On January 6, 2009, the 111th Congress will convene. As part of its first-week agenda, the new Congress is expected to consider two employment-related pieces of legislation that passed in the 110th Congress but failed to gain passage in the Senate. Although the bills will not be introduced until after Congress formally convenes, the Lilly Ledbetter Fair Pay Act and Paycheck Fairness Act scheduled for consideration on Friday are likely to closely resemble the identically named bills which were passed in the House in the last Congress.  

First passed by the House in July 2007, The Lilly Ledbetter Fair Pay Act would amend Title VII to allow claims brought within 180 days of receiving any paycheck affected by a discriminatory pay decision, no matter how far in the past an act of discrimination allegedly occurred. This legislation would reverse the controversial Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), in which the Supreme Court read Title VII’s statute of limitations narrowly, requiring such a suit to be brought within 180 days of the actual discriminatory decision. In April 2008, Senate Democrats fell three votes short of ending a filibuster but the bill is very likely to pass now that the Democrat majority has increased in the Senate.

The Paycheck Fairness Act provides for punitive and compensatory damages in Equal Pay Act actions, makes it more difficult for employers to establish the affirmative defense that a pay disparity is due to a factor other than sex, and eliminates such a defense where the employee could demonstrate an alternative employment practice that served the same business purpose without producing wage differences.