On Tuesday, September 23, 2008, the United States Senate Committee on the Judiciary held a hearing entitled “Barriers to Justice: Examining Equal Pay for Equal Work.”  The focus of the hearing was the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074 (May 29, 2007) and the legislative responses to that decision, including the Fair Pay Restoration Act (H.R. 2831, S. 1483). 

Under the Ledbetter decision, an employee has 180 days from the employer’s initial act of pay discrimination in which to bring an action.  The Fair Pay Restoration Act would supplant the Supreme Court’s Ledbetter decision by permitting employees to challenge each and every discriminatory paycheck the employee receives within a two year period before filing a claim, as long as the claim is filed within 180 days of receiving a discriminatory paycheck.   Senators Feinstein, Feingold, and Leahy gave statements in support of the Fair Pay Restoration Act, and the committee heard from three witnesses concerning an alleged judiciary bias against plaintiffs in employment cases.

Senator Feinstein shared statistics that she stated demonstrated the immediate and future impact felt by women and their families as a result of discriminatory pay policies.  She asserted that disproportionate pay not only harms women and their families now, but also in retirement when, as a result of their smaller paychecks, women collect smaller pension checks.

Senator Leahy noted that in the current economic downturn many Americans are struggling for basic necessities. “It is sad that recent decisions handed down by the Supreme Court and Federal appellate courts have contributed to the financial struggles of so many women and their families,” he contended.

Senator Feingold belittled the Supreme Court’s Ledbetter decision, calling it erroneous and stating that it ignores the realities of the American workplace in which most employees have no way of learning within 180 days that they are being discriminated against in terms of compensation.  Senator Feingold also responded to critics of the legislation, who charge that the Act would force employers to defend themselves in costly litigation, by stating that the Act will “only affect those employers who underpay and discriminate against their workers, hoping that employees, like Ms. Ledbetter, won’t find out in time.”

Lilly Ledbetter, the plaintiff at the center of the controversial Supreme Court decision and one of the three witnesses to testify before the committee, also argued that the current state of the law under the Supreme Court’s decision does not make sense given the realities of the American workplace.  Ms. Ledbetter told the committee her story, and specifically about how, after years of working for Goodyear, she learned that she was being paid substantially less than her male peers for identical work.  “Justice Alito and four other Supreme Court justices sent the message that it’s just tough luck for the employee - if she doesn’t complain at the time of the employer’s original decision, the employer gets to pay her less for the rest of her career,” stated Ms. Ledbetter.

In addition to Ms. Ledbetter, two attorneys also testified before the Committee.  Lawrence Z. Lorber, a management-side practitioner, and Cyrus Mehri, a plaintiff-side attorney, gave the committee their views on the Ledbetter decision, and what the decision says about the way the judiciary views employment cases and employment plaintiffs.  Mr. Mehri catalogued what he perceived as a growing judicial bias against plaintiffs in employment cases, and specifically employment discrimination plaintiffs.  Mr. Mehri opined that the Ledbetter decision is an example of such anti-plaintiff bias and concluded that the only way to counteract this bias is to diversify the judiciary by expanding the pool of judicial nominees. Mr. Lorber contradicted Mr. Mehri’s evidence by enumerating a number of recent Supreme Court decisions in employment cases that expanded protections for employees under the ADEA, Section 1981, ERISA, and Title VII.  Mr. Lorber asserted that the cases he cited, all of which were decided during the Supreme Court’s 2007-2008 Term, demonstrate that there is no “pro-employer” bias or “anti-plaintiff” bias when the Court interprets employment laws.

Mr. Lorber also offered criticism of the Paycheck Fairness Act (H.R. 1338), proposed legislation that would eliminate the caps on punitive and compensatory damages in actions brought under the Equal Pay Act, and would make it more difficult for employers to establish the “bona-fide factor” affirmative defense.

On September 17, 2008, the House passed the ADA Amendments Act (ADAAA) (S. 3406) by voice vote.  The White House has indicated that President Bush will sign the bill.

Passed in the Senate by unanimous consent on September 11, 2008, this legislation would overturn a number of controversial U.S. Supreme Court decisions that have narrowed the scope of the ADA.  The legislation purports to return the ADA to its original scope as intended by Congress in 1990 by prohibiting courts from considering “mitigating measures” such as medication, prosthetics, and assistive technology in determining whether an individual is “disabled” under the ADA.  However, S. 3406 does permit consideration of standard vision correction achieved through normal glasses or contact lenses.

