Research Paper: Legislative Case Study on the Lilly Ledbetter Fair Pay Act

Kruttika Gopal

GOVT-321: Congress and Legislative Behavior

November 20, 2020

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The Lilly Ledbetter Fair Pay Act was a monumental piece of legislation that markedly addressed the gender pay gap in the United States. Established over ten years ago in 2009, the policy decision sent the message that unequal pay is not acceptable and prompted an explosion of initiatives aiming to reduce the gender pay gap across the country. The Ledbetter Act was a response to Ledbetter v. Goodyear Tire & Rubber Co., a contentious Supreme Court case from ​ ​ 2007. The court case and ensuing legislation received a significant amount of media coverage and public attention, and when paired with the extensive implications it had for reducing wage discrimination and expanding gender equality, the Lilly Ledbetter Fair Pay Act of 2009 can be considered one of the most unforgettable measures of the Obama administration and the 111th

United States Congress.

In 2007, Lilly Ledbetter, a production supervisor at a Goodyear tire plant in Alabama, sued Goodyear for gender discrimination in violation of Title VII of the Civil Rights Act of

1964. She alleged that over the span of her nineteen-year career at Goodyear, the company had given her a lower salary and consistently given her “low rankings in annual performance-and-salary reviews and low raises relative to other employees” because of her

1 gender. ​ In the initial case, a jury decided in favor of Ledbetter and granted her over $3.5 million, ​ but a district judge later decreased this amount to $360,000. However, Goodyear appealed this to the U.S. Court of Appeals for the Eleventh Circuit, citing a provision of Title VII which

“requires discrimination complaints to [be] made within 180 days of the employer's

2 discriminatory conduct.” ​ The appellate court reversed the trial court’s decision and ruled that ​ the jury can only examine evidence of discrimination in Ledbetter’s career as far back as the last annual salary review before the start of the 180-day limitations period. Ledbetter appealed this to

1 "Ledbetter v. Goodyear Tire and Rubber Company," Oyez, accessed November 17, 2020, ​ ​ https://www.oyez.org/cases/2006/05-1074. 2 Ibid.

Gopal 2 the Supreme Court, which ruled against her in a 5-4 majority vote on May 29th, 2007. The majority determined that Ledbetter's complaint was time-barred because the discriminatory decisions relating to pay had been made more than 180 days prior to the date she filed her

3 charge. ​ Justice Samuel Alito wrote in his concurring opinion that “current effects alone cannot ​

4 breathe life into prior, uncharged discrimination.” ​ Justice Ruth Bader Ginsburg, who voted in ​ favor of Ledbetter, wrote a strong dissenting opinion that expressed an interpretation of Title VII according to which the law runs from the date of any paycheck that contains an amount affected by a prior discriminatory pay decision, rather than complaints being time-barred by exactly 180 days. She stated that the majority ruling was “a cramped interpretation of Title VII, incompatible with the statute's broad remedial purpose” and considered it to be discordant with the realities of wage discrimination.5 ​ Justice Ginsburg’s strongly-worded dissent gained a significant amount of attention and spurred a robust public reaction. A plethora of organizations and activists began speaking out against the Supreme Court ruling, exclaiming that it was a penurious interpretation of Title VII that granted legitimacy to discriminatory practices. For example, Marcia Greenberger, the president of the National Women’s Law Center, said that Ginsburg’s marked dissent was a

“clarion call to the American people that this slim majority of the court is headed in the wrong

6 direction.” ​ Women’s rights activists across the country were exasperated with what they ​ considered to be the court’s rollback of Title VII provisions. Debra Ness, president of the

National Partnership for Women & Families, remarked that the decision “reveals a lack of

3 Ibid. 4 Ledbetter v. Goodyear, 550 U.S. 618 (2007). 5 Ibid. 6 Robert Barnes, “Over Ginsburg's Dissent, Court Limits Bias Suits,” The Washington Post, May 30, 2007, ​ ​ https://www.washingtonpost.com/wp-dyn/content/article/2007/05/29/AR2007052900740.html.

