Supreme Court and Ledbetter Fair Pay Act

Supreme Court Decides in AT&T Corp. v. Hulteen in Favor of Employer and Addresses Lilly Ledbetter Fair Pay Act for First Time
Contributor: Littler Mendelson



SUMMARY: On May 18, 2009, the Supreme Court announced its decision in AT&T Corp. v. Hulteen. In a 7-2 decision authored by Justice Souter (with Justice Ginsberg and Justice Breyer dissenting), the Court held that an employer does not necessarily violate the Pregnancy Discrimination Act (PDA) when it pays pension benefits calculated in part based on an accrual rule – in use prior to the PDA's enactment – that gives less retirement credit for pregnancy than for short-term disability leave. The Court held that the employer's method of calculating benefits was insulated from a Title VII challenge because it was part of a bona fide seniority system. The decision is also the first Supreme Court ruling to address the recently enacted Lilly Ledbetter Fair Pay Act (Ledbetter Act), and it limits to a degree the Ledbetter Act's reach in the narrow circumstance where disparities in benefits are based on past, completed actions which were legal when taken.

See Open Congress

Washington D.C. Employment Law Update
Posted at 3:11 PM on May 18, 2009 by Jay Sumner
Supreme Court Issues Decision in AT&T Corp. v. Hulteen
LINK

The U.S. Supreme Court has held that an employer does not necessarily violate the Pregnancy Discrimination Act (PDA) when it pays pension benefits calculated in part under an accrual rule – applied prior to the PDA’s enactment – that gave less retirement credit for pregnancy than for medical leave generally. The Court in AT&T v. Hulteen (pdf) further held that the benefit calculation rule used by the employer in this case was part of a bona fide seniority system that insulated it from a Title VII challenge.

AT&T Corporation and its affiliates, the petitioner in this case, had calculated an employee’s pension and other benefits based on a seniority system that subtracted uncredited leave time from the employee’s length of service. Employees on disability leave were given full service credit for time off, while those on “personal” leave did not. Prior to 1977, pregnancy leave was considered personal, not disability leave. In 1977, AT&T changed this policy to provide employees who took time off for pregnancy with six weeks of disability benefits and service credit. Any time off taken beyond the allotted six weeks was deemed personal, and no service credit was provided. Following the enactment of the PDA in 1978, which amended Title VII of the Civil Rights Act and made it unlawful to treat pregnancy-related conditions less favorably than other medical conditions, AT&T changed its policy to put pregnancy leave on equal footing with other disability leave for service credit purposes, but did not make service credit calculations retroactive. Therefore, the original plaintiffs in this matter were women who had taken pregnancy leave prior to the policy change, and whose retirement benefits have or would be affected. The plaintiffs’ case was eventually heard by the U.S. Court of Appeals for the Ninth Circuit, which – adhering to precedent – found that applying pre-PDA accrual rules that differentiated on the basis of pregnancy to post-PDA retirement eligibility violated Title VII.

The Supreme Court reversed the judgment of the Ninth Circuit – which conflicted with holdings by the Sixth and Seventh Circuits – noting that there was no doubt that the payment of the pension benefits in this case was the function of a bona fide seniority system, and that such systems are given a certain degree of immunity from Title VII claims. Specifically, section 703(h) stipulates that “it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . system . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin.. . .” Thus, the Court reasoned, benefit differentials produced by a bona fide seniority-based pension plan are permitted unless they are the results of an intent to discriminate. The Court explained that “[b]ona fide seniority systems allow, among other things, for predictable financial consequences, both for the employer who pays the bill and for the employee who gets the benefit. . . .[a]s § 703(h) demonstrates, Congress recognized the salience of these reliance interests and, where not based upon or resulting from an intention to discriminate, gave them protection.” The Court noted that the company’s seniority system was neither adopted with the intent to discriminate on the basis of sex, nor was it unlawful when adopted.

