ledbetter as its proponents claim. I am also convinced that the so-called Fair Pay Restoration Act would turn the system of enforcement established by Congress in 1964 on its head in a way that is most unfair.
The Supreme Court has consistently held in a long line of well-settled and well-recognized case law that under Title VII the statutory period for filing a charge begins to run when the alleged discriminatory decision is made and communicated, not when the complaining party feels the consequences of that decision.
Proponents of this act are permitting an open-ended period for filing charges of pay discrimination with every paycheck and every decision that contributed to current pay, or even with receipt of pension or other retirement checks. The so-called Fair Pay Restoration Act would result in an enforcement scheme of “litigate first and ask questions later” which is directly contrary to Congressional intent. The current statutory charge-filing period did not suddenly pop up under the current Supreme Court’s Ledbetter decision.
In fact, the Supreme Court has long upheld that the current statute of limitations. In an often-quoted passage from the 1974 Supreme Court decision American Pipe v. Utah, the Title VII statutory limitation “promote(s) justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.”
In its 1979 decision in United States v. Kubrick, the Supreme Court said that the charge-filing period under Title VII is “balanced” and “fair” to both employers and employees.
The current filing period allows the employer and the EEOC to investigate the pay discrimination charge; seek compromise, conciliation, settlement and fair resolution of the charge; and allow both parties to prepare for litigation, if necessary, by gathering and preserving evidence for trial where resolution is not possible outside of litigation.
Now let’s look at how the current system would change under the so-called Fair Pay Restoration Act. The plaintiff’s charges of pay discrimination could be brought years later. The employer’s ability to defend its actions or decisions will have dissipated. Managers and decision-makers may no longer be available. Business units may have been reorganized, dissolved, or sold, and operations may have changed or been eliminated. Relevant documents and records which are not required to be preserved by law might have been disposed of.
In effect, as the Supreme Court stated, unless an employer receives prompt notice of allegations of employment discrimination it will have no “opportunity to gather and preserve the evidence with which to sustain (itself).”
I am convinced that the only beneficiaries of the so-called Fair Pay Restoration Act – the only ones who will see an increase in pay – are the trial lawyers. I believe this bill undermines one of the bedrock principles of jurisprudence…the statute of limitations.
Frankly, I may be mistaken, but I know of no other civil statute that allows an unlimited, open-ended time for filing an action. Criminal statutes may be open-ended in bringing indictments, but even criminal misdemeanors generally have a statutory period within which prosecutions must be brought.
For all these reasons, I suggest that this largely political bill is designed to cast its opponents as unsympathetic to victims of pay discrimination, which is simply untrue.
I urge a no vote on cloture on the motion to proceed to this bill.
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