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110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-237

======================================================================



 
                  LILLY LEDBETTER FAIR PAY ACT OF 2007

                                _______
                                

 July 18, 2007.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. George Miller of California, from the Committee on Education and 
                     Labor, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 2831]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and Labor, to whom was referred 
the bill (H.R. 2831) to amend title VII of the Civil Rights Act 
of 1964, the Age Discrimination in Employment Act of 1967, the 
Americans With Disabilities Act of 1990, and the Rehabilitation 
Act of 1973 to clarify that a discriminatory compensation 
decision or other practice that is unlawful under such Acts 
occurs each time compensation is paid pursuant to the 
discriminatory compensation decision or other practice, and for 
other purposes, having considered the same, report favorably 
thereon with an amendment and recommend that the bill as 
amended do pass.
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Lilly Ledbetter Fair Pay Act of 
2007''.

SEC. 2. FINDINGS.

    Congress finds the following:
          (1) The Supreme Court in Ledbetter v. Goodyear Tire & Rubber 
        Co., No. 05-1074 (May 29, 2007), significantly impairs 
        statutory protections against discrimination in compensation 
        that Congress established and that have been bedrock principles 
        of American law for decades. The Ledbetter decision undermines 
        those statutory protections by unduly restricting the time 
        period in which victims of discrimination can challenge and 
        recover for discriminatory compensation decisions or other 
        practices, contrary to the intent of Congress.
          (2) The limitation imposed by the Court on the filing of 
        discriminatory compensation claims ignores the reality of wage 
        discrimination and is at odds with the robust application of 
        the civil rights laws that Congress intended.
          (3) With regard to any charges of discrimination under any 
        law, nothing in this Act is intended to preclude or limit an 
        aggrieved person's right to introduce evidence of unlawful 
        employment practices that have occurred outside the time for 
        filing a charge of discrimination.
          (4) This Act is not intended to change current law treatment 
        of when pension distributions are considered paid.

SEC. 3. DISCRIMINATION IN COMPENSATION BECAUSE OF RACE, COLOR, 
                    RELIGION, SEX, OR NATIONAL ORIGIN.

    Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-
5(e)) is amended by adding at the end the following:
          ``(3)(A) For purposes of this section, an unlawful employment 
        practice occurs, with respect to discrimination in compensation 
        in violation of this title, when a discriminatory compensation 
        decision or other practice is adopted, when an individual 
        becomes subject to a discriminatory compensation decision or 
        other practice, or when an individual is affected by 
        application of a discriminatory compensation decision or other 
        practice, including each time wages, benefits, or other 
        compensation is paid, resulting in whole or in part from such a 
        decision or other practice.
          ``(B) In addition to any relief authorized by section 1977a 
        of the Revised Statutes (42 U.S.C. 1981a), liability may accrue 
        and an aggrieved person may obtain relief as provided in 
        subsection (g)(1), including recovery of back pay for up to two 
        years preceding the filing of the charge, where the unlawful 
        employment practices that have occurred during the charge 
        filing period are similar or related to unlawful employment 
        practices with regard to discrimination in compensation that 
        occurred outside the time for filing a charge.''.

SEC. 4. DISCRIMINATION IN COMPENSATION BECAUSE OF AGE.

    Section 7(d) of the Age Discrimination in Employment Act of 1967 
(29 U.S.C. 626(d)) is amended--
          (1) by redesignating paragraphs (1) and (2) as subparagraphs 
        (A) and (B), respectively; and
          (2) by striking ``(d)'' and inserting 11(d)(1)'';
          (3) in the third sentence, by striking ``Upon'' and inserting 
        the following: ``(2) Upon''; and
          (4) by adding at the end the following:
          ``(3) For purposes of this section, an unlawful practice 
        occurs, with respect to discrimination in compensation in 
        violation of this Act, when a discriminatory compensation 
        decision or other practice is adopted, when a person becomes 
        subject to a discriminatory compensation decision or other 
        practice, or when a person is affected by application of a 
        discriminatory compensation decision or other practice, 
        including each time wages, benefits, or other compensation is 
        paid, resulting in whole or in part from such a decision or 
        other practice.''.

SEC. 5. APPLICATION TO OTHER LAWS.

    (a) Americans With Disabilities Act of 1990.--The amendment made by 
section 3 shall apply to claims of discrimination in compensation 
brought under title I and section 503 of the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12111 et seq., 12203), pursuant to 
section 107(a) of such Act (42 U.S.C. 12117(a)), which adopts the 
powers, remedies, and procedures set forth in section 706 of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e-5).
    (b) Rehabilitation Act of 1973.--The amendments made by section 3 
shall apply to claims of discrimination in compensation brought under 
sections 501 and 504 of the Rehabilitation Act of 1973 (29 U.S.C. 791, 
794), pursuant to--
          (1) sections 501(g) and 504(d) of such Act (29 U.S.C. 791(g), 
        794(d)), respectively, which adopt the standards applied under 
        title I of the Americans with Disabilities Act of 1990 for 
        determining whether a violation has occurred in a complaint 
        alleging employment discrimination; and (2) paragraphs (1) and
          (2) of section 505(a) of such Act (29 U.S.C. 794a(a)) (as 
        amended by subsection (c)).
    (c) Conforming Amendments.--
          (1) Rehabilitation Act of 1973.--Section 505(a) of the 
        Rehabilitation Act of 1973 (29 U.S.C. 794a(a)) is amended--
                  (A) in paragraph (1), by inserting after ``(42 U.S.C. 
                2000e-5 (f) through (k))'' the following: ``(and the 
                application of section 706(e)(3) (42 U.S.C. 2000e-
                5(e)(3)) to claims of discrimination in 
                compensation)''; and
                  (B) in paragraph (2), by inserting after ``1964'' the 
                following: ``(42 U.S.C. 2000d et seq.) (and in 
                subsections (e)(3) of section 706 of such Act (42 
                1U.S.C. 2000e5), applied to claims of discrimination in 
                compensation)''.
          (2) Civil Rights Act of 1964.--Section 717 of the Civil 
        Rights Act of 1964 (42 U.S.C. 2000e-16) is amended by adding at 
        the end the following:
    ``(f) Section 706(e)(3) shall apply to complaints of discrimination 
in compensation under this section.''.
          (3) Age Discrimination Act of 1967.--Section 15(f) of the Age 
        Discrimination in Employment Act of 1967 (29 U.S.C. 633a(f)) is 
        amended by striking ``of section'' and inserting ``of sections 
        7(d)(3) and''.

SEC. 6. EFFECTIVE DATE.

    This Act, and the amendments made by this Act, take effect as if 
enacted on May 28, 2007 and apply to all claims of discrimination in 
compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 
2000e et seq.), the Age Discrimination in Employment Act of 1967 (29 
U.S.C. 621 et seq.), title I and section 503 of the Americans with 
Disabilities Act of 1990, and sections 501 and 504 of the 
Rehabilitation Act of 1973, that are pending on or after that date.

                                Purpose

    H.R. 2831, the Lilly Ledbetter Fair Pay Act of 2007, seeks 
to reverse the Supreme Court's May 29, 2007, ruling in 
Ledbetter v. Goodyear, which dramatically restricted the time 
period for filing pay discrimination claims under Title VII and 
made it more difficult for workers to stand up for their basic 
rights at work. Under this bill, every discriminatory paycheck 
or other compensation resulting, in whole or in part, from an 
earlier discriminatory pay decision or other practice would 
constitute an actionable violation of Title VII, the Americans 
with Disabilities Act, the Rehabilitation Act, and the Age 
Discrimination in Employment Act, regardless of whether the 
decision or other practice to provide the discriminatory 
compensation was adopted outside the filing period for a claim.

 Committee Action Including Legislative History and Votes in Committee


                             110TH CONGRESS

First hearing: Ensuring equal pay for women

    On April 24, 2007, the Committee on Education and Labor 
conducted a hearing on gender based wage discrimination. At 
this hearing, ``Strengthening the Middle Class: Ensuring Equal 
Pay for Women,'' the Committee heard testimony describing the 
scope and causes of gender based wage disparity, examining why 
women currently earn 77 cents for every dollar earned by a 
man.\1\ Witnesses included Representative Rosa DeLauro (D-CT); 
Representative Eleanor Holmes-Norton (D-DC Del.); Catherine 
Hill, Research Director at the American Association of 
University Women; Heather Boushey, Senior Economist for the 
Center for Economic and Policy Research; Dedra Farmer, 
plaintiff in the Wal-Mart sex discrimination class-action 
lawsuit; and Diana Furchtgott-Roth, Director of the Center for 
Employment Policy at the Hudson Institute.
---------------------------------------------------------------------------
    \1\U.S. Census Bureau, U.S. Bureau of Labor Statistics, Annual 
Demographic Survey (Aug. 2006).
---------------------------------------------------------------------------

Second hearing: Title VII and wage discrimination

    On June 12, 2007, the Committee on Education and Labor 
conducted a hearing on the Supreme Court's decision in 
Ledbetter v. Goodyear Tire & Rubber Co.\2\ The hearing, 
``Justice Denied? The Supreme Court's Ledbetter v. Goodyear 
Employment Discrimination Decision,'' examined the effects the 
Supreme Court's decision will have on the ability of 
discrimination victims to assert their rights, particularly in 
cases involving compensation discrimination. Witnesses 
testified, inter alia, that the Court's ruling ignored the 
realities of pay discrimination and is contrary to the intent 
of Title VII. These witnesses stated that Congress must develop 
a legislative fix to clarify that the protections under Title 
VII of the Civil Rights Act, the Age Discrimination in 
Employment Act (ADEA),\3\ the Americans with Disabilities Act 
(ADA)\4\ and the Rehabilitation Act,\5\ extend not only to 
discriminatory pay decisions and practices, but to every 
paycheck that results from discriminatory pay decisions and 
practices. Witnesses included Lilly Ledbetter, plaintiff in 
Ledbetter v. Goodyear; Wade Henderson, President and CEO of the 
Leadership Conference on Civil Rights; Deborah Brake, professor 
at the University of Pittsburgh School of Law; and Neal Mollen, 
on behalf of the U.S. Chamber of Commerce.
---------------------------------------------------------------------------
    \2\127 S.Ct. 2162 (May 29, 2007).
    \3\29 U.S.C. Sec. Sec. 621 et seq.
    \4\42 U.S.C. Sec. Sec. 12101 et seq.
    \5\29 U.S.C. Sec. Sec. 791, 793-94.
---------------------------------------------------------------------------

Introduction of the Ledbetter Fair Pay Act of 2007

    On June 22, 2007, the Ledbetter Fair Pay Act of 2007, H.R. 
2831, was introduced by Representative George Miller (D-CA) and 
was referred to the Education and Labor Committee.

Full Committee Mark-up of the Ledbetter Fair Pay Act of 2007

    On June 27, 2007, the Committee on Education and Labor met 
to markup H.R. 2831. The Committee adopted by voice vote an 
amendment in the nature of a substitute offered by Chairman 
George Miller. Two other amendments were offered and debated. 
None of those amendments were adopted. The Committee voted to 
favorably report H.R. 2831, by a vote of 25-20.
    The Miller amendment in the nature of a substitute 
contained minor technical changes and the following 
modifications to H.R. 2831:
     The Short Title of the bill was modified to read 
the ``Lilly Ledbetter Fair Pay Act of 2007.''
     The provision in H.R. 2831 creating a new Section 
706(e)(3)(B) of the Civil Rights Act was removed. This 
provision clarified that a person, after having already filed a 
charge of pay discrimination, would not have to keep filing new 
charges with each new paycheck. Upon further examination of 
this provision, the Committee believes it is self-evident that 
new charges would not need to be filed with each new paycheck 
or other similar or related instance of pay discrimination in 
order to ensure that those instances are also challengeable in 
the pursuit of the initial charge. Thus, this language is not 
necessary and was removed.
     As a result of the elimination of 706(e)(3)(B), 
paragraph (C), clarifying that persons bringing pay 
discrimination claims are entitled to up to two years of back 
pay recovery, was redesignated as paragraph (B).
     What would have been the new Section 7(d)(3)(B) of 
the ADEA clarifying that new charges need not be refiled with 
each paycheck was also eliminated for the same reasons as the 
Title VII provision.
     A fourth finding was added to clarify that the 
bill, in reversing Ledbetter, was not intended to change 
current law with respect to when pension distributions are 
considered paid.
    Representative Charles Boustany (R-LA) offered an amendment 
in the nature of a substitute which would have amended the bill 
so that it applies only to cases in which the employer 
intentionally discriminates against an employee with regards to 
a discriminatory compensation decision or other unlawful 
practice. H.R. 2831, however, is drawn narrowly to define 
when--for purposes of the 180-day (or 300-day) statute of 
limitations\6\--an unlawful employment practice (already 
defined by Title VII) ``occurs.'' The Boustany amendment was 
defeated by a vote of 18-24.
---------------------------------------------------------------------------
    \6\The 180-day statute of limitations is extended to 300 days when 
an employee first files a charge with a state's equivalent of the Equal 
Employment Opportunity Commission (EEOC). While Title VII has a 180 (or 
300) day statute of limitations, it allows recovery of up to two years 
of backpay, along with other, compensatory and punitive damages.
---------------------------------------------------------------------------
    Representative Ric Keller (R-FL) offered an amendment in 
the nature of a substitute which would have struck ``other 
practices'' from the Act. H.R. 2831 refers to ``decisions or 
other practices'' related to compensation in order to capture 
the wide gamut of compensation practices, from single, discrete 
decisions about pay to arrangements, schemes, systems, or other 
practices related to pay. Eliminating ``other practices'' would 
have resulted in a bill that fails to reverse Ledbetter, 
particularly with any hairsplitting definition of 
``compensation decision.'' ``Other practices'' captures the 
fact pattern in Ledbetter, where sex-based performance 
evaluations were used in conjunction with a performance-based 
pay system to effectuate the discriminatory pay. The amendment 
was defeated by a vote of 20-25.

                                Summary

    The Lilly Ledbetter Fair Pay Act of 2007, H.R. 2831, would 
clarify that when it comes to discriminatory pay, the 
protections of Title VII of the Civil Rights Act, the Age 
Discrimination in Employment Act\7\ (ADEA), the American with 
Disabilities Act\8\ (ADA) and the Rehabilitation Act,\9\ extend 
to every paycheck or other compensation that results from 
discriminatory pay decisions and practices.
---------------------------------------------------------------------------
    \7\29 U.S.C. Sec. Sec. 621 et seq.
    \8\42 U.S.C. Sec. Sec. 12101 et seq.
    \9\29 U.S.C. Sec. Sec. 791, 793-94.
---------------------------------------------------------------------------
    The legislation is designed to rectify the May 29, 2007, 
Supreme Court decision in Ledbetter v. Goodyear. Under H.R. 
2831, every paycheck or other compensation resulting, in whole 
or in part, from an earlier discriminatory pay decision or 
other practice would constitute a violation of Title VII, which 
guards against discrimination on the basis of race, sex, color, 
national origin, and religion.\10\ Each discriminatory paycheck 
would start the clock for filing a charge. As long as workers 
file their charges (as Ledbetter herself did) within 180 days 
of a discriminatory paycheck, their charges will be considered 
timely.
---------------------------------------------------------------------------
    \10\42 U.S.C. Sec. 2000e-2(a).
---------------------------------------------------------------------------
    The Act also clarifies that, with pay discrimination, an 
employee is entitled to up to two years of back pay as provided 
in Title VII already--not just 180 days of back pay, as 
insinuated in Ledbetter and recent revisions of the EEOC 
compliance manual.
    Finally, H.R. 2831 ensures that these simple reforms extend 
to the ADEA, the ADA and the Rehabilitation Act to provide 
these same protections for victims of age and disability 
discrimination.

                     Statement and Committee Views

    The Committee on Education and Labor of the 110th Congress 
is committed to protecting the rights of American workers and 
to ensuring that they have adequate remedies if they are 
discriminated against in the workplace. More than 40 years 
after the passage of the Civil Rights Act of 1964, the Supreme 
Court has weakened the nondiscrimination protections afforded 
to American workers through its decision in Ledbetter v. 
Goodyear. The Congress must respond.
    In Ledbetter, the Court held that under Title VII, 
employees must file a claim of discrimination within 180 days 
of the alleged unlawful employment practice, which runs from 
the initial decision to pay an employee less because of his or 
her race, color, religion, sex or national origin. The result 
is fundamentally unfair to victims of pay discrimination who 
may lose their right to challenge a discriminatory compensation 
action even though it is on-going but may be unknown. While 
workers know immediately when they are fired, refused 
employment or denied a promotion or transfer, the secrecy and 
confidentiality associated with employees' salaries make pay 
discrimination difficult to detect.
    The Lilly Ledbetter Fair Pay Act of 2007 seeks to reverse 
the Supreme Court's decision and restore prior law. The Act 
clarifies that when it comes to discriminatory pay, the 
protections of Title VII of the Civil Rights Act, the ADEA, the 
ADA and the Rehabilitation Act, extend not only to these 
discriminatory pay decisions and practices but to every 
paycheck that results from those pay decisions and practices. 
Finally, the Act ensures that anyone alleging discriminatory 
pay can recover up to 2 years of back pay, as already provided 
under Title VII, regardless of whether the back pay accrued 
outside of the statute of limitations for filing the charge.

