59–006 

110TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 110–237 

LILLY LEDBETTER FAIR PAY ACT OF 2007 

JULY 18, 2007.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. GEORGE MILLER of California, from the Committee on 

Education and Labor, submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 2831] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Education and Labor, to whom was referred 

the bill (H.R. 2831) to amend title VII of the Civil Rights Act of 

1964, the Age Discrimination in Employment Act of 1967, the 

Americans With Disabilities Act of 1990, and the Rehabilitation 

Act of 1973 to clarify that a discriminatory compensation decision 

or other practice that is unlawful under such Acts occurs each time 

compensation is paid pursuant to the discriminatory compensation 

decision or other practice, and for other purposes, having considered the same, report favorably thereon with an amendment and 

recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Lilly Ledbetter Fair Pay Act of 2007’’. 

SEC. 2. FINDINGS. 

Congress finds the following: 

(1) The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., No. 05– 

1074 (May 29, 2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines 

those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress. 


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(2) The limitation imposed by the Court on the filing of discriminatory compensation claims ignores the reality of wage discrimination and is at odds with 

the robust application of the civil rights laws that Congress intended. 

(3) With regard to any charges of discrimination under any law, nothing in 

this Act is intended to preclude or limit an aggrieved person’s right to introduce 

evidence of unlawful employment practices that have occurred outside the time 

for filing a charge of discrimination. 

(4) This Act is not intended to change current law treatment of when pension 

distributions are considered paid. 

SEC. 3. DISCRIMINATION IN COMPENSATION BECAUSE OF RACE, COLOR, RELIGION, SEX, OR 

NATIONAL ORIGIN. 

Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–5(e)) is amended 

by adding at the end the following: 

‘‘(3)(A) For purposes of this section, an unlawful employment practice occurs, 

with respect to discrimination in compensation in violation of this title, when 

a discriminatory compensation decision or other practice is adopted, when an 

individual becomes subject to a discriminatory compensation decision or other 

practice, or 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. 

‘‘(B) In addition to any relief authorized by section 1977a of the Revised Statutes (42 U.S.C. 1981a), liability may accrue and an aggrieved person may obtain 

relief as provided in subsection (g)(1), including recovery of back pay for up to 

two years preceding the filing of the charge, where the unlawful employment 

practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.’’. 

SEC. 4. DISCRIMINATION IN COMPENSATION BECAUSE OF AGE. 

Section 7(d) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 

626(d)) is amended—

(1) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively; and 

(2) by striking ‘‘(d)’’ and inserting 11(d)(1)’’; 

(3) in the third sentence, by striking ‘‘Upon’’ and inserting the following: ‘‘(2) 

Upon’’; and 

(4) by adding at the end the following: 

‘‘(3) For purposes of this section, an unlawful practice occurs, with respect to 

discrimination in compensation in violation of this Act, when a discriminatory 

compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person 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.’’. 

SEC. 5. APPLICATION TO OTHER LAWS. 

(a) AMERICANS WITH DISABILITIES ACT OF 1990.—The amendment made by section 

3 shall apply to claims of discrimination in compensation brought under title I and 

section 503 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq., 

12203), pursuant to section 107(a) of such Act (42 U.S.C. 12117(a)), which adopts 

the powers, remedies, and procedures set forth in section 706 of the Civil Rights Act 

of 1964 (42 U.S.C. 2000e–5). 

(b) REHABILITATION ACT OF 1973.—The amendments made by section 3 shall apply 

to claims of discrimination in compensation brought under sections 501 and 504 of 

the Rehabilitation Act of 1973 (29 U.S.C. 791, 794), pursuant to—

(1) sections 501(g) and 504(d) of such Act (29 U.S.C. 791(g), 794(d)), respectively, which adopt the standards applied under title I of the Americans with 

Disabilities Act of 1990 for determining whether a violation has occurred in a 

complaint alleging employment discrimination; and (2) paragraphs (1) and 

(2) of section 505(a) of such Act (29 U.S.C. 794a(a)) (as amended by subsection 

(c)). 

(c) CONFORMING AMENDMENTS.—

(1) REHABILITATION ACT OF 1973.—Section 505(a) of the Rehabilitation Act of 

1973 (29 U.S.C. 794a(a)) is amended—

(A) in paragraph (1), by inserting after ‘‘(42 U.S.C. 2000e–5 (f) through 

(k))’’ the following: ‘‘(and the application of section 706(e)(3) (42 U.S.C. 

2000e–5(e)(3)) to claims of discrimination in compensation)’’; and 


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1 U.S. Census Bureau, U.S. Bureau of Labor Statistics, Annual Demographic Survey (Aug. 

2006). 

(B) in paragraph (2), by inserting after ‘‘1964’’ the following: ‘‘(42 U.S.C. 

2000d et seq.) (and in subsections (e)(3) of section 706 of such Act (42 

1U.S.C. 2000e5), applied to claims of discrimination in compensation)’’. 

(2) CIVIL RIGHTS ACT OF 1964.—Section 717 of the Civil Rights Act of 1964 

(42 U.S.C. 2000e–16) is amended by adding at the end the following: 

‘‘(f) Section 706(e)(3) shall apply to complaints of discrimination in compensation 

under this section.’’. 

(3) AGE DISCRIMINATION ACT OF 1967.—Section 15(f) of the Age Discrimination 

in Employment Act of 1967 (29 U.S.C. 633a(f)) is amended by striking ‘‘of section’’ and inserting ‘‘of sections 7(d)(3) and’’. 

SEC. 6. EFFECTIVE DATE. 

This Act, and the amendments made by this Act, take effect as if enacted on May 

28, 2007 and apply to all claims of discrimination in compensation under title VII 

of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Discrimination 

in Employment Act of 1967 (29 U.S.C. 621 et seq.), title I and section 503 of the 

Americans with Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973, that are pending on or after that date. 

PURPOSE

H.R. 2831, the Lilly Ledbetter Fair Pay Act of 2007, seeks to reverse the Supreme Court’s May 29, 2007, ruling in Ledbetter v. 

Goodyear, which dramatically restricted the time period for filing 

pay discrimination claims under Title VII and made it more difficult for workers to stand up for their basic rights at work. Under 

this bill, every discriminatory paycheck or other compensation resulting, in whole or in part, from an earlier discriminatory pay decision or other practice would constitute an actionable violation of 

Title VII, the Americans with Disabilities Act, the Rehabilitation 

Act, and the Age Discrimination in Employment Act, regardless of 

whether the decision or other practice to provide the discriminatory 

compensation was adopted outside the filing period for a claim. 

COMMITTEE ACTION INCLUDING LEGISLATIVE HISTORY AND VOTES IN

COMMITTEE

110TH CONGRESS

First hearing: Ensuring equal pay for women 

On April 24, 2007, the Committee on Education and Labor conducted a hearing on gender based wage discrimination. At this 

hearing, ‘‘Strengthening the Middle Class: Ensuring Equal Pay for 

Women,’’ the Committee heard testimony describing the scope and 

causes of gender based wage disparity, examining why women currently earn 77 cents for every dollar earned by a man.1 Witnesses 

included Representative Rosa DeLauro (D–CT); Representative Eleanor Holmes-Norton (D–DC Del.); Catherine Hill, Research Director at the American Association of University Women; Heather 

Boushey, Senior Economist for the Center for Economic and Policy 

Research; Dedra Farmer, plaintiff in the Wal-Mart sex discrimination class-action lawsuit; and Diana Furchtgott-Roth, Director of 

the Center for Employment Policy at the Hudson Institute. 

Second hearing: Title VII and wage discrimination 

On June 12, 2007, the Committee on Education and Labor conducted a hearing on the Supreme Court’s decision in Ledbetter v. 


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2 127 S.Ct. 2162 (May 29, 2007). 

3 29 U.S.C. §§ 621 et seq. 4 42 U.S.C. §§ 12101 et seq. 5 29 U.S.C. §§ 791, 793–94. 

Goodyear Tire & Rubber Co.2 The hearing, ‘‘Justice Denied? The 

Supreme Court’s Ledbetter v. Goodyear Employment Discrimination Decision,’’ examined the effects the Supreme Court’s decision 

will have on the ability of discrimination victims to assert their 

rights, particularly in cases involving compensation discrimination. 

