By Alston Correll

In the wake of the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., pundits, academics and advocates have reacted swiftly and loudly -- calling for an overhaul of current pay related statutes. Professors Joanna Grossman and Deborah Brake, for example, have called not only for changes in Title VII relating to the statute of limitations on pay discrimination claims, but also for extending the statute of limitations for any Title VII claim to two years and eliminating the caps on damages that can be awarded in Title VII actions.

Congress has responded with a spate of proposed legislation aimed at overhauling significant portions of the FLSA, Title VII and other civil rights statutes. The Lilly Ledbetter Fair Pay Act, the Paycheck Fairness Act and the Fair Pay Act of 2007 (Norton Act) are all specifically aimed at curing the perceived deficiencies of existing pay related legislation. In addition, Senator Kennedy has proposed the Equal Remedies Act, which seeks to eliminate all of the damage caps contained in Section 1981a. In short, passage of all or some of this legislation represents a significant change in the nature and litigation of pay discrimination claims.

Certainly, the most notorious piece of legislation currently pending is the Ledbetter Fair Pay Act. This proposed legislation, which has already passed the House, is aimed at addressing the Supreme Court’s decision in Ledbetter v. Goodyear, relating to the statute of limitations for discriminatory pay claims under Title VII. The Ledbetter Act would amend Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act to provide that an unlawful practice occurs with respect to discrimination in compensation when a discriminatory decision or practice is adopted, when an individual becomes subject to the discriminatory compensation decision or practice, or when an individual is affected by the discriminatory compensation decision or practice. The bill expressly states that an individual is affected by the discriminatory compensation decision or practice each time the individual receives a payment of wages, benefits, or other compensation. Thus, the applicable 180- or 300-day time period for filing an EEOC charge challenging an allegedly discriminatory compensation practice would begin to run anew with the receipt of each paycheck or benefit reimbursement check reflecting the discriminatory compensation action, no matter how long it has been since the discriminatory practice began.

The Paycheck Fairness Act, sponsored in the Senate by Senators Clinton, Kennedy and Harkin, would amend the Fair Labor Standards Act to make it much more difficult for an employer to show that disparate pay practices were based on a bona fide factor other than sex. More significantly, the Act would permit plaintiffs to recover compensatory and punitive damages in cases of sex based pay discrimination. Finally, the Paycheck Fairness Act would allow claims of pay discrimination based on sex to be brought as class actions under the Federal Rules of Civil Procedure, as opposed to the traditional collective actions under the FLSA, which require a plaintiff to “opt in” to a case brought by another plaintiff.

The Fair Pay Act of 2007 (commonly the “Norton Fair Pay Act”) takes Senator Clinton’s proposal several steps further. The Norton Act (sponsored by Delegate Norton in the House and Senator Harkin in the Senate) would amend the FLSA to prohibit discriminatory pay on the basis of race, sex or national origin. As with the Paycheck Fairness Act, the Norton Act would also allow the recovery of compensatory and punitive damages in cases brought under the amended FLSA. Unlike any of the other pending legislations, however, the Norton Act would require that employers submit an annual report to the EEOC “ that discloses the wage rates paid to employees of the employer in each classification, position, or job title, or to employees in other wage groups employed by the employer, including information with respect to the sex, race, and national origin of employees at each wage rate in each classification, position, job title, or other wage group.”

Add to this mix Senator Kennedy’s proposed Equal Remedies Act, which would eliminate any caps on damages recoverable in most civil rights cases, and the potential for change in pay discrimination claims seems great. Which of these bills will become law? We don’t know, but here’s what we do know.

• The Ledbetter Act has passed the House and moved on to the Senate.
• The Paycheck Fairness Act is sponsored by the leading Democratic Presidential candidate (Clinton) and co-sponsored by three other candidates (Obama, Dodd and Biden).
• The Norton Act is co-sponsored in the Senate by two Democratic Presidential Candidates (Obama and Dodd).
• The Equal Remedies act is co-sponsored by three Democratic candidates (Clinton, Obama and Dodd).

All of these pieces of legislation would greatly increase the risk involved in a claim for pay discrimination.

In light of what we do know, it seems very likely that pay discrimination and “eliminating the wage gap” will continue to be a priority for many Democratic legislators (and potentially a Presidential candidate or President) for the foreseeable future.