          Implications of Ledbetter for Workers' Civil Rights

    Title VII makes it an ``unlawful employment practice'' for 
an employer to discriminate ``against any individual with 
respect to his compensation . . . because of such individual's 
race, color, religion, sex or national origin.''\11\ 
Individuals challenging an employment practice as 
discriminatory are required to file a charge with the Equal 
Employment Opportunity Commission (EEOC) within 180 days, or 
300 days depending on the state, ``after the alleged practice 
occurred.''\12\ Failure to timely file a charge with the EEOC 
constitutes a forfeiture of an employee's right to raise a 
claim in court.
---------------------------------------------------------------------------
    \11\42 U.S.C. Sec. 2000e-2(a).
    \12\Id.
---------------------------------------------------------------------------
    In fiscal year 2006, individuals filed over 800 charges of 
unlawful, sex-based pay discrimination with the EEOC.\13\ If 
Congress does not act to overturn the Ledbetter decision, it 
will become more difficult for employees to bring pay 
discrimination claims under Title VII, and countless 
meritorious claims will never be adjudicated.\14\ By holding 
that the original discriminatory decision ``triggers'' the EEOC 
charging period (i.e. statute of limitations), and a new 
charging period does not commence upon the receipt of each and 
every paycheck perpetuating the past discrimination, the 
employer is forever insulated from liability once the initial 
180-day period has passed even though it continues to pay 
discriminatory compensation.\15\ Consequently, the rule adopted 
by the Court leaves victims of pay discrimination without 
recourse, even though they continue to receive discriminatory 
pay for work currently performed.\16\
---------------------------------------------------------------------------
    \13\The Lilly Ledbetter Fair Pay Act of 2007, Hearing Before the 
Education and Labor Committee, 110th Cong., 1st Sess. (2007) (written 
testimony of Wade Henderson, President and CEO of the Leadership 
Conference on Civil Rights, at 6) [hereinafter Henderson Testimony].
    \14\Id.
    \15\The Lilly Ledbetter Fair Pay Act of 2007, Hearing Before the 
Education and Labor Committee, 110th Cong., 1st Sess. (2007) (written 
testimony of Deborah Brake, Law Professor at the University of 
Pittsburg Law School, at 4) [hereinafter Brake Testimony].
    \16\Ledbetter, supra note 2 at 2184 (Ginsburg dissent). See also, 
Brake Testimony at 12. Brake notes that ``employers would be hard-
pressed to complain that overturning the Ledbetter decision would place 
unfair burdens on employers, since employers have lived with the 
paycheck accrual rule until this very decision.''
---------------------------------------------------------------------------
    Under Ledbetter, victims of pay discrimination, unless they 
file within 180 days of the initial discriminatory pay 
decision, are forced to live with discriminatory paychecks if 
they want to keep their job. Ledbetter requires that a victim 
of pay discrimination must quickly perceive that a 
discriminatory decision was made and promptly report it, within 
the 180-day statute of limitations.
            Pay discrimination is difficult to detect
    The Ledbetter decision ignores the reality that pay 
discrimination is incredibly difficult to detect. Employees 
often have no access to the kinds of information necessary to 
raise a suspicion of pay discrimination, including company-wide 
salary data. In fact, workplace norms often discourage 
conversations among employees about salaries. One-third of 
private sector employers have adopted specific rules 
prohibiting employees from discussing their wages with co-
workers.\17\ Only one in ten employers has adopted a pay 
openness policy.\18\
---------------------------------------------------------------------------
    \17\Henderson Testimony at 3.
    \18\Id.
---------------------------------------------------------------------------
    In addition, pay discrimination is rarely accompanied by 
circumstances suggestive of bias.\19\ In fact, a discriminatory 
pay gap may begin not with a change in a female employee's pay, 
but rather with a decision to increase the pay of male 
colleagues. Unlike hiring, firing, promotion and demotion 
decisions where an individual immediately knows that she has 
suffered an adverse employment action, there is often no 
clearly adverse employment event that occurs with a 
discriminatory pay decision. A pay-setting decision, unless it 
implements a pay cut, is unlikely to be viewed as 
discrimination at the time that it occurs. For example, an 
employee who learns that she is about to receive a four-percent 
raise would have no reason to suspect pay discrimination when 
she does not know about the raises her colleagues earned.\20\
---------------------------------------------------------------------------
    \19\Brake Testimony at 4.
    \20\Id. at 5.
---------------------------------------------------------------------------
            If uncorrected, pay discrimination worsens over time
    Discriminatory pay decisions are not separate and distinct 
from the paychecks that follow them.\21\ In her dissent, 
Justice Ginsburg noted that ``case law demonstrates that it is 
not unusual for employees to work for an employer for quite 
some time before learning of a gender disparity in pay.''\22\ 
Each pay decision builds on the prior one, and unless 
corrected, discriminatory pay decisions can be magnified by 
subsequent percentage-based adjustments. Consequently, what 
would at first appear to be a minor pay disparity could expand 
over the course of an employee's career, even if subsequent 
raises are determined in a nondiscriminatory fashion.\23\ By 
the time the discrimination becomes apparent and unmistakable, 
under Ledbetter, the victim of pay discrimination would find 
her Title VII claims foreclosed.\24\
---------------------------------------------------------------------------
    \21\Brake Testimony, at 1.
    \22\Ledbetter, supra note 2 at 2181. See also, Brake Testimony, at 
6.
    \23\Brake Testimony, at 2.
    \24\See also Linda Babcock and Sara Laschever, ``Women Don't Ask: 
Negotiations and the Gender Divide'' (2003) (demonstrating how a 
discriminatory pay decision can continue to produce an increasing pay 
disparity throughout an individual's career). See also, Brake 
Testimony, at 2.
---------------------------------------------------------------------------
            Employees lose their rights if they assert a pay 
                    discrimination claim too early
    The Ledbetter decision creates a Catch-22 for employees. If 
an employee does not file a charge within 180 days of a 
discriminatory pay decision, she loses the right to challenge 
it. But if an employee complains to an employer too soon--that 
is, without adequate factual and legal foundation\25\--she can 
be fired with no legal recourse. In Clark County School 
District v. Breeden,\26\ the Supreme Court held that an 
employee who opposes what she believes to be unlawful 
discrimination is protected only if she has a ``reasonable 
belief'' that the practice she opposes in fact violates Title 
VII. Otherwise, Title VII's retaliation protections do not 
reach her, and she may be fired. To avoid this situation after 
Ledbetter, an employee should file directly with the EEOC as 
soon as possible, without talking to the employer, despite the 
fact that the law tries to encourage informal conciliation 
between employer and employee to avoid conflict and litigation. 
Neither employers nor employees benefit from such a post-
Ledbetter scheme.
---------------------------------------------------------------------------
    \25\Ledbetter, supra note 2, at 2182. To establish a pay 
discrimination claim, it may take a pattern of substantial pay 
disparities and time to investigate the relevant facts in order to 
demonstrate a legally sufficient inference that the gap is due to 
gender bias, rather than to some legitimate nondiscriminatory reason 
such as performance or experience. In an effort to meet the 180-day 
statute of limitations, an employee may be motivated to complain to her 
employer at the first sign of a pay gap; however she may lack an 
adequate foundation for a reasonable belief that the gap is because of 
gender discrimination.
    \26\532 U.S. 268 (2001).
---------------------------------------------------------------------------
            Other implications of the Ledbetter decision
    The Ledbetter decision extends to Title VII pay 
discrimination cases affecting not only women, but also those 
involving race, color, national origin, and religion. If 
undisturbed, the Ledbetter decision may also affect pay 
discrimination under parallel employment discrimination 
statutes that are patterned on Title VII, such as the ADEA or 
the ADA.\27\
---------------------------------------------------------------------------
    \27\Henderson Testimony, at 4.
---------------------------------------------------------------------------
    Wade Henderson, President and CEO of the Leadership 
Conference on Civil Rights, testified before the Education and 
Labor Committee's June 12, 2007 hearing and stated that while 
the Ledbetter decision is part of the Court's recent pattern of 
limiting both access to the courts and remedies available to 
victims of discrimination,\28\ the Ledbetter decision on its 
own weakens basic protections in ways that Congress never 
intended.
---------------------------------------------------------------------------
    \28\Id. at 6. In his testimony, Henderson highlights that under 
recent Supreme Court rulings: older workers can no longer recover money 
damages for employment discrimination based on age if they are employed 
by the state (Kimel v. FL. Board of Regents, 528 U.S. 62 (2000)); state 
workers can no longer recover money damages if their employers violate 
minimum wage and overtime laws (Alden v. Maine, 527 U.S. 706 (1999)); 
and workers can now be required to give up their right to sue in court 
for discrimination as a condition of employment (Circuit City Stores v. 
Adams, 532 U.S. 105 (2001)).
---------------------------------------------------------------------------
    For example, Henderson notes the case Goodwin v. General 
Motors Corporation.\29\ In Goodwin, an African-American woman 
was promoted to a labor representative position with a salary 
that was approximately $300 to $500 less than other similarly 
situated employees. The pay disparity increased over time, 
until she was being paid $547 less per month than the next 
lowest paid representative. Due to the company's 
confidentiality policy, Goodwin did not discover the disparity 
until she was anonymously given a printout of the salary 
roster. While the district court initially dismissed her Title 
VII race discrimination claim, the Tenth Circuit reversed and 
remanded the case, holding that discriminatory salary payments 
constitute fresh violations of Title VII and each action of 
pay-based discrimination was independent for purposes of the 
statutory time of limitations.\30\ Under Ledbetter, Goodwin 
would have been barred from raising her claim.
---------------------------------------------------------------------------
    \29\275 F.3d 1005 (10th Cir. 2002).
    \30\Id. See also, Henderson Testimony at 5-6.
---------------------------------------------------------------------------
    The Court's analysis in Ledbetter also stands contrary to 
the EEOC's interpretation and application of Title VII, which 
previously permitted employees to challenge continuing pay 
discrimination as long as one paycheck that pays the employee 
less because of sex falls within the limitations period.\31\
---------------------------------------------------------------------------
    \31\EEOC Compliance Manual, Sec. 2-IV-C(1)(a). See also, Ledbetter 
supra note 2, at 2185. (Ginsburg dissent) (citing EEOC administrative 
rulings and litigation positions permitting employees to challenge any 
discriminatory paychecks received within the limitations period).
---------------------------------------------------------------------------
    It is true that victims of sex-based pay discrimination can 
alternatively raise a claim under the Equal Pay Act (EPA). 
However, utilizing the EPA is not a solution to the loss of 
rights presented by Ledbetter. First, under the EPA plaintiffs 
have a different evidentiary standard than under Title VII.\32\ 
An EPA claimant must rely on an opposite sex comparator--that 
she performed the same work or ``equal'' work as higher paid 
males--while Title VII claims do not require comparators so 
long as there is other evidence of discrimination such as that 
the female worker would have been paid more had she been a 
man.\33\ Furthermore, the remedies under Title VII are more 
comprehensive than those under the EPA. While the EPA allows 
recovery of two years of backpay, or three years where the pay 
disparity was willful, Title VII allows two years of backpay, 
compensatory damages, and punitive damages. Moreover, the EPA 
is not available to victims of race, color, national origin, 
religion, age, or disability discrimination.
---------------------------------------------------------------------------
    \32\``Overview of the Equal Pay Act,'' American Association of 
University Women (AAUW), available at: http://www.aauw.org/laf/library/
payequity_epa.cfm. Employers can affirmatively defend and justify 
unequal pay if it is based on: (1) seniority systems; (2) merit 
systems; (3) systems that measure earnings by quality or quantity of 
production; or (4) ``any factor other than sex.'' Historically, courts 
have interpreted the ``any factor other than sex'' criteria so broadly 
that it embraces an almost limitless number of factors, so long as they 
do not involve sex.
    \33\Id.
---------------------------------------------------------------------------
    Under H.R. 2831 employers will continue to have adequate 
legal protections against employees who unreasonably delay 
filing a pay discrimination suit and they do not need the 
protections of the Ledbetter decision.\34\ Opponents of H.R. 
2831 allege that it is necessary to treat pay discrimination as 
a discrete act to protect employers from the burden of 
defending claims arising from employment decisions that are 
long past.\35\ This argument is fundamentally flawed. First, 
pay discrimination like the kind Lilly Ledbetter suffered is 
not long past. With each paycheck that Ledbetter was paid less, 
she was a victim of discrimination. Second, employers who 
allege that they are disadvantaged by an unreasonable or 
prejudicial delay have adequate legal protections.
---------------------------------------------------------------------------
    \34\Brake Testimony, at 10.
    \35\Ledbetter, supra note 2 at 2185.
---------------------------------------------------------------------------
    As Justice Ginsburg notes in her dissent, ``doctrines such 
as waiver, estoppel, and equitable tolling allow [the Court] to 
honor Title VII's remedial purpose without negating the 
particular purpose of the filing requirement, to give notice to 
the employer.\36\ Furthermore, employers can raise a defense of 
laches. Professor Brake notes that, ``lower courts have applied 
the defense of laches to cut off a plaintiff's right to sue 
where the employee has delayed unreasonably in filing her 
claim, even if the employee has met the filing requirements for 
Title VII.''\37\
---------------------------------------------------------------------------
    \36\Id. at 2186.
    \37\Brake Testimony, at 11.
---------------------------------------------------------------------------
    Victims of pay discrimination have no incentive to delay 
filing a charge under H.R. 2831. Opponents of this legislation 
argue that it would encourage plaintiffs to sit on their right 
to sue, and put the employer at a disadvantage when a case is 
finally filed. This assertion is entirely without merit. A 
victim of discrimination has no incentive to delay in ending 
that discrimination. Opponents argue that a victim will allow 
discrimination to continue for years, and make it difficult for 
an employer to defend against old claims of discrimination. It 
would be nonsensical for a victim to allow discriminatory 
paychecks to pile up over years. In the example of a ten year 
old claim, since the back pay award is limited to two years, a 
victim would have to decide to forfeit eight years of back pay. 
Furthermore, there is no merit to the argument that a delay in 
bringing charges unfairly disadvantages the employer. It is the 
employee who bears the burden of proof. The passage of time 
only makes that burden of proof more difficult for the 
employee.
    H.R. 2831 maintains the 180/300 day statute of limitations 
for filing discrimination charges. It does not extend that time 
limit. To have a viable claim, a victim of pay discrimination 
must file a charge within 180/300 days of receiving 
discriminatory pay. If the discriminatory pay was received more 
than 180/300 days ago--because, for example, the employee left 
employment and is no longer receiving compensation from this 
employer or because the employer rectified the discriminatory 
pay and now has been paying the employee in a nondiscriminatory 
and lawful fashion for at least 180/300 days--a charge would be 
untimely under this bill. Rather than encouraging employers to 
hide the ball, run out the clock, and continue reaping the 
financial rewards of paying someone less for discriminatory 
reasons, as is the incentive under the Ledbetter decision, H.R. 
2831 is designed to encourage employers to stop paying 
individuals in an unlawful, discriminatory fashion. Such 
incentive to stop discrimination existed in law prior to 
Ledbetter.

