The Lilly Ledbetter Fair Pay Act of 2009: A Three Part Series by Joanna Grossman and Deborah Brake

Joanna Grossman and Deborah Brake have published an interesting three-part series on the Ledbetter Fair Pay Act. The series considers the legal questions raised "by the first wave of cases to invoke various provisions of the Ledbetter Act, as well as some lingering problems in the enforcement of equal pay laws".
Part One:
In Part One of the series, Ms. Grossman and Ms. Brake provide a summary of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. and the Lilly Ledbetter Fair Pay Act of 2009. The authors note that the Act has two basic provisions:
  • it redefines "unlawful employment practice" under Title VII to include three different points on an alleged pay discrimination timeline:
    • when a discriminatory compensation decision or other practice is adopted;
    • when an individual becomes subject to a discriminatory compensation decision or other practice;
    • 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 such a decision or other practice;
  • it stipulates that a person who proves pay discrimination can recover "back pay for up to two years preceding the filing of the charge".
The authors raise an interesting question, one that has significant implications from an economic and statistical perspective, as well as a legal perspective: "What exactly is a 'compensation decision or other practice'?"

Part Two:
In Part Two, Ms. Grossman and Ms. Brake return to the question of what exactly is a compensation decision or other practice. To examine this question, they provide a discussion of Mikula v. Allegheny County. They note that the ruling from the U.S. Court of Appeals for the Third Circuit highlight some of the difficulties courts have confronted in applying the Ledbetter Act:

Unfortunately, the issues raised in Mikula are only the tip of the iceberg in early post-Ledbetter Act litigation. The more difficult questions relate to the meaning of "other practice" in the Act's description of the employment actions it covers.

Part Three:
In Part Three, Ms. Grossman and Ms. Brake consider other cases and questions that have arisen as courts begin applying the Act. They focus on three issues:

  • what discriminatory practices are encompassed within the Act's reference to "compensation decision or other practice";
  • does the Act have any effect on statutes that it did no specifically amend, but that are interpreted with reference to Title VII law;
  • does the Court's Ledbetter decision have continuing vitality with respect to Title VII cases that are not directly covered by the Act, but that involve concerns similar to those prompting Congress to overturn the decision.
The authors again return to the central question of what exactly is a 'compensation decision or other practice', noting:

Some commentators have speculated that this catch-all term might encompass discriminatory practices wholly apart from pay discrimination. However, a separate phrase in the Act makes clear that the unlawful employment practice must be made "with respect to discrimination in compensation" in order to trigger the provisions of the Ledbetter Act.
Ms. Grossman and Ms. Brake point out that even if the Act is limited to practices that bear on employee compensation, there are still unanswered questions. They argue that 'other practices' should extend to practices covered in the Act beyond decisions that directly set an employee's salary: 
The plain meaning of the Act suggests that it encompasses employment practices that cause an employee to receive lower compensation than she would have received but for the discriminatory practice.
The authors point out that this meaning "may well clash with Congress' intent", and cite to decisions such as Delaware State College v Ricks and United Airlines, Inc. v. Evans.
A discussion of the various interpretations of the Fair Pay Act is provided; they note that some courts have interpreted it "broadly", while others have interpreted it "narrowly":
The divide reflects a clear tension: On one hand, the language of the Ledbetter Act appears to encompass any discriminatory practice with a continuing effect on employee compensation. On the other hand, it was Congress' apparent purpose not to overturn other Supreme Court precedents besides the Ledbetter decision. Lower courts are likely to continue to struggle with this tension into the foreseeable future.
Ms. Grossman and Ms. Brake then consider discrimination statutes not covered by the Fair Pay Act, pointing out that with respect to certain discrimination statutes, courts often look to Title VII law for guidance on questions of timeliness. 
They conclude the three-part series with a discussion of whether the Supreme Court's decision in Ledbetter is still "good law" in Title VII cases not covered by the Fair Pay Act. The authors conclude: 
the Supreme Court's upcoming decision in the Lewis case could shed light on the Court's view of the continuing viability of the Ledbetter case and the lessons to be drawn from Congress' decision to overrule it.

Thanks to Joanna Grossman and Deborah Brake for permission to post links to and a summary of their three-part series.