Gopal 3 appreciation for the real-world challenges that women have to face every day in the workplace.”7 ​ The American Civil Liberties Union, the National Association for the Advancement of Colored

People, AARP, the National Organization for Women, and other civil rights organizations sided with Ledbetter. They refuted the court’s decision, saying that employers would not suffer any consequences for recurring discrimination if they could rebuff allegations merely by “arguing that the deadline for complaining about the first episode had passed.”8 ​ Motivated by Justice Ginsburg’s dissidence and the reaction across the country, House

Democrats swiftly reacted with a policy plan countering the court’s decision on June 12th, 2007.

Their legislative approach, which was the first attempt at the Lilly Ledbetter Fair Pay Act, amended the Civil Rights Act of 1964 to resolve this controversy, clarifying that the 180-day window essentially resets with every paycheck that could have been impacted by an alleged discriminatory wage decision. The bill also applied its amendments to claims of compensation discrimination under the Americans with Disabilities Act of 1990, the Rehabilitation Act of

1973, and the Age Discrimination in Employment Act of 1967 in order to reduce unlawful

9 practices of discriminatory compensation across the board. ​ However, the sentiments expressed ​ by the House Democrats were not necessarily reflected in the rest of Congress or the country—the broader implications of contradicting both a Supreme Court ruling and amending ​ ​ the Civil Rights Act of 1964 made many people feel unsettled. Passing this bill was not going to be a simple task for the Democrats, and as will be seen, the fight over this legislation demonstrated the party polarization and divisions between the House and Senate.

7 “High Court Limits Pay-Discrimination Claims,” NBC News, May 29, 2007, ​ ​ https://www.nbcnews.com/id/wbna18920357#.Ufi1bY2TgV0. 8 Ibid. 9 Lilly Ledbetter Fair Pay Act of 2007, H.R.2831 (2007).

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Opposing the bill was not a rare stance, and these adversaries were not silent. The opposition commonly cited potential abuse of the legislation as the main reason for not supporting it. Education and Labor Committee ranking member Howard McKeon (R-CA) claimed that the bill “invites more and costlier lawsuits” as even retiring employees could seek damages against a company led by executives who had nothing to do with the initial act of

10 discrimination. ​ A majority of Republicans felt that easing the time constraints would prompt far ​ too much litigation over very outdated cases. This view was echoed across the country, particularly by legal organizations. Robin Conrad, senior vice president of National Chamber

Litigation Center, asserted that “[y]ou just cannot sit on your claims and decide to file a lawsuit

11 after things have festered over time.” ​ Opponents of the bill also commented on its provisions ​ potentially discouraging employers from hiring women, which contradicts the fundamental purpose of the proposal. Given the economic state of the country at the time, this was also viewed as an act that could undermine efforts to stem the recession. As can be seen, numerous voices of opposition emerged when it was time to debate and vote on the bill.

The 2007 act passed in the House with a 225-199 vote. However, the Senate was the true battleground for the bill. Despite the House and Senate both operationally having Democratic majorities, as two independent senators caucused with the Democrats for organizational purposes, this was not enough to garner full support in the Senate. Senator Johnny Isakson

(R-GA) described the debate as “not [being] about allowing, favoring or supporting discrimination,” and Senate Republicans vehemently affirmed that opposing the bill did not

10 Thomas Ferraro and Kevin Drawbaugh, “Congress Clears Wage Bill for First Obama Signature,” Reuters, January ​ ​ 27, 2009, https://www.reuters.com/article/us-usa-congress-labor/congress-clears-wage-bill-for-first-obama-signature-idUSTR E50Q77Z20090127. 11 “High Court Limits Pay-Discrimination Claims.”