Witnesses testified, inter alia, that the Court’s ruling ignored the 

realities of pay discrimination and is contrary to the intent of Title 

VII. These witnesses stated that Congress must develop a legislative fix to clarify that the protections under Title VII of the Civil 

Rights Act, the Age Discrimination in Employment Act (ADEA),3

the Americans with Disabilities Act (ADA) 4 and the Rehabilitation 

Act,5 extend not only to discriminatory pay decisions and practices, 

but to every paycheck that results from discriminatory pay decisions and practices. Witnesses included Lilly Ledbetter, plaintiff in 

Ledbetter v. Goodyear; Wade Henderson, President and CEO of the 

Leadership Conference on Civil Rights; Deborah Brake, professor 

at the University of Pittsburgh School of Law; and Neal Mollen, on 

behalf of the U.S. Chamber of Commerce. 

Introduction of the Ledbetter Fair Pay Act of 2007 

On June 22, 2007, the Ledbetter Fair Pay Act of 2007, H.R. 2831, 

was introduced by Representative George Miller (D–CA) and was 

referred to the Education and Labor Committee. 

Full Committee Mark-up of the Ledbetter Fair Pay Act of 2007 

On June 27, 2007, the Committee on Education and Labor met 

to markup H.R. 2831. The Committee adopted by voice vote an 

amendment in the nature of a substitute offered by Chairman 

George Miller. Two other amendments were offered and debated. 

None of those amendments were adopted. The Committee voted to 

favorably report H.R. 2831, by a vote of 25–20. 

The Miller amendment in the nature of a substitute contained 

minor technical changes and the following modifications to H.R. 

2831: 

• The Short Title of the bill was modified to read the ‘‘Lilly 

Ledbetter Fair Pay Act of 2007.’’

• The provision in H.R. 2831 creating a new Section 706(e)(3)(B) 

of the Civil Rights Act was removed. This provision clarified that 

a person, after having already filed a charge of pay discrimination, 

would not have to keep filing new charges with each new paycheck. 

Upon further examination of this provision, the Committee believes 

it is self-evident that new charges would not need to be filed with 

each new paycheck or other similar or related instance of pay discrimination in order to ensure that those instances are also 

challengeable in the pursuit of the initial charge. Thus, this language is not necessary and was removed. 

• As a result of the elimination of 706(e)(3)(B), paragraph (C), 

clarifying that persons bringing pay discrimination claims are entitled to up to two years of back pay recovery, was redesignated as 

paragraph (B). 


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6The 180-day statute of limitations is extended to 300 days when an employee first files a 

charge with a state’s equivalent of the Equal Employment Opportunity Commission (EEOC). 

While Title VII has a 180 (or 300) day statute of limitations, it allows recovery of up to two 

years of backpay, along with other, compensatory and punitive damages. 7 29 U.S.C. §§ 621 et seq. 8 42 U.S.C. §§ 12101 et seq. 9 29 U.S.C. §§ 791, 793–94. 10 42 U.S.C. § 2000e–2(a). 

• What would have been the new Section 7(d)(3)(B) of the ADEA 

clarifying that new charges need not be refiled with each paycheck 

was also eliminated for the same reasons as the Title VII provision. 

• A fourth finding was added to clarify that the bill, in reversing 

Ledbetter, was not intended to change current law with respect to 

when pension distributions are considered paid. 

Representative Charles Boustany (R–LA) offered an amendment 

in the nature of a substitute which would have amended the bill 

so that it applies only to cases in which the employer intentionally 

discriminates against an employee with regards to a discriminatory 

compensation decision or other unlawful practice. H.R. 2831, however, is drawn narrowly to define when—for purposes of the 180- 

day (or 300-day) statute of limitations 6—an unlawful employment 

practice (already defined by Title VII) ‘‘occurs.’’ The Boustany 

amendment was defeated by a vote of 18–24. 

Representative Ric Keller (R–FL) offered an amendment in the 

nature of a substitute which would have struck ‘‘other practices’’

from the Act. H.R. 2831 refers to ‘‘decisions or other practices’’ related to compensation in order to capture the wide gamut of compensation practices, from single, discrete decisions about pay to arrangements, schemes, systems, or other practices related to pay. 

Eliminating ‘‘other practices’’ would have resulted in a bill that 

fails to reverse Ledbetter, particularly with any hairsplitting definition of ‘‘compensation decision.’’ ‘‘Other practices’’ captures the 

fact pattern in Ledbetter, where sex-based performance evaluations 

were used in conjunction with a performance-based pay system to 

effectuate the discriminatory pay. The amendment was defeated by 

a vote of 20–25. 

SUMMARY

The Lilly Ledbetter Fair Pay Act of 2007, H.R. 2831, would clarify that when it comes to discriminatory pay, the protections of 

Title VII of the Civil Rights Act, the Age Discrimination in Employment Act 7 (ADEA), the American with Disabilities Act 8 (ADA) and 

the Rehabilitation Act,9 extend to every paycheck or other compensation that results from discriminatory pay decisions and practices. 

The legislation is designed to rectify the May 29, 2007, Supreme 

Court decision in Ledbetter v. Goodyear. Under H.R. 2831, every 

paycheck or other compensation resulting, in whole or in part, from 

an earlier discriminatory pay decision or other practice would constitute a violation of Title VII, which guards against discrimination 

on the basis of race, sex, color, national origin, and religion.10 Each 

discriminatory paycheck would start the clock for filing a charge. 

As long as workers file their charges (as Ledbetter herself did) 

within 180 days of a discriminatory paycheck, their charges will be 

considered timely. 


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11 42 U.S.C. § 2000e–2(a). 12 Id. 

The Act also clarifies that, with pay discrimination, an employee 

is entitled to up to two years of back pay as provided in Title VII 

already—not just 180 days of back pay, as insinuated in Ledbetter 

and recent revisions of the EEOC compliance manual. 

Finally, H.R. 2831 ensures that these simple reforms extend to 

the ADEA, the ADA and the Rehabilitation Act to provide these 

same protections for victims of age and disability discrimination. 

STATEMENT AND COMMITTEE VIEWS

The Committee on Education and Labor of the 110th Congress 

is committed to protecting the rights of American workers and to 

ensuring that they have adequate remedies if they are discriminated against in the workplace. More than 40 years after the passage of the Civil Rights Act of 1964, the Supreme Court has weakened the nondiscrimination protections afforded to American workers through its decision in Ledbetter v. Goodyear. The Congress 

must respond. 

In Ledbetter, the Court held that under Title VII, employees 

must file a claim of discrimination within 180 days of the alleged 

unlawful employment practice, which runs from the initial decision 

to pay an employee less because of his or her race, color, religion, 

sex or national origin. The result is fundamentally unfair to victims 

of pay discrimination who may lose their right to challenge a discriminatory compensation action even though it is on-going but 

may be unknown. While workers know immediately when they are 

fired, refused employment or denied a promotion or transfer, the 

secrecy and confidentiality associated with employees’ salaries 

make pay discrimination difficult to detect. 

The Lilly Ledbetter Fair Pay Act of 2007 seeks to reverse the Supreme Court’s decision and restore prior law. The Act clarifies that 

when it comes to discriminatory pay, the protections of Title VII of 

the Civil Rights Act, the ADEA, the ADA and the Rehabilitation 

Act, extend not only to these discriminatory pay decisions and practices but to every paycheck that results from those pay decisions 

and practices. Finally, the Act ensures that anyone alleging discriminatory pay can recover up to 2 years of back pay, as already 

provided under Title VII, regardless of whether the back pay accrued outside of the statute of limitations for filing the charge. 

IMPLICATIONS OF LEDBETTER FOR WORKERS’ CIVIL RIGHTS

Title VII makes it an ‘‘unlawful employment practice’’ for an employer to discriminate ‘‘against any individual with respect to his 

compensation . . . because of such individual’s race, color, religion, 

sex or national origin.’’ 11 Individuals challenging an employment 

practice as discriminatory are required to file a charge with the 

Equal Employment Opportunity Commission (EEOC) within 180 

days, or 300 days depending on the state, ‘‘after the alleged practice occurred.’’ 12 Failure to timely file a charge with the EEOC constitutes a forfeiture of an employee’s right to raise a claim in court. 


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13The Lilly Ledbetter Fair Pay Act of 2007, Hearing Before the Education and Labor Committee, 110th Cong., 1st Sess. (2007) (written testimony of Wade Henderson, President and CEO 

of the Leadership Conference on Civil Rights, at 6) [hereinafter Henderson Testimony]. 14 Id. 15The Lilly Ledbetter Fair Pay Act of 2007, Hearing Before the Education and Labor Committee, 110th Cong., 1st Sess. (2007) (written testimony of Deborah Brake, Law Professor at the 

University of Pittsburg Law School, at 4) [hereinafter Brake Testimony]. 16Ledbetter, supra note 2 at 2184 (Ginsburg dissent). See also, Brake Testimony at 12. Brake 

notes that ‘‘employers would be hard-pressed to complain that overturning the Ledbetter decision would place unfair burdens on employers, since employers have lived with the paycheck 

accrual rule until this very decision.’’ 17 Henderson Testimony at 3. 18 Id. 19 Brake Testimony at 4. 