The respondents, however, argued that the recently-enacted Lilly Ledbetter Fair Pay Act – which states, in relevant part, that “an unlawful employment practice occurs, with respect to discrimination in compensation . . . 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” – supports their position that the benefits calculation is discriminatory. The Court disagreed, finding that since the company’s pre-PDA decision not to award the employee service credit for pregnancy leave was not discriminatory, the respondents were not therefore “affected by the application of a discriminatory compensation decision or other practice.”

Justice Souter delivered this opinion, which was decided by a vote of 7-2, with Justices Ginsburg and Breyer dissenting.

Supreme Court Decides in AT&T Corp. v. Hulteen in Favor of Employer and Addresses Lilly Ledbetter Fair Pay Act for First Time
By:Sue M. Douglas, May 2009

On May 18, 2009, the Supreme Court announced its decision in AT&T Corp. v. Hulteen. In a 7-2 decision authored by Justice Souter (with Justice Ginsberg and Justice Breyer dissenting), the Court held that an employer does not necessarily violate the Pregnancy Discrimination Act (PDA) when it pays pension benefits calculated in part based on an accrual rule - in use prior to the PDA's enactment - that gives less retirement credit for pregnancy than for short-term disability leave. The Court held that the employer's method of calculating benefits was insulated from a Title VII challenge because it was part of a bona fide seniority system. The decision is also the first Supreme Court ruling to address the recently enacted Lilly Ledbetter Fair Pay Act (Ledbetter Act), and it limits to a degree the Ledbetter Act's reach in
the narrow circumstance where disparities in benefits are based on past, completed actions which were legal when taken.

For additional information regarding the Lilly Ledbetter Fair Pay Act, see Littler's
Paycheck Rule Revived for Pay Discrimination Claims with Signing of the Lily Ledbetter Fair Pay Act. (See the full report).

Ledbetter v. Goodyear and the Ledbetter Act

On January 29, 2009, President Obama signed into law the Ledbetter Act, which expressly overturned the U.S. Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). In that case, the U.S. Supreme Court expressly rejected the "paycheck rule" advanced by the plaintiff - i.e., that each time a paycheck evidencing disparate compensation was issued, a separate act of discrimination arose. The effect of the Court's decision was to limit the timeframe in which employees could bring pay discrimination claims. To maintain a timely claim of pay discrimination under Title VII, the Ledbetter Court held, an employee was required to file his or her claim with the U.S. Equal
Employment Opportunity Commission (EEOC) within 180 days of the original discriminatory pay-setting decision, even if the violation continued to affect the employee's compensation long after the 180-day period expired.
In overturning the Supreme Court's decision, the Ledbetter Act has broadened the occurrences that are considered unlawful actions for purposes of triggering a pay discrimination claim.

Under the Ledbetter Act, an unlawful employment practice occurs when: (1) a discriminatory compensation or other practice is adopted; (2) an individual becomes subject to the discriminatory decision or practice; or (3) an individual is affected by application of the discriminatory decision or practice, including each time
discriminatory compensation is paid. With the "paycheck rule" now in effect, employees may seek to reclaim lost compensation long after the initial discrimination took place, so long as the claim is filed with the EEOC within 180 days (or 300 days in some states) of the receipt of any compensation affected by
the initial pay decision. In addition, while the Ledbetter Act does not require employers to repay employees for decades of discriminatory pay differentials, employees can recover back pay up to two years prior to when the employee filed the discrimination claim.
Although combating gender-based pay discrimination was the impetus for the legislation, the Ledbetter Act prohibits pay discrimination based on all of the protected categories under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the
Rehabilitation Act, i.e., race, color, religion, national origin, age, and disability.

The statutory enactment of the paycheck rule allows employees to challenge pay-related decisions years after they have occurred. As a result, before the decision in AT&T v. Hulteen, it was uncertain whether pay decisions made long ago could be challenged as discriminatory when those decisions were
unquestionably legal under the state of the law at the time they were made.