      PAY DISCRIMINATION CASE LAW PRIOR TO THE LEDBETTER DECISION

    The Supreme Court in Ledbetter rejected prior law that 
every discriminatory paycheck is a new violation. The Court 
replaced it with a rule requiring that employees challenge each 
and every discriminatory pay decision within Title VII's short 
statutory limitation period, or lose forever the ability to 
challenge ongoing pay discrimination that results from an 
earlier decision.\38\ Until the Ledbetter case, lower courts 
across the country had allowed plaintiffs to challenge 
discriminatory paychecks received within the limitations 
period, regardless of when the discriminatory pay decision was 
first made, in cases involving pattern-or-practice claims and 
individual claims.\39\
---------------------------------------------------------------------------
    \38\Id. at 1.
    \39\Id. at 13.
---------------------------------------------------------------------------
            The Supreme Court in Bazemore v. Friday--Each week's 
                    paycheck is actionable
    In 1986, the Supreme Court decided the case of Bazemore v. 
Friday,\40\ which involved unequal pay for black and white 
employees. Despite the fact that the discriminatory pay 
decision was made before the passage of Title VII, the Court 
found a violation of Title VII because the employer had 
perpetuated the unequal pay and ``was under an obligation to 
eradicate salary disparities based on race that began prior to 
the effective date of Title VII.''\41\ The Court held that each 
and every paycheck that perpetuated the past discrimination was 
actionable not because the paychecks were `related' to the 
decision made outside the statute of limitations, but because 
they discriminated each and every time they were issued. 
According to the Court, ``each week's paycheck that delivered 
less to a black than to a similarly situated white is a wrong 
actionable under Title VII . . .''\42\
---------------------------------------------------------------------------
    \40\478 U.S. 385 (1986). This case was decided Per Curiam.
    \41\Id. at 397.
    \42\Id. at 395.
---------------------------------------------------------------------------
            The circuit courts of appeal--Each new paycheck is a 
                    separate wrong
    Under Bazemore and until Ledbetter reached the Eleventh 
Circuit, circuit courts understood Title VII to prohibit 
discriminatory disparities in pay occurring within the statute 
of limitations, even if the disparity began outside that 
statute of limitations. This was true for both pattern or 
practice cases and individual cases of pay disparity.\43\
---------------------------------------------------------------------------
    \43\See e.g., Brindley-Obu v. Hughes Training, Inc. 26 F.3d 336 
(4th Cir. 1994); Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d 164 
(8th Cir. 1995) (en banc); Gibbs v. Pierce County Law Enforcement 
Support Agency, 785 F.2d 1396 (9th Cir. 1986); Goodwin v. GMC, 275 F.3d 
1005 (10th Cir. 2002); Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005); 
Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999).
---------------------------------------------------------------------------
    In 2002, the Supreme Court decision in National Railroad 
Passenger Corp. v. Morgan, a hostile work environment case 
under Title VII, distinguished between ``hostile work 
environment'' cases and ``discrete act'' cases. The Court 
explained that ``[d]iscrete acts such as termination, failure 
to promote, denial of transfer, or refusal to hire are easy to 
identify. Each incident of discrimination and each retaliatory 
adverse employment decision constitutes a separate actionable 
`unlawful employment practice.''' A hostile work environment 
claim, however, is of a different nature from these discrete 
acts. According to the Court, ``[i]t does not matter, for 
purposes of the statute, that some of the component acts of the 
hostile work environment fall outside the statutory time 
period. Provided that an act contributing to the claim falls 
within the filing period, the entire time period of the hostile 
environment may be considered by a court for the purposes of 
determining liability.''
    With Morgan, the circuits found further support for the 
rule that every discriminatory paycheck is a new violation of 
the law. The Second Circuit, for example, explained that 
``discriminatory pay scales are not continuing violations . . . 
Instead, such scales involve a number of individual and 
separate wrongs rather than one course of wrongful action . . . 
And, each repetition of wrongful conduct may, as Morgan taught, 
be the basis of a separate cause of action for which suit must 
be brought within the limitations period beginning with its 
occurrence. A salary structure that was discriminating before 
the statute of limitations passed is not cured of that 
illegality after that time passed, and can form the basis of a 
suit if a paycheck resulting from such a discriminatory pay 
scale is delivered during the statutory period.''\44\
---------------------------------------------------------------------------
    \44\Forsyth v. Federation Employment and Guidance Service, 409 F.3d 
565, 573 (2d Cir. 2005) (citing Bazemore and Morgan).
---------------------------------------------------------------------------
    Likewise, the Seventh Circuit found that a discriminatory 
pay claim was timely, based on paychecks received during the 
statutory time period derived from a failure to grant a raise 
that occurred three years prior, explaining: ``We conclude that 
the rule of Bazemore . . ., to the effect that each new 
paycheck is a separate wrong (recently affirmed in . . . Morgan 
. . .), governs this case . . .''\45\ Other circuits applied 
Bazemore and Morgan in the same way.\46\
---------------------------------------------------------------------------
    \45\Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007, 1009 (7th 
Cir. 2003).
    \46\See, e.g., Tademe v. Saint Cloud State Univ., 328 F.3d 982, 989 
(8th Cir. 2003); Williams v. Giant Food, Inc., 370 F.3d 423, 429 (4th 
Cir. 2004); Davidson v. America Online, Inc., 337 F.3d 1179, 1186 (10th 
Cir. 2003); Shea v. Rice, 409 F.3d 448, 453-54 (D.C. Cir. 2005).
---------------------------------------------------------------------------
            The EEOC--Repeated discriminatory paychecks can be 
                    challenged
    The EEOC's compliance manual reflects the pre-Ledbetter 
rule on pay discrimination. Its latest revision following 
Morgan explained:

          In . . . Morgan, the Supreme Court ruled that the 
        timeliness of a charge depends upon whether it involves 
        a discrete act or a hostile work environment claim . . 
        . A discrete act, such as the failure to hire or 
        promote, termination, or denial of transfer, is 
        independently actionable if it is the subject of a 
        timely charge. Such acts must be challenged within 180/
        300 days of the date that the charging party received 
        unequivocal written or oral notification of the action, 
        regardless of the action's effective date . . . 
        Repeated occurrences of the same discriminatory 
        employment action, such as discriminatory paychecks, 
        can be challenged as long as one discriminatory act 
        occurred within the charge filing period.\47\
---------------------------------------------------------------------------
    \47\EEOC Compliance Manual, ``Threshold Issues: Timeliness'' 
Section 2-IV.C (July 21, 2005).

    The EEOC's view is consistent with case law, Title VII, and 
the intent of Congress. Accordingly, the EEOC filed an amicus 
brief arguing for the timeliness of the plaintiff's charge in 
Ledbetter when the case went before the Eleventh Circuit.
            Congressional Intent--Generalizing the rule in Bazemore
    As the dissent in Ledbetter pointed out, congressional 
intent with respect to cases such as Ledbetter was clarified in 
the 1991 Civil Rights Act. There, Congress explicitly reversed 
the Supreme Court decision in Lorance v. AT&T; Technologies,\48\ 
which involved the application of a discriminatory seniority 
system. While the legislative answer to Lorance, Section 112 of 
the Act, dealt only with seniority systems, ``Congress made 
clear (1) its view that this Court had unduly contracted the 
scope of protection afforded by Title VII and other civil 
rights statutes, and (2) its aim to generalize the ruling in 
Bazemore.''\49\ For example, the Sponsors' Interpretative 
Memorandum in 1991 explained: ``This legislation should be 
interpreted as disapproving the extension of [Lorance] to 
contexts outside of seniority systems.''\50\ In Lorance, the 
Court found that the statute of limitations started running at 
the time the employer adopted the seniority system and did not 
restart when the effects of that system were felt. In Section 
112 of the 1991 Civil Rights Act, in response to Lorance, 
Congress clarified that an unlawful employment practice occurs 
with respect to discriminatory seniority systems when such a 
system is adopted, when a person becomes subject to it, and 
when a person is injured by its application.
---------------------------------------------------------------------------
    \48\490 U.S. 900 (1989). This decision was a 5-3 decision with 
Justice O'Connor taking no part. Justice Scalia wrote for the majority, 
which included Justices Rehnquist, White, Stevens and Kennedy. Justices 
Marshall and Blackmun dissented.
    \49\Ledbetter, supra note 2, at 11.
    \50\Id., at 11-12 (quoting 137 Cong. Rec. 29046, 29407 (1991)).
---------------------------------------------------------------------------

                         THE LEDBETTER DECISION

    On May 29, 2007, the Court decided the case of Ledbetter v. 
Goodyear Tire & Rubber Co., Inc.\51\ In a 5-4 decision authored 
by Justice Alito,\52\ the Court rejected Lily Ledbetter's 
argument that each paycheck she received reflected a lower 
salary due to past sex discrimination and therefore constituted 
a new violation of Title VII.\53\ Instead, the Court held that 
the 180-day statute of limitations ran from the day the 
discriminatory decision was made and that ``a new violation 
does not occur and a new charging period does not commence upon 
the occurrence of subsequent nondiscriminatory acts that entail 
effects from the past discrimination.''\54\
---------------------------------------------------------------------------
    \51\Ledbetter, supra note 2.
    \52\Justices Roberts, Scalia, Thomas and Kennedy concurred, while 
Justices Ginsburg, Breyer, Souter and Stevens dissented.
    \53\42 U.S.C. section 2000e-2(a).
    \54\Ledbetter, supra note 2, at 2162.
---------------------------------------------------------------------------
            Facts of the case
    Lily Ledbetter was a female production supervisor at the 
Goodyear plant in Gadsden, Alabama.\55\ She worked there from 
1979 to 1998--a period of 19 years--when she retired.\56\ Six 
months prior to her retirement, Ledbetter filed a charge with 
the EEOC, alleging various acts of sex discrimination.\57\ At 
trial a jury found that Goodyear illegally discriminated 
against her on the basis of her sex.\58\ Some of the evidence 
showed:
---------------------------------------------------------------------------
    \55\Id. at 2178.
    \56\Id.
    \57\Id.
    \58\Id.
---------------------------------------------------------------------------
     Her supervisor admitted that Ledbetter's pay, 
during one year, fell below the minimum threshold for her 
position.\59\
---------------------------------------------------------------------------
    \59\Id. at 2187.
---------------------------------------------------------------------------
     While Goodyear claimed the pay disparity was due 
to poor performance, her supervisor admitted that Ledbetter 
received the ``Top Performance Award'' in 1996.\60\
---------------------------------------------------------------------------
    \60\Id.
---------------------------------------------------------------------------
     Testimony was presented showing a supervisor--who 
evaluated Ledbetter in 1997 and whose evaluation led to her 
most recent raise denial--was openly biased against women.\61\
---------------------------------------------------------------------------
    \61\Id.
---------------------------------------------------------------------------
     Two women who had worked as managers at the plant 
told the jury that they had been subjected to pervasive 
discrimination and were paid less than the men they 
supervised.\62\
---------------------------------------------------------------------------
    \62\Id.
---------------------------------------------------------------------------
     Discriminatory animus was present throughout 
Ledbetter's career. Near the end, a plant manager told 
Ledbetter that ``the plant did not need women, that [women] 
didn't help it, [and] caused problems.''\63\
---------------------------------------------------------------------------
    \63\Id. at 2187.
---------------------------------------------------------------------------
     Initially in line with the salaries of men 
performing the same work, Ledbetter's salary fell 15 to 40 
percent behind her male counterparts after excessive 
evaluations and percentage-based pay adjustments.\64\
---------------------------------------------------------------------------
    \64\Id. at 2181.
---------------------------------------------------------------------------
    The Alabama jury awarded Ledbetter $223,776 in backpay, 
$4,662 in compensatory damages and $3,285,979 in punitive 
damages. The trial court reduced the backpay award to $60,000, 
and reduced the punitive and compensatory damages in accordance 
with the statutory cap adopted in the 1991 Civil Rights Act, to 
$295,338.\65\
---------------------------------------------------------------------------
    \65\Ledbetter v. Goodyear, Brief of Appellant, Lilly Ledbetter, 
2005 U.S. Briefs 1074 at 1078 (Sept. 7, 2006).
---------------------------------------------------------------------------
    Goodyear appealed the case to the Eleventh Circuit Court of 
Appeals, which overturned the verdict.\66\ Unlike the rule 
utilized by other circuits hitherto, the Eleventh Circuit found 
that the operative act of discrimination was the decision what 
to pay Ledbetter not the act of issuing paychecks. Looking only 
at the pay decisions made within the 180 days prior to filing 
the EEOC charge, the Appeals Court concluded that there was 
insufficient evidence to prove that Goodyear acted with 
discriminatory intent.\67\ As a consequence, Lily Ledbetter 
appealed to the Supreme Court and asked the Court to resolve 
the following question:
---------------------------------------------------------------------------
    \66\Ledbetter, supra 2 at 2166.
    \67\Id.
---------------------------------------------------------------------------
          Whether and under what circumstances a plaintiff may 
        bring an action under Title VII of the Civil Rights Act 
        of 1964 alleging equal pay discrimination when the 
        disparate pay is received during the statutory 
        limitations period, but is the result of intentionally 
        discriminatory pay decisions that occurred outside the 
        limitations period.\68\
---------------------------------------------------------------------------
    \68\Id.

    Ms. Ledbetter argued that her Title VII pay discrimination 
claim was timely filed with the EEOC because: the paychecks 
issued to her during the 180 day period each constituted a 
separate act of discrimination, and the 1998 decision denying 
her a raise was unlawful because it perpetuated the 
discriminatory pay decision from previous years.\69\
---------------------------------------------------------------------------
    \69\Jody Feder, Pay Discrimination Claims Under Title VII of the 
Civil Rights Act: A Legal Analysis of the Supreme Court's Decision in 
Ledbetter v. Goodyear Tire & Rubber Co., Inc., Congressional Research 
Service (June 28, 2007).
---------------------------------------------------------------------------
            The majority decision
    The Supreme Court held that Ledbetter's case was time-
barred because no discriminatory acts had taken place within 
the 180-day statute of limitations period. It found that Title 
VII claims alleging disparate treatment require evidence of 
discriminatory intent and that there was none within the 
charging period. The fact that Ledbetter may have been 
currently suffering from discriminatory paychecks based on past 
discrimination was not enough to save her claim.
    The Court relied heavily on the Lorance Court's finding 
that the plaintiffs had not alleged that the new seniority rule 
at issue treated men and women differently or that the rule had 
been applied in a discriminatory manner. The Court explained 
that the complaint of the Lorance plaintiffs was that the rule 
was adopted with discriminatory intent, while the Lorance 
decision held that the ``EEOC charging period ran from the time 
when the discrete act of alleged intentional discrimination 
occurred, not from the date when the effects of this practice 
were felt.''\70\
---------------------------------------------------------------------------
    \70\Id. at 2168.
---------------------------------------------------------------------------
    This reliance on Lorance came despite Congress's explicit 
reversal of that decision in 1991 and the legislative history 
of that reversal, directing the courts to interpret it as not 
just a reversal of that decision but a disapproval of that 
approach in cases beyond seniority systems.\71\
---------------------------------------------------------------------------
    \71\The majority opinion also relied heavily upon the decisions in 
United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) and Delaware State 
College v. Ricks, 449 U.S. 250 (1980), neither of which were pay 
discrimination cases but involved ``single, immediately identifiable'' 
acts of discrimination--a constructive discharge and a denial of 
tenure--qualitatively different from the ``repetitive, cumulative 
discriminatory employment practice'' that is involved in pay 
discrimination cases.
---------------------------------------------------------------------------
    The Court was particularly focused on the issue of 
discriminatory intent noting that Ledbetter made no claim that 
the ``intentionally discriminatory conduct occurred during the 
charging period or that the discriminatory decision that 
occurred prior to that period were not communicated to 
her.''\72\ And it rejected Ledbetter's argument that Goodyear's 
conduct during the charging period gave ``present effect'' to 
its discriminatory conduct before the charging period, holding 
that ``Ledbetter should have filed an EEOC charge within 180 
days after each allegedly discriminatory pay decision was made 
and communicated to her.''\73\
---------------------------------------------------------------------------
    \72\Ledbetter, supra note 2 at 2169.
    \73\Id. at 2170.
---------------------------------------------------------------------------
            The dissent
    Justice Ginsburg was joined by Justices Stevens, Breyer and 
Souter in a strongly-worded dissent. Unlike the majority, she 
found that the Court's decision in Bazemore applied to 
Ledbetter's situation:

        Paychecks perpetuating past discrimination .  .  . are 
        actionable not simply because they are `related' to a 
        decision made outside the charge-filing period . . . 
        but because they discriminate anew each time they 
        issue.\74\
---------------------------------------------------------------------------
    \74\Ledbetter, supra note 2 at 2179.

    She also found the Morgan decision to be equally 
applicable. The Morgan decision, she argued distinguished (for 
purposes of Title VII's timely filing requirement) between 
unlawful actions of two kinds: `discrete acts' that are `easy 
to identify' as discriminatory and acts that are cumulative in 
impact such as hostile environment claims. According to Morgan, 
``if an act contributing to the claim occurs within the filing 
period, the entire period of the hostile environment may be 
considered by a court for purposes of determining 
liability.''\75\
---------------------------------------------------------------------------
    \75\Id. at 2180.
---------------------------------------------------------------------------
    Justice Ginsburg then explained that pay disparities:

        have a closer kinship to hostile environment claims 
        than to charges of a single episode of discrimination. 
        Though component acts fell outside the charge-filing 
        period, with each new paycheck, Goodyear contributed 
        incrementally to the accumulating harm.\76\
---------------------------------------------------------------------------
    \76\2181.