In fiscal year 2006, individuals filed over 800 charges of unlawful, sex-based pay discrimination with the EEOC.13 If Congress 

does not act to overturn the Ledbetter decision, it will become more 

difficult for employees to bring pay discrimination claims under 

Title VII, and countless meritorious claims will never be adjudicated.14 By holding that the original discriminatory decision 

‘‘triggers’’ the EEOC charging period (i.e. statute of limitations), 

and a new charging period does not commence upon the receipt of 

each and every paycheck perpetuating the past discrimination, the 

employer is forever insulated from liability once the initial 180-day 

period has passed even though it continues to pay discriminatory 

compensation.15 Consequently, the rule adopted by the Court 

leaves victims of pay discrimination without recourse, even though 

they continue to receive discriminatory pay for work currently performed.16

Under Ledbetter, victims of pay discrimination, unless they file 

within 180 days of the initial discriminatory pay decision, are 

forced to live with discriminatory paychecks if they want to keep 

their job. Ledbetter requires that a victim of pay discrimination 

must quickly perceive that a discriminatory decision was made and 

promptly report it, within the 180-day statute of limitations. 

Pay discrimination is difficult to detect 

The Ledbetter decision ignores the reality that pay discrimination is incredibly difficult to detect. Employees often have no access 

to the kinds of information necessary to raise a suspicion of pay 

discrimination, including company-wide salary data. In fact, workplace norms often discourage conversations among employees about 

salaries. One-third of private sector employers have adopted specific rules prohibiting employees from discussing their wages with 

co-workers.17 Only one in ten employers has adopted a pay openness policy.18

In addition, pay discrimination is rarely accompanied by circumstances suggestive of bias.19 In fact, a discriminatory pay gap 

may begin not with a change in a female employee’s pay, but rather with a decision to increase the pay of male colleagues. Unlike 

hiring, firing, promotion and demotion decisions where an individual immediately knows that she has suffered an adverse employment action, there is often no clearly adverse employment 

event that occurs with a discriminatory pay decision. A pay-setting 

decision, unless it implements a pay cut, is unlikely to be viewed 

as discrimination at the time that it occurs. For example, an employee who learns that she is about to receive a four-percent raise 


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20 Id. at 5. 21 Brake Testimony, at 1. 22Ledbetter, supra note 2 at 2181. See also, Brake Testimony, at 6. 23 Brake Testimony, at 2. 24See also Linda Babcock and Sara Laschever, ‘‘Women Don’t Ask: Negotiations and the Gender Divide’’ (2003) (demonstrating how a discriminatory pay decision can continue to produce 

an increasing pay disparity throughout an individual’s career). See also, Brake Testimony, at 

2. 25Ledbetter, supra note 2, at 2182. To establish a pay discrimination claim, it may take a 

pattern of substantial pay disparities and time to investigate the relevant facts in order to demonstrate a legally sufficient inference that the gap is due to gender bias, rather than to some 

legitimate nondiscriminatory reason such as performance or experience. In an effort to meet the 

180-day statute of limitations, an employee may be motivated to complain to her employer at 

the first sign of a pay gap; however she may lack an adequate foundation for a reasonable belief 

that the gap is because of gender discrimination. 26 532 U.S. 268 (2001). 

would have no reason to suspect pay discrimination when she does 

not know about the raises her colleagues earned.20

If uncorrected, pay discrimination worsens over time 

Discriminatory pay decisions are not separate and distinct from 

the paychecks that follow them.21 In her dissent, Justice Ginsburg 

noted that ‘‘case law demonstrates that it is not unusual for employees to work for an employer for quite some time before learning 

of a gender disparity in pay.’’ 22 Each pay decision builds on the 

prior one, and unless corrected, discriminatory pay decisions can be 

magnified by subsequent percentage-based adjustments. Consequently, what would at first appear to be a minor pay disparity 

could expand over the course of an employee’s career, even if subsequent raises are determined in a nondiscriminatory fashion.23 By 

the time the discrimination becomes apparent and unmistakable, 

under Ledbetter, the victim of pay discrimination would find her 

Title VII claims foreclosed.24

Employees lose their rights if they assert a pay discrimination 

claim too early 

The Ledbetter decision creates a Catch-22 for employees. If an 

employee does not file a charge within 180 days of a discriminatory 

pay decision, she loses the right to challenge it. But if an employee 

complains to an employer too soon—that is, without adequate factual and legal foundation 25—she can be fired with no legal recourse. In Clark County School District v. Breeden,26 the Supreme 

Court held that an employee who opposes what she believes to be 

unlawful discrimination is protected only if she has a ‘‘reasonable 

belief’’ that the practice she opposes in fact violates Title VII. Otherwise, Title VII’s retaliation protections do not reach her, and she 

may be fired. To avoid this situation after Ledbetter, an employee 

should file directly with the EEOC as soon as possible, without 

talking to the employer, despite the fact that the law tries to encourage informal conciliation between employer and employee to 

avoid conflict and litigation. Neither employers nor employees benefit from such a post-Ledbetter scheme. 

Other implications of the Ledbetter decision 

The Ledbetter decision extends to Title VII pay discrimination 

cases affecting not only women, but also those involving race, color, 

national origin, and religion. If undisturbed, the Ledbetter decision 

may also affect pay discrimination under parallel employment disVerDate Aug 31 2005 02:58 Jul 21, 2007 Jkt 059006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR237.XXX HR237

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27 Henderson Testimony, at 4. 28 Id. at 6. In his testimony, Henderson highlights that under recent Supreme Court rulings: 

older workers can no longer recover money damages for employment discrimination based on 

age if they are employed by the state (Kimel v. FL. Board of Regents, 528 U.S. 62 (2000)); state 

workers can no longer recover money damages if their employers violate minimum wage and 

overtime laws (Alden v. Maine, 527 U.S. 706 (1999)); and workers can now be required to give 

up their right to sue in court for discrimination as a condition of employment (Circuit City 

Stores v. Adams, 532 U.S. 105 (2001)). 29 275 F.3d 1005 (10th Cir. 2002). 30 Id. See also, Henderson Testimony at 5–6. 31 EEOC Compliance Manual, Sec. 2–IV–C(1)(a). See also, Ledbetter supra note 2, at 2185. 

(Ginsburg dissent) (citing EEOC administrative rulings and litigation positions permitting employees to challenge any discriminatory paychecks received within the limitations period). 32 ‘‘Overview of the Equal Pay Act,’’ American Association of University Women (AAUW), 

available at: http://www.aauw.org/laf/library/payequitylepa.cfm. Employers can affirmatively 

defend and justify unequal pay if it is based on: (1) seniority systems; (2) merit systems; (3) 

systems that measure earnings by quality or quantity of production; or (4) ‘‘any factor other 

than sex.’’ Historically, courts have interpreted the ‘‘any factor other than sex’’ criteria so broadly that it embraces an almost limitless number of factors, so long as they do not involve sex. 33 Id. 

crimination statutes that are patterned on Title VII, such as the 

ADEA or the ADA.27

Wade Henderson, President and CEO of the Leadership Conference on Civil Rights, testified before the Education and Labor 

Committee’s June 12, 2007 hearing and stated that while the 

Ledbetter decision is part of the Court’s recent pattern of limiting 

both access to the courts and remedies available to victims of discrimination,28 the Ledbetter decision on its own weakens basic protections in ways that Congress never intended. 

For example, Henderson notes the case Goodwin v. General Motors Corporation.29 In Goodwin, an African-American woman was 

promoted to a labor representative position with a salary that was 

approximately $300 to $500 less than other similarly situated employees. The pay disparity increased over time, until she was being 

paid $547 less per month than the next lowest paid representative. 

Due to the company’s confidentiality policy, Goodwin did not discover the disparity until she was anonymously given a printout of 

the salary roster. While the district court initially dismissed her 

Title VII race discrimination claim, the Tenth Circuit reversed and 

remanded the case, holding that discriminatory salary payments 

constitute fresh violations of Title VII and each action of pay-based 

discrimination was independent for purposes of the statutory time 

of limitations.30 Under Ledbetter, Goodwin would have been barred 

from raising her claim. 