Hulteen's Claims against AT&T

Prior to 1978, AT&T based its pension calculations on a seniority system that relied on years of service
minus uncredited leave time, giving less retirement credit for pregnancy absences than for medical leave generally. In 1978, Congress passed the PDA which amended Title VII of the Civil Rights Act of 1964 to make it "clear that it is discriminatory to treat pregnancy-related conditions less favorably than other
medical conditions." The PDA was enacted in response to the Supreme Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), which held that differential treatment of pregnancy leave was not sex-based discrimination prohibited by Title VII. With the passage of the PDA, AT&T adopted a new pension plan, which provided the same service credit for pregnancy leave as for other temporary disability leave. AT&T made these changes prospectively, such that no retroactive adjustments were made for the pre-PDA leave calculations.

Because Hulteen took pregnancy leave before AT&T changed its pension plan, she received less service credit for her leave than she would have received had she taken general disability leave. This resulted in a reduction in her total employment term and, consequently, a smaller AT&T pension. Hulteen, along with other affected coworkers and their union, filed EEOC charges alleging discrimination based on sex
and pregnancy in violation of Title VII. The EEOC issued a determination finding reasonable cause to believe AT&T had discriminated and provided Hulteen with a notice of right-to-sue. Hulteen filed suit in federal district court, which, based on Ninth Circuit precedent that was in conflict with Sixth and Seventh Circuit precedent, ruled in favor of Hulteen. On appeal, the Ninth Circuit Court of Appeals affirmed the district court's decision.

In response to AT&T's appeal to the Supreme Court, Hulteen argued that, even though AT&T's pre-PDA decision to give less retirement credit for pregnancy absences was legal at the time it was made, AT&T's post-PDA decision at the time of her retirement to calculate her pension on the basis of the credit she had accrued partly under the pre-PDA rules violated the PDA when that decision was made. After oral argument but before the Court issued its opinion, President Obama signed the Ledbetter Act into law. In supplemental briefing, Hulteen argued that the Ledbetter Act further supported her position.

According to Hulteen, whether AT&T's pre-PDA decision was legal when made was irrelevant under the Ledbetter Act. Instead, she argued that the calculation of her pension by AT&T post-PDA was made using a measure of company service that it knew afforded unequal credit for equal service to women who took pregnancy leave prior to 1978. Therefore, Hulteen argued, AT&T's calculation was an "unlawful employment
decision or practice" under the Ledbetter Act, one which affected her each time she received her pension payment.

The Supreme Court's Decision in AT&T v. Hulteen

In its decision in Hulteen, the Supreme Court overruled the Ninth Circuit, holding that an employer does not necessarily violate the PDA when it pays pension benefits calculated in part under an accrual rule that gave less retirement credit for pregnancy than for medical leave generally when that rule was applied only before the enactment of the PDA. In reaching its ruling, the Court noted that seniority
systems are afforded special treatment under Section 703(h) of Title VII, which provides: "[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation ... pursuant to a bona fide seniority ... system ... provided that such differences are not the result of an intention to discriminate because of ... sex." Citing Section 703(h), the Court explained that benefit differentials produced by a bona fide seniority-based pension plan are permitted unless they are the result of an intention to discriminate. The Court reasoned that, because AT&T's system must be viewed as bona fide, i.e., as a system having no discriminatory terms, Section 703(h) governed, and the key
determination was whether AT&T had intended to discriminate when it implemented its pre-PDA accrual rules.

As the Court noted, under Gilbert, the exclusion of disabilities related to pregnancy was not sex-based discrimination within the meaning of Title VII prior to 1978. Thus, AT&T's intent when it adopted the prePDA pregnancy leave rule at issue was to give differential treatment that, as a matter of law under Gilbert, was not gender-based discrimination. In other words, because AT&T's decision to utilize an
accrual rule limiting seniority credit for time taken for pregnancy leave was not discriminatory under Gilbert, it could not be the case that it was intentionally discriminatory. In addition, AT&T had adopted a new pension plan, which provided service credit for pregnancy leave on the same basis as leave taken for other temporary disabilities on the day the PDA took effect.