A person is considered disabled under the ADA if they suffer from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Although the new legislation retains the previously-debated “substantially limits” language, the bill directs the Equal Employment Opportunity Commission to change the current regulations defining “substantially limits” as “significantly restricted” because such regulations are “inconsistent with congressional intent, by expressing too high a standard.”

A statement released by the White House after the House vote, indicated that the president “looks forward to signing the ADAAA into law.” If enacted, the ADA Amendments Act would go into effect on Jan. 1, 2009.

Core Provisions: This untitled legislation purportedly intends to “protect the civil rights of victims of gender-motivated violence . . . by creating employer liability for negligent conduct that results in an individual’s committing a gender-motivated crime of violence against another individual on premises controlled by the employer.”  Where an employer’s negligent conduct results in a gender-motivated violent crime on the employer’s premises, this legislation would impose employer liability for compensatory and punitive damages and injunctive and declaratory relief.  The legislation directs the Equal Employment Opportunity Commission to create and provide materials to employers regarding personnel policies and safety standards to assist employers in avoiding liability under the bill.

Status: Rep. Maloney (D-NY) introduced H.R. 6927 on September 17, 2008, and it was referred to the House Committee on Education and Labor and the House Judiciary Committee.

On September 11, 2008, by unanimous consent, the Senate passed compromise legislation (S.3406) that would amend the Americans with Disabilities Act (”ADA”). Introduced in response to a series of controversial U.S. Supreme Court decisions that have narrowed the scope of the ADA, the legislation purports to return the ADA to its original scope as intended by Congress in 1990.

S.3406 requires courts to consider “mitigating measures” when determining whether an individual is “disabled” under the ADA. In rejecting Supreme Court precedent, the bill specifically prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology in determining whether an individual is disabled. However, S. 3406 does permit consideration of standard vision correction achieved through normal glasses or contact lenses. 

A sticking point previously holding up S.3406’s passage has involved Congress’s attempt to define of the term “substantially limits” under the ADA. Coverage under the ADA turns in large part on whether an individual is “substantially limited” in the ability to perform “major life activities.” Recent court decisions have taken a narrow view of “substantially limits” and Senate Democrats had sought to widen the ADA’s coverage by broadly defining the term. Language in H.R. 3195, a similar bill which passed the House of Representatives on June 25, defined the term to mean “materially restricts.” Republicans and business groups objected to that definition, warning H.R.3195’s language threatened to bring a bevy of relatively minor impairments under the ADA’s umbrella. Accordingly, following a bipartisan compromise, the final version of S.3406 omitted the “materially restricts” language, instead providing boarder coverage under the ADA through a preliminary section on Congressional findings and purposes.

The House of Representatives is expected to take up the bill once again in upcoming weeks. If enacted, the ADA Amendments Act would go into effect on Jan. 1, 2009.

On July 31, 2008, Sen. Tom Harkin (D-IA) introduced bipartisan legislation (S. 3406) amending the Americans with Disabilities Act (”ADA”). Like H.R. 3195, a similar bill which passed the House of Representatives on June 25, the legislation responds to three U.S. Supreme Court decisions that have narrowed the scope of the ADA.

The ADA Amendments Act does not include a previously-considered provision removing the ADA’s requirement that a disability “substantially limit” an individual’s ability to perform “major life activities.” Many members of Congress and the public have criticized eliminating this language, arguing that doing so would allow for a wide range of relatively minor impairments to be included under the ADA’s umbrella. S. 3406 continues the “substantially limits” requirement, considering “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions” as “major life activities” under the bill. For the “regarded as” category, the bill would exempt minor impairments and impairments lasting six months or fewer as outside the scope of coverage.

S. 3406 purports to return the ADA to its original scope as intended by Congress, and requires courts to consider “mitigating measures” when determining whether an individual is “disabled” under the ADA. In rejecting Supreme Court precedent, the bill specifically prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology in determining whether an individual is disabled.  However, S. 3406 does permit consideration of standard vision correction achieved through normal glasses or contact lenses. 

A bipartisan majority of the Senate has already signed on to co-sponsor S. 3406 and the bill has drawn support from disability rights activists as well as the business community, including the Chamber of Commerce. The Senate is expected to take up the bill in September following its summer recess. If enacted, the ADA Amendments Act would go into effect on Jan. 1, 2009.

