Core Provisions: This Act would amend the Fair Labor Standards Act of 1938 to prohibit discrimination in the payment of wages on the basis of sex, race or national origin. The Act requires employers to provide equal pay for jobs that are comparable in skill, effort, responsibility and working conditions. It also prohibits companies from reducing other employees’ wages to achieve this pay equity. In addition, the Act mandates that employers disclose their job categories and pay scales to the public. Employers would still be able to differentiate in wage rates based on seniority systems, merit systems, and systems that measure earnings by quantity or quality of production. Aggrieved employees would have the choice of filing a charge with the EEOC or proceeding directly to federal court.  The bill would permit compensatory and punitive damages against non-government employers and allow plaintiffs to pursue Rule 23 class actions instead of the present opt-in collective action mechanism used for Equal Pay Act and FLSA actions.

Status: Sen. Harkin (D-IA) introduced S.904 on April 28, 2009 and it was referred to the Committee on Health, Education, Labor, and Pensions. Rep. Norton (D-DC) introduced H.R.2151 on April 28, 2009 and it was referred to the Committee on Education and Labor. Substantially similar legislation was introduced in the 110th Congress, but failed to make it out of committee.

Core Provisions:  On February 12, 2009, Rep. Henry C. Johnson (D-GA) and 36 cosponsors introduced the Arbitration Fairness Act of 2009 (H.R. 1020). The bill would amend the Federal Arbitration Act to invalidate all predispute arbitration agreements mandating the arbitration of any employment, consumer, or franchise dispute, as well as any disputes arising under any civil rights statutes. The bill does not apply to arbitration provisions adopted as part of a collective bargaining agreement.

Intended to minimize the use of prearbitration agreements between parties of unequal bargaining power, the bill broadly defines “employment dispute” to include any “dispute between an employer and employee arising out of the relationship of employer and employee” as defined by the Fair Labor Standards Act.

The bill provides that challenges to the enforceability of an arbitration agreement would be heard by a federal court, and not by an arbitrator.

While the 2009 Arbitration Fairness Act mirrors its 2007 predecessor (H.R. 3010, S. 1782) from the 110th Congress in several respects, the current bill omits past provisions invalidating predispute agreements requiring the arbitration of disputes arising under any statute intended to regulate contracts or transactions between parties of unequal bargaining power. The Arbitration Fairness Act of 2007 was sent to the House Judiciary Committee and the Senate Subcommittee on the Constitution, but neither committee ever voted on the bill.

Status: The 2009 bill has been referred to the House Judiciary Committee. A hearing has not yet been scheduled.

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Restoration Act (S. 181). This is the first bill President Obama has signed into law.

At the signing ceremony, which came one day after the House passed the Senate version of the bill with a vote of 250-177, President Obama said, “in signing this bill today, I intend to send a clear message: that making our economy work means making sure it works for everyone. That there are no second class citizens in our workplaces, and that it’s not just unfair and illegal-but bad for business-to pay someone less because of their gender, age, race, ethnicity, religion or disability.” The Senate had passed the bill with a vote of 61-36.

The Lilly Ledbetter Fair Pay Act provides that compensation discrimination occurs “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 [a discriminatory decision or practice.]” Additionally, the legislation applies this language to discrimination claims brought under the Age Discrimination in Employment Act, Americans with Disabilities Act, and Rehabilitation Act. 

The bill applies retroactively, and take effect as if enacted on May 28, 2007, the day before Ledbetter v. Goodyear Tire & Rubber Co. was decided.

On January 27, 2009, the House passed the Senate version of the Lilly Ledbetter Fair Pay Act (S. 181) by a margin of 250-177.  The House, which passed a different version of the bill on January 9 by a vote of 247-171, acted days after the Senate passed the identical bill 61-36 on January 22.

The legislation, which would overturn the Supreme Court’s controversial 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., now awaits President Obama’s signature. The President campaigned in favor of the bill and is expected to sign it into law on January 29, 2009.

Introduced in the Senate by Sen. Barbara Mikulski (D-MD) on January 8, S.181 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. Specifically, the legislation provides that compensation discrimination occurs “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 [a discriminatory decision or practice.]”

Additionally, the legislation applies this language to discrimination claims brought under the Age Discrimination in Employment Act, Americans with Disabilities Act, and Rehabilitation Act. Once the bill becomes law, it would take effect as if enacted on May 28, 2007, the day before the Ledbetter decision was issued.