The Court next held that, even though AT&T could have chosen to give Hulteen post-PDA credit for her pre-PDA pregnancy leave when she retired, its failure to do so was not a discriminatory act. As the Court explained, if a choice to rely on a favorable statute turned every past legal differentiation into contemporary illegal discrimination, Section 703(h) would never apply. Finally, the Court rejected Hulteen's argument that AT&T's calculations were made unlawful under the Ledbetter Act because the payment of her pension benefits were in effect "the application of a
discriminatory compensation decision or other practice, including each time ... benefits [are] paid, resulting ... from such a decision." Following its reasoning above, the Court held that AT&T's pre-PDA decision not to award Hulteen service credit for pregnancy leave was not discriminatory at the time it was made, and, therefore, Hulteen had not been "affected by application of a discriminatory
compensation decision or other practice."

What Hulteen Means for Employers

Employers should understand that the holding in Hulteen is limited. In Brazemore v. Friday, 478 U.S.385 (1986), the Supreme Court held that a pattern or practice that was not illegal prior to Title VII but that would constitute a violation of Title VII did in fact became a violation upon Title VII's effective date. Thus, to the extent an employer continued to engage in that act or practice after the Act's effective date, the employer would be liable under Title VII. In Hulteen, the Court distinguished the facts before it from Brazemore on two grounds. First, the Court noted that Brazemore did not involve a seniority system, indicating that the holding in Hulteen may not extend beyond the context of bona fide seniority systems.
Indeed, at the end of its opinion, the Court emphasized the importance of the predictable financial consequences provided by bona fide seniority systems for both employers and employees.

Second, the Court explained that the employer in Brazemore failed to eliminate the discriminatory practice at issue in that case, even though the newly enacted Title VII had turned what was once legally permissible into something unlawful. In contrast, AT&T had adopted a new pension plan on the effective date of the PDA that complied with the PDA, and therefore AT&T's calculation of Hulteen's pension
payments was based on past, completed events that were not illegally discriminatory when they occurred. Thus, Hulteen appears to limit the reach of the Ledbetter Act only in those circumstances where the allegedly discriminatory compensation at issue is based on past, completed decisions that were lawful when they were made.
Keeping in mind these limitations, the Hulteen decision clearly strengthens the protection afforded under Section 703(h) to bona fide seniority systems, even in light of the enactment of the Ledbetter Act. The Ledbetter Act does not define "discriminatory compensation decision or other practice," leaving this
important phrase subject to varying interpretations. Had the Court agreed with Hulteen's interpretation, employers could have been liable for decisions made years ago relating to their seniority-based compensation systems, even though the decision itself was not illegally discriminatory when made and even though the seniority system was brought into compliance, each time a discrimination law was enacted or amended.

Under Hulteen, however, if a decision regarding the bona fide seniority system at
issue was not illegally discriminatory at the time it was made and the seniority system itself complies with the law going forward, then Section 703(h) applies to protect the seniority system at issue. Thus, although employers must regularly evaluate their seniority systems to determine whether those systems comply with current laws (including newly enacted and amended laws), Hulteen serves to protect bona fide seniority systems that were not adopted for a purpose that was illegally discriminatory.

Conclusion

The Hulteen decision curtails liability in those circumstances where employers are faced with claims alleging pay discrimination arising out of compensation decisions involving bona fide seniority systems that were legal when made. The decision is also the first to provide some guidance on the limits of the Ledbetter Act. The holding, however, is very narrow, and how the Supreme Court continues to interpret the Ledbetter Act remains to be seen.

Sue M. Douglas is a Shareholder in Littler Mendelson's Cleveland office. Blake Andrews is an Associate in Littler Mendelson's Atlanta office. If you would like further information, please contact your Littler attorney at 1.888.Littler, info@littler.com, Ms. Douglas at sdouglas@littler.com, or Mr. Andrews at
bandrews@littler.com.