On July 24, 2008, following an afternoon markup session, the House Committee on Education and Labor passed an amended version of the Paycheck Fairness Act (H.R. 1338) out of committee by a vote of 26 to 17, thus advancing the bill to the House floor. In an attempt to address ongoing pay disparities by gender, the Paycheck Fairness Act would eliminate the caps on punitive and compensatory damages in actions brought under the Equal Pay Act, and would make it more difficult for employers to establish the “bona-fide factor” affirmative defense. Under the Paycheck Fairness Act, the “bona-fide factor” defense would no longer be valid where the employee could demonstrate an alternative employment practice that served the same business purpose without producing wage differences.

The Committee passed the amendment proposed by Committee Chairman Miller (D-CA), which was a substitute version of the legislation. Miller’s amended version is similar to the original, but addresses some employer concerns by clarifying that employees would only be deemed to work in the same “establishment” for purposes of proving a pay disparity if the employees “work for the same employer at workplaces located in the same county or similar political subdivision of a State.” The amended bill also clarifies that the provision protecting employees from employer retaliation would not apply to employees with access to wage information by virtue of their job duties who disclose other employees’ wages, unless the disclosure is in response to a complaint or charge or in furtherance of an investigation. Where the original legislation appropriated “such sums as may be necessary,” the version passed by the committee would authorize a $15 million appropriation.

Several proposed amendments failed to pass, including two amendments by Rep. Price (R-GA), which would have made implementation of the Act contingent upon a 90-day study by the Department of Labor on whether the bill would hinder recruitment and hiring, and limited reasonable attorney’s fees under the act to $2,000 per hour. Several proposed amendments were ruled non-germane by Chairman Miller. These included an amendment proposed by Rep. McMorris Rodgers (R-WA) mirroring her proposed Family-Friendly Workplace Act (H.R. 6025), and an amendment proposed by Rep. McKeon (R-CA) requiring a study on how rising energy costs exacerbate the impact of wage disparities for American families.

On July 15, 2008, the Senate Committee on Health, Education, Labor, and Pensions held a hearing on pending legislation passed by the House of Representatives (H.R.3195) that would alter the reach of the Americans with Disabilities Act (”ADA”). Scholars, lawyers, consultants and analysts, and disabled persons appeared before the panel to discuss the proper scope of coverage for the Americans with Disabilities Act (”ADA”). The discussion centered on the proper definitions of the term “disability” and the phrase “substantially limits” under the proposed bill.

In 1999, the Supreme Court limited the definition of “disability” when it ruled that mitigating measures must be considered in determining whether an individual’s impairment substantially limits a major life activity. This trend continued in 2002 in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, where the Supreme Court ruled that the words “substantially limits” and “major life activities” were to be interpreted strictly to create a “demanding standard for qualifying as disabled,” a standard that would remove thousands of disabled individuals from the Act’s coverage.

In light of this strict reading of the ADA’s provisions, the House of Representatives passed the ADA Amendments Act of 2008 (H.R. 3195) on June 25, 2008. Senator Harkin (D-IA) pointed to the ADA’s history of bipartisan support and the current consensus that the Supreme Court has interpreted the definition of “disability” too narrowly. While acknowledging problems needing follow-up in the House bill, Sen. Harkin pressed for broader coverage under the ADA.

Testimony at the hearing also centered on H.R. 3195’s definition of the phrase “substantially limits” as “materially restricts” and asked whether that definition provided a clear standard for the courts to apply. Most witnesses supported H.R. 3195’s definition. Law professors Samuel R. Bagenstos and Chai Feldblum stated separately that the “materially restricts” definition contained in the Act provided the appropriate level of clarity and that courts could effectively apply the standard. Michael Eastman, Employment Policy Director of the U.S. Chamber of Commerce, also supported the H.R. 3195’s definition, calling it a collaborative effort between business and the legislature.

One witness, Terry W. Hartle, Senior Vice President of the American Council on Education, expressed concern that that the broader definition of “substantially limits” in H.R. 3195 might force the academic community to alter essential elements of core education programs. Sen. Harkin disagreed, pointing out that this concern was directly contradicted by the unchanged statutory language. He explained that the only way to ensure that courts could never alter academic programs would be to institute a total ban on such actions - an idea he found unrealistic. Specific to standardized testing, educational consultant Jo Anne Simon dismissed as unfounded concerns that the new definition of “substantially limited” could create havoc in the field of standardized testing by requiring extra time and other accommodations for marginally afflicted students. Simon explained that the bill merely allowed persons with disabilities to be more easily identified and did not necessarily require increased accommodation.