The Court’s analysis in Ledbetter also stands contrary to the 

EEOC’s interpretation and application of Title VII, which previously permitted employees to challenge continuing pay discrimination as long as one paycheck that pays the employee less because 

of sex falls within the limitations period.31

It is true that victims of sex-based pay discrimination can alternatively raise a claim under the Equal Pay Act (EPA). However, 

utilizing the EPA is not a solution to the loss of rights presented 

by Ledbetter. First, under the EPA plaintiffs have a different evidentiary standard than under Title VII.32 An EPA claimant must 

rely on an opposite sex comparator—that she performed the same 

work or ‘‘equal’’ work as higher paid males—while Title VII claims 

do not require comparators so long as there is other evidence of discrimination such as that the female worker would have been paid 

more had she been a man.33 Furthermore, the remedies under Title 


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34 Brake Testimony, at 10. 35Ledbetter, supra note 2 at 2185. 36 Id. at 2186. 37 Brake Testimony, at 11. 

VII are more comprehensive than those under the EPA. While the 

EPA allows recovery of two years of backpay, or three years where 

the pay disparity was willful, Title VII allows two years of backpay, 

compensatory damages, and punitive damages. Moreover, the EPA 

is not available to victims of race, color, national origin, religion, 

age, or disability discrimination. 

Under H.R. 2831 employers will continue to have adequate legal 

protections against employees who unreasonably delay filing a pay 

discrimination suit and they do not need the protections of the 

Ledbetter decision.34 Opponents of H.R. 2831 allege that it is necessary to treat pay discrimination as a discrete act to protect employers from the burden of defending claims arising from employment decisions that are long past.35 This argument is fundamentally flawed. First, pay discrimination like the kind Lilly Ledbetter 

suffered is not long past. With each paycheck that Ledbetter was 

paid less, she was a victim of discrimination. Second, employers 

who allege that they are disadvantaged by an unreasonable or prejudicial delay have adequate legal protections. 

As Justice Ginsburg notes in her dissent, ‘‘doctrines such as 

waiver, estoppel, and equitable tolling allow [the Court] to honor 

Title VII’s remedial purpose without negating the particular purpose of the filing requirement, to give notice to the employer.36

Furthermore, employers can raise a defense of laches. Professor 

Brake notes that, ‘‘lower courts have applied the defense of laches 

to cut off a plaintiff’s right to sue where the employee has delayed 

unreasonably in filing her claim, even if the employee has met the 

filing requirements for Title VII.’’ 37

Victims of pay discrimination have no incentive to delay filing a 

charge under H.R. 2831. Opponents of this legislation argue that 

it would encourage plaintiffs to sit on their right to sue, and put 

the employer at a disadvantage when a case is finally filed. This 

assertion is entirely without merit. A victim of discrimination has 

no incentive to delay in ending that discrimination. Opponents 

argue that a victim will allow discrimination to continue for years, 

and make it difficult for an employer to defend against old claims 

of discrimination. It would be nonsensical for a victim to allow discriminatory paychecks to pile up over years. In the example of a 

ten year old claim, since the back pay award is limited to two 

years, a victim would have to decide to forfeit eight years of back 

pay. Furthermore, there is no merit to the argument that a delay 

in bringing charges unfairly disadvantages the employer. It is the 

employee who bears the burden of proof. The passage of time only 

makes that burden of proof more difficult for the employee. 

H.R. 2831 maintains the 180/300 day statute of limitations for 

filing discrimination charges. It does not extend that time limit. To 

have a viable claim, a victim of pay discrimination must file a 

charge within 180/300 days of receiving discriminatory pay. If the 

discriminatory pay was received more than 180/300 days ago—because, for example, the employee left employment and is no longer 

receiving compensation from this employer or because the employer 

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38 Id. at 1. 39 Id. at 13. 40 478 U.S. 385 (1986). This case was decided Per Curiam. 41 Id. at 397. 42 Id. at 395. 43See e.g., Brindley-Obu v. Hughes Training, Inc. 26 F.3d 336 (4th Cir. 1994); Ashley v. 

Boyle’s Famous Corned Beef Co., 66 F.3d 164 (8th Cir. 1995) (en banc); Gibbs v. Pierce County 

Law Enforcement Support Agency, 785 F.2d 1396 (9th Cir. 1986); Goodwin v. GMC, 275 F.3d 

Continued 

ployee in a nondiscriminatory and lawful fashion for at least 180/ 

300 days—a charge would be untimely under this bill. Rather than 

encouraging employers to hide the ball, run out the clock, and continue reaping the financial rewards of paying someone less for discriminatory reasons, as is the incentive under the Ledbetter decision, H.R. 2831 is designed to encourage employers to stop paying 

individuals in an unlawful, discriminatory fashion. Such incentive 

to stop discrimination existed in law prior to Ledbetter. 

PAY DISCRIMINATION CASE LAW PRIOR TO THE LEDBETTER DECISION

The Supreme Court in Ledbetter rejected prior law that every 

discriminatory paycheck is a new violation. The Court replaced it 

with a rule requiring that employees challenge each and every discriminatory pay decision within Title VII’s short statutory limitation period, or lose forever the ability to challenge ongoing pay discrimination that results from an earlier decision.38 Until the 

Ledbetter case, lower courts across the country had allowed plaintiffs to challenge discriminatory paychecks received within the limitations period, regardless of when the discriminatory pay decision 

was first made, in cases involving pattern-or-practice claims and 

individual claims.39

The Supreme Court in Bazemore v. Friday—Each week’s paycheck is actionable 

In 1986, the Supreme Court decided the case of Bazemore v. Friday,40 which involved unequal pay for black and white employees. 

Despite the fact that the discriminatory pay decision was made before the passage of Title VII, the Court found a violation of Title 

VII because the employer had perpetuated the unequal pay and 

‘‘was under an obligation to eradicate salary disparities based on 

race that began prior to the effective date of Title VII.’’ 41 The 

Court held that each and every paycheck that perpetuated the past 

discrimination was actionable not because the paychecks were ‘related’ to the decision made outside the statute of limitations, but 

because they discriminated each and every time they were issued. 

According to the Court, ‘‘each week’s paycheck that delivered less 

to a black than to a similarly situated white is a wrong actionable 

under Title VII . . .’’ 42

The circuit courts of appeal—Each new paycheck is a separate wrong 

Under Bazemore and until Ledbetter reached the Eleventh Circuit, circuit courts understood Title VII to prohibit discriminatory 

disparities in pay occurring within the statute of limitations, even 

if the disparity began outside that statute of limitations. This was 

true for both pattern or practice cases and individual cases of pay 

disparity.43


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1005 (10th Cir. 2002); Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005); Anderson v. Zubieta, 180 

F.3d 329 (D.C. Cir. 1999). 44Forsyth v. Federation Employment and Guidance Service, 409 F.3d 565, 573 (2d Cir. 2005) 

(citing Bazemore and Morgan). 45 Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007, 1009 (7th Cir. 2003). 46See, e.g., Tademe v. Saint Cloud State Univ., 328 F.3d 982, 989 (8th Cir. 2003); Williams 

v. Giant Food, Inc., 370 F.3d 423, 429 (4th Cir. 2004); Davidson v. America Online, Inc., 337 

F.3d 1179, 1186 (10th Cir. 2003); Shea v. Rice, 409 F.3d 448, 453–54 (D.C. Cir. 2005). 

In 2002, the Supreme Court decision in National Railroad Passenger Corp. v. Morgan, a hostile work environment case under 

Title VII, distinguished between ‘‘hostile work environment’’ cases 

and ‘‘discrete act’’ cases. The Court explained that ‘‘[d]iscrete acts 

such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination 

and each retaliatory adverse employment decision constitutes a 

separate actionable ‘unlawful employment practice.’ ’’ A hostile 

work environment claim, however, is of a different nature from 

these discrete acts. According to the Court, ‘‘[i]t does not matter, 

for purposes of the statute, that some of the component acts of the 

hostile work environment fall outside the statutory time period. 