The Impact of Ledbetter v. Goodyear on the Effective Enforcement of Civil Rights Laws
Testimony of Wade Henderson, President and CEO
Leadership Conference on Civil Rights
June 28, 2007
LINK

House Judiciary Committee

Categories: Women's Rights

Good Morning. My name is Wade Henderson and I am the President of the Leadership Conference on Civil Rights. The Leadership Conference is the nation’s premier civil and human rights coalition, and has coordinated the national legislative campaigns on behalf of every major civil rights law since 1957. The Leadership Conference’s nearly 200 member organizations represent persons of color, women, children, organized labor, individuals with disabilities, older Americans, major religious groups, gays and lesbians and civil liberties and human rights groups. It’s a privilege to represent the civil rights community in addressing the Committee today.

Distinguished members of the Committee, I am here this afternoon to call on Congress to act. To restore the ability of victims of pay discrimination to obtain effective remedies, and to end the inequality of remedies across classes of victims.

Lilly Ledbetter, a supervisor at Goodyear Tire & Rubber in Gadsden, Alabama, sued her employer for paying her less than its male supervisors and a jury found that Goodyear intentionally paid Ms. Ledbetter less than her male counterparts for more than 15 years, in violation of Title VII of the Civil Rights Act of 1964. Week after week, year after year, she was paid less. Significantly less. And this disparity was because of her sex. The jury also found Goodyear’s conduct to be bad enough to warrant an award of compensatory and punitive damages totaling $3 million.

On its face, it looked like Ms. Ledbetter had won. That she had finally received compensation for the years of discrimination, including the impact on her pension and retirement benefits. But that was before the Title VII damages cap and the Supreme Court intervened.

After the jury awarded Ms. Ledbetter her $3 million, the court was required by law to reduce her award to $300,000. Why? In 1991, Congress set damages caps in Title VII, which apply to gender, age and disability claims only, at $300,000. That amounts to ten percent of what the jury believed Ms. Ledbetter should receive, and a drop in the bucket to a corporation like Goodyear.

Two weeks ago, the second shoe dropped. The Supreme Court issued an opinion in Ledbetter v. Goodyear Tire & Rubber1 which prevented Ms. Ledbetter from recovering anything to remedy the discrimination that she endured. According to the Court’s new rule, Ms. Ledbetter filed her discrimination complaint too late. A 5-4 Court held that Title VII’s requirement that employees file their complaints within 180 days of “the alleged unlawful employment practice,”2 means that the complaint must be filed within 180 days from the day Goodyear first started to pay Ms. Ledbetter differently, rather than – as many courts had previously held -- from the day she received her last discriminatory paycheck.

The Court’s ruling on the statute of limitations in Ledbetter is fundamentally unfair to victims of pay discrimination. First, by immunizing employers from accountability for their discrimination once 180 days have passed from the initial pay decision, the Supreme Court has taken away victims’ recourse against continuing discrimination.

Moreover, the Court’s decision in Ledbetter ignores the realities of the workplace. Employees typically don’t know much about what their co-workers earn, or how pay decisions are made, making it difficult to satisfy the Court’s new rule.

As Justice Ginsberg pointedly emphasized in her dissent, pay discrimination is a hidden discrimination that is particularly dangerous due to the silence surrounding salary information in the United States. It is common practice for many employers to withhold comparative pay information from employees. One-third of private sector employers have adopted specific rules prohibiting employees from discussing their wages with co-workers, and a significant number of other employers have more informal expectations that employees do not discuss their salaries. Only one in ten employers has adopted a pay openness policy.3

Workers know immediately when they are fired, refused employment, or denied a promotion or transfer, but norms of secrecy and confidentiality prevent employees from obtaining compensation information. As Justice Ginsberg’s dissent points out, it is not unusual for businesses to decline to publish employee pay levels, or for employees to keep private their own salaries.