    She also pointed out that pay discrimination is not easy to 
identify and distinguished it from other types of employment 
discrimination. Unlike the worker who immediately knows that 
she is denied a promotion or transfer which someone else gains, 
compensation disparities are often hidden from sight. 
Management does not publish employee pay levels. One-third of 
companies even prohibit employees from discussing their pay 
with each other. Goodyear, for example, kept salaries 
confidential. Moreover, pay disparities are even more difficult 
to discern where a female employee is not denied a raise but 
her male counterparts are given larger ones.
    Justice Ginsburg accused the majority of either not 
comprehending or being indifferent to the insidious nature of 
pay discrimination and found that its opinion was inconsistent 
with the overall anti-discrimination purpose of Title VII. She 
explicitly called on Congress to reverse the Court's decision: 
``the ball is in Congress' court.''\77\
---------------------------------------------------------------------------
    \77\Id. at 2188.
---------------------------------------------------------------------------

                        CONGRESS'S ACTION TODAY

    Just as Congress was forced to act to reverse Lorance in 
1991, Congress is forced to act today to reverse Ledbetter in 
order to ensure the robust application of Title VII (and other 
laws) to fully protect workers from discrimination. 
Congressional action to reassert the viability of 
discrimination claims with respect to pay is particularly 
timely now, with recent reports that the gender gap in pay is 
not improving. An April 2007 study, for example, conducted by 
the American Association of University Women (``AAUW''), 
confirmed found that women who are only one year out of college 
make 80 percent of what men earn, and 10 years later, make only 
69 percent.\78\
---------------------------------------------------------------------------
    \78\Strengthening the Middle Class: Ensuring Equal Pay for Equal 
Work, Hearing Before the Education and Labor Committee, 110th Cong., 
1st Sess. (2007) (written testimony of Catherine Hill, Research 
Director at the American Association of University Women, at 1) 
[hereinafter Hill Testimony]. The AAUW's analysis further demonstrated 
that women full-time workers earn less than men full-time workers in 
nearly every field they work, although the size of the gap varies. 
After controlling for factors like major, occupation, industry, sector, 
hours worked, workplace flexibility, experience, educational 
attainment, enrollment status, grade point average, institution 
selectivity, age, race/ethnicity, region, marital status and children, 
a five percent difference in the earnings of male and female college 
graduates is unexplained. AAUW's analysis showed that (controlling for 
this similar set of factors), ten years after graduation there is a 
twelve percent difference in the earnings of recent male and female 
college graduates that is unexplained and attributable only to gender.
---------------------------------------------------------------------------
    H.R. 2831 is designed to be a narrow reversal of the 
Ledbetter decision, without upsetting any other current law. It 
is also yet another disapproval of the approach used by the 
Court in both Lorance, which has already been reversed by 
Congress, and Ledbetter, which is reversed with this bill. The 
Committee cannot envision every fact pattern in which charges 
might be brought within 180/300 days of an act that effectuates 
a past decision to discriminate. Application of the seniority 
system in Lorance was one; paycheck issuance in Ledbetter was 
another. By rejecting the Court's holdings in these cases, the 
Congress rejects the Court's underlying idea that the statute 
of limitations starts to run upon the mere decision to 
discriminate and not also upon the employer's effectuation of 
that discriminatory decision. An employer who decides to 
discriminate based on pay should be subject to challenge with 
every repeated instance of the employer effectuating that 
decision. Present and future instances of discrimination must 
not be immunized by a cramped reading of when an unlawful 
employment practice occurs for purposes of the statute of 
limitations. Pay discrimination occurs both when an employer 
decides to discriminate and then when the employer actually 
discriminates. Victims of pay discrimination are entitled to 
justice with each paycheck.

                      Section-by-Section Analysis

    The following is a section-by-section analysis of the 
Amendment in the Nature of a Substitute offered by Chairman 
Miller and accepted by the Committee. The changes made by that 
Amendment to H.R. 2831 are specified earlier in this report.
    Section 1. Provides that the short title is the ``Lilly 
Ledbetter Fair Pay Act of 2007.''
    Section 2. Provides several congressional findings.
    The first finding expresses Congress's disapproval of the 
ruling in Ledbetter.
    The second finding explains that the Ledbetter decision is 
inconsistent with both the realities of wage discrimination and 
the robust application of nondiscrimination law that Congress 
intended.
    The third finding clarifies the intent that this bill does 
not preclude or limit the introduction of evidence of unlawful 
employment practices occurring outside the statutory time 
period. Negative inferences about what evidence of unlawful 
employment practices may be considered should not be drawn from 
any of the bill's provisions.
    The fourth finding clarifies the intent that this bill does 
not change current law treatment of when pension distributions 
are considered paid. While the bill includes benefits as a form 
of compensation which could trigger the statute of limitations 
when paid, the bill does not intend to alter how current law 
treats the question of when such benefits are considered paid. 
For example, case law treats the receipt of repeated pension 
checks under a defined benefit plan to be qualitatively 
different from the receipt of paychecks.\79\ One court has 
explained: ``Paychecks are payments for a prior term of work. 
For example, an employee works for a week, then the salary 
structure is applied and the paycheck is issued. Pension 
checks, however, are based on a pension structure that is 
applied only once, when the employee retires, and the pension 
checks merely flow from that single application.''\80\ 
Accordingly under this rule, pension distributions would be 
considered paid upon entering retirement and not upon the 
issuance of each annuity check.
---------------------------------------------------------------------------
    \79\See, e.g., Florida v. Long, 487 U.S. 223, 239 (1988).
    \80\Maki v. Allete, Inc., 383 F.3d 740, 744 (8th Cir. 2004).
---------------------------------------------------------------------------
    Section 3. Amends the Civil Rights Act of 1964 in order to 
reverse Ledbetter. Specifically, this section adds a new 
Section 706(e)(3)(A) to clarify that an unlawful employment 
practice occurs, with respect to compensation discrimination, 
when a discriminatory compensation decision or other practice 
is adopted, when a person becomes subject to a discriminatory 
compensation decision or other practice, or when an individual 
is affected by application of a discriminatory compensation 
decision or other practice, including each time wages, 
benefits, or other compensation is paid, resulting in whole or 
in part from such a decision or other practice. This section is 
the core reversal of the Ledbetter decision. Under this 
provision, Lilly Ledbetter would have had a timely-filed charge 
against her employer. She filed her charge within 180 days of 
receiving a paycheck resulting in whole or in part from an 
earlier discriminatory compensation practice, namely, sex-based 
performance evaluations in conjunction with a performance-based 
pay system resulting in discriminatorily lower pay throughout 
her career.
    Differences between this provision and the Lorance 
legislative fix for seniority systems, Section 706(e)(2), 
provide greater clarity and ensure that Ledbetter is fully and 
clearly reversed. First, this provision is not limited to 
intentional discrimination but deals with all compensation 
discrimination in violation of Title VII, to ensure that 
Ledbetter is not later utilized to limit employees' rights with 
respect to any kinds of compensation discrimination in 
violation of Title VII. Second, while the Lorance legislative 
fix switches between using ``individual'' and ``aggrieved 
person,'' this provision uses the word ``individual'' 
consistently throughout the language for consistency's sake. 
There is no substantive difference here between ``individual'' 
and ``aggrieved person.'' Third, while the Lorance legislative 
fix uses the phrase ``when an aggrieved person is injured,'' 
this provision uses the phrase ``when an individual is 
affected.'' There is no substantive difference between 
``injured'' and ``affected,'' except that ``affected'' is 
simpler and clearer than ``injured'' when the Court has placed 
such emphasis, for purposes of what is actionable, on a 
mistaken disjuncture between the discriminatory decision (the 
pay decision) and subsequent acts effectuating that 
discriminatory decision (the paycheck).
    This section also adds a new Section 706(e)(3)(B) to the 
Act. This new section clarifies that victims of pay 
discrimination are entitled to the full back pay amount 
available--up to two years of back pay as already provided 
under Section 706(g)(1). This section is added to ensure that 
back pay in cases such as Ledbetter are not limited to 180 
days. The statute of limitations period and the back pay 
recovery period are two separate periods in the Act.
    Section 4. Amends the Age Discrimination in Employment Act 
(ADEA) to provide for the same statute of limitations triggers 
as provided in the Civil Rights Act of 1964 amendments in 
Section 3. There is no reason why a fair paycheck rule should 
be limited to discrimination cases under Title VII. It should 
be noted that Section 4 does not include a provision clarifying 
recovery as in Section 3. Such provision is not necessary here, 
since the ADEA operates under a different recovery scheme from 
Title VII which was not called into question by Ledbetter.
    Section 5. Provides that the changes made to the Civil 
Rights Act of 1964 in Section 3 are applicable to the Americans 
with Disabilities Act and the Rehabilitation Act, ensuring that 
victims of pay discrimination because of their disability are 
covered by this bill. This section also provides conforming 
amendments which ensure that federal employees are covered by 
the bill's provisions.
    Section 6. Provides an effective date for the bill. 
Specifically, the bill takes effect as if enacted on May 28, 
2007, the day before the Ledbetter decision, and applies to all 
claims of discrimination pending on or after that date. This 
effective date ensures that no pending or future claims, not 
yet finally adjudicated, are affected by the Ledbetter ruling.

                       Explanation of Amendments

    The Amendment in the Nature of a Substitute is explained in 
the body of this report.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act, requires a description of the application 
of this bill to the legislative branch. H.R. 2831's changes to 
the Civil Rights Act of 1964, the Americans with Disabilities 
Act, the Rehabilitation Act, and the Age Discrimination in 
Employment Act apply to employees of the legislative branch in 
the same way they apply to employees of the private sector and 
federal government employees, to the extent that current law 
applies these acts to various legislative branch employees. A 
variety of statutes and provisions in current law, by way of 
reference, operate to apply nondiscrimination laws to 
legislative branch employees, such as the Equal Employment 
Opportunity Act of 1972, Title III of the 1991 Civil Rights 
Act, and Section 117(a) of the 1991 Civil Rights Act.

                      Regulatory Impact Statement

    As H.R. 2831 merely reverses a Supreme Court decision to 
return to prior law which had already been accepted by lower 
courts and the EEOC, the Committee has determined that H.R. 
2831 will have minimal impact on the regulatory burden.

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates.
    (The CBO letter will address this issue)

                           Earmark Statement

    H.R. 2831 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.

                               Roll Call



  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

               New Budget Authority and CBO Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the House of Representatives and section 308(a) of the 
Congressional Budget Act of 1974 and with respect to 
requirements of 3(c)(3) of rule XIII of the House of 
Representatives and section 402 of the Congressional Budget Act 
of 1974, the Committee has received the following estimate for 
H.R. 980 from the Director of the Congressional Budget Office:
                                                     July 12, 2007.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2831, the Lilly 
Ledbetter Fair Pay Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

H.R. 2831--Lilly Ledbetter Fair Pay Act of 2007

    H.R. 2831 would effectively reverse a recent Supreme Court 
decision (Ledbetter v. Goodyear Tire and Rubber Co., No. 05-
1074, May 29, 2007) that addressed the time period during which 
employees may file claims for pay discrimination. The Court 
ruled that the statute of limitations for such claims begins 
when the original discriminatory act occurs and is communicated 
to the employee. Under H.R. 2831, the statute of limitations 
would begin whenever an employee receives any wages, benefits, 
or other compensation affected by the alleged discriminatory 
act.
    H.R. 2831 would not establish a new cause of action for 
claims of pay discrimination. Because many variables influence 
the filing of a claim for pay discrimination, CBO expects that 
the bill would not significantly affect the number of filings 
with the Equal Employment Opportunity Commission (EEOC). Based 
on information from that agency, CBO estimates the H.R. 2831 
would not significantly increase costs to the EEOC or to the 
federal courts over the 2008-2012 period. Enacting the bill 
would not affect revenues or direct spending.
    Section 4 of the Unfunded Mandates Reform Act of 1995 
excludes from the application of that act legislative 
provisions that enforce statutory rights that prohibit 
discrimination on the basis of race, color, religion, sex, 
national origin, age, handicap, or disability. CBO has 
determined that H.R. 2831 falls within that exclusion and has 
not reviewed the bill for intergovernmental or private-sector 
mandates.
    The CBO staff contact for this estimate is Mark Grabowicz. 
This estimate was approved by Robert A. Sunshine, Assistant 
Director for Budget Analysis.

         Statement of General Performance Goals and Objectives

    In accordance with Clause 3(c) of House rule XIII, the goal 
of H.R. 2831 is to protect individuals from discrimination in 
pay on the basis of sex, race, color, national origin, 
religion, age, or disability, by reversing the Supreme Court's 
Ledbetter decision.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 2831. The 
Committee believes that the amendments made by this bill which 
would clarify that the protections under Title VII of the Civil 
Rights Act, the Age Discrimination in Employment Act (ADEA), 
the Americans with Disabilities Act (ADA) and the 
Rehabilitation Act, extend not only to discriminatory pay 
decisions and practices but to every paycheck that results from 
discriminatory pay decisions and practices are within Congress' 
authority under the Equal Protection Clause, Commerce Clause, 
and Due Process Clause.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 2831. 
However, clause 3(d)(3)(B) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):



CIVIL RIGHTS ACT OF 1964

           *       *       *       *       *       *       *


TITLE VII--EQUAL EMPLOYMENT OPPORTUNITY

           *       *       *       *       *       *       *



              PREVENTION OF UNLAWFUL EMPLOYMENT PRACTICES

    Sec. 706. (a) * * *

           *       *       *       *       *       *       *

    (e)(1) * * *

           *       *       *       *       *       *       *

    (3)(A) For purposes of this section, an unlawful employment 
practice occurs, with respect to discrimination in compensation 
in violation of this title, when a discriminatory compensation 
decision or other practice is adopted, when an individual 
becomes subject to a discriminatory compensation decision or 
other practice, or when an individual is affected by 
application of a discriminatory compensation decision or other 
practice, including each time wages, benefits, or other 
compensation is paid, resulting in whole or in part from such a 
decision or other practice.
    (B) In addition to any relief authorized by section 1977a 
of the Revised Statutes (42 U.S.C. 1981a), liability may accrue 
and an aggrieved person may obtain relief as provided in 
subsection (g)(1), including recovery of back pay for up to two 
years preceding the filing of the charge, where the unlawful 
employment practices that have occurred during the charge 
filing period are similar or related to unlawful employment 
practices with regard to discrimination in compensation that 
occurred outside the time for filing a charge.

           *       *       *       *       *       *       *


           NONDISCRIMINATION IN FEDERAL GOVERNMENT EMPLOYMENT

    Sec. 717. (a) * * *

           *       *       *       *       *       *       *

    (f) Section 706(e)(3) shall apply to complaints of 
discrimination in compensation under this section.

           *       *       *       *       *       *       *

                                ------                                




AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967

           *       *       *       *       *       *       *


             RECORDKEEPING, INVESTIGATION, AND ENFORCEMENT

    Sec. 7. (a) * * *

           *       *       *       *       *       *       *

    (d)(1) No civil action may be commenced by an individual 
under this section until 60 days after a charge alleging 
unlawful discrimination has been filed with the Secretary. Such 
a charge shall be filed--
          [(1)] (A) within 180 days after the alleged unlawful 
        practice occurred; or
          [(2)] (B) in a case to which section 14(b) applies, 
        within 300 days after the alleged unlawful practice 
        occurred, or within 30 days after receipt by the 
        individual of notice of termination of proceedings 
        under State law, whichever is earlier.
[Upon]
    (2) Upon receiving such a charge, the Secretary shall 
promptly notify all persons named in such charge as prospective 
defendants in the action and shall promptly seek to eliminate 
any alleged unlawful practice by informal methods of 
conciliation, conference, and persuasion.
    (3) For purposes of this section, an unlawful practice 
occurs, with respect to discrimination in compensation in 
violation of this Act, when a discriminatory compensation 
decision or other practice is adopted, when a person becomes 
subject to a discriminatory compensation decision or other 
practice, or when a person is affected by application of a 
discriminatory compensation decision or other practice, 
including each time wages, benefits, or other compensation is 
paid, resulting in whole or in part from such a decision or 
other practice.

           *       *       *       *       *       *       *


  NONDISCRIMINATION ON ACCOUNT OF AGE IN FEDERAL GOVERNMENT EMPLOYMENT

    Sec. 15. (a) * * *

           *       *       *       *       *       *       *

    (f) Any personnel action of any department, agency, or 
other entity referred to in subsection (a) of this section 
shall not be subject to, or affected by, any provision of this 
Act, other than the provisions [of section] of sections 7(d)(3) 
and 12(b) of this Act and the provisions of this section.

           *       *       *       *       *       *       *




REHABILITATION ACT OF 1973

           *       *       *       *       *       *       *


TITLE V--RIGHTS AND ADVOCACY

           *       *       *       *       *       *       *



                      REMEDIES AND ATTORNEYS' FEES

    Sec. 505. (a)(1) The remedies, procedures, and rights set 
forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 
2000e-16), including the application of sections 706(f) through 
706(k) (42 U.S.C. 2000e-5 (f) through (k)) (and the application 
of section 706(e)(3) (42 U.S.C. 2000e-5(e)(3)) to claims of 
discrimination in compensation), shall be available, with 
respect to any complaint under section 501 of this Act, to any 
employee or applicant for employment aggrieved by the final 
disposition of such complaint, or by the failure to take final 
action on such complaint. In fashioning an equitable or 
affirmative action remedy under such section, a court may take 
into account the reasonableness of the cost of any necessary 
work place accommodation, and the availability of alternatives 
therefor or other appropriate relief in order to achieve an 
equitable and appropriate remedy.
    (2) The remedies, procedures, and rights set forth in title 
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) 
(and in subsections (e)(3) of section 706 of such Act (42 
U.S.C. 2000e-5), applied to claims of discrimination in 
compensation) shall be available to any person aggrieved by any 
act or failure to act by any recipient of Federal assistance or 
Federal provider of such assistance under section 504 of this 
Act.

