One failure of news coverage of the Lilly Ledbetter Fair Pay Act—which would open the courts to claims of pay discrimination dating back years or decades—is that it has completely ignored a thoughtful alternative proposed by Sen. Kay Bailey Hutchison (R-TX). Hutchison’s Title VII Fairness Act (just reintroduced as S. 166), rather than allowing any claim—no matter how old, no matter if the plaintiff delayed filing just to gain an upper hand—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.
The Ledbetter Act (H.R. 11), in contrast, has less to do with stamping out discriminatory practices than making money for plaintiff’s attorneys. By eliminating the filing deadline, it would actually undermine the law’s strong incentive to resolve cases quickly, and instead encourage savvy parties to strategically delay suit. While they sit on their claims, the passage of time would drive up damages available in court and allow defensive evidence to fade. In this way, other victims who are unaware of discrimination would continue to suffer its effects, while the would-be plaintiff games the law for private gain.
Making the Ledbetter Act even more alluring to trial lawyers is that Title VII claims, unlike those under other laws, allow for punitive damages in addition to make-up pay. (Indeed, Lilly Ledbetter actually abandoned an easier-to-prove and not time-limited claim under the Equal Pay Act, which does not offer punitives.) There is also the possibility of follow-on lawsuits. A single legal victory against an employer could provide the fodder for scores of lawsuits by similarly situated employees and former employees receiving benefits, each alleging a pattern of discrimination affecting pay, as evidenced by the previous lawsuits.
This is how, under the Ledbetter Act, a single stale pay discrimination claim would lay the foundation for a litigation factory.
Sen. Hutchison’s Title VII Fairness Act takes a more cautious approach and is not subject to these kind of abuses.
If Congress is serious about protecting workers from discrimination, it should consider more thoughtful proposals than effectively eliminating Title VII’s limitations period, which could actually be counterproductive to achieving equality. But if its primary aim is to line trial lawyers’ pockets, that is probably the course it will take.