The reality is that every time an employee receives a paycheck that is lessened by discrimination, it is an act of discrimination by the employer. The harm is ongoing; the remedy should be too.

In addition, the impact of the Title VII caps on Ms. Ledbetter clearly illustrates the need to eliminate this arbitrary provision from the law.

Under current law, individuals who prove that they have been the victims of intentional discrimination based on sex, disability or religion are only able to recover compensatory and punitive damages up to a cap of $300,000. This is true no matter how egregious the conduct of the discriminator, nor how long the discrimination continued. The caps create an artificial ceiling on damages awards that does not exist for individuals whose discrimination was based on race or national origin. If a person who was discriminated against on the basis of sex suffers the same adverse employment consequences as a person discriminated against on the basis of race or national origin, why should one be eligible to receive more damages than another?

Moreover, often it is the most severe cases of discrimination that are affected by the damages caps. Damages caps, effectively, protect the worst offenders while denying relief to those who were harmed the most.

Caps also minimize the deterrent effect of Title VII. If the potential liability for sex discrimination is capped, it is manageable for corporations. More like a cost of doing business. However, uncapped damages, at a minimum, create more of an incentive for employers to ensure that their workplaces are free from discrimination. Compensatory damages are designed to make the victim whole. If the economic harms suffered by the victim of discrimination are greater than the statutory cap, it should not be the discrimination victim who is left with less.

Finally, in employment discrimination cases based on race or national origin – where there are no damages caps -- we have not seen runaway verdicts. This is, in part, due to the numerous existing limitations in the current law that guard against improperly high verdicts. Courts can use their remitter power to reduce or vacate excessive damage awards, and there are constitutional limitations on punitive damages.4

The impact of the Court’s decision in Ledbetter will be widespread, affecting pay discrimination cases under Title VII affecting women and racial and ethnic minorities, as well as cases under the Age Discrimination in Employment Act5 involving discrimination based on age and under the Americans with Disabilities Act6 involving discrimination against individuals with disabilities.

Here is an example. Imagine you have worked for a company for 30 years. You are a good worker. You do a good job. Unknown to you, the company puts workers who are 50 or older on a different salary track; lower than the younger workers who do the same work. At 60, you learn that for the last 10 years, you have been earning less – tens of thousands of dollars less than colleagues doing comparable work.

How do you feel?

Imagine you are this worker. How do you feel?

Even more, how do you feel when you learn that 180 days after you turned 50 – six months after you started getting paid less – you also lost your right to redress for the hundreds of discriminatory paychecks.

The decision in Ledbetter will have a broad real world impact. The following are just two examples of recent pay discrimination cases that would have come out very differently if the Court’s new rule had been in effect.

In Reese v. Ice Cream Specialties, Inc.7 the plaintiff, an African-American man, never received the raise he was promised after six months of work. He did not realize his raise had never been awarded until three and a half years later, when he requested a copy of his payroll records for an unrelated investigation.8 The employee filed a charge of race discrimination with the EEOC, and the court initially granted summary judgment to the employer. On appeal, the employee argued that his claim was timely under the continuing violation theory, and the court concluded that the relevant precedents compelled the conclusion that each paycheck constituted a fresh act of discrimination, and thus his suit was timely.9 If the rule in Ledbetter had been in effect, the plaintiff would not have been able to seek relief.

In Goodwin v. General Motors Corp.10, an African-American woman was promoted to a labor representative position, with a salary that was between $300 and $500 less than other similarly-situated white employees.11 Over time, Goodwin’s salary disparity grew larger until she was being paid $547 less per month than the next lowest paid representative, while at the same time pay disparities among the other three labor representatives shrank from over $200 per month to only $82.12 Due to GM’s confidentiality policy, Goodwin did not discover the disparity until a printout of the 1997 salaries “somehow appeared on Goodwin’s desk.”13 She then brought a race discrimination action against her employer under Title VII. The district court dismissed the action, but the Tenth Circuit reversed and remanded, holding that discriminatory salary payments constituted fresh violations of Title VII, and each action of pay-based discrimination was independent for purposes of statutory time limitations. Again, if the rule in Ledbetter had been in effect, the plaintiff would not have been able to obtain relief.