           *       *       *       *       *       *       *


                        Committee Correspondence

    None.

                             MINORITY VIEWS

                              INTRODUCTION

    On May 29, 2007, the Supreme Court issued its decision in 
Ledbetter v. Goodyear Tire & Rubber Company, Inc.\1\ At issue 
before the Court was whether a former employee may sue her 
former employer under Title VII of the Civil Rights Act of 1964 
for pay discrimination if she claims that a discriminatory pay 
decision occurred outside of the relevant statute of 
limitations, but is still given effect by virtue of the fact 
that she continues to receive lower pay. Relying on well-
established precedent under Title VII, the Court held that an 
employee in this position cannot sue her employer for an 
otherwise time-barred discriminatory pay action, even if the 
effects of such discrimination are still reflected in her pay 
today. In so doing, the Court gave meaning to the legislative 
text of the Civil Rights Act of 1964; Congress's intent in 
choosing and enacting the language it did; and the strong 
policy interests of fairness and finality reflected in those 
Congressional choices.
---------------------------------------------------------------------------
    \1\Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S.__, 127 
S. Ct. 2162 (2007) (hereinafter ``Ledbetter'' or ``the Ledbetter 
decision'').
---------------------------------------------------------------------------
    The proposition of whether Ledbetter was properly decided 
is a question on which Members on both sides of the aisle, in 
good conscience and in good faith, can disagree. Similarly, the 
question of whether the Court's decision in the case should be 
reversed, limited, or modified, is subject to legitimate 
debate. What is beyond legitimate debate or question is the 
fact that despite its supporters' claims to the contrary, H.R. 
2831, the so-called ``Ledbetter Fair Pay Act,'' goes far beyond 
the mere reversal of the Court's decision in that case. As 
detailed herein, H.R. 2831 is not a narrowly-drawn bill that 
merely reverses the result of one court case, or even a class 
of similar cases. Simply put, H.R. 2831 virtually eliminates 
the statute of limitations with respect to almost every claim 
of discrimination available under federal law, and potentially 
broadens the scope and application of civil rights laws to 
entirely new fact patterns, practices, and claims. It is no 
exaggeration to say that H.R. 2831 represents the most 
comprehensive revision to our nation's civil rights laws to be 
given serious consideration by the Committee in almost two 
decades.
    The vast scope of the changes embodied in H.R. 2831 makes 
its premature and ill-advised consideration all the more 
irresponsible and objectionable. Indeed, in many instances, 
even the bill's supporters appear unclear as to the intent and 
certainly the effect of the bill's provisions, a concern 
highlighted by the fact that the bill was introduced and rushed 
to full Committee markup in five days, without the benefit of 
legislative consideration via the hearing process, stakeholder 
comment and review, or subcommittee consideration. H.R. 2831 is 
bad policy, compounded by bad process, and for the reasons set 
forth below we oppose its passage.

         BACKGROUND: TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

    Title VII of the Civil Rights Act of 1964 makes it an 
unlawful employment practice, inter alia, for an employer to 
discriminate ``against any individual with respect to his [or 
her] compensation . . . because of such individual's . . . 
sex.''\2\ Generally, an individual wishing to challenge an 
employment practice under Title VII (whether it be a 
termination, the denial of a promotion, a pay decision, or 
other adverse employment action) must first file a charge with 
the Equal Employment Opportunity Commission (EEOC) within 180 
days after the alleged unlawful employment practice 
occurred.\3\ If an employee does not submit a timely EEOC 
charge, the employee may not later challenge the subject 
employment practice in court. The period of time running from 
the date of an act of discrimination to the date on which a 
charge must be filed is commonly referred to as the ``charging 
period.''
---------------------------------------------------------------------------
    \2\42 U. S. C. Sec. 2000e-2(a)(1).
    \3\ In states where a state agency has a work-sharing agreement 
with the EEOC and where potential discrimination may be covered by 
state law as well, the time for filing a charge of discrimination is 
extended to 300 days. See 42 U.S.C. Sec. 2000e-5(e)(1).
---------------------------------------------------------------------------

              LEDBETTER V. GOODYEAR TIRE & RUBBER COMPANY

    Lilly Ledbetter worked for Goodyear Tire and Rubber Company 
at its Gadsden, Alabama, plant from 1979 until 1998. During 
much of this time, salaried employees at the plant were given 
or denied raises based on their supervisors' evaluation of 
their performance. In March 1998, Ledbetter submitted a 
questionnaire to the EEOC alleging certain acts of sex 
discrimination, and in July of that year she filed a formal 
EEOC charge. After taking early retirement in November 1998, 
Ms. Ledbetter filed suit against Goodyear in court, including, 
among other things, a Title VII pay discrimination claim and a 
claim under the Equal Pay Act.\4\ The lower court ruled in 
favor of Goodyear on several of Ms. Ledbetter's claims, 
including her Equal Pay Act claim, but allowed others, 
including her Title VII pay discrimination claim, to proceed to 
trial.
---------------------------------------------------------------------------
    \4\See generally 29 U.S.C Sec. 206(d).
---------------------------------------------------------------------------
    At trial, Ms. Ledbetter introduced evidence that during the 
course of her nineteen years of employment at Goodyear, several 
supervisors had given her poor evaluations because of her sex 
(although it appears that many of these claims turned 
principally on the misconduct of a single supervisor whom Ms. 
Ledbetter claims retaliated against her in the early 1980s and 
mid-1990s for rejecting his sexual advances; by the time the 
case went to trial, this supervisor had died). Ms. Ledbetter 
argued that as a result of these evaluations her pay was not 
increased as much as it would have been if she had been 
evaluated fairly, and that these past pay decisions continued 
to affect the amount of her pay throughout her employment. 
Notably (and as discussed in further detail below), she did not 
appear to claim that the alleged discrimination on which she 
based her suit in 1998 was unknown to her at the time it 
occurred in the 1980s and 1990s.
    At trial, Goodyear maintained that Ms. Ledbetter's 
evaluations had been nondiscriminatory. The jury found in her 
favor and awarded her back pay and damages.\5\ Goodyear, on 
appeal, contended that Ms. Ledbetter's pay discrimination claim 
was time-barred with respect to all pay decisions made prior to 
September 26, 1997 (180 days before she filed her charge at the 
EEOC), and that it committed no discriminatory act relating to 
her pay after that date.
---------------------------------------------------------------------------
    \5\ The jury awarded Ms. Ledbetter $223,776 in back pay, $4,662 in 
compensatory damages, and $3.3 million in punitive damages. The trial 
court reduced the back pay award to $60,000, and capped compensatory 
damages at $300,000 pursuant to the Civil Rights Act of 1991 (which 
generally sets for limits damages other than back pay).
---------------------------------------------------------------------------
    The Court of Appeals for the Eleventh Circuit held that a 
Title VII pay discrimination claim cannot be based on any pay 
decision that occurred prior to the last pay decision that 
affected the employee's pay during the charging period. Put 
more simply, the court found that any pay decision made more 
than 180 days prior to Ms. Ledbetter filing her charge with the 
EEOC could not provide the basis for a claim of discrimination. 
The court then concluded that there was insufficient evidence 
to prove that Goodyear had acted with discriminatory intent in 
making the only two pay decisions that occurred within that 
time span, namely, a decision made in 1997 to deny Ms. 
Ledbetter a raise and a similar decision made in 1998. Thus, 
the Appeals Court found in the company's favor and vacated the 
jury's verdict.
    Ms. Ledbetter appealed her case to the Supreme Court, but 
did not seek review of the Court of Appeals' holdings regarding 
the sufficiency of the evidence in relation to the 1997 and 
1998 pay decisions. Rather, she sought review of the following 
question:

          Whether and under what circumstances a plaintiff may 
        bring an action under Title VII of the Civil Rights Act 
        of 1964 alleging illegal pay discrimination when the 
        disparate pay is received during the statutory 
        limitations period, but is the result of intentionally 
        discriminatory pay decisions that occurred out-side the 
        limitations period?

                       THE SUPREME COURT'S RULING

    On May 29, 2007, in a five to four decision,\6\ the Supreme 
Court held that Ms. Ledbetter's claims were not timely. In 
arriving at its ruling, the Court's majority stressed two 
points. First, the Court stressed that its holding in Ledbetter 
was consistent with its prior rulings on the question of when 
the statute of limitations begins to toll for a discrete act of 
discrimination. Second, the Court went on at length to note 
that its decision was compelled by the terms of the statute of 
limitations included in Title VII by Congress, and that 
Congress plainly had given special attention to the policy 
choices underlying a short statute of limitations. As the Court 
observed:
---------------------------------------------------------------------------
    \6\Justice Alito wrote the majority decision, in which he was 
joined by Chief Justice Roberts, and Justices Scalia, Kennedy, and 
Thomas.

          Statutes of limitations serve a policy of repose. 
        They ``represent a pervasive legislative judgment that 
        it is unjust to fail to put the adversary on notice to 
        defend within a specified period of time and that `the 
        right to be free of stale claims in time comes to 
        prevail over the right to prosecute them.''' The EEOC 
        filing deadline ``protect[s] employers from the burden 
        of defending claims arising from employment decisions 
        that are long past.'' Certainly, the 180-day EEOC 
        charging deadline is short by any measure, but ``[b]y 
        choosing what are obviously quite short deadlines, 
        Congress clearly intended to encourage the prompt 
        processing of all charges of employment 
        discrimination.'' This short deadline reflects 
        Congress' strong preference for the prompt resolution 
        of employment discrimination allegations through 
---------------------------------------------------------------------------
        voluntary conciliation and cooperation.\7\

    \7\127 S. Ct. at 2170-71 (citations omitted).

    Based on this reasoning, the Court held that Ms. Ledbetter 
could not base a claim in 1998 on alleged discrimination which 
occurred outside of the 180-day charging period, even if such 
discrimination ``tainted'' her wages today. The Court affirmed 
the Eleventh Circuit's decision in favor of Goodyear.
    In dissent, Justice Ginsberg\8\ argued that pay disparities 
are ``significantly different'' than other adverse employment 
actions such as termination and failure to promote, which she 
believed involve ``fully communicated discrete acts.'' In 
contrast, Justice Ginsburg wrote, ``[p]ay disparities often 
occur, as they did in Ledbetter's case, in small increments; 
cause to suspect that discrimination is at work develops only 
over time,'' Ginsburg said.\9\ She asserted that under Supreme 
Court precedent ``the unlawful practice is the current payment 
of salaries infected by gender-based (or race-based) 
discrimination--a practice that occurs whenever a paycheck 
delivers less to a woman than to a similarly situated 
man.''\10\
---------------------------------------------------------------------------
    \8\Justice Ginsburg was joined by Justices Stephens, Souter, and 
Breyer in her dissent. Significant media attention has been paid to the 
fact that Justice Ginsburg read her dissent from the bench, an unusual 
occurrence, if not one of substantive import.
    \9\127 S. Ct. at 2178-79.
    \10\Id. at 2179 (citation omitted).
---------------------------------------------------------------------------
    Finally, Justice Ginsburg's dissent suggested that an 
employer might ``conceal'' pay discrimination, or otherwise 
make it difficult for an employee to be on notice that he or 
she was the victim of discrimination. In that light, it is 
worth noting that the Court's majority opinion expressly left 
open the question of whether Title VII claims are amenable to a 
``discovery rule.''\11\ The Court did note, however, that in 
Ms. Ledbetter's case, there was no indication that a 
``discovery rule'' would have changed the outcome--Ms. 
Ledbetter herself did not claim that the discrimination she 
alleged to have been the victim of in the 1980s and 1990s was 
unknown to or hidden from her.\12\
---------------------------------------------------------------------------
    \11\A ``discovery rule'' generally provides that the statute of 
limitations on a claim begins to run when a plaintiff is on notice (or 
reasonably should be on notice) of a potential claim, and is intended 
to ensure that meritorious claims are not time-barred simply because a 
defendant conceals facts or otherwise attempts to ``run out the clock'' 
on a plaintiff's claim.
    \12\See 127 S. Ct. at 2177 n. 10.
---------------------------------------------------------------------------
    Almost immediately upon its announcement, the Ledbetter 
decision was met with criticism from plaintiffs' advocates, the 
trial bar, and others in the civil rights community, who 
claimed that the decision represented a radical departure from 
established law validating the ``paycheck rule.'' The Supreme 
Court's decision ``severely weakens remedies for employees who 
have faced wage discrimination and represents a flawed 
interpretation of our civil rights laws,'' said the National 
Women's Law Center.\13\ ``Not only does the ruling ignore the 
reality of pay discrimination, it also cripples the law's 
intent to address it, and undermines the incentive for 
employers to prevent and correct it.\14\ ``The National 
Partnership for Women & Families described the decision as ``a 
painful and costly step backward for the nation and a deep 
disappointment to those of us who want to see strong measures 
in place to give all workers meaningful protections against 
discrimination.''\15\
---------------------------------------------------------------------------
    \13\``Supreme Court Rules 5-4 Filing Period Applies to Each 
Discrete Pay Decision,'' Daily Labor Report, No. 103 (May 30, 2007) 
(BNA) at AA-1.
    \14\Id.
    \15\Id.
---------------------------------------------------------------------------
    In contrast, the employer community has generally supported 
the Supreme Court's ruling in Ledbetter, noting, as did the 
Court's majority, that the holding is directly in line with 
judicial precedent as to when a cause of action for 
discrimination accrues and when it is time-barred. Moreover, 
employer groups have posited that that the decision may 
encourage employees to file pay discrimination charges earlier 
so that pay disputes can be resolved before documents are gone 
and memories have faded. Moreover, they note, filing a charge 
gets the attention of the employer and allows the EEOC to 
investigate and conciliate, which in many instances may result 
in a pay increase for the employee or otherwise reveal a bona 
fide reason for the pay disparity.

   COMMITTEE ON EDUCATION AND LABOR HEARING ON LEDBETTER V. GOODYEAR 
                                DECISION

    On June 12, 2007, the Committee on Education and Labor held 
a hearing entitled ``Justice Denied? The Implications of the 
Supreme Court's Ledbetter v. Goodyear Employment Discrimination 
Decision.'' At that hearing, Ms. Ledbetter herself testified, 
as did an academic, a representative of civil rights groups, 
and Neal D. Mollen, the attorney who represented the United 
States Chamber of Commerce as amicus curiae in the Ledbetter 
case and testified at the hearing on their behalf. The hearing 
focused on the policy issues arising from the Ledbetter 
decision, but did not focus on any particular piece of 
legislation or proposed legislative solution. Mr. Mollen 
testified as to the Court's reasoning in Ledbetter, as well as 
the fundamental policy issues advanced served by the Court's 
decision. In his own words:

          [The] ``paycheck'' limitations rule, soundly and 
        expressly rejected in Ledbetter, would have utterly 
        frustrated Congress' design for attempting to resolve 
        such matters, at least in the first instance, without 
        litigation.
          Moreover, in order to embrace this ``paycheck'' rule, 
        the Supreme Court would have been required to renounce 
        a rule announced in a long line of well-understood 
        cases regarding the application of rules of limitation 
        under Title VII. The Court had repeatedly held that the 
        statute's limitations period begins to run when the 
        alleged discriminatory decision is made and 
        communicated, not when the complainant feels the 
        consequences of that decision. For the Court to 
        overrule this precedent or for the Congress to 
        supersede this settled law with legislation would 
        promote instability and confusion in the law.
          Finally and perhaps most importantly, the Ledbetter 
        decision recognized the profound unfairness inherent in 
        a limitations rule that would permit an individual to 
        sleep on his or her rights for years, or even decades, 
        before raising a claim of discrimination. To defend 
        itself against a claim of discrimination, an employer 
        must be in a position to explain--first to the EEOC and 
        the charging party, and perhaps later to a jury--the 
        reasons it had for making the challenged decisions. To 
        do so, it must rely on the existence of documents and 
        the memories of people, neither of which is permanent. 
        If a disappointed employee can wait for many years 
        before raising a claim of discrimination, as Ms. 
        Ledbetter did in this case, he or she can ``wait out'' 
        the employer, i.e., ensure that the employer is 
        effectively unable to offer any meaningful defense to 
        the claim. That, the Court properly held, is patently 
        unfair. It does not serve Congress' goal--eliminating 
        discrimination to substitute a game of ``gotcha'' for 
        the investigation and conciliation Congress envisioned.
          Statutes of limitation are an expression of society's 
        principled, collective judgment that is it unfair to 
        call upon a defendant to answer serious charges when 
        placed at such a disadvantage. A rule that 
        ``refreshes'' the period of limitations with every 
        paycheck received to permit a challenge to every 
        decision that contributed to current pay cannot be 
        squared with this important societal value.\16\
---------------------------------------------------------------------------
    \16\Testimony of Paul D. Mollen, testifying on behalf of the U.S. 
Chamber of Commerce, Committee on Education and Labor Hearing, 
``Justice Denied? The Implications of the Supreme Court's Ledbetter v. 
Goodyear Employment Discrimination Decision,'' (June 12, 2007) 
(hereinafter, ``Mollen Testimony'' ) at 3-4 (emphasis added).

