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When a Supreme Court ruling last month made it more difficult for victims of unequal pay to sue their employers, advocates for the American business community celebrated. “We are thrilled,” Karen Harned, executive director of the National Federation of Independent Business Legal Foundation, said at the time. The thrill, however, could be gone — and sooner rather than later. Almost immediately after the May 29 decision in Ledbetter v. Goodyear Tire & Rubber Co., Democratic staffers were quietly, yet urgently, crafting legislation to reverse the 5-4 ruling during what was supposed to be recess week on the Hill. In Ledbetter, the Court’s majority found that a claim of pay discrimination must be filed with the Equal Employment Opportunity Commission within 180 days of the alleged discriminatory action — not 180 days from the complainant’s last paycheck, as it had been previously interpreted. The ruling sparked a stinging dissent from Justice Ruth Bader Ginsburg, the only woman on the bench. She called the Court’s interpretation of Title VII “parsimonious” and, in what some saw as a call to action, remarked that “the ball lies in Congress’ court” to correct the ruling. The next day, the Democratic caucus gathered on Capitol Hill to discuss a game plan. There, D.C. Del. Eleanor Holmes Norton (D), who ran the EEOC in the late 1970s, said she wanted to help lead the effort to change the law. Two days later, Norton met with House and Senate staffers — including those from the offices of Sens. Hillary Clinton (D-N.Y.) and Ted Kennedy (D-Mass.) and Reps. John Conyers Jr. (D-Mich.) and George Miller (D-Calif.) — to begin crafting legislation that would do away with the 180-day time limit as it currently stands. Norton says she can’t provide details of what’s in the works but says that she’s already met with women’s and civil rights advocates like Marcia Greenberger of the National Women’s Law Center. Some of these advocates are asking that the 180-day filing period begin at the point of a person’s final paycheck. Others think that it should be extended, maybe to as long as 10 years. The House Education and Labor Committee has scheduled a hearing on the Ledbetter ruling for June 12, with Lilly Ledbetter scheduled as one of the witnesses. With a Democratic Congress and no concrete legislation to respond to, business groups — which have had their hands full with the immigration bill — have been a bit sluggish in mounting a defense. “We were very thrilled with the Court’s decision, and we think it’s the right one,” says Michael Eastman, executive director of labor policy at the National Chamber Litigation Center, a legal branch of the U.S. Chamber of Commerce. “We’re not sure what Congress will do ultimately, but we’ve been educating members of Congress about this issue, especially those on the House and Senate labor committees. “The bottom line is that we’re against any extension,” he adds.”We’re simply opposed to it, but we’re waiting to see what’s going to be proposed.” WORKPLACE POLITICS The Court’s decision may have less of an immediate effect on pending claims and more of an effect on the workplace. While the Ledbetter ruling was a tremendous shift in the interpretation of Title VII’s statute of limitations for pay disparity claims, employment discrimination lawyers say it will likely have little effect on cases in the short term. For one, Ledbetter will not be applied retroactively, so cases already in the pipeline, like the class action filed May 31 against General Electric Co. by one of its general counsels, will proceed under the old interpretation. But these attorneys say workplace policies could change in an attempt to limit employees’ knowledge of pay disparities. “What this will do is encourage companies to enact policies that would prevent employees from discussing their salaries,” says Lynne Bernabei, a name partner at Bernabei & Wachtel who specializes in employment discrimination and civil rights cases. “It seems as if the only way you’ll know about pay discrimination is if someone violates company policy. I think everyone is watching out for the congressional fix.” The problem for businesses is that any legislative remedy loosening the filing requirements outlined in Ledbetter would almost certainly mean an influx of what business lobbyists and attorneys call “stale discrimination claims.” “Title VII calls for prompt remediation of employment discrimination matters. From the lawyer and Court perspective, this case was properly interpreted,” says Sara Begley, a partner in Reed Smith’s Philadelphia office who has represented employers in pay discrimination cases. “Otherwise, how are employers to properly remediate the situation and defend themselves? The case is beneficial to employers. It brings clarity to the claims process, and I’m sure they would want to keep it that way.” Michael Layman, a lobbyist for the Society for Human Resource Management, an association of human resource professionals, says he plans on lobbying as early as this week to make sure any new legislation retains a “reasonable statute of limitations on pay discrimination claims.” “The issue is certainly a priority for us, and we will engage as long as legislation advances,” Layman says. The National Federation of Independent Business, meanwhile, plans to poll its members to gauge their reactions and concerns about any moves Congress makes. “I’m assuming the legislation would lengthen the 180-day period,” says Elizabeth Gaudio, NFIB’s senior counsel. “We don’t know what any legislation looks like but will have concerns with an extension. And it would be even more problematic if there was legislation that eliminates any statute of limitations.” But if money carries any influence — and it usually does — then business groups may have trouble convincing Democrats to side with them. According to campaign finance records filed with the Federal Election Commission in 2006, the U.S. Chamber of Commerce gave $139,000 to Republicans and only $30,500 to Democrats. The National Federation of Independent Business gave $748,020 to Republicans and just $88,999 to Democrats. And if civil rights groups get their way, the legislative changes won’t be limited to filing deadlines. Kim Gandy, president of the National Organization for Women, says NOW is “working on multiple fronts.” “We’ve been meeting with our friends in Congress,” she says, adding that NOW has been communicating with the offices of Clinton, Kennedy, Conyers, Norton, and Rep. Rosa DeLauro (D-Conn.).”They have been very, very willing to work with us to legislatively overrule the decision.” Gandy says she is also suggesting that any legislative fix removes the $300,000 cap on damages awarded to victims of pay discrimination. Legal Momentum, a nonprofit, women’s rights organization, is proposing that legislation be created that makes it clear that every discriminatory paycheck serves as a basis for a new discrimination claim, says Jennifer Brown, vice president and legal director of the group. OLD HAT Any proposed legislation would almost certainly come out of the House and Senate’s judiciary and labor committees, and the fact that one hearing has already been scheduled is a sign that some members want to move fast. Norton, who has no voting power in Congress, has a somewhat intimate relationship with fair-pay discrimination guidelines. She chaired the EEOC from 1977 to 1980 and had a hand in developing EEOC guidelines to enforce the Equal Pay Act and Title VII. “I am working closely with this group to zero in on a fix to the Court decision,” she says. “We are now discussing the details of that fix. We asked staff to get the language, and it is now being reviewed by members before we sign off on it.” She offered no time frame for when that would happen other than to say it would be “soon.”
Osita Iroegbu can be contacted at [email protected].

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