On January 24, 2008, Sen. Edward Kennedy (D-MA) and Rep. John Lewis (D-GA) introduced the Civil Rights Act of 2008 (H.R.5129, S.2554) in their respective chambers. The new bill represents a comprehensive effort to extend various employment and civil rights protections to employees and respond to a series of Supreme Court decisions that limited the scope and remedies of various anti-discrimination statutes. Key features of the bill, which has strong Democratic support, include removing current caps on damages for violations of Title VII and the Americans with Disabilities Act, incorporating Title VII’s disparate impact standards into the Age Discrimination in Employment Act, replacing “opt in” collective actions with “opt out” class actions for Equal Pay Act claims, and prohibiting pre-dispute arbitration agreements between employers and employees. A more detailed description of the bill’s provisions may be found in our Bill Tracker section.

On January 24, 2008, the Senate Health, Employment, Labor and Pensions (HELP) Committee held a hearing on the proposed Fair Pay Restoration Act (H.R.2831, S.1483), which is a legislative response to the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074 (May 29, 2007). The bill would enable applicants and current and former employees to challenge decades-old personnel decisions and would eliminate the statute of limitations for federal employment discrimination claims. For example, the bill would permit any claim to be brought within 180 days after an employee receives a paycheck that is the product of alleged discriminatory acts that occurred years or decades before the paycheck issued, no matter how far in the past the underlying act of discrimination allegedly occurred. Eric Dreiband, a partner at Akin Gump and former general counsel of the Equal Employment Opportunity Commission (EEOC), testified that the legislation would not advance the public interest. Witnesses in favor of the legislation included litigant Lilly Ledbetter, Washington University law professor Samuel Bagenstos and U.S. Women’s Chamber of Commerce Chief Executive Officer (CEO) Margot Dorfman.

Ledbetter testified about suing her employer for alleged gender-based pay discrimination. Although Ledbetter was successful at trial, she recounted that the Supreme Court rejected her claims as untimely because she did not allege any acts of discrimination within the 180-day charging period. She said that each paycheck constituted a discriminatory act because each reflected the pay disparity resulting from intentionally discriminatory pay decisions that occurred outside the limitations period. She also complained that her pension and other retirement benefits were lower than they would have been if her employer had not discriminated against her throughout her 19-year career.

Ledbetter emphasized that a jury awarded her more than $3 million in compensatory and punitive damages, but the judge was forced to reduce the award to the $300,000 statutory cap, a point that both Sen. Mikulski (D-MD) and Sen. Kennedy (D-MA) noted in their questioning. Later that day, Sen. Kennedy introduced the Civil Rights Act of 2008 (H.R.5129, S.2554), which would eliminate the damages cap in Title VII cases, among other provisions.

Dorfman testified in favor of the legislation on behalf of women business owners. Dorfman argued that unchecked pay discrimination hurts those business owners who “play fair” by putting them at a competitive disadvantage.

Bagenstos testified that paychecks reflecting discriminatory pay decisions were treated as discriminatory acts for the purposes of the charge filing period by 10 federal circuit courts of appeals prior to the Ledbetter decision, and that the proposed legislation would overturn that decision in favor of “a simple commonsense rule to govern the timeliness of pay discrimination claims.” Bagenstos pointed out that unlike the refusal to hire or discriminatory discharge contexts, a pay disparity victim may not immediately recognize he or she is being discriminatorily paid less because many employees do not know their coworkers’ wage rates. Bagenstos argued that because pay discrimination is less readily identifiable, the proposed legislation is necessary to preserve the timeliness of pay discrimination claims.

Dreiband warned that the bill is not limited to compensation or anything else, and that it contains no time limit for any award of compensatory and punitive damages authorized by Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. He said that the bill likewise contains no time limit on any award of back pay and liquidated damages that may be recovered under the Age Discrimination in Employment Act. Dreiband cautioned that the Fair Pay Restoration Act does not exclude or exempt pension benefits and, if enacted, it may expose pension funds to “unanticipated and potentially staggering liability that could risk the retirement security of many Americans.” Dreiband said that the Ledbetter decision was consistent with more than thirty years of Supreme Court decisions, and that the Fair Pay Restoration Act mistakenly assumes that the law currently endorses hidden or concealed discrimination. Dreiband pointed out that Ms. Ledbetter herself knew about alleged sex-based pay disparities several years before she filed a charge of discrimination, and that her delay had real consequences: “Ms. Ledbetter’s case dragged on for nearly ten years, and one of the defendant’s most important witnesses died before the trial.”

Sen. Mikulski questioned Ledbetter about the economic and psychological costs that resulted from bringing her claim. Sen. Mikulski asserted that fears that the proposed legislation would result in many frivolous lawsuits were unfounded given the personal and professional sacrifices involved.

Sen. Harkin (D-IA) asked Ledbetter if she thought a requirement that employers publish information about its compensation rates would have dissuaded her employer from discriminating. Ledbetter responded affirmatively, and noted that such information would also have helped her to more quickly recognize the extent of the disparity in her pay. Sen. Harkin appealed to the committee to pass the Fair Pay Act (H.R.2019, S.1087), which would require employers to disclose pay ranges for each position.