    Mr. Mollen, an employment law practitioner with decades of 
experience, explained to the Committee why, in particular, the 
policy underlying decisions as to the appropriate time period 
in which to bring a claim should be given particular attention 
in the context of employment-related lawsuits. As Mr. Mollen 
---------------------------------------------------------------------------
testified:

          The interest in repose is particularly compelling in 
        the employment setting. To defeat a claim of 
        discrimination, an employer must be able to articulate 
        its rationale for the challenged decision, and to do so 
        convincingly. In an employment discrimination case, the 
        employer attempts to show at trial that it had good 
        reason for treating the plaintiff in the way it did, 
        and the plaintiff tries to show that the employer's 
        explanation is unworthy of credence; the jury must 
        decide whom to believe. In many, if not most, trials, 
        the testimony devolves to a ``he said/she said'' battle 
        of recollections, and the most vivid rendition of 
        events usually prevails.
          An employer 's ability to tell its story dissipates 
        sharply as time passes. Memories fade; managers quit, 
        retire or die, business units are reorganized, 
        disassembled, or sold; tasks are centralized, 
        dispersed, or abandoned altogether. Unless an employer 
        receives prompt notice that it will be called upon to 
        defend a specific decision or describe a series of 
        events, it will have no ``opportunity to gather and 
        preserve the evidence with which to sustain [itself] . 
        . .'' That is precisely why Congress wisely selected 
        relatively brief periods of limitation for filing 
        administrative charges under Title VII.
          This problem is becoming ever more acute for 
        employers, exacerbated by trends in employee mobility, 
        mergers, expansions, acquisitions, reductions-in-force, 
        divestitures and reorganizations. When a dispute in the 
        workplace is raised promptly as Congress intended, most 
        or all of the decision-makers, witnesses, and human 
        resources representatives an employer will need to 
        consult and to tell its story convincingly are likely 
        to still be working for the defendant employer at the 
        time of a trial, or at least the employer will usually 
        be able to locate them. The employer's ability to 
        muster a defense dwindles, however, as the challenged 
        decision recedes into the past . . .
          The fact that an employer may keep some employment 
        records documenting decisions affecting pay is of 
        little comfort. First, in practice, employers rarely 
        record detailed explanations on paper as to why one 
        employee might have received an incrementally lower or 
        higher pay increase than his or her co-worker. Unlike 
        terminations, which are relatively rare and therefore 
        are usually documented thoroughly at the time, most 
        employers make compensation decisions about every one 
        of their employees every year. The employer can hardly 
        be expected to write extended narratives explaining the 
        rationale for every one of those decisions for every 
        employee, or record comparisons between and among all 
        of the other similarly situated employees--i.e., why 
        Employee A got a 3.5% increase and Employee B got 4%.
          Second, even if this kind of documentation existed, 
        the ``story line'' of an employment decision cannot be 
        told at trial solely with a few pieces of paper. Few 
        defendants are likely to prevail at a trial--even when 
        the challenged decision was entirely bias-free--by 
        meeting the live, detailed, and often emotional 
        testimony of the plaintiff with a few words recorded on 
        a document . . . 
          Thus, the limitations periods selected by Congress in 
        enacting Title VII are rooted in notions of fundamental 
        fairness that are the hallmarks of our American system 
        of justice. The American people are fair. They want 
        individuals to have an opportunity to raise their 
        concerns and, where their legal rights have been 
        invaded, a process through which they can seek redress. 
        But they also believe--correctly--that an injured party 
        has to act with reasonable dispatch in pressing his or 
        her claims. It violates the most basic notions of 
        justice to allow an individual--even one who may have 
        been subjected to discrimination--to wait until the 
        employer is essentially defenseless to raise the 
        allegation. \17\
---------------------------------------------------------------------------
    \17\Id. at 5-7 (emphasis added; citation omitted).

    Insofar as no legislative proposal was pending before the 
witnesses, the Committee was not able to ascertain the views of 
any witness, stakeholder, or interested party as to what 
specific language to reverse the Ledbetter decision or adopt a 
``paycheck rule'' more broadly might look like. These witnesses 
were not able to offer their views as to whether H.R. 2831 
accomplishes these goals, does less than that, or does more 
than that, insofar as that bill was not introduced until ten 
days after the hearing.

                 H.R. 2831, THE LEDBETTER FAIR PAY ACT

    On the afternoon of Friday, June 22, 2007, Chairman Miller 
introduced H.R. 2831, the ``Ledbetter Fair Pay Act of 2007,'' 
legislation which its supporters purport is a ``narrowly 
drawn'' bill simply intended to overturn the Supreme Court's 
Ledbetter decision. The afternoon of the June 22 was the first 
time that Minority Members and staff were afforded the 
opportunity to review legislative text ostensibly relating to 
the Supreme Court's Ledbetter decision.
    In general, H.R. 2831 amends four different statutes (Title 
VII of the Civil Rights Act of 1964, which applies to 
discrimination on the basis of race, color, religion, sex, or 
national origin; the Age Discrimination in Employment Act, 
which prohibits discrimination on the basis of age; and the 
Americans with Disabilities Act and its precursor, the National 
Rehabilitation Act, which both prohibit discrimination on the 
basis of disability). With respect to each of these statutes, 
H.R. 2831 would:
     Eliminate the statute of limitations and EEOC 
charging requirements for any claim of discrimination, no 
matter how long ago, that could be characterized as an 
(undefined) ``discriminatory compensation decision or other 
practice.'' H.R. 2831 allow an individual to bring a claim of 
discrimination where he or she alleges to have been the victim 
of a ``discriminatory compensation decision or other practice'' 
at any of the following times: (a) the time the decision or 
practice is adopted; (b) the time an individual became 
``subject to'' the decision or practice; or (c) the time an 
individual is ``affected by'' application of the decision or 
practice, ``including each time wages, benefits, or other 
compensation is paid, resulting in whole or in part from such a 
decision or other practice.''\18\ There is no limit on how many 
years into the future a plaintiff may bring a claim, or as to 
how many years a future plaintiff can look backward (e.g., with 
respect to, for example, pension benefits, a plaintiff retiring 
in 2057 could bring a claim of discrimination based on pay 
decisions made on her first day of employment fifty years ago 
in 2007).
---------------------------------------------------------------------------
    \18\See H.R. 2831 (as introduced) Sec. 3, proposed subparagraph 
3(a).
---------------------------------------------------------------------------
     Allow an ``aggrieved person'' who files a charge 
of discrimination to challenge ``similar or related instances'' 
of discrimination that occur after the filing of the initial 
charge, without having to file a subsequent charge with the 
EEOC;''\19\ and
---------------------------------------------------------------------------
    \19\See id. Sec. 3, proposed subparagraph 3(b).
---------------------------------------------------------------------------
     Provide that an aggrieved person could obtain 
damages and relief, including recovery of back pay for up to 
two years preceding the filing of a charge with the EEOC, where 
discrimination that occurred during the charging period was 
``similar or related to'' (an undefined term) claims of 
discrimination that would be otherwise barred by the statute of 
limitations.\20\
---------------------------------------------------------------------------
    \20\See id. Sec. 3, proposed subparagraph 3(c).
---------------------------------------------------------------------------
    H.R. 2831 appears to have been written to expressly revive 
plaintiff Ledbetter's claim in the lower court: the bill 
applies retroactively to all cases that were pending on May 28, 
2007--the day before the Supreme Court disposed of Ms. 
Ledbetter's claim.

                          LEGISLATIVE ACTIVITY

    No hearing on H.R. 2831 was held in the Committee on 
Education and Labor subcommittee of jurisdiction, the 
Subcommittee on Health, Employment, Labor and Pensions.
    No hearing on H.R. 2831 was held in the Committee on 
Education and Labor.\21\
---------------------------------------------------------------------------
    \21\The Majority would appear to imply in their Views, see supra, 
that the Committee on Education and Labor's hearing on June 12, 2007, 
concerning the policy implications of the Ledbetter decision is an 
adequate substitute for a legislative hearing on the specific language 
and proposed statutory amendment set forth in H.R. 2831. As 
demonstrated by the range of unanswered questions raised by and the 
unknown consequences resulting from the precise language used in the 
bill (discussed more fully below), plainly, it is not. Moreover, 
insofar as H.R. 2831 purports to be a reversal of the Supreme Court's 
Ledbetter decision, the Majority's attempt to portray as part of the 
legislative history of this bill a Committee hearing held five weeks 
prior to the issuance of the Court's decision (an April 24 hearing 
entitled ``Strengthening the Middle Class: Ensuring Equal Pay for 
Women''), which in no way even purported to be a discussion of the 
statute-of-limitations issues raised by the pending Ledbetter case, 
strains credulity at best.
---------------------------------------------------------------------------
    The Subcommittee on Health, Employment, Labor, and Pensions 
did not meet to consider or mark up H.R. 2831.
    On Wednesday, June 27, 2007, five days after its 
introduction, the Committee on Education and Labor met to 
consider and mark up H.R. 2831. An Amendment in the Nature of a 
Substitute offered by Mr. Miller was adopted without objection. 
Amendments to the Miller Substitute offered by Representatives 
Boustany and Keller were rejected on roll call votes of 18 to 
24 and 20 to 25, respectively. The Committee favorably reported 
H.R. 2831, as amended by the Miller Amendment in the Nature of 
a Substitute, on a roll call vote of 25 to 20. Republican 
Members were unanimous in their opposition to reporting the 
bill favorably to the House of Representatives.

                            REPUBLICAN VIEWS

    Committee Republicans are united in their opposition to 
intentional discrimination and their support of Title VII's 
protection from and prohibition of discrimination in the 
workplace. Committee Republicans are equally united, however, 
in their opposition to the fundamentally flawed legislation 
that is H.R. 2831.
    Stripped of its rhetoric and the characterization of the 
bill by its supporters notwithstanding, H.R. 2831 positively 
eliminates the statute of limitations and EEOC charging 
requirements contained in current law with respect to almost 
every conceivable claim of discrimination one can imagine. It 
allows an employee--or any individual who can arguably claim to 
be ``affected'' by an allegedly discriminatory decision 
relating to compensation, wages, benefits--or any other 
practice--to sue for discrimination that may have occurred 
years or even decades in the past.
    As set forth below, H.R. 2831 is fundamentally flawed on 
almost every level. It proceeds from faulty assumptions; it 
adopts flawed new constructions of law; and it expands the 
scope of liability under our nation's civil rights laws 
exponentially. The bill's failings as a matter of substantive 
policy are magnified by the failure of process which has led to 
its hasty consideration, and which does a grave disservice to 
the thoughtful and deliberate legislative process for which 
this Committee in particular has come to be known. H.R. 2831 
should be rejected by the House.

Courts have long been divided as to the propriety of the so-called 
        ``paycheck rule''

    As a preliminary matter, H.R. 2831's supporters proceed 
from the flawed premise that the Supreme Court's decision in 
Ledbetter reversed well-settled law, or in some fashion 
rejected a ``paycheck rule'' that had been applied universally, 
uniformly, and without question or confusion by courts 
administering and interpreting federal civil rights laws. H.R. 
2831's supporters may wish that this was the case; they may 
even believe that this was the case--but they are alone in 
doing so.
    No plainer evidence of this can be found than in the court 
filings made on behalf of the plaintiff in the case, Ms. 
Ledbetter herself, which recognized that federal courts had 
come to vastly differing conclusions about whether and how the 
paycheck rule was the proper application of law under Title 
VII. As Ms. Ledbetter's attorneys argued to the Supreme Court:

          The courts of appeals are divided over the proper 
        analysis and resolution of disparate pay claims like 
        Ledbetter's in light of National Railroad Passenger 
        Corp v. Morgan, 536 U.S. 101 (2002) and Bazemore v. 
        Friday, 478 U.S. 385 (1986). Some courts hold that an 
        employee may challenge disparate paychecks received 
        during the limitations period if the paycheck 
        implements and carries forward into the limitation 
        period discriminatory decisions made by her employer at 
        any point in the past. Other decisions permit employees 
        to challenge such disparities in pay only if they can 
        demonstrate that the disparity arises from 
        independently illegal decisions made during the 
        limitations period itself or, at most, from the 
        employer's most recent pay decision. . . .
          Although the conflict in circuits is most clear in 
        the decisions of the Second, Eleventh, and D.C. 
        Circuits, the proper treatment of disparate pay claims 
        under Morgan and Bazemore has generated considerable 
        conflict and confusion in other circuits as well.\22\
---------------------------------------------------------------------------
    \22\Brief of Petitioner Lilly Ledbetter, Petition for a Writ of 
Certiorari, Ledbetter v. Goodyear Tire and Rubber Company, Inc., No. 
05. __ (February 17, 2006) at 9, 13 (emphasis added).

    H.R. 2831's proponents find no support for the proposition 
that a ``paycheck rule'' was, pre-Ledbetter, the well-settled 
law of the land in the holding of various federal circuit and 
district courts. Indeed, as recognized by the parties to 
Ledbetter, practitioners, and the Supreme Court itself, courts 
have come to widely differing conclusions as to the proper 
application and/or limitation of a ``paycheck rule'' as applied 
to claims of discrimination under federal law.\23\ The elision 
of this point by the bill's supporters is not one alone on 
which to base opposition, but it underscores that with respect 
to H.R. 2831, the claims of the bill's proponents are too often 
at odds with--if not plainly contradicted by--the facts and law 
at hand.
---------------------------------------------------------------------------
    \23\Compare, e.g., Elmenayer v. ABF Freight Syst., Inc., 318 F.3d 
130 (2d Cir. 2003), Forsyth v. Federation Employment Guidance Service, 
409 F.3d 565 (2d Cir. 2005), Anderson v. Zubieta, 180 F.3d 329 (D.C. 
Cir. 1999), & Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005) with Dasgupta 
v. University of Wisconsin Board of Regents, 121 F.3d 1138 (7th Cir. 
1997), Hildebrandt v. Illinois Department of Natural Resources, 347 
F.3d 1014 (7th Cir. 2003) & Ledbetter v. Goodyear Tire & Rubber Co, 
Inc., 421 F.3d 1169 (11th Cir. 2005).
---------------------------------------------------------------------------

H.R. 2831 eliminates the statute of limitation for virtually all 
        discrimination claims

    Foremost, H.R. 2831 would eliminate the statute of 
limitations and charging requirements with respect to any 
``discriminatory compensation decision or practice . . . each 
time wages, benefits, or other compensation is paid, resulting 
in whole or in part from such a decision.''\24\ Nowhere in the 
text of the Civil Rights Act (nor in any of the other statutes 
amended by this bill) is the phrase ``discriminatory 
compensation decision'' defined or limited. Thus, at the 
outset, the bill's provisions extend to any claim of 
discrimination that concerns not only allegations of ``pay 
discrimination'' resulting in a lower paycheck, but also to any 
claim alleging that some decision by an employer at some point 
in time resulted in some diminution in whole or in part of some 
pension or other benefit. Under the express language of the 
bill, a claim of discrimination can be brought years after an 
employment decision is made, or even years after employment 
ends, if the employee claims that his or her compensation is 
less than it would have been but for alleged discrimination 
long in the past.
---------------------------------------------------------------------------
    \24\H.R. 2831 Sec. 3, proposed subparagraph 3(a).
---------------------------------------------------------------------------
    An example of the broad scope of H.R. 2831, and the 
consequences (intended or not) that is poses for employers, is 
helpful. Assume that under the law as it stands today, post-
Ledbetter, an employee is hired on January 1, 2008. One year 
later, on January 1, 2009, the employee has an annual review, 
and is given a raise that she later feels is discriminatory. 
Under current law, the employee would have 180 days (or perhaps 
300, depending on the state in which she works) to file a 
charge of discrimination--roughly July 1 or November 1 of 
2009--with the EEOC or state agency. This time could be 
conceivably extended by a court if it was equitable to do so 
(for example, if there was evidence that the employer concealed 
information from the employee, or unlawfully prohibited the 
employee from asking questions about her raise). In this case, 
the employer is put on notice that the pay decision is being 
challenged, and the EEOC is able to immediately investigate 
while witnesses are available, recollections are fresh, and 
supporting documents and paperwork are available. If the 
employee is able to prove discrimination, he or she is entitled 
to recover damages, including back pay and other benefits.
    Applying the same set of facts under H.R. 2831, an employee 
is hired on January 1, 2008, and receives a pay adjustment that 
he feels is discriminatory on January 1, 2009. The employee 
remains employed at that company for the next forty years, and 
every year has an annual review where his salary is adjusted 
upward on a percentage basis--at no time does the employee 
claim (or does evidence suggest) that any of these subsequent 
reviews are discriminatory. The employee retires in 2049 and 
receives a final paycheck. Under H.R. 2831, the employee now 
has 180/300 days to file a claim of discrimination relating 
back to the only discriminatory act ever claimed--his first pay 
adjustment in 2009, forty years ago--on the theory that even if 
he got a fair review every year thereafter, he still makes less 
than he would have had he gotten a fair review in 2009. Indeed, 
if post-retirement the employee receives a monthly pension that 
was in some way based on his salary, the employee can bring a 
claim even further in the future, based on a pension allegedly 
``tainted'' by a discriminatory decision forty years ago.
    In light of the potentially radical change to civil rights 
law embodied in H.R. 2831, it is hardly surprising that 
representatives of employers providing jobs to millions of 
Americans are united in their opposition to this bill, and, 
equally important, deeply concerned with the unanswered 
questions and unintended consequences the bill portends:

          While we strongly oppose unlawful discrimination in 
        any form, the Ledbetter Fair Pay Act virtually 
        eliminates any time limitations for claims of 
        employment discrimination. In doing so, the legislation 
        invites stale claims and frivolous litigation when 
        unwarranted litigation is already an issue under 
        current discrimination laws. In fact, the Equal 
        Employment Opportunity Commission reported that it 
        found reasonable cause in only 5.3% of the over 75,000 
        charges of discrimination that it received in FY2006 
        and found absolutely no cause for discrimination in 
        over 60% of the charges (amounting to 45,500 ``no 
        cause'' charges). A study of previous years' statistics 
        yields similar results.
          When Congress passed Title VII of the Civil Rights 
        Act, the Age Discrimination in Employment Act and the 
        Americans with Disabilities Act, it created limits on 
        the period of time under which an individual may file 
        an employment charge. These limits promote rapid 
        resolution of employment claims and quick remedial 
        actions by employers where appropriate. The limitations 
        also balance competing interests by providing 
        plaintiffs a reasonable time to file charges while 
        preventing courts and employers from facing stale 
        claims in which the truth is difficult to ascertain 
        because evidence is lost, memories have faded and 
        witnesses have disappeared. We urge that you preserve 
        this balance that has existed in civil rights law for 
        over 40 years.
          In addition, we are dismayed that this bill appears 
        to go well beyond the issues raised in the Supreme 
        Court's recent decision in Ledbetter v. Goodyear Tire & 
        Rubber Co. It is critical that legislation of this 
        complexity and with the potential for such significant 
        impact be carefully considered and not rushed through 
        only days after its introduction.\25\
---------------------------------------------------------------------------
    \25\Letter to Chairman George Miller and Ranking Republican Member 
Howard P. ``Buck McKeon,'' dated June 27, 2007 urging opposition to 
H.R. 2831 from the American Bakers Association, American Hotel and 
Lodging Association, College and University Professional Association 
for Human Resources, HR Policy Association, International Foodservice 
Distributors Association, International Franchise Association, 
International Public Management Association for Human Resources, 
National Association of Manufacturers, National Association of 
Wholesaler-Distributors, National Public Employer Labor Relations 
Association, National Restaurant Association, National Retail 
Federation, Retail Industry Leaders Association, Society for Human 
Resource Management, and U.S. Chamber of Commerce (emphasis added). In 
addition to these groups, the National Federation of Independent 
Business has advised the Committee of its opposition to H.R. 2831.

    Committee Republicans share the concerns, both substantive 
and procedural, raised by these parties, and object to the 
hasty consideration of legislation which, whether intended or 
not, will result in an exponential increase in potentially 
frivolous litigation, and in any case directly upsets a balance 
that has been maintained under civil rights law for more than 
four decades.

H.R. 2831 eliminates the statute of limitations in virtually all claims 
        of discrimination

    H.R. 2831 does not merely eliminate statutes of limitation 
with respect to allegations of discrimination relating to pay 
decisions--the issue before the Court in Ledbetter--or even to 
allegations relating to the setting of wages or other benefits. 
Rather, it expressly eliminates the statute of limitations with 
respect to any allegedly discrimination resulting from a 
``discriminatory compensation decision or other practice.''\26\
---------------------------------------------------------------------------
    \26\H.R. 2831, Sec. 3 proposed subparagraph 3(a).
---------------------------------------------------------------------------
    As explained at the Committee's June 12 hearing, even in 
the absence of broad and undefined ``other practice'' language, 
almost any alleged act of discrimination can be characterized 
to have consequences for an employee's pay and thus result in 
an ``individual [being] affected by application of a 
discriminatory compensation decision'' under the bill: ``Nearly 
every form of adverse employment action has an impact on 
compensation--denied promotions, demotions, transfers, 
reassignments, tenure decisions, suspensions and other 
discipline--they all have the potential to affect pay.''\27\
---------------------------------------------------------------------------
    \27\Mollen Testimony at 8.
---------------------------------------------------------------------------
    The ``other practice'' clause contained in the text of the 
bill serves only to make explicit that which most would have 
understand was implied from a plain reading of the bill--that 
H.R. 2831 has the effect of eliminating the statute of 
limitations and charging requirements for almost every 
conceivable claim of workplace discrimination.

H.R. 2831 modifies established law standards without explanation or 
        definition

    As detailed more fully in the discussion of the Boustany 
Amendment set forth below, in 1991, Congress enacted amendments 
to the Civil Rights Act of 1964 that were intended, among other 
things, to reverse certain decisions of the Supreme Court, 
specifically (among others), Lorance v. AT&T; Technologies, 
Inc.\28\ In 1991, Congress amended the Civil Rights Act to 
overturn Lorance, by adopting a new section 706(e)(2), which 
provides that:
---------------------------------------------------------------------------
    \28\490 U.S. 900 (1989).

          For purposes of this section, an unlawful employment 
        practice occurs, with respect to a seniority system 
        that has been adopted for an intentionally 
        discriminatory purpose in violation of this subchapter 
        (whether or not that discriminatory purpose is apparent 
        on the face of the seniority provision), when the 
        seniority system is adopted, when an individual becomes 
        subject to the seniority system, or when a person 
        aggrieved is injured by the application of the 
        seniority system or provision of the system.\29\
---------------------------------------------------------------------------
    \29\42 U.S.C. Sec. 2000e-5(e)(2) (emphasis added).

    In crafting the language of H.R. 2831, it is clear that the 
bill's supporters have attempted to model the language they 
propose to use to overturn Ledbetter on the section 706(e)(2) 
language that was used to overturn Lorance. The operative 
---------------------------------------------------------------------------
section of H.R. 2831 provides:

          For purposes of this section, an unlawful employment 
        practice occurs, with respect to discrimination in 
        compensation in violation of this title, when a 
        discriminatory compensation decision or other practice 
        is adopted, when an individual becomes subject to a 
        discriminatory compensation decision or other practice, 
        or when an individual is affected by application of a 
        discriminatory compensation decision or other practice, 
        including each time wages, benefits, or other 
        compensation is paid, resulting in whole or in part 
        from such a decision or other practice.\30\
---------------------------------------------------------------------------
    \30\H.R. 2831 Sec. 3(a) (emphasis added). See also id. Sec. 4(a) 
(making corresponding changes in Age Discrimination in Employment Act).

    While modeled on the language of section 706(e)(2), on its 
face, the language of H.R. 2831 differs in two substantive 
respects.\31\ First, the bill--as contrasted with the law--
applies not to ``person[s] aggrieved'' by alleged violation of 
the statute, but rather to a broader universe of 
``individuals''--there is no requirement that such individual 
be ``aggrieved.'' Second, and plainly more questionable, 
section 706(e)(2) of existing law provides relief to a party 
that is ``injured'' by discrimination in the workplace. H.R. 
2831, in contrast, extends relief to those merely ``affected 
by'' such alleged discrimination. It is clear that the universe 
of persons ``affected by'' a decision is far broader than the 
universe of persons ``injured by'' a decision--what delimits 
that expansion?\32\
---------------------------------------------------------------------------
    \31\The Majority's Views, see Section by Section, supra, appears to 
attempt to argue that there is no ``substantive difference'' between a 
``person aggrieved'' by a practice or ``an individual,'' or between a 
person ``injured by'' or ``affected by'' same. That argument fails, on 
its face, on several fronts. First, the drafters' intent as expressed 
in legislative history notwithstanding, in both instances the latter 
term is far broader than the former. More to the point, barely a few 
words later, the Majority argues that ``affected'' is ``simpler and 
clearer'' than ``injured''--at some point, the drafters need make up 
their collective minds--the term has either the same meaning, or it 
doesn't. Finally, as noted in the text above, a reviewing court is now 
left with the riddle of what Congress meant when it enacted different 
language in different places in the same statute, while its supporters 
apparently debate internally whether and what the purpose of that 
different language is.
    \32\At markup, bill supporters attempted to argue that such 
individuals would be limited in bringing claims of discrimination by 
courts through application of the doctrine of ``standing.'' Such an 
argument misses the mark. The standing doctrine provides that a party 
may bring a claim in federal court under a particular statute if that 
party can show that he or she has suffered some injury, and is 
generally within the confines of that class of individuals whom the 
statute protects. Where, as here, a statute expressly affords relief to 
an ``individual . . . affected by'' an allegedly discriminatory 
compensation decision, to say that courts would use the standing 
doctrine to disallow plaintiffs to bring claims where they allege that 
they are ``individuals affected by'' alleged discriminatory 
compensation decision and have thereby suffered some injury is circular 
logic, at best. See Black's Law Dictionary (8th Ed. 2004) (defining 
standing as ``a party's right to make a legal claim or seek judicial 
enforcement of a duty or right'').
---------------------------------------------------------------------------
    Again, a hypothetical serves to illustrate some of the 
unanswered questions raised by H.R. 2831. Assume that an 
individual starts working at an employer, Employer A, on 
January 1, 2008, and one year later, January 1, 2009, receives 
a pay raise that the employee some years later comes to believe 
is discriminatory. In the interim, the individual receives 
annual percentage increases over the next five years--there is 
no claim that these raises were discriminatory, but at the end 
of his employment with Employer A, the employee believes that 
his compensation is lower in total amount than it would have 
been absent alleged discrimination. The employee leaves 
Employer A on December 31, 2014.
    Employer B hires the worker on January 1, 2015, and sets 
his starting salary based, at least in part, on the worker's 
prior final salary at Employer A. The individual works for 
Employer B for ten years and retires from Employer B in 2025, 
with no allegation discriminatory acts and regular annual 
raises at any time. In 2035, the employee reaches age 65 and 
begins receiving retirement benefits from both Employers A and 
B.
    Under the bill, in 2015, can the employee bring a challenge 
against Employer A for his initial act of discrimination in 
2009? Going further, can he bring a claim against Employer A in 
2020, on the basis that he is ``affected by application of a 
discriminatory compensation decision or other practice'' 
because he is receiving a lower salary from Employer B than he 
otherwise would have because of Employer A's decision ten years 
earlier? Is Employer A responsible for Employer B's independent 
determination of the individual's worth? In the absence of an 
express ``intent'' requirement in the bill, can Employer B be 
subject to a charge in 2015 or beyond, because it arguably 
perpetuated, albeit unintentionally, a discriminatory act 
committed by a prior employers? Are decisions made by Employer 
A twenty-five years ago, or Employer B fifteen years ago, now 
``revived'' and subject to challenge when the employee begins 
receiving his pension benefits? Were such claims viable or 
dormant all those years in between? The answer to almost every 
one of these questions is pointedly unknown.
    Committee Republicans are similarly concerned with 
provisions in the bill that eliminate the statute of 
limitations and charging requirements and expressly extend 
liability, not only for acts of discrimination for which the 
employer is charged, but also ``similar or related to'' acts 
which are, by definition, time-barred under the statute.\33\ 
``Similar or related to'' is nowhere defined in the text of 
H.R. 2831, nor elsewhere in applicable civil rights statutes. 
By definition, this phrase expands the universe of actionable 
discrimination from a discrete act (even if only broadly 
defined as a ``discriminatory compensation decision or other 
practice'') to include a range of other unspecified acts that 
range far beyond those of which the employer has been put on 
notice by virtue of an EEOC charge.
---------------------------------------------------------------------------
    \33\See H.R. 2831, as introduced, Sec. 3 proposed subparagraph (c) 
(redesignated as proposed subparagraph (b) in the Miller Amendment in 
the Nature of a Substitute discussed infra).
---------------------------------------------------------------------------
    On their face, these textual choices raise serious 
questions--are they intended to expand liability or application 
of the statute's protections? If so, to whom, and in what 
fashion? If not, what policy argument justifies choosing 
different language in one section of the bill than another--
particularly where a reviewing court, applying canons of 
statutory construction, is bound to view Congress's decision to 
use different language as implying some substantive import? 
Again, these questions--which may be susceptible to reasonable 
answers--are left unanswered, and the consequences of the bill 
remain unknown. At markup, H.R. 2831's proponents were 
unwilling or unable to address these fundamental concerns with 
the text of the bill; this alone suggests that further 
consideration of this bill in the absence of legislative 
examination is premature and irresponsible.

H.R. 2831 is not limited to claims of intentional discrimination such 
        as Ledbetter

    H.R. 2831 does not limit itself to cases of ``intentional'' 
discrimination--the set of facts at issue in Ledbetter, Indeed, 
as detailed below in discussion of the rejected Boustany 
Amendment, by utilizing cognate language in Section 706(e)(2), 
but expressly removing the requirement of an ``intentionally 
discriminatory purpose,'' H.R. 2831 can be fairly read and 
construed to eliminate the statute of limitations and charging 
requirements with respect not only to cases of intentional 
discrimination, but with respect to cases alleging liability on 
the theory of non-intentional ``disparate impact'' 
discrimination.\34\
---------------------------------------------------------------------------
    \34\In general, there are two theories of liability under Title VII 
and related civil rights laws. First, liability under Title VII may lie 
where an employer intentionally discriminates against an employee or 
class of employees, or otherwise treats an employee differently because 
he or she is in a protected class. In those cases, the plaintiff has 
the burden to prove that the employer acted with the intent to 
discriminate. Alternately, liability may be found where an employer 
adopts a facially neutral practice, but one which has disproportionate 
adverse consequences for employees in a protected class (for example, 
an employer requires applicants to take a test that while neutral on 
its face, disqualifies a disproportionate number of female applicants). 
In those instances, an employee need not show that the employer 
intended to discriminate against employees in a protected class, only 
that its policy or practice has the unintended effect of doing so. An 
employer may defend against such a claim be showing that it has a valid 
business necessity that justifies the use of its policy. Thus, in 
disparate impact cases, an employee need not prove ``intent.''
---------------------------------------------------------------------------
    Indeed, as set forth in the Majority's Views, supra, the 
fundamental contradiction of the bill's supporters is made 
clear with reference to this issue alone--compare the language 
in the Majority View's discussion at Congress's Action Today 
(``H.R. 2831 is designed to be a narrow reversal of the 
Ledbetter decision . . .'') with that in Section by Section 
(``[T]his provision is not limited to intentional 
discrimination but deals with all compensation discrimination 
in violation of Title VII . . .'' (emphasis added)).
    Application of this bill to an entire class of cases which 
in no way were addressed in the Court's Ledbetter decision 
potentially allows for claimants to allege, years after the 
fact, that facially neutral, nondiscriminatory pay systems 
``unfairly'' pay some workers more than others, and thus 
violate Title VII or other civil rights laws. Such a claim 
radically expands the scope of liability under Title VII. More 
to the point, it goes far beyond the facts presented and 
decision rendered in the Ledbetter case, and should be 
rejected.