Andrew Grossman, Senior Legal Policy Analyst of the Heritage Foundation and critic of H.R. 3195, submitted comments centering on compliance costs to businesses.  Calling the bill’s approach “vague,” he stated that the uncertainty created by H.R. 3195 will lead businesses to waste resources in attempting to comply with unclear standards. Grossman’s comments echoed the testimony of Sue Gamm of the Public Consulting Group, who urged adoption of more specific language.

Sen. Harkin concluded the hearing by reaffirming his commitment to H.R. 3195’s passage prior to the close of the year.

On June 26, 2008, Sen. Kay Bailey Hutchinson (R-TX) proposed legislation that would extend the time limit workers have to file suit for employment discrimination in certain cases. The “Title VII Fairness Act” (S. 3209) would allow for an extension in cases where workers cannot reasonably be expected to have known they had been discriminated against.

The bill is a response to the Supreme Court’s decision last year in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007), which rejected the “paycheck rule” used by many courts and held that the time limit for filing a discrimination charge with the EEOC starts to run when the employer makes a discriminatory decision about the employee’s compensation, not each time the employee receives a paycheck affected by discrimination.

The proposed legislation would amend Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973 to extend the time limit workers have to file suit for employment discrimination in certain circumstances. The bill would clarify that the limitations period for bringing forward a claim is measured from the time of the discriminatory action (which is the current law) unless the employee can demonstrate that he or she did not know, and should not have known, about the discrimination. If the employee makes such a showing, the claim-filing period would begin to run when the worker had notice of the discrimination. The bill would build upon existing guidance from the EEOC on what type of information and circumstances indicated “notice” of discrimination to the employee.

Earlier this year, Senate Health, Education, Labor, and Pensions Committee Chairman Edward Kennedy (D-MA) proposed legislation (S. 1483) aimed at the Ledbetter decision that would amend the same laws as Sen. Hutchinson’s bill. Sen. Kennedy’s bill would provide that the charge-filing periods would be triggered whenever an employee is affected by application of a discriminatory compensation decision or practice. Republican lawmakers criticized this approach by suggesting it would put unnecessary strain on employers because claims could be filed several years after the discrimination was alleged to have occurred.

Sen. Hutchinson’s bill was referred to the Senate Health, Education, Labor, and Pensions Committee. Sen. Mike Enzi (R-WY), the ranking Republican member of that committee, is a co-sponsor of the bill.

 Core Provisions: This bill would amend Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973 to extend the time limit workers have to file suit for employment discrimination in certain circumstances. The bill would clarify that the limitations period for bringing forward a claim is measured from the time of the discriminatory action (which is the current law) unless the employee can demonstrate that he or she did not know, and should not have known, about the discrimination. If the employee makes such a showing, the claim-filing period would begin to run when the worker is charged with notice. The bill would build upon existing guidance from the EEOC on what type of information and circumstances indicated “notice” of discrimination to the employee.

Status: S. 3209 was introduced in the Senate by Sen. Kay Bailey Hutchison (R-TX) on June 26, 2008, and referred to the Senate Committee on Health, Education, Labor, and Pensions.

 On June 25, 2008, the House approved legislation (H.R. 3195) that would redefine the legal meaning of “disabled” under the Americans with Disabilities Act. Strong bipartisan support for the bill was reflected in the 402-15 vote. The legislation would establish new definitions for “disabled,” which has been narrowed by Supreme Court interpretations over the past decade, by changing the description from a physical or mental impairment that “substantially limits” one or more major life activities to one that “materially restricts” such an activity. The bill also would re-extend protections to people with disabilities not immediately evident in the workplace.

While President Bush has indicated support for the “overall intent” of the bill, the White House suggested changes to the House bill on June 24, 2008.  However, the bill was brought up under a “closed rule” that did not permit amendments.  As a result, the White House suggestions were not adopted.

The bill now heads to the Senate, where it has been championed by Senate Health, Education, Labor, and Pensions Committee Chairman Edward Kennedy (D-MA). Sen. Kennedy is not expected to return to work until after the August recess, and the bill has yet to be scheduled for a markup or vote in the Senate.