Provided that an act contributing to the claim falls within the filing 

period, the entire time period of the hostile environment may be 

considered by a court for the purposes of determining liability.’’ With Morgan, the circuits found further support for the rule that 

every discriminatory paycheck is a new violation of the law. The 

Second Circuit, for example, explained that ‘‘discriminatory pay 

scales are not continuing violations . . . Instead, such scales involve 

a number of individual and separate wrongs rather than one course 

of wrongful action . . . And, each repetition of wrongful conduct 

may, as Morgan taught, be the basis of a separate cause of action 

for which suit must be brought within the limitations period beginning with its occurrence. A salary structure that was discriminating before the statute of limitations passed is not cured of that 

illegality after that time passed, and can form the basis of a suit 

if a paycheck resulting from such a discriminatory pay scale is delivered during the statutory period.’’ 44

Likewise, the Seventh Circuit found that a discriminatory pay 

claim was timely, based on paychecks received during the statutory 

time period derived from a failure to grant a raise that occurred 

three years prior, explaining: ‘‘We conclude that the rule of 

Bazemore . . ., to the effect that each new paycheck is a separate 

wrong (recently affirmed in . . . Morgan . . .), governs this case 

...’’ 45 Other circuits applied Bazemore and Morgan in the same 

way.46

The EEOC—Repeated discriminatory paychecks can be challenged 

The EEOC’s compliance manual reflects the pre-Ledbetter rule 

on pay discrimination. Its latest revision following Morgan explained: 

In . . . Morgan, the Supreme Court ruled that the timeliness of a charge depends upon whether it involves a discrete act or a hostile work environment claim . . . A discrete act, such as the failure to hire or promote, termination, or denial of transfer, is independently actionable if 

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47 EEOC Compliance Manual, ‘‘Threshold Issues: Timeliness’’ Section 2–IV.C (July 21, 2005). 48 490 U.S. 900 (1989). This decision was a 5–3 decision with Justice O’Connor taking no part. 

Justice Scalia wrote for the majority, which included Justices Rehnquist, White, Stevens and 

Kennedy. Justices Marshall and Blackmun dissented. 49Ledbetter, supra note 2, at 11. 50 Id., at 11–12 (quoting 137 Cong. Rec. 29046, 29407 (1991)). 51Ledbetter, supra note 2. 52 Justices Roberts, Scalia, Thomas and Kennedy concurred, while Justices Ginsburg, Breyer, 

Souter and Stevens dissented. 53 42 U.S.C. section 2000e–2(a). 54Ledbetter, supra note 2, at 2162. 

lenged within 180/300 days of the date that the charging 

party received unequivocal written or oral notification of 

the action, regardless of the action’s effective date . . . Repeated occurrences of the same discriminatory employment 

action, such as discriminatory paychecks, can be challenged as long as one discriminatory act occurred within 

the charge filing period.47

The EEOC’s view is consistent with case law, Title VII, and the 

intent of Congress. Accordingly, the EEOC filed an amicus brief arguing for the timeliness of the plaintiff’s charge in Ledbetter when 

the case went before the Eleventh Circuit. 

Congressional Intent—Generalizing the rule in Bazemore 

As the dissent in Ledbetter pointed out, congressional intent 

with respect to cases such as Ledbetter was clarified in the 1991 

Civil Rights Act. There, Congress explicitly reversed the Supreme 

Court decision in Lorance v. AT&T Technologies,48 which involved 

the application of a discriminatory seniority system. While the legislative answer to Lorance, Section 112 of the Act, dealt only with 

seniority systems, ‘‘Congress made clear (1) its view that this Court 

had unduly contracted the scope of protection afforded by Title VII 

and other civil rights statutes, and (2) its aim to generalize the ruling in Bazemore.’’ 49 For example, the Sponsors’ Interpretative 

Memorandum in 1991 explained: ‘‘This legislation should be interpreted as disapproving the extension of [Lorance] to contexts outside of seniority systems.’’ 50 In Lorance, the Court found that the 

statute of limitations started running at the time the employer 

adopted the seniority system and did not restart when the effects 

of that system were felt. In Section 112 of the 1991 Civil Rights 

Act, in response to Lorance, Congress clarified that an unlawful 

employment practice occurs with respect to discriminatory seniority 

systems when such a system is adopted, when a person becomes 

subject to it, and when a person is injured by its application. 

THE LEDBETTER DECISION

On May 29, 2007, the Court decided the case of Ledbetter v. 

Goodyear Tire & Rubber Co., Inc.51 In a 5–4 decision authored by 

Justice Alito,52 the Court rejected Lily Ledbetter’s argument that 

each paycheck she received reflected a lower salary due to past sex 

discrimination and therefore constituted a new violation of Title 

VII.53 Instead, the Court held that the 180–day statute of limitations ran from the day the discriminatory decision was made and 

that ‘‘a new violation does not occur and a new charging period 

does not commence upon the occurrence of subsequent nondiscriminatory acts that entail effects from the past discrimination.’’ 54


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55 Id. at 2178. 56 Id. 57 Id. 58 Id. 59 Id. at 2187. 60 Id. 61 Id. 62 Id. 63 Id. at 2187. 64 Id. at 2181. 65Ledbetter v. Goodyear, Brief of Appellant, Lilly Ledbetter, 2005 U.S. Briefs 1074 at 1078 

(Sept. 7, 2006). 66Ledbetter, supra 2 at 2166. 67 Id. 

Facts of the case 

Lily Ledbetter was a female production supervisor at the Goodyear plant in Gadsden, Alabama.55 She worked there from 1979 to 

1998—a period of 19 years—when she retired.56 Six months prior 

to her retirement, Ledbetter filed a charge with the EEOC, alleging 

various acts of sex discrimination.57 At trial a jury found that 

Goodyear illegally discriminated against her on the basis of her 

sex.58 Some of the evidence showed: 

• Her supervisor admitted that Ledbetter’s pay, during one year, 

fell below the minimum threshold for her position.59

• While Goodyear claimed the pay disparity was due to poor performance, her supervisor admitted that Ledbetter received the ‘‘Top 

Performance Award’’ in 1996.60

• Testimony was presented showing a supervisor—who evaluated Ledbetter in 1997 and whose evaluation led to her most recent 

raise denial—was openly biased against women.61

• Two women who had worked as managers at the plant told the 

jury that they had been subjected to pervasive discrimination and 

were paid less than the men they supervised.62

• Discriminatory animus was present throughout Ledbetter’s career. Near the end, a plant manager told Ledbetter that ‘‘the plant 

did not need women, that [women] didn’t help it, [and] caused 

problems.’’ 63

• Initially in line with the salaries of men performing the same 

work, Ledbetter’s salary fell 15 to 40 percent behind her male counterparts after excessive evaluations and percentage-based pay adjustments.64

The Alabama jury awarded Ledbetter $223,776 in backpay, 

$4,662 in compensatory damages and $3,285,979 in punitive damages. The trial court reduced the backpay award to $60,000, and 

reduced the punitive and compensatory damages in accordance 

with the statutory cap adopted in the 1991 Civil Rights Act, to 

$295,338.65

Goodyear appealed the case to the Eleventh Circuit Court of Appeals, which overturned the verdict.66 Unlike the rule utilized by 

other circuits hitherto, the Eleventh Circuit found that the operative act of discrimination was the decision what to pay Ledbetter 

not the act of issuing paychecks. Looking only at the pay decisions 

made within the 180 days prior to filing the EEOC charge, the Appeals Court concluded that there was insufficient evidence to prove 

that Goodyear acted with discriminatory intent.67 As a consequence, Lily Ledbetter appealed to the Supreme Court and asked 

the Court to resolve the following question: 


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68 Id. 69 Jody Feder, Pay Discrimination Claims Under Title VII of the Civil Rights Act: A Legal 

Analysis of the Supreme Court’s Decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., Congressional Research Service (June 28, 2007). 70 Id. at 2168. 71The majority opinion also relied heavily upon the decisions in United Air Lines, Inc. v. 

Evans, 431 U.S. 553 (1977) and Delaware State College v. Ricks, 449 U.S. 250 (1980), neither 

of which were pay discrimination cases but involved ‘‘single, immediately identifiable’’ acts of 

discrimination—a constructive discharge and a denial of tenure—qualitatively different from the ‘‘repetitive, cumulative discriminatory employment practice’’ that is involved in pay discrimination cases. 72Ledbetter, supra note 2 at 2169. 