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12 mean that they were unsympathetic to victims of salary discrimination. ​ Ultimately, Senate ​ Republicans filibustered the bill and blocked it by a vote of 56 to 42. The entire debate was highly polarized—Senate Democrats were so agitated by their inability to reach an agreement with the Republicans that they did not even convene the Senate until 5 PM so that their two presidential primary candidates, Senators Hillary Clinton (D-NY) and Barack Obama (D-IL), could return from the campaign trail. Following this further, with senators Barack Obama and

John McCain (R-AZ) both having strong opposing stances on the issue, the Ledbetter Act inevitably became a paramount topic in the 2008 presidential election. Despite the bill not passing in the Senate, it became abundantly clear that this fight was not over.

As both presidential candidates embarked on their campaign trails, they were vocal about their thoughts on the Ledbetter issue. Barack Obama made a pledge to nullify Ledbetter v. ​ Goodyear early on in his campaign and repeatedly endorsed the legislative approach during his ​ fight for the presidency. Lilly Ledbetter gave a rousing speech at the 2008 Democratic National

Convention and appeared in a number of Obama campaign advertisements “blasting John

13 McCain for opposing pay discrimination laws.” ​ Ledbetter was a powerful critic of McCain and ​ an asset to Obama’s campaign. The Supreme Court case became a significant presidential campaign issue and mattered greatly to voters. On the other side of the spectrum, McCain continued his criticism of the legislation and maintained his stance on the court case. He criticized the legislation as being a “boon for trial lawyers” while repeatedly stating that he is for equal pay for equal work.14 ​

12 Carl Hulse, “Republican Senators Block Pay Discrimination Measure,” The New York Times, April 24, 2008, ​ ​ https://www.nytimes.com/2008/04/24/washington/24cong.html. 13 Stephanie Mencimer, “Lilly Ledbetter: Obama’s Newest Ad Star,” Mother Jones, September 23, 2008, ​ ​ https://www.motherjones.com/politics/2008/09/lilly-ledbetter-obamas-newest-ad-star/. 14 “House Passes Act to Make Pay-Discrimination Suits Easier,” CNN, January 22, 2009, ​ ​ https://www.cnn.com/2009/POLITICS/01/27/pay.equity/index.html.

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Furthermore, the discourse surrounding the Ledbetter Act was not limited to the presidential campaigns in 2008. Democratic congressional candidates criticized Republicans that had opposed the bill, voicing their support for its provisions. Republican candidates reaffirmed their conflict with the legislation while simultaneously reassuring the public that this was in no way a reflection of their stances on helping the victims of pay discrimination to seek justice. As the 2008 elections came to a close with Democrats bolstering their majority in both houses of

Congress and Barack Obama securing the presidency, it was clear that Ledbetter’s story, alongside other aspects of the Democratic platform, polled well. The fate of the Lilly Ledbetter

Fair Pay Act suddenly became far more promising.

On January 8, 2009, a mere 12 days before Obama’s inauguration, the bill found its way back into the hands of Congress—this time with more favorable prospects. Senator Barbara

Mikulski (D-MD), a vocal supporter of Ledbetter’s argument since its conception, sponsored the bill. Mikulski had suggested during the 2008 debate of the bill that the still-male-dominated

Senate remained out of touch about the nation’s changing workplaces, promising that “the

15 women will get it, and we will start a revolution.” ​ She was able to do just that in her ​ reintroduction of the bill to the new Congress. In her statement on the floor of the Senate on

nd January 22 ,​ 2009, she presented the bill as part of an effort to “ensure that the income of every ​ 16 level of America grows; not just the very wealthy.” ​ Later that day, the Senate passed the bill ​ without amendment by a vote of 61-36. Every present Democratic senator, the two Independents who caucused with Democrats, and all four Republican women plus Arlen Spector (R-PA) voted in favor of the bill, reflecting that this truly was a women’s rights issue more than anything.

Despite party alignments, the women came forward in support of their right to equal pay.