Core Provisions: This legislation, originally introduced on January 13, 2009, would amend the Uniformed Services Employment and Reemployment Rights Act to extend its prohibition against discrimination and acts of reprisal against armed service members to include persons who receive treatment for illnesses, injuries, and disabilities incurred in or aggravated by service in the uniformed services. The amended statute would therefore prohibit employers from discriminating or making any adverse employment decision against a veteran on the basis of that employee or applicant’s receipt of treatment for an illness, injury, or disability determined by the Secretary of Veterans Affairs to have been incurred in or aggravated by uniformed service.

As amended on May 19, 2009, the legislation would create additional rights for veterans absent from work for a military service-connected disability. These employees would be: 1) entitled to be retained by the employer and 2) entitled to the seniority and seniority-related rights and benefits the veteran had on the date of the treatment for the disability, plus any additional seniority, rights, and benefits the veteran would have attained had he or she remained continuously employed. In addition, these employees would be deemed to be on furlough or a leave of absence while receiving treatment for a military service-connected disability, and therefore would be entitled to other non-seniority rights and benefits generally provided by the employer to employees having similar seniority, status, and pay who are on furlough or a leave of absence. Employees would not be entitled to such non-seniority rights and benefits if the employee provides written notice to the employer of having no intent to return to employment following medical treatment. 

Further, employers would not be required to retain a covered veteran if: 1) circumstances have so changed to make retention impossible or unreasonable, 2) retention would pose an undue hardship on the employer, or 3) the employment in question is for a brief, nonrecurrent period and there is no reasonable expectation that it will continue indefinitely or for a significant period.

The legislation also would permit any veteran absent from work due to treatment for a military service-connected disability to use any accrued vacation, annual, medical, or similar leave with pay to cover such time away from work, although an employer cannot require a veteran to do so.

Status: Rep. Doggett (D-TX) introduced the Wounded Veteran Job Security Act on January 13, 2009 and it was referred to the House Committee on Veterans’ Affairs. The bill was reported with amendments to the House Committee on Veterans’ Affairs and placed on the Union Calendar on May 19, 2009.

On January 22, 2009, by a 61-36 margin, the Senate passed the Lilly Ledbetter Fair Pay Act (S. 181, H.R. 11), which would overturn the Supreme Court’s controversial 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. President Obama supports the legislation, which passed the House of Representatives on January 9, and is expected to sign it into law shortly.

Senate passage comes one week after the new Senate voted for cloture on S. 181 on January 15. Republicans had blocked a vote on the legislation in the 110th Congress, but Democratic gains in the 2008 elections gave supporters of the bill a filibuster-proof majority. Once it became clear that Republican opponents of the bill lacked the votes to filibuster the popular bill, 17 Republicans crossed party lines to vote for cloture. However, only five of those 17 Republicans supported the bill’s final passage.  All voting Democratic and Independent senators voted in favor of the Ledbetter bill.

Introduced by Sen. Barbara Mikulski (D-MD) on January 8, the bill 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. Specifically, the legislation provides that compensation discrimination occurs “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 [a discriminatory decision or practice.]” Additionally, the legislation applies this language to discrimination claims brought under the Age Discrimination in Employment Act, Americans with Disabilities Act, and Rehabilitation Act. Once the bill becomes law, it would take effect as if enacted on May 28, 2007, the day before the Ledbetter decision was issued.

On January 15, 2008, the new Senate voted for cloture on the Lilly Ledbetter Fair Pay Act (S. 181, H.R. 11) by a 72-23 margin. This legislation, which would reverse the Supreme Court’s controversial Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) decision, passed the House on January 9 by a 247-171 margin and is expected easily to win final passage in the Senate on Friday, January 16. Although Republicans were able to turn back identical legislation on cloture by three votes in July 2007, Democratic gains in the recent election gave S. 181 the supermajority support necessary to defeat a filibuster attempt. Once it became clear that Republican opponents of the bill lacked the votes to filibuster the popular bill, 17 Republicans crossed party lines to vote for cloture. 

Introduced by Sen. Barbara Mikulski (D-MD) on January 8, the bill 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. Specifically, the legislation provides that compensation discrimination occurs “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 [a discriminatory decision or practice.]” Additionally, the legislation applies this language to discrimination claims brought under the Age Discrimination in Employment Act, Americans with Disabilities Act, and Rehabilitation Act. Once the bill becomes law, it would take effect as if enacted on May 28, 2007, the day before the Ledbetter v. Goodyear Tire & Rubber Co. decision.

Even though the House recently also passed the provisions of the Lilly Ledbetter Fair Pay Act as an amendment to the Paycheck Fairness Act (H.R. 12) - another initiative intended to address discriminatory gender-based pay disparities - the Senate will bring S. 181 to a vote as stand-alone legislation. Sen. Hillary Clinton (D-NY) introduced the Senate version of the stand-alone Paycheck Fairness Act (S. 182) on January 8.