Whether and under what circumstances a plaintiff may 

bring an action under Title VII of the Civil Rights Act of 

1964 alleging equal pay discrimination when the disparate 

pay is received during the statutory limitations period, but 

is the result of intentionally discriminatory pay decisions 

that occurred outside the limitations period.68

Ms. Ledbetter argued that her Title VII pay discrimination claim 

was timely filed with the EEOC because: the paychecks issued to 

her during the 180 day period each constituted a separate act of 

discrimination, and the 1998 decision denying her a raise was unlawful because it perpetuated the discriminatory pay decision from 

previous years.69

The majority decision 

The Supreme Court held that Ledbetter’s case was time-barred 

because no discriminatory acts had taken place within the 180–day 

statute of limitations period. It found that Title VII claims alleging 

disparate treatment require evidence of discriminatory intent and 

that there was none within the charging period. The fact that 

Ledbetter may have been currently suffering from discriminatory 

paychecks based on past discrimination was not enough to save her 

claim. 

The Court relied heavily on the Lorance Court’s finding that the 

plaintiffs had not alleged that the new seniority rule at issue treated men and women differently or that the rule had been applied 

in a discriminatory manner. The Court explained that the complaint of the Lorance plaintiffs was that the rule was adopted with 

discriminatory intent, while the Lorance decision held that the 

‘‘EEOC charging period ran from the time when the discrete act of 

alleged intentional discrimination occurred, not from the date when 

the effects of this practice were felt.’’ 70

This reliance on Lorance came despite Congress’s explicit reversal of that decision in 1991 and the legislative history of that reversal, directing the courts to interpret it as not just a reversal of that 

decision but a disapproval of that approach in cases beyond seniority systems.71

The Court was particularly focused on the issue of discriminatory 

intent noting that Ledbetter made no claim that the ‘‘intentionally 

discriminatory conduct occurred during the charging period or that 

the discriminatory decision that occurred prior to that period were 

not communicated to her.’’ 72 And it rejected Ledbetter’s argument 

that Goodyear’s conduct during the charging period gave ‘‘present 

effect’’ to its discriminatory conduct before the charging period, 

holding that ‘‘Ledbetter should have filed an EEOC charge within 


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73 Id. at 2170. 74Ledbetter, supra note 2 at 2179. 75 Id. at 2180. 76 2181. 77 Id. at 2188. 

180 days after each allegedly discriminatory pay decision was made 

and communicated to her.’’ 73

The dissent 

Justice Ginsburg was joined by Justices Stevens, Breyer and 

Souter in a strongly-worded dissent. Unlike the majority, she found 

that the Court’s decision in Bazemore applied to Ledbetter’s situation: 

Paychecks perpetuating past discrimination . . . are actionable not simply because they are ‘related’ to a decision 

made outside the charge-filing period . . . but because 

they discriminate anew each time they issue.74

She also found the Morgan decision to be equally applicable. The 

Morgan decision, she argued distinguished (for purposes of Title 

VII’s timely filing requirement) between unlawful actions of two 

kinds: ‘discrete acts’ that are ‘easy to identify’ as discriminatory 

and acts that are cumulative in impact such as hostile environment 

claims. According to Morgan, ‘‘if an act contributing to the claim occurs within the filing period, the entire period of the hostile environment may be considered by a court for purposes of determining 

liability.’’ 75

Justice Ginsburg then explained that pay disparities: 

have a closer kinship to hostile environment claims than 

to charges of a single episode of discrimination. Though 

component acts fell outside the charge-filing period, with 

each new paycheck, Goodyear contributed incrementally to 

the accumulating harm.76

She also pointed out that pay discrimination is not easy to identify and distinguished it from other types of employment discrimination. Unlike the worker who immediately knows that she is denied a promotion or transfer which someone else gains, compensation disparities are often hidden from sight. Management does not 

publish employee pay levels. One-third of companies even prohibit 

employees from discussing their pay with each other. Goodyear, for 

example, kept salaries confidential. Moreover, pay disparities are 

even more difficult to discern where a female employee is not denied a raise but her male counterparts are given larger ones. 

Justice Ginsburg accused the majority of either not comprehending or being indifferent to the insidious nature of pay discrimination and found that its opinion was inconsistent with the overall 

anti-discrimination purpose of Title VII. She explicitly called on 

Congress to reverse the Court’s decision: ‘‘the ball is in Congress’ court.’’ 77

CONGRESS’S ACTION TODAY

Just as Congress was forced to act to reverse Lorance in 1991, 

Congress is forced to act today to reverse Ledbetter in order to ensure the robust application of Title VII (and other laws) to fully 

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78Strengthening the Middle Class: Ensuring Equal Pay for Equal Work, Hearing Before the 

Education and Labor Committee, 110th Cong., 1st Sess. (2007) (written testimony of Catherine 

Hill, Research Director at the American Association of University Women, at 1) [hereinafter Hill 

Testimony]. The AAUW’s analysis further demonstrated that women full-time workers earn less 

than men full-time workers in nearly every field they work, although the size of the gap varies. 

After controlling for factors like major, occupation, industry, sector, hours worked, workplace 

flexibility, experience, educational attainment, enrollment status, grade point average, institution selectivity, age, race/ethnicity, region, marital status and children, a five percent difference 

in the earnings of male and female college graduates is unexplained. AAUW’s analysis showed 

that (controlling for this similar set of factors), ten years after graduation there is a twelve percent difference in the earnings of recent male and female college graduates that is unexplained 

and attributable only to gender. 

assert the viability of discrimination claims with respect to pay is 

particularly timely now, with recent reports that the gender gap in 

pay is not improving. An April 2007 study, for example, conducted 

by the American Association of University Women (‘‘AAUW’’), confirmed found that women who are only one year out of college 

make 80 percent of what men earn, and 10 years later, make only 

69 percent. 78

H.R. 2831 is designed to be a narrow reversal of the Ledbetter 

decision, without upsetting any other current law. It is also yet another disapproval of the approach used by the Court in both 

Lorance, which has already been reversed by Congress, and 

Ledbetter, which is reversed with this bill. The Committee cannot 

envision every fact pattern in which charges might be brought 

within 180/300 days of an act that effectuates a past decision to 

discriminate. Application of the seniority system in Lorance was 

one; paycheck issuance in Ledbetter was another. By rejecting the 

Court’s holdings in these cases, the Congress rejects the Court’s 

underlying idea that the statute of limitations starts to run upon 

the mere decision to discriminate and not also upon the employer’s 

effectuation of that discriminatory decision. An employer who decides to discriminate based on pay should be subject to challenge 

with every repeated instance of the employer effectuating that decision. Present and future instances of discrimination must not be 

immunized by a cramped reading of when an unlawful employment 

practice occurs for purposes of the statute of limitations. Pay discrimination occurs both when an employer decides to discriminate 

and then when the employer actually discriminates. Victims of pay 

discrimination are entitled to justice with each paycheck. 

SECTION-BY-SECTION ANALYSIS

The following is a section-by-section analysis of the Amendment 

in the Nature of a Substitute offered by Chairman Miller and accepted by the Committee. The changes made by that Amendment 

to H.R. 2831 are specified earlier in this report. 

Section 1. Provides that the short title is the ‘‘Lilly Ledbetter 

Fair Pay Act of 2007.’’

Section 2. Provides several congressional findings. 

The first finding expresses Congress’s disapproval of the ruling 

in Ledbetter. 

The second finding explains that the Ledbetter decision is inconsistent with both the realities of wage discrimination and the robust application of nondiscrimination law that Congress intended. 

The third finding clarifies the intent that this bill does not preclude or limit the introduction of evidence of unlawful employment 

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79See, e.g., Florida v. Long, 487 U.S. 223, 239 (1988). 80Maki v. Allete, Inc., 383 F.3d 740, 744 (8th Cir. 2004). 

ferences about what evidence of unlawful employment practices 

may be considered should not be drawn from any of the bill’s provisions. 

The fourth finding clarifies the intent that this bill does not 

change current law treatment of when pension distributions are 

considered paid. While the bill includes benefits as a form of compensation which could trigger the statute of limitations when paid, 

the bill does not intend to alter how current law treats the question 

of when such benefits are considered paid. For example, case law 

treats the receipt of repeated pension checks under a defined benefit plan to be qualitatively different from the receipt of paychecks.79 One court has explained: ‘‘Paychecks are payments for a 

prior term of work. For example, an employee works for a week, 

then the salary structure is applied and the paycheck is issued. 

Pension checks, however, are based on a pension structure that is 

applied only once, when the employee retires, and the pension 

checks merely flow from that single application.’’ 80 Accordingly 

under this rule, pension distributions would be considered paid 

upon entering retirement and not upon the issuance of each annuity check. 

Section 3. Amends the Civil Rights Act of 1964 in order to reverse Ledbetter. Specifically, this section adds a new Section 

706(e)(3)(A) to clarify that an unlawful employment practice occurs, 

with respect to compensation discrimination, when a discriminatory compensation decision or other practice is adopted, when a 

person becomes subject to a discriminatory compensation decision 

or other practice, or 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. 