15 Carl Hulse, “Republican Senators Block Pay Discrimination Measure.” 16 Senator Mikulski, speaking on S.181, on January 22, 2009, 111th Cong., 1st sess., Congressional Record Vol. 155, No. 13, pt. 760.

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Five days later, the bill passed in the House of Representatives by roll call vote of

250-177. The vote was split along party lines for the most part, with three Republicans voting in

17 favor and five Democrats voting against (all of whom were men). ​ Finally, the bill was brought ​ to the desk of newly-inaugurated President Obama on January 29th, 2009. Following months of passionate support for Ledbetter, Obama fulfilled his campaign promise and enthusiastically signed the bill. The Lilly Ledbetter Fair Pay Act of 2009 finally became public law No. 111-2.18 ​ This was Obama’s first piece of legislation following his inauguration as president. Obama congratulated the Congress on their hard work and even danced with Ledbetter at one of his

19 inaugural balls. ​ Of course, however, there continued to be criticisms of the law following its ​ enactment.

For example, newspapers criticized Obama for rejecting his campaign promise to give the

20 public five days of notice to comment on legislation before he signed it. ​ Additionally, ​ employers across the country naturally denounced the law because it placed restrictions on their own policies and legal options. The act required employers to intensify their efforts to ensure that their pay practices are non-discriminatory. It also demanded that they maintain all their records of pay with a heightened level of diligence in case the employer would need to prove the fairness of pay decisions. Moreover, companies feared that the new law would produce a large volume of litigation that they would not know how to handle. The fears expressed by employers across the country lined up with the reasons that many Republicans gave for opposing the bill.

Nevertheless, the overwhelmingly Democratic Congress and administration triumphed over the

Republicans’ alarms.

17 Lilly Ledbetter Fair Pay Act of 2009, S.181 (2009). 18 Ibid. 19 “House Passes Act to Make Pay-Discrimination Suits Easier.” 20 Carrie Budoff Brown, “Obama Breaks Five-Day Pledge,” Politico, February 5, 2009, ​ ​ https://www.politico.com/story/2009/02/obama-breaks-five-day-pledge-018441.

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It is incredibly important to acknowledge the role that this overwhelming majority played in the bill’s uncomplicated route to passage the second time around. There was a quasi-Democratic majority in the 110th Congress, but the original bill still did not pass in the

Senate because the party did not have enough of a solid hold over the body. In the 111th

Congress, the Democratic party had such strongholds in both houses of Congress that they could confidently bring the bill back into consideration. The fact that President George W. Bush did not align with the party trying to get the legislation enacted also played a significant role in the way the country viewed the issue the first time. Had the bill made it to his desk, his potential hesitation could have deterred support for the law or its implementation by employers. If McCain had won the 2008 election, this would likely have been a factor for the same reason as Bush.

Obama’s attainment of the presidency boosted the confidence of the bill’s supporters, as he clearly would not present any roadblocks to its enactment.

Another key aspect of the Ledbetter Act’s route to passage that should be taken into consideration is its timing. Lilly Ledbetter’s situation was brought into the spotlight during a presidential election year, which is when the public most closely pays attention to what is happening in the nation’s capital. Her presence at the Democratic National Convention and her outspoken aversion to McCain in Obama’s campaign advertisements made her a recognizable figure in the political arena. Her story was one that spoke to working women across the country, regardless of their party alignment. At its core, Ledbetter’s case was just an argument for equality, a concept that resonated with many American voters. Lawmakers, whether they were ​ up for reelection or not, were being closely scrutinized by the American people. Thus, this played a large role in Republicans breaking from the rest of their party when it came to their stances on the 2009 bill. The four female Republican senators all voted in favor of the act—a

Gopal 9 testament to the broader women’s rights implications of the law as well as the microscope they were placed under by their voters.