President-Elect Obama campaigned in favor of the Lilly Ledbetter Fair Pay Act and is expected to sign the bill into law shortly after his inauguration.

On Friday, January 9, 2009, the House passed the Lilly Ledbetter Fair Pay Act (H.R. 11) and the Paycheck Fairness Act (H.R. 12). The Lilly Ledbetter Fair Pay Act passed by a vote of 247 to 171, and the Paycheck Fairness Act passed by a vote of 256 to 163. The bills were considered pursuant to rules (H. Res. 5) limiting debate to one hour per bill, and prohibiting amendments.

The Lilly Ledbetter Fair Pay Act would reverse the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), and 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.

Specifically, the legislation provides that compensation discrimination occurs “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 [a discriminatory decision or practice.]” Additionally, the legislation applies this language to discrimination claims brought under the Age Discrimination in Employment Act, Americans with Disabilities Act, and Rehabilitation Act.  If the bill became law, it would take effect as if enacted on May 28, 2007.

Democratic representatives speaking in favor of the bill criticized the Ledbetter decision and emphasized the unfairness of requiring employees to bring claims within 180 days of the discriminatory pay decision when many female employees lack information about how their compensation compares to their male counterparts. “Sexism still robs women of their equal right to earn a livelihood . . . and it does much of its worst work in the dark. . . . You have six months to find out you’re being paid unfairly, or you’re out of luck for a lifetime,” stated Rep. Hoyer (D-MD).

Republican representatives accused the bill of dismantling any effective statute of limitations in Title VII cases, and complained that the bill was brought to the floor in haste under a closed rule, bypassing an adequate opportunity for full debate and consideration.

Rep. Hoyer expressed optimism that the Lilly Ledbetter Fair Pay Act would pass the Senate and be signed into law by the incoming president, but Sen. McConnell (R-KY) has warned of a possible Republican filibuster in the Senate.  In the previous Congress, Democrats were unable to defeat a Republican-led filibuster of the legistation, falling three votes short.  However, Democrats have since gained at least seven Senate seats in the 2008 election.       

The Paycheck Fairness Act would make compensatory damages available as remedies for Equal Pay Act claims, and make available punitive damages in cases where the employee demonstrates that the employer acted with malice or reckless indifference. The legislation would also make it more difficult for employers to establish the affirmative defense that a pay disparity is due to a factor other than sex by requiring the employer to demonstrate that such factor (1) is not based upon or derived from a sex-based differential in compensation; (2) is job-related with respect to the position in question; and (3) is consistent with business necessity. The bill would also eliminate this defense where the employee could demonstrate an alternative employment practice that served the same business purpose without producing wage differences.

Democrats supporting the bill lamented the enduring wage gap in the United States and emphasized the importance of ending pay discrimination against women, especially in the current economic climate. “Women, who account for nearly one half of the work force, feel the effects of this faltering economy with particular force and poignancy,” asserted Rep. DeLauro (D-CT), the bill’s sponsor. Rep. Andrews (D-NJ) supported the bill’s imposition of compensatory and punitive damages as available remedies in Equal Pay Act cases because victims of discrimination are often unable to obtain legal representation without the prospect of larger damage awards to encourage contingency fee arrangements.

Republicans opposing the bill argued that existing statutes already provide women with strong protections against workplace discrimination and sufficient remedies should they be subject to illegal employment practices. Several Republicans warned that the bill would only serve to invite more and costlier lawsuits. “A more apt name for this bill would be the Plaintiff Bar or Trial Lawyer Expansion Act,” quipped Rep. Kline (R-MN).

On January 6, 2009, the opening day of the 111th Congress, the House passed a rules package that will likely result in passage later this week of two employment-related bills and presentation to the Senate as a single piece of legislation. The reintroduced Lilly Ledbetter Fair Pay Act and Paycheck Fairness Act are identical to bills that were passed by the 110th Congress but stalled in the Senate.  The Lilly Ledbetter Fair Pay Act (H.R. 11) 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 Court read Title VII’s statute of limitations narrowly, requiring such a suit to be brought within 180 days of the actual discriminatory decision.  Senate Democrats fell three votes short of ending a filibuster but the bill is likely to pass now that the Democrat majority has increased in the Senate.

The Paycheck Fairness Act (H.R. 12) would provide for punitive and compensatory damages in Equal Pay Act actions, make it more difficult for employers to establish the affirmative defense that a pay disparity is due to a factor other than sex, and eliminate such a defense where the employee could demonstrate an alternative employment practice that served the same business purpose without producing wage differences. 

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.