This section is the core reversal of the Ledbetter decision. Under 

this provision, Lilly Ledbetter would have had a timely-filed charge 

against her employer. She filed her charge within 180 days of receiving a paycheck resulting in whole or in part from an earlier discriminatory compensation practice, namely, sex-based performance 

evaluations in conjunction with a performance-based pay system 

resulting in discriminatorily lower pay throughout her career. 

Differences between this provision and the Lorance legislative fix 

for seniority systems, Section 706(e)(2), provide greater clarity and 

ensure that Ledbetter is fully and clearly reversed. First, this provision is not limited to intentional discrimination but deals with all 

compensation discrimination in violation of Title VII, to ensure 

that Ledbetter is not later utilized to limit employees’ rights with 

respect to any kinds of compensation discrimination in violation of 

Title VII. Second, while the Lorance legislative fix switches between using ‘‘individual’’ and ‘‘aggrieved person,’’ this provision 

uses the word ‘‘individual’’ consistently throughout the language for 

consistency’s sake. There is no substantive difference here between ‘‘individual’’ and ‘‘aggrieved person.’’ Third, while the Lorance legislative fix uses the phrase ‘‘when an aggrieved person is injured,’’

this provision uses the phrase ‘‘when an individual is affected.’’

There is no substantive difference between ‘‘injured’’ and ‘‘affected,’’


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except that ‘‘affected’’ is simpler and clearer than ‘‘injured’’ when 

the Court has placed such emphasis, for purposes of what is actionable, on a mistaken disjuncture between the discriminatory decision (the pay decision) and subsequent acts effectuating that discriminatory decision (the paycheck). 

This section also adds a new Section 706(e)(3)(B) to the Act. This 

new section clarifies that victims of pay discrimination are entitled 

to the full back pay amount available—up to two years of back pay 

as already provided under Section 706(g)(1). This section is added 

to ensure that back pay in cases such as Ledbetter are not limited 

to 180 days. The statute of limitations period and the back pay recovery period are two separate periods in the Act. 

Section 4. Amends the Age Discrimination in Employment Act 

(ADEA) to provide for the same statute of limitations triggers as 

provided in the Civil Rights Act of 1964 amendments in Section 3. 

There is no reason why a fair paycheck rule should be limited to 

discrimination cases under Title VII. It should be noted that Section 4 does not include a provision clarifying recovery as in Section 

3. Such provision is not necessary here, since the ADEA operates 

under a different recovery scheme from Title VII which was not 

called into question by Ledbetter. 

Section 5. Provides that the changes made to the Civil Rights Act 

of 1964 in Section 3 are applicable to the Americans with Disabilities Act and the Rehabilitation Act, ensuring that victims of pay 

discrimination because of their disability are covered by this bill. 

This section also provides conforming amendments which ensure 

that federal employees are covered by the bill’s provisions. 

Section 6. Provides an effective date for the bill. Specifically, the 

bill takes effect as if enacted on May 28, 2007, the day before the 

Ledbetter decision, and applies to all claims of discrimination pending on or after that date. This effective date ensures that no pending or future claims, not yet finally adjudicated, are affected by the 

Ledbetter ruling. 

EXPLANATION OF AMENDMENTS

The Amendment in the Nature of a Substitute is explained in the 

body of this report. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1, the Congressional Accountability Act, requires a description of the application of this bill 

to the legislative branch. H.R. 2831’s changes to the Civil Rights 

Act of 1964, the Americans with Disabilities Act, the Rehabilitation 

Act, and the Age Discrimination in Employment Act apply to employees of the legislative branch in the same way they apply to employees of the private sector and federal government employees, to 

the extent that current law applies these acts to various legislative 

branch employees. A variety of statutes and provisions in current 

law, by way of reference, operate to apply nondiscrimination laws 

to legislative branch employees, such as the Equal Employment 

Opportunity Act of 1972, Title III of the 1991 Civil Rights Act, and 

Section 117(a) of the 1991 Civil Rights Act. 


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REGULATORY IMPACT STATEMENT

As H.R. 2831 merely reverses a Supreme Court decision to return to prior law which had already been accepted by lower courts 

and the EEOC, the Committee has determined that H.R. 2831 will 

have minimal impact on the regulatory burden. 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104–4) requires a statement of whether the 

provisions of the reported bill include unfunded mandates. 

(The CBO letter will address this issue) 

EARMARK STATEMENT

H.R. 2831 does not contain any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e) 

or 9(f) of rule XXI. 

ROLL CALL


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STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

body of this report. 

NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the House of Representatives and section 308(a) of the Congressional Budget Act of 1974 and with respect to requirements of 

3(c)(3) of rule XIII of the House of Representatives and section 402 

of the Congressional Budget Act of 1974, the Committee has received the following estimate for H.R. 980 from the Director of the 

Congressional Budget Office: 

JULY 12, 2007. 

Hon. GEORGE MILLER, 

Chairman, Committee on Education and Labor, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2831, the Lilly Ledbetter 

Fair Pay Act of 2007. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mark Grabowicz. 

Sincerely, 

PETER R. ORSZAG. 

Enclosure. 

H.R. 2831—Lilly Ledbetter Fair Pay Act of 2007 

H.R. 2831 would effectively reverse a recent Supreme Court decision (Ledbetter v. Goodyear Tire and Rubber Co., No. 05–1074, 

May 29, 2007) that addressed the time period during which employees may file claims for pay discrimination. The Court ruled 

that the statute of limitations for such claims begins when the 

original discriminatory act occurs and is communicated to the employee. Under H.R. 2831, the statute of limitations would begin 

whenever an employee receives any wages, benefits, or other compensation affected by the alleged discriminatory act. 

H.R. 2831 would not establish a new cause of action for claims 

of pay discrimination. Because many variables influence the filing 

of a claim for pay discrimination, CBO expects that the bill would 

not significantly affect the number of filings with the Equal Employment Opportunity Commission (EEOC). Based on information 

from that agency, CBO estimates the H.R. 2831 would not significantly increase costs to the EEOC or to the federal courts over the 

2008–2012 period. Enacting the bill would not affect revenues or 

direct spending. 

Section 4 of the Unfunded Mandates Reform Act of 1995 excludes 

from the application of that act legislative provisions that enforce 

statutory rights that prohibit discrimination on the basis of race, 

color, religion, sex, national origin, age, handicap, or disability. 

CBO has determined that H.R. 2831 falls within that exclusion and 


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has not reviewed the bill for intergovernmental or private-sector 

mandates. 

The CBO staff contact for this estimate is Mark Grabowicz. This 

estimate was approved by Robert A. Sunshine, Assistant Director 

for Budget Analysis. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with Clause 3(c) of House rule XIII, the goal of 

H.R. 2831 is to protect individuals from discrimination in pay on 

the basis of sex, race, color, national origin, religion, age, or disability, by reversing the Supreme Court’s Ledbetter decision. 

CONSTITUTIONAL AUTHORITY STATEMENT

Under clause 3(d)(1) of rule XIII of the Rules of the House of 

Representatives, the Committee must include a statement citing 

the specific powers granted to Congress in the Constitution to 

enact the law proposed by H.R. 2831. The Committee believes that 

the amendments made by this bill which would clarify that the protections under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities 

Act (ADA) and the Rehabilitation Act, extend not only to discriminatory pay decisions and practices but to every paycheck that results from discriminatory pay decisions and practices are within 

Congress’ authority under the Equal Protection Clause, Commerce 

Clause, and Due Process Clause. 

COMMITTEE ESTIMATE

Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison of the costs 

that would be incurred in carrying out H.R. 2831. However, clause 

3(d)(3)(B) of that rule provides that this requirement does not 

apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional 

Budget Act. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

CIVIL RIGHTS ACT OF 1964 

* * * * * * * 

TITLE VII—EQUAL EMPLOYMENT OPPORTUNITY 

* * * * * * * 


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26 

PREVENTION OF UNLAWFUL EMPLOYMENT PRACTICES 

SEC. 706. (a) * * * 

* * * * * * * 

(e)(1) * * * 

* * * * * * * 

(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or 

other practice is adopted, when an individual becomes subject to a 

discriminatory compensation decision or other practice, or 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. 

(B) In addition to any relief authorized by section 1977a of the 

Revised Statutes (42 U.S.C. 1981a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing 

of the charge, where the unlawful employment practices that have 

occurred during the charge filing period are similar or related to 

unlawful employment practices with regard to discrimination in 

compensation that occurred outside the time for filing a charge. 

