Re: ACLU urges Senators to vote Yes on H.R. 2831, The Lilly Ledbetter Fair Pay Act of 2007

Dear Senator:

On behalf of the American Civil Liberties Union (ACLU), and its hundreds of thousands of members, activists, and fifty-three affiliates nationwide, we urge you to vote in favor of H.R. 2831, The Lilly Ledbetter Fair Pay Act of 2007, which is necessary to ensure that victims of workplace discrimination have effective remedies. 

As soon as this Wednesday, the Senate is expected to take up the Lilly Ledbetter Fair Pay Act, which already passed the House of Representatives in July 2007.  We urge Members to support H.R. 2831 in order to address a recent Supreme Court decision that undermines protections against discrimination in compensation that have been bedrock principles of civil rights laws for decades.  In this time of economic belt-tightening, we need the Senate to help our nation’s employees earn their rightful wages. 

On May 29, 2007, the Supreme Court ruled in Ledbetter v. Goodyear that workers cannot sue for the later effects of past wage discrimination.  According to the 5-4 decision, the majority held that Ms. Ledbetter did not have a valid claim of wage discrimination because she had not filed her complaint within 180 days of Goodyear’s initial discriminatory pay decision, even though she did not become aware of the unlawfully lower wages until years after the discrimination began.  The decision overturned the common-sense and broadly recognized legal precedent that each paycheck diminished by discrimination carries forward an employer’s unlawful wage decisions.  For Ms. Ledbetter, not only was she unaware of the date the pay discrimination began, but her employer also kept it secret, thereby preventing her from gathering the information that would have been necessary to file a complaint within 180 days of the original discriminatory decision. 

The Supreme Court's decision to limit sharply workers’ opportunities to challenge wage discrimination jeopardizes the robust application of our civil rights laws, which are intended to ensure that salary decisions are not infected by discrimination.  The decision is also at odds with the realities of the workplace.  As Supreme Court Justice Ruth Bader Ginsburg discussed in her dissent, the realities of the workplace may prevent employees from detecting pay discrimination when it first occurs.  It might take years for an employee to uncover the problem, or as in the case of Ms. Ledbetter, it could happen through anonymous information provided by a concerned co-worker years after the initial problem.  Indeed, the majority of workers may never know the salaries of their coworkers.  According to a recent study, only one in ten private sector employers has adopted a pay openness policy.  And many employers instruct employees not to share financial information at all.  Moreover, pay disparities often occur in small increments building up slowly but steadily in an insidious way.  As Justice Ginsburg noted: “cause to suspect that discrimination is at work develops only over time.”

The Court’s decision has implications beyond Title VII, affecting pay discrimination claims brought under the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act.  H.R. 2831, therefore, addresses wage disparity based on race, color, religion, sex, national origin, age, and disability.  It clarifies that such discrimination is not a one-time occurrence starting and ending with a pay decision, but that each paycheck lessened due to discrimination represents a continuing violation by the employer.  It only makes sense that, as long as the discrimination continues, a workers’ ability to challenge it should continue as well.  Critically, this legislation will ensure employers do not profit from years of discrimination simply because their employees were unaware of it for a few months.  Employers should be assured, however, that the bill does not impact the 2-year limit of back pay damages that is currently part of Title VII of the Civil Rights Act of 1964.

The Senate has a proud history of passing our major civil rights laws with strong bipartisan majorities.  From the Civil Rights Act of 1964, which passed with 73 votes, to the Civil Rights Act of 1991, which passed with 93 votes, the Senate has repeatedly come together to do the right thing.  Civil rights should not be a partisan issue.  Far from imposing a new rule on employers, legislation reversing the Ledbetter decision would restore the law that prevailed in the majority of federal circuits and the policy of the EEOC under both Democratic and Republican administrations before the Supreme Court’s ruling.  The injustice done to Lilly Ledbetter and other victims of discrimination has no party affiliation.  This bill restores Congress’ original legislative intent and reaffirms the fundamental principle that both parties have agreed to in the past – that our civil rights protections are intended to have a broad remedial purpose and should make persons whole for injuries suffered because of unlawful employment discrimination.  

This bill is a modest and logical fix.  American workers should know that they are protected from wage discrimination and are able to challenge such discrimination when it becomes known to them.  The ACLU strongly urges all Senators to support this legislation.

Sincerely,                             

Caroline Fredrickson
Director                    

Deborah J. Vagins                               
Policy Counsel for Civil Rights and Civil Liberties