Given all these conditions, it can be argued that the Lilly Ledbetter Fair Pay Act of 2009 followed a relatively “regular order,” rather than an unorthodox path, to passage. The bill’s route was riddled with the typical features of American policymaking. During the 2007 attempt at passing the act, Congress only leaned Democratic and was dichotomized by a Republican executive branch. Stances on the bill were essentially divided along partisan lines. The 2009 attempt was brought up following a presidential election with the entire country watching. This time, its simple route to passage was understandable given the overwhelmingly Democratic

Congress and presidency. Lawmakers’ stances remained divided along partisan lines for the ​ ​ most part, with only a few exceptions. The American people cared significantly about this bill ​ ​ because of its benefits for women. Justice Ginsburg’s dissent rang in the ears of the people, and this tremendous bill was passed into law.

This landmark act made a momentous impact on equal pay discrimination and gender equality forever. It retaliated against the idea that women can legally be paid considerably less than their male counterparts. In a 2008 speech, Lilly Ledbetter explained the importance of this law: “My case is over -- I will never receive the pay I deserve. But there will be a far richer reward if we secure fair pay for our children and grandchildren, so that no one will ever again

21 experience the discrimination that I did.” ​ The Lilly Ledbetter Fair Pay Act of 2009 was the first ​ step in a continuing effort to eradicate the wage gap. The legislation inspires women to fight for equality to this day, and will do so forever.

21 “House Passes Act to Make Pay-Discrimination Suits Easier.”

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Works Cited

Barnes, Robert. “Over Ginsburg's Dissent, Court Limits Bias Suits.” The Washington Post, May ​ ​ 30, 2007.

https://www.washingtonpost.com/wp-dyn/content/article/2007/05/29/AR2007052900740

.html.

Budoff Brown, Carrie. “Obama Breaks Five-Day Pledge.” Politico, February 5, 2009. ​ ​ https://www.politico.com/story/2009/02/obama-breaks-five-day-pledge-018441.

Ferraro, Thomas and Kevin Drawbaugh. “Congress Clears Wage Bill for First Obama

Signature.” Reuters, January 27, 2009. ​ ​ https://www.reuters.com/article/us-usa-congress-labor/congress-clears-wage-bill-for-first

-obama-signature-idUSTRE50Q77Z20090127.

“High Court Limits Pay-Discrimination Claims.” NBC News, May 29, 2007. ​ ​ https://www.nbcnews.com/id/wbna18920357#.Ufi1bY2TgV0.

“House Passes Act to Make Pay-Discrimination Suits Easier,” CNN, January 22, 2009, ​ ​ https://www.cnn.com/2009/POLITICS/01/27/pay.equity/index.html.

Hulse, Carl. “Republican Senators Block Pay Discrimination Measure.” The New York Times, ​ ​ April 24, 2008. https://www.nytimes.com/2008/04/24/washington/24cong.html.

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Ledbetter v. Goodyear, 550 U.S. 618 (2007).

https://www.law.cornell.edu/supct/html/05-1074.ZS.html.

"Ledbetter v. Goodyear Tire and Rubber Company." Oyez. Accessed November 17, 2020. ​ ​ https://www.oyez.org/cases/2006/05-1074.

Lilly Ledbetter Fair Pay Act of 2007, H.R.2831 (2007).

https://www.congress.gov/bill/110th-congress/house-bill/2831/text.

Lilly Ledbetter Fair Pay Act of 2009, S.181 (2009).

https://www.congress.gov/bill/111th-congress/senate-bill/181/actions.

Mencimer, Stephanie. “Lilly Ledbetter: Obama’s Newest Ad Star.” Mother Jones, September 23, ​ ​ 2008.

https://www.motherjones.com/politics/2008/09/lilly-ledbetter-obamas-newest-ad-star/.

U.S. Congress. Congressional Record. 111th Cong., 1st sess., 2009. Vol. 155, pt. 760.

https://www.congress.gov/congressional-record/2009/1/22/senate-section/article/s759-4.