Pay discrimination is a type of hidden discrimination that continues to be an important issue in the United States. In the fiscal year 2006, individuals filed over 800 charges of unlawful, sex-based pay discrimination with the EEOC. Unfortunately, under the Ledbetter rationale, many meritorious claims will never be adjudicated.

While today we are focused on the immediate problem of the Ledbetter decision, it is also important to understand that this decision is part of the Court’s recent pattern of limiting both access to the courts and remedies available to victims of discrimination. The Court’s decisions have weakened the basic protections in ways that Congress never intended by Congress.

Under the Supreme Court’s recent rulings, older workers can no longer recover money damages for employment discrimination based on age if they are employed by the state14, state workers can no longer recover money damages if their employers violate minimum wage and overtime laws15; there is no private right of action to enforce the disparate impact regulations of Title VI of the Civil Rights Act of 196416; and workers can now be required to give up their right to sue in court for discrimination as a condition of employment.17 In many of these cases, as in Ledbetter, the Court is acting as a legislature, making its own policy while acting directly contrary to Congress’s intent.

For opponents of civil rights, there is no need to repeal Title VII. Instead you can substantially weaken its protections by chipping away at bedrock interpretations. Or, you can instead make it difficult or impossible for plaintiffs to bring and win employment discrimination cases. Or if you make the remedies meaningless.

As Justice Ginsburg pointed out in her dissent, Congress has stepped in on other occasions to correct the Court’s “cramped” interpretation of Title VII. The Civil Rights Act of 1991 overturned several Supreme Court decisions that eroded the power of Title VII, including Wards Cove Packing Co. v. Atonio18, which made it more difficult for employees to prove that an employer's personnel practices, neutral on their face, had an unlawful disparate impact on them, and Price Waterhouse v. Hopkins19, which held that once an employee had proved that an unlawful consideration had played a part in the employer's personnel decision, the burden shifted to the employer to prove that it would have made the same decision if it had not been motivated by that unlawful factor, but that such proof by the employer would constitute a complete defense. As Justice Ginsburg sees it, “[o]nce again, the ball is in Congress’ court.”

We agree.

We also reiterate the need to end the disparity in employment discrimination law by removing the damages caps that apply to women, individuals with disabilities and older Americans under current law. The caps undercut enforcement, are unnecessary, and reward the most egregious discriminators with a substantial limitation on liability for their intentional discriminatory acts.

The issues in this case are not academic. The fallout will have a real impact on the lives of people across America.

People like Lily Ledbetter.

Members of the Committee, today you begin the process of responding to Justice Ginsburg’s call. A process that will reaffirm that civil rights have legally enforceable remedies.

Thank you.

1 Slip op. No. 05-1074 (U.S. Supreme Court)

2 42 U.S.C. 2000e et seq.

3 Bierman & Gely, “Love, Sex and Politics? Sure. Salary? No Way”: Workplace Social Norms and the Law, 25 Berkeley J. Emp. & Lab. L. 167, 168, 171 (2004).

4 BMW of Northern America, Inc. v. Gore, 517 U.S. 559 (1996)

5 29 U.S.C. 621 et seq.

6 42 U.S.C. 12101 et seq.

7 347 F.3d 1007 (7th Cir. 2003)

8 Id. at 1007

9 Id. at 1013

10 275 F.3d 1005 (10th Cir. 2002)

11 Id. at 1008

12 Id.

13 Id. at 1008

14 Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)

15 Alden v. Maine, 527 U.S. 706 (1999)

16 Alexander v. Sandoval, 532 U.S. 275 (2001)

17 Circuit City Stores v. Adams, 532 U.S. 105 (2001)

18 490 U.S. 642 (1989)19 490 U.S. 228 (1989)