H.R. 2831 could result in drastic consequences for pension and other 
        benefit plans

    Committee Republicans are deeply troubled by the 
significant concerns H.R. 2831 raises with respect to the 
sponsorship and administration of pension benefit and welfare 
plans under the Employee Retirement Income Security Act of 1974 
(``ERISA''). These concerns were highlighted to the Committee 
as it prepared for markup by way of comment from the American 
Benefits Council (the ``Council''), who implored the Committee 
to not approve H.R. 2831 until its consequences were more fully 
understood. The text of the Council's appeal is set forth in 
its entirety below (emphasis added):
                                 American Benefits Council,
                                                     June 26, 2007.
    Dear Chairman Miller and Ranking Member McKeon: I am 
writing today on behalf of the American Benefits Council to 
express concern regarding proposed legislation (H.R. 2831) to 
overrule the Supreme Court's Ledbetter v. Goodyear Tire & 
Rubber Co. decision.
    The Council is a public policy organization representing 
principally Fortune 500 companies and other organizations that 
assist employers of all sizes in providing benefits to 
employees. Collectively, the Council's members either sponsor 
directly or provide services to retirement and health plans 
that cover more than 100 million Americans. The Council's area 
of expertise is in the employee benefits area, and accordingly 
we limit our letter to the possible effect of the proposed 
legislation on benefit programs.
    Under the proposed legislation, each payment of 
compensation or benefits that is lower because of past 
discrimination is arguably a separate act of discrimination. 
Under this interpretation of the proposed legislation, an 
employee could file a charge or sue within the required period 
(180 days in the Ledbetter case) after each payment, without 
regard to when the actual act of discrimination that caused the 
compensation or benefits to be lower occurred. That actual act 
could have occurred 30 or 40 or more years earlier.
    This proposed legislation could possibly raise very serious 
retirement plan issues. For example, assume that the actual act 
of discrimination occurred 30 years ago. Assume further that 
the individuals who allegedly discriminated are all deceased, 
and the claim of discrimination is based purely on oral 
statements. In that case, the company may have no effective way 
to defend the case, which hardly seems fair. Our question is: 
how would a judgment in favor of the plaintiff affect the 
company's retirement plan? If the company maintains a defined 
benefit plan that calculates benefits based on an employee 's 
final average pay, would the plan need to recalculate the 
plaintiffs benefit based on the revised pay, which could be 
substantially higher? What if the lawsuit is a class action, so 
that large numbers of plan participants could be making the 
same claim for much higher benefits? In that case, the plan 
could become woefully underfunded, undermining the retirement 
security of thousands of other plan participants.
    We also note that, under the proposed legislation, a claim 
could arguably be made by an individual who retired many years 
ago and is now claiming an increased pension based on a plan 
benefit formula that has not been in effect for a long time. 
The burdens of recreating both old data and old benefit 
formulas in order to recalculate that individual's benefits 
would be immense, yet would arguably be required by the 
legislation.
    We have other questions regarding the possible effect of 
the legislation on 401(k) plans, 403(b) plans (generally 
maintained by schools and charities), and 457 plans maintained 
by state and local governments. To what extent would such plans 
have to recalculate benefits payable to the plaintiffs? If the 
employer needs to fund enormous additional benefits for the 
plaintiffs, would the employer be effectively forced to reduce 
or eliminate contributions for others?
    We are writing to ask you not to act until the possible 
ramifications of the bill are fully understood. We understand 
the concerns that led to the drafting of this proposed 
legislation. On the other hand, we are also very mindful of the 
severe practical problems created by the legislation in its 
current form. We strongly urge you to fully explore the 
practical, technical and policy issues before moving forward on 
legislation that could have far-reaching and unintended 
consequences.
    Sincerely,
                                            James A. Klein,
                                                         President.
    Committee Republicans are gravely concerned with the 
potential effects of H.R. 2831 on defined benefit, defined 
contribution, and other pension and welfare benefit plans both 
in the near term and far into the future. The concerns raised 
by the American Benefits Council and others suggest that H.R. 
2831, as written, could potentially undermine the solvency of 
pension plans far into the future, and thereby risk the 
financial and retirement of security of millions of American 
workers and retirees. As discussed in further detail below, the 
response of the bill's supporters--including in the Findings 
section of the bill one non-binding sentence that does not 
purport to address substantively these issues--is wholly 
insufficient to allay these concerns.

H.R. 2831 does grave harm to the committee legislative process, and is 
        flawed as a result

    Finally, we express again our grave concern with the 
failure of process that has led to consideration of H.R. 2831 
in a hasty and uninformed fashion. The rush of this legislation 
from introduction to consideration and markup barely twenty-
four business hours later need not be recounted. What bears 
note, and lays bare the failure of the process, is the 
comparison of this exercise to Congress's last substantive 
debate over Civil Rights Act amendments in 1990 and 1991. At 
that time, in response to decisions by the Supreme Court 
construing Title VII in 1989, Congress undertook thorough 
examination of legislative proposals to address those decisions 
and other issues that had arisen under the Civil Rights Act.
    The debate over amendment of the Civil Rights Act spanned 
two Congresses, and more than two years.\35\ Legislative 
proposals were the subject of days of hearings in multiple 
committees and subcommittees of jurisdiction. They were marked 
up in subcommittees and full committees through days of 
thoughtful consideration. At the conclusion of nearly two years 
of thoughtful deliberation, Congress sent to the President the 
most comprehensive overhaul of our nation's civil rights laws 
in decades, which were signed into law. These revisions 
continue to protect millions of Americans from discrimination 
in the workplace today. The contrast of that legislative 
process with the process that has sent H.R. 2831 to the House 
for consideration less than a week after it was introduced is 
profound and ominous.
---------------------------------------------------------------------------
    \35\See, e.g., legislative histories of H.R. 4000 & S. 2104 (101st 
Congress); H.R. 1 & S. 1745 (102nd Congress).
---------------------------------------------------------------------------

                    AMENDMENTS OFFERED IN COMMITTEE

            Miller Amendment in the nature of a substitute
    The Miller Substitute, which was adopted without objection, 
made three changes to the text of H.R. 2831 as introduced. 
First, it changed the short title of the bill. Second, it 
deleted in two instances language in the introduced bill which 
would have allowed an aggrieved person who filed a charge of 
discrimination to challenge ``similar or related instances'' of 
discrimination that occur after the filing of an initial charge 
with the EEOC without having to file a subsequent charge with 
the agency. Finally, the Miller Substitute included a single 
sentence in the findings section presumably intended to address 
the bill's potentially devastating consequences on defined 
benefit and defined contribution pension plans and other 
employee benefit schemes discussed above.
    The finding contained in the Miller Substitute provides 
that the bill ``is not intended to change current law treatment 
of when pension distributions are considered paid.''\36\
---------------------------------------------------------------------------
    \36\Amendment in the Nature of a Substitute, offered by 
Representative George Miller, Committee on Education and Labor 
Consideration of H.R. 2831, the ``Ledbetter Fair Pay Act of 2007,'' 
June 27, 2007, Sec. 2, finding (4).
---------------------------------------------------------------------------
    It does not require extended debate to dispose of the 
notion that this single sentence--a non-binding, non-
substantive finding relating to the bill's intent--does nothing 
to address the substantive concerns with the bill's effect on 
pension and other benefit plans set forth above. Indeed, it is 
of little interest what the bill's ``intent'' is, where its 
express and operative language provides that the statute of 
limitations for bringing a claim of discrimination is 
eliminated for claims ``each time that wages, benefits, or 
other compensation is paid'' which result ``in whole or in 
part'' from an alleged discriminatory practice.\37\
---------------------------------------------------------------------------
    \37\Moreover, the Majority's ``finding'' language in this instance 
appears to suggest that the current state of the law as to when a 
pension distribution is considered paid is at all clear, simple, 
universally applied to all pension plans, or, ultimately, relevant to 
the issue at hand. For instance, in the very case cited by the Majority 
for the proposition that pension checks are ``qualitatively different'' 
than paychecks, see supra, the Supreme Court expressly limited its 
holding to the facts at hand, and noted that different sets of facts 
with respect to a particular pension plan would likely result in 
differing outcomes. See Florida v. Long, 487 U.S. 223, 240 (1988) 
(applying principles of Arizona Governing Committee for Tax Deferred 
Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073 (1983) 
and concluding that ``[a] different case, and a different assessment of 
retroactivity, might result under pension plan structures which do not 
provide retirees with a contractual right to a fixed level of benefits 
or rate of return on contributions.''). See also, e.g., Spirt v. 
Teachers Ins. and Annuity Ass'n, 735 F.2d 23, 27 (2d Cir. 1984) 
(distinguishing Court's application of Norris principles) & Florida v. 
Long, 487 U.S. at 240 (recognizing different outcomes and continuing 
validity of Spirt).
---------------------------------------------------------------------------
    More to the point, even accepting arguendo that the 
finding--were it to be given substantive meaning by a reviewing 
court--addressed issues raised with the question of when a 
cause of action relating to pension benefits accrues under the 
bill, the language does nothing, implicitly or explicitly, to 
address fundamental concerns relating to the potential 
liability of pension and welfare benefit plans decades into the 
future when a plaintiff or class of plaintiffs brings a claim 
for benefits under the plan.
    In short, this provision of the Miller Substitute is, 
charitably, an insufficient resolution to some of the most 
troubling issues relating to pensions and benefits raised by 
the substantive provisions of H.R. 2831.
            Boustany Amendment to preserve intent requirement
    There is no debate that the facts of the Ledbetter case 
presented to the Supreme Court a question of intentional 
discrimination. Ms. Ledbetter alleged that her employer had, 
purposefully, discriminated against her because she was a 
woman, in violation of Title VII. That was the Title VII claim 
litigated in the lower court, and the case presented to and 
decided by the Supreme Court.
    Historically, in amending Title VII, Congress has drawn 
distinction between intentional discrimination and so-called 
``disparate impact'' discrimination. Most notably, in 1991 
Congress amended the Civil Rights Act to overturn the ruling of 
the Supreme Court in Lorance v. AT&T; Technologies, Inc.\38\ By 
way of brief background, in Lorance, the Court had held that 
female employees could not sue in 1982 for damages they 
suffered as the result of the company adopting an intentionally 
discriminatory seniority system in 1979--those claims were 
barred by the statute of limitations. Unsatisfied with this 
result, two years later Congress included in the Civil Rights 
Act of 1991 a provision expressly overturning Lorance. 
Specifically (and as noted supra) Congress added to the Civil 
Rights Act of 1964 a new section 706(e)(2) which provides:
---------------------------------------------------------------------------
    \38\490 U.S. 900 (1989).

          For purposes of this section, an unlawful employment 
        practice occurs, with respect to a seniority system 
        that has been adopted for an intentionally 
        discriminatory purpose in violation of this subchapter 
        (whether or not that discriminatory purpose is apparent 
        on the face of the seniority provision), when the 
        seniority system is adopted, when an individual becomes 
        subject to the seniority system, or when a person 
        aggrieved is injured by the application of the 
        seniority system or provision of the system.\39\
---------------------------------------------------------------------------
    \39\42 U.S.C. Sec. 2000e-5(e)(2).

    Thus, under this section, a plaintiff challenging the 
legality of an allegedly discriminatory seniority system must 
prove that the system was adopted with the intent of 
discrimination.
    In crafting the language of H.R. 2831, it is clear that the 
bill's supporters have attempted to model the language they 
propose to use to overturn Ledbetter on the section 706(e)(2) 
language that was used to overturn Lorance. The operative 
section of H.R. 2831 provides:

          For purposes of this section, an unlawful employment 
        practice occurs, with respect to discrimination in 
        compensation in violation of this title, when a 
        discriminatory compensation decision or other practice 
        is adopted, when an individual becomes subject to a 
        discriminatory compensation decision or other practice, 
        or when an individual is affected by application of a 
        discriminatory compensation decision or other practice, 
        including each time wages, benefits, or other 
        compensation is paid, resulting in whole or in part 
        from such a decision or other practice.\40\
---------------------------------------------------------------------------
    \40\H.R. 2831 Sec. 3(a). See also id. Sec. 4(a) (making 
corresponding changes in Age Discrimination in Employment Act).

    Note, however, one key exception: nowhere in the Ledbetter 
bill's language is this provision limited to intentional 
discrimination, as it was in Lorance and the resulting Civil 
Rights Act legislative changes. Indeed, nowhere in the text of 
H.R. 2831 bill does the word ``intentional'' appear at all. 
Thus, on its face, the Majority's language would appear to 
eliminate the statute of limitations not only in cases of 
intentional discrimination, but also with respect to cases of 
unintentional discrimination, such as claims of ``disparate 
impact''--an expansion far broader than the contours of the 
Ledbetter case.
    For these reasons, during markup, Representative Charles 
Boustany offered an amendment that would simply have clarified 
that--as was the case of the Court's holding in Ledbetter--the 
provisions of the bill would apply only to cases of intentional 
discrimination. The Boustany Amendment was narrow and 
straightforward, and simply provided that in each instance 
where the phrase ``discriminatory compensation practice'' 
appeared it would be amended to read ``intentionally 
discriminatory compensation practice.'' The Boustany Amendment 
comports with precedent under section 706(e)(2) and the 
legislative language Congress used to overturn the Lorance 
case, and would have narrowed the bill (at least with respect 
to this issue) to limit the impact of the bill to the sort of 
case addressed in the Court's Ledbetter decision.
    Notwithstanding the logic and simplicity of this language--
and bill supporters' claims that H.R. 2831 is a ``narrowly 
drawn'' bill intended only to overturn the Ledbetter decision--
the Boustany Amendment was rejected on a vote of 18 to 24, with 
all Democrats voting against limiting the scope of the bill to 
the class of cases entertained in Ledbetter.
            Keller Amendment to eliminate unintended consequences of 
                    ``other practices''
    As noted above, H.R. 2831 would eliminate the statute of 
limitations with respect not only to an undefined 
``discriminatory compensation decision'' but also with respect 
to any ``other practice'' which the individual believes 
resulted in pay discrimination. The term ``other practice'' is 
nowhere defined within the legislation.
    As set forth in detail above, Committee Republicans are 
gravely concerned that despite the assertions of its sponsors, 
H.R. 2831 represents a vague and overbroad expansion of the 
Civil Rights Act. As was noted during the hearing on policy 
issues relating to Ledbetter, almost every employment decision 
can in some way be linked to an employee's compensation, 
benefits, or pay. The ``other practice'' provision of H.R. 2831 
serves only to make the bill's expansion of the scope of 
liability under the Civil Right Act explicit. On its face the 
phrase extends liability far beyond simple pay decisions to 
include any ``other practice'' that may affect compensation--
this would include claims of denied promotions, demotions, 
transfers, reassignments, tenure decisions, suspensions and 
other discipline, all of which could be brought years after the 
employee left employment.
    Advocates of H.R. 2831 have repeatedly insisted that the 
bill is a narrowly-drawn measure intended solely to overturn 
the Ledbetter decision. Whether rightly or wrongly decided, all 
parties agree that the Ledbetter case addressed the issue of a 
discriminatory pay decision--not some allegedly discriminatory 
``other practice.'' The lower court found that Ms. Ledbetter 
was the victim of a discriminatory compensation decision--not 
an ``other practice.'' The Supreme Court rejected Ms. 
Ledbetter's claim that the statute of limitations should be 
extended in cases where an employee is the victim of a 
discriminatory compensation decisions--not some ``other 
practice.''
    For these reasons, during Committee markup, Representative 
Ric Keller offered an amendment that simply would have struck 
the phrase ``or other practice'' in each instance it appeared, 
thus at least attempting to limit the application of H.R. 2831 
to decisions relating to compensation--the practice at issue in 
Ledbetter. The Keller Amendment was rejected on a roll call 
vote of 20 to 25, with every Democrat present voting against 
it. As was the case with the Boustany Amendment, that argument 
that H.R. 2831 is a narrowly-drawn bill, tailored only to 
reverse the Supreme Court' ruling in Ledbetter, is undone by 
Democrat opposition to the Keller Amendment.

                               CONCLUSION

    H.R. 2831 is fundamentally flawed as a matter of policy. As 
noted at the outset, one can legitimately debate whether 
legislation to modify, limit, or reverse the Supreme Court's 
decision in Ledbetter is necessary or prudent. What is beyond 
serious debate is the proposition that H.R. 2831 simply 
modifies, limits, or reverses Ledbetter. As reported to the 
House, this legislation, without question, vitiates the statute 
of limitations requirements in a host of federal civil rights 
laws. It goes far beyond the facts presented in the Ledbetter 
case, and whether by accident or design, makes far more 
sweeping changes to our nation's civil rights laws than its 
supporters either at best intend or at worst acknowledge.
    The unintended consequences of this bill are not yet fully 
known, nor are, would we submit based upon the responses of 
bill supporters to inquiries at markup, its intended 
consequences. The known policy and drafting flaws of this bill 
are numerous; the unknown exponentially so. These failings 
throw into high relief the complete abandonment and failure of 
regular order and the Committee's legislative process, and the 
grave disservice done to both by the manner in which the 
Committee has considered this bill.
    For all of these reasons, we oppose in strongest terms the 
passage of H.R. 2831.
                                   Howard P. McKeon.
                                   Thomas Petri.
                                   Peter Hoekstra.
                                   Mike Castle.
                                   Mark Souder.
                                   Vernon J. Ehlers.
                                   Judy Biggert.
                                   Todd R. Platts.
                                   Ric Keller.
                                   Joe Wilson.
                                   John Kline.
                                   Cathy McMorris Rodgers.
                                   K. Marchant.
                                   Tom Price.
                                   Luis Fortuno.
                                   Charles W. Boustany, Jr.
                                   Virginia Foxx.
                                   Randy Kuhl.
                                   Rob Bishop.
                                   David Davis.
                                   Timothy Walberg.
                                   Dean Heller.