* * * * * * * 

NONDISCRIMINATION IN FEDERAL GOVERNMENT 

EMPLOYMENT 

SEC. 717. (a) * * * 

* * * * * * * 

(f) Section 706(e)(3) shall apply to complaints of discrimination in 

compensation under this section. 

* * * * * * * 

AGE DISCRIMINATION IN EMPLOYMENT ACT 

OF 1967 

* * * * * * * 

RECORDKEEPING, INVESTIGATION, AND ENFORCEMENT

SEC. 7. (a) * * * 

* * * * * * * 

(d)(1) No civil action may be commenced by an individual under 

this section until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be 

filed—

ø(1)¿ (A) within 180 days after the alleged unlawful practice 

occurred; or 

ø(2)¿ (B) in a case to which section 14(b) applies, within 300 

days after the alleged unlawful practice occurred, or within 30 

days after receipt by the individual of notice of termination of 

proceedings under State law, whichever is earlier. 


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27 

øUpon¿ 

(2) Upon receiving such a charge, the Secretary shall promptly 

notify all persons named in such charge as prospective defendants 

in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and 

persuasion. 

(3) For purposes of this section, an unlawful practice occurs, with 

respect to discrimination in compensation in violation of this Act, 

when a discriminatory compensation decision or other practice is 

adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person 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. 

* * * * * * * 

NONDISCRIMINATION ON ACCOUNT OF AGE IN FEDERAL GOVERNMENT

EMPLOYMENT

SEC. 15. (a) * * * 

* * * * * * * 

(f) Any personnel action of any department, agency, or other entity referred to in subsection (a) of this section shall not be subject 

to, or affected by, any provision of this Act, other than the provisions øof section¿ of sections 7(d)(3) and 12(b) of this Act and the 

provisions of this section. 

* * * * * * * 

REHABILITATION ACT OF 1973 

* * * * * * * 

TITLE V—RIGHTS AND ADVOCACY 

* * * * * * * 

REMEDIES AND ATTORNEYS’ FEES

Sec. 505. (a)(1) The remedies, procedures, and rights set forth in 

section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16), 

including the application of sections 706(f) through 706(k) (42 

U.S.C. 2000e–5 (f) through (k)) (and the application of section 

706(e)(3) (42 U.S.C. 2000e–5(e)(3)) to claims of discrimination in 

compensation), shall be available, with respect to any complaint 

under section 501 of this Act, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by 

the failure to take final action on such complaint. In fashioning an 

equitable or affirmative action remedy under such section, a court 

may take into account the reasonableness of the cost of any necessary work place accommodation, and the availability of alternatives therefor or other appropriate relief in order to achieve an 

equitable and appropriate remedy. 

(2) The remedies, procedures, and rights set forth in title VI of 

the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) (and in subsections (e)(3) of section 706 of such Act (42 U.S.C. 2000e–5), applied to claims of discrimination in compensation) shall be availVerDate Aug 31 2005 02:58 Jul 21, 2007 Jkt 059006 PO 00000 Frm 00027 Fmt 6659 Sfmt 6602 E:\HR\OC\HR237.XXX HR237

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28 

able to any person aggrieved by any act or failure to act by any 

recipient of Federal assistance or Federal provider of such assistance under section 504 of this Act. 

* * * * * * * 

COMMITTEE CORRESPONDENCE

None. 


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(29) 

1Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S.ll, 127 S. Ct. 2162 (2007) (hereinafter ‘‘Ledbetter’’ or ‘‘the Ledbetter decision’’). 

MINORITY VIEWS 

INTRODUCTION

On May 29, 2007, the Supreme Court issued its decision in 

Ledbetter v. Goodyear Tire & Rubber Company, Inc.1 At issue before the Court was whether a former employee may sue her former 

employer under Title VII of the Civil Rights Act of 1964 for pay 

discrimination if she claims that a discriminatory pay decision occurred outside of the relevant statute of limitations, but is still 

given effect by virtue of the fact that she continues to receive lower 

pay. Relying on well-established precedent under Title VII, the 

Court held that an employee in this position cannot sue her employer for an otherwise time-barred discriminatory pay action, even 

if the effects of such discrimination are still reflected in her pay 

today. In so doing, the Court gave meaning to the legislative text 

of the Civil Rights Act of 1964; Congress’s intent in choosing and 

enacting the language it did; and the strong policy interests of fairness and finality reflected in those Congressional choices. 

The proposition of whether Ledbetter was properly decided is a 

question on which Members on both sides of the aisle, in good conscience and in good faith, can disagree. Similarly, the question of 

whether the Court’s decision in the case should be reversed, limited, or modified, is subject to legitimate debate. What is beyond legitimate debate or question is the fact that despite its supporters’

claims to the contrary, H.R. 2831, the so-called ‘‘Ledbetter Fair Pay 

Act,’’ goes far beyond the mere reversal of the Court’s decision in 

that case. As detailed herein, H.R. 2831 is not a narrowly-drawn 

bill that merely reverses the result of one court case, or even a 

class of similar cases. Simply put, H.R. 2831 virtually eliminates 

the statute of limitations with respect to almost every claim of discrimination available under federal law, and potentially broadens 

the scope and application of civil rights laws to entirely new fact 

patterns, practices, and claims. It is no exaggeration to say that 

H.R. 2831 represents the most comprehensive revision to our nation’s civil rights laws to be given serious consideration by the 

Committee in almost two decades. 

The vast scope of the changes embodied in H.R. 2831 makes its 

premature and ill-advised consideration all the more irresponsible 

and objectionable. Indeed, in many instances, even the bill’s supporters appear unclear as to the intent and certainly the effect of 

the bill’s provisions, a concern highlighted by the fact that the bill 

was introduced and rushed to full Committee markup in five days, 

without the benefit of legislative consideration via the hearing 

process, stakeholder comment and review, or subcommittee considVerDate Aug 31 2005 02:58 Jul 21, 2007 Jkt 059006 PO 00000 Frm 00029 Fmt 6604 Sfmt 6604 E:\HR\OC\HR237.XXX HR237

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2 42 U. S. C. §2000e–2(a)(1). 3 In states where a state agency has a work-sharing agreement with the EEOC and where 

potential discrimination may be covered by state law as well, the time for filing a charge of discrimination is extended to 300 days. See 42 U.S.C. § 2000e–5(e)(1). 4See generally 29 U.S.C §206(d). 

eration. H.R. 2831 is bad policy, compounded by bad process, and 

for the reasons set forth below we oppose its passage. 

BACKGROUND: TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

Title VII of the Civil Rights Act of 1964 makes it an unlawful 

employment practice, inter alia, for an employer to discriminate 

‘‘against any individual with respect to his [or her] compensation 

. . . because of such individual’s . . . sex.’’ 2 Generally, an individual 

wishing to challenge an employment practice under Title VII 

(whether it be a termination, the denial of a promotion, a pay decision, or other adverse employment action) must first file a charge 

with the Equal Employment Opportunity Commission (EEOC) 

within 180 days after the alleged unlawful employment practice occurred.3 If an employee does not submit a timely EEOC charge, the 

employee may not later challenge the subject employment practice 

in court. The period of time running from the date of an act of discrimination to the date on which a charge must be filed is commonly referred to as the ‘‘charging period.’’

LEDBETTER V. GOODYEAR TIRE & RUBBER COMPANY

Lilly Ledbetter worked for Goodyear Tire and Rubber Company 

at its Gadsden, Alabama, plant from 1979 until 1998. During much 

of this time, salaried employees at the plant were given or denied 

raises based on their supervisors’ evaluation of their performance. 

In March 1998, Ledbetter submitted a questionnaire to the EEOC 

alleging certain acts of sex discrimination, and in July of that year 

she filed a formal EEOC charge. After taking early retirement in 

November 1998, Ms. Ledbetter filed suit against Goodyear in court, 

including, among other things, a Title VII pay discrimination claim 

and a claim under the Equal Pay Act.4 The lower court ruled in 

favor of Goodyear on several of Ms. Ledbetter’s claims, including 

her Equal Pay Act claim, but allowed others, including her Title 

VII pay discrimination claim, to proceed to trial. 

At trial, Ms. Ledbetter introduced evidence that during the 

course of her nineteen years of employment at Goodyear, several 

supervisors had given her poor evaluations because of her sex (although it appears that many of these claims turned principally on 

the misconduct of a single supervisor whom Ms. Ledbