While it may have looked symbolic and easy, President Obama’s signing of the Ledbetter Fair Pay Act
today was a bold move signifying a renewed interest in the welfare of
employees, at a time when Congress and the new administration is under
strong pressure to focus on the economic concerns of big businesses
Business groups have spent millions lobbying against the Ledbetter
bill, which allows women who were discriminated against to sue their
employer as long as the discrimination continues: in other words, if a
female employee was being paid less than a man doing the same job for
the last five years, she can sue for pay discrimination as long as
she’s still being paid less. She can only receive damages going back
two years, though. Employers’ groups have argued that’s still unfair,
complaining that it’s too difficult to defend an employment decision
from five years ago.
But even more significant are a few other pieces of legislation that may be coming down the pike:
The first is the Paycheck Fairness Act,
which would lift the cap on punitive and compensatory damages that
currently exist in Equal Pay Act cases. That means a jury would decide
how much the employer owes the employee who was being discriminated
against, instead of the law arbitrarily imposing a limit. It would also
allow employees to more easily include others in their class action
claims, when a group of people — say, all women working at a checkout
counter — are discriminated against similarly.
Then, there’s the Civil Rights Act of 2008
— which could be introduced as the Civil Rights Act of 2009 — that
would more broadly lift those damages caps on all employment
discrimination claims. Right now, there’s a $300,000 limit imposed by
Employment defense lawyers tell me that their clients are already
working hard behind the scenes to keep that legislation from coming to
the floor for a vote. Though they succeeded in rallying staunch
Republican opposition to the Ledbetter Act, a Democratic Congress
passed it anyway.
Employee advocates will have to push back hard if they’re going to win these battles.