Core Provisions: H.R.5090 would amend the FMLA to make the eligibility requirements more lenient for the family members of wounded veterans. Currently, an employee must have worked for at least 1,250 hours for their employer during the previous 12-month period in order to be an “eligible employee” for FMLA purposes. H.R.5090 would lessen that requirement to 625 hours for a veteran’s spouse, parent, son or daughter taking leave to care for the covered service member.

Status: H.R.5090 was introduced by Rep. Barrow (D-GA) on January 22, 2008, and referred to the House Committees on Education and Labor, Oversight and Government Reform, and House Administration.

Core Provisions: The Fairness in Autism Treatment Act would amend the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code of 1986 to require that group health plans provide coverage for pervasive developmental disorders such as autism. The expanded coverage would include therapeutic, respite and rehabilitative care for participants or for beneficiaries under the age of 22. In addition, the group health plan may not impose any annual or lifetime dollar limitation on benefits for pervasive developmental disorders unless such limitation applies to all medical and surgical benefits. This amendment would not apply to group health plans of small employers, i.e., those with at least two but less than fifty employees.

Status: On January 16, 2008, the bill was introduced by Rep. Wexler (D-FL), and referred to both the Committee on Education and Labor, and the Committee on Ways and Means.

Core Provisions: This bill is a comprehensive effort to extend various employment and civil rights protections to employees, as well as an effort to respond to a series of Supreme Court decisions by expanding the scope and remedies of various anti-discrimination statutes. The Civil Rights Act of 2008 would—

• remove current caps on damages and thereby authorize recovery of unlimited compensatory and punitive damages for violations of Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act
• expand disparate impact age discrimination liability by incorporating Title VII’s disparate impact standards into the Age Discrimination in Employment Act (ADEA)
• prohibit pre-dispute arbitration agreements between employers and employees
• expand Equal Pay Act protections by limiting employer defenses, extending protections to applicants, authorizing compensatory and punitive damages, and replacing “opt-in” collective actions with “opt-out” class actions
• authorize compensatory and punitive damages for retaliation claims brought pursuant to the Fair Labor Standards Act (FLSA).

The bill would also abrogate 11th Amendment immunity for states (as established in a line of Supreme Court decisions) under the ADEA and the FLSA when the state program or activity in question is a recipient of federal funds. Further, the bill provides individuals with a private right of action to sue programs receiving federal funds under Title VII of the Civil Rights Act of 1964, Title IX of the 1972 Education Amendments, Section 504 of the Rehabilitation Act and the Age Discrimination Act of 1975. It also clarifies that military veterans possess a private right of action against state employers under the Uniformed Services Employment and Reemployment Rights Act. The bill further provides that the National Labor Relations Board may award back pay to undocumented immigrant workers terminated for union representation activity. Additionally, it would make it easier for plaintiffs to recover lawyers’ fees under civil rights statutes and permits the recovery of expert fees by prevailing plaintiffs in Title VII cases.

Status: On January 24, 2008, Sen. Kennedy (D-MA) and Rep. Lewis (D-GA) introduced the Civil Rights Act of 2008 (H.R.5129, S.2554) in their respective chambers. The bill has drawn strong support from House and Senate Democrats.

Core Provisions: H.R.3920 and S.1848 would streamline the trade adjustment assistance program (TAA), which provides training and benefits to workers who lose their jobs because of increases in trade. The major provisions include extension of benefits to service workers and expansion of benefits to workers who lose their jobs for reasons unrelated to trade agreements. The bill also increases the amount of payments for training of adversely affected workers and the maximum allowance to cover costs of such workers for job search and relocation expenses. This act would also amend the Worker Adjustment and Retraining Notification (WARN) Act by expanding the notice period from 60 days to 90 days, and requiring employers to provide employees with information regarding any benefits and services available to them. The act also requires notice to be sent to the Department of Labor, which in turn would transmit the information to relevant members of Congress. The amendment further calls for double damages in the form of two days’ worth of pay for every day an employer falls short of the 90-day notice period, and enables the Department of Labor to enforce the Act.

Status: H.R. 3920 was introduced by Rep. Rangel (D-NY) on October 22, 2007, passed by the House on October 31, 2007, and referred to the Senate Finance Committee on November 5, 2007. S.1848, co-sponsored by Sen. Baucus (D-MT) and Sen. Snowe (R-ME), was introduced to the Senate on July 23, 2007. Reauthorizing TAA is a top priority for Senate Finance Committee Chairman Baucus, who recently stated it would be the first item on his 2008 trade agenda. Saying he expects the Senate Finance Committee to mark up a bill reauthorizing the TAA program by the middle of February, Baucus outlined his plans in a speech to the Peterson Institute for International Economics to add service workers, double the training budget and expand TAA benefits to more workers. The White House threatened to veto the House bill, but President Bush encouraged Congress to renew the TAA program and enact changes to help workers affected by trade deals in his January 28, 2008, State of the Union address.