Paycheck Fairness Act Takes Center Stage

Can anyone have seriously imagined that a retired worker from Goodyear would rise to national prominence over a case she lost at the U.S. Supreme Court regarding statute of limitations? And yet, at tonight’s Democratic National Convention, Lilly Ledbetter will take center stage for a few minutes.

No doubt we’ll hear about the Paycheck Fairness Act bill because she’s not endorsing anyone for President.  “Equal Pay for Equal Work” has been one of the talking points of the week.   

There’s been lots of talk of late about the act, which arose from the Ledbetter case (though there was also a Lilly Ledbetter Fair Pay Act bill out there as well). One of the bill’s co-sponsors, Rosa DeLauro commented on it on the Huffington Post late last week and I summarized the latest debate about the bill in a post as well.  Businesses and others have been critical of the act, even though it passed the U.S. House of Representatives last month  (Heritage WebMemo, 7/30; Examiner, 8/6; OpenMarket, 8/6). 

What’s missing from the debate about the bill, unfortunately, is a discussion about what the bill is about and should be about.   It’s not really about pay equity — after all, we already have the Equal Pay Act for that. It’s really about allowing indivdiuals to recover much more in the way of damages than they could otherwise recover (though you’d be hard-pressed to make heads or tails of it from the seemingly technical language used).   And frankly, there’s nothing wrong with advancing that goal if there was a fair debate on the merits.

But unfortunately, the public debate on the bill seems to fall into the classic stereotypes that each side rolls out with a piece of new legislation.  Proponents of the bill suggest that those who are for the bill are FOR pay equity, and those opposing the bill are AGAINST pay equity, which is just hyperbole.  Opponents of the bill have used hyperbole of their own, ignoring the fact that corporations have had to comply with the Equal Pay Act for years and that many are well-suited to address such claims.    

It’s hard to see how some changes will have any real impact on employers.  For instance, one part changes the language regarding a “factor other than sex” defense that an employer can raise to a “bona fide factor other than sex”.   While one can debate the theorhetical differences in language, the real-world effect of the change is probably minimal for employers.  After all, do employers really make salary decisions and think “well, I can explain the differences with reason, but is it a ‘bona fide’ reason”?  And small businesses will be excluded from the act, in the same way that they are excluded from coverage under the Fair Labor Standards Act.

On the other hand, proponents of the bill gloss over the fact that removing some caps on compensatory and punitive damages — as the bill proposes — could have a significant effect on employers and the likelihood of lawsuits (one need only look at the rise of Title VII litigation after the Civil Rights Act of 1991 was passed for a historical perspective). 

Proponents also ignore the fact that the punitive damages portion of the bill would mark a change in philosophy regarding punitive damages (to see the changes in context, click here).  For example, one change would allow punitive damages to be awarded even when no intentional discrimination has been proved — which contradicts the traditional notion that punitive damages should be issued to punish the defendant for some type of malice or reckless behavior. 

The political reality is that some version of this bill is going to get passed and employers need to keep a watchful eye on the bill.  We’ll see in the upcoming weeks whether a compromise is eventually fashioned (much like the compromise being done for the ADA Amendments Act of 2008) or whether this is just political posturing in an election year.  Either way, here’s (perhaps foolishly) hoping that the debate on the bill’s merits gets more substantive than just slogans.

(At Point of Law, Walter Olson’s other site, Carter Wood provides his insights into tonight’s happenings as well.)


  • Either way, here’s (perhaps foolishly) hoping that the debate on the bill’s merits gets more substantive than just slogans.

    Oh, HA HA HA HAA ha haaa haa ha ha…

    Thanks, I needed some humor today.

  • I knew someone would find the humor in that. Too bad hope and optimism are in short supply nowadays….

  • Thanks for the post. I feel like banging my head against the wall every time I read a news or blog story about the Ledbetter case or any of the proposed legislation it has spawned that fails to mention the Equal Pay Act. And that’s pretty much every story (other than at Overlawyered and a few management-side employment law blogs).

    As far as I can tell from the Court’s opinions, when Ms. Ledbetter’s trial attorneys dropped or waived her EPA claims, they shafted her far worse than anything she claims her employer ever did.

  • […] post on the topic at Point of, and employment lawyer Daniel Schwartz examines the related Fair Pay Act at  We imagine the claims, complaints and supposed solutions will flow freely tonight, so at least […]

  • This is the kind of thoughtful analysis that keeps me coming back to this site (along with the lurid tales of Scruggs and Lerach, of course).

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    Indeed, the irony of the Ledbetter case is that there already exists a law that would have permitted Ledbetter to sue. The Equal Pay Act specifically addresses pay disparity and has a longer statute of limitations. But for some reason, Ledbetter’s attorney chose to sue under the all-purpose anti-discrimination law, Title VII, thus dooming her claims.

    So lost in all the demagoguery is that fact that Ledbetter should have just sued her lawyer for malpractice. After all that’s probably what she would have done to a doctor who prescribed the wrong antibiotic for an infection.

  • From reading the changes in context I don’t see where: (a) the cap on punitive damages is removed; (b) where it allows punitive damages without proof of intent.

  • Gender discrimination cases are normally subject to Title VII which has a cap on punitives. Here, the PFA would expand 206(d)(1) without any cap on punitive damages. You have to look back at 29 u.s.c. 206 (d) to see it and its not even in the changes in context version. It would also allow punitives in cases of disparate impact, in which a policy or practice may have an impact on a protected group, but was not intended to be discriminatory.

  • I see. Then it is really deceptive. The parts that one can make out in the changes in context version seem quite reasonable, in some cases just clarifications, and in one case even a limitation on the previous version.

  • I absolutely agree with you. But conservatives do a better job at this than liberals do. No Child Left Behind? Who would vote to leave a child behind? Look at the debate over tort reform, language created by the right and then adopted by all. Reform? Reform is always a pretty good idea, right? Tax relief. Is that a fair way to frame the issue? You are either for relief or you are against? The list goes on and on.

  • […] Daniel Schwartz at Overlawyered examines Ledbetter and the also misnamed Paycheck Fairness Act, encouraging more discrimination lawsuits. […]