Research Paper: Legislative Case Study on the Lilly Ledbetter Fair Pay Act Kruttika Gopal GOVT-321: Congress and Legislative Behavior November 20, 2020 Gopal 1 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). Gopal 4 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.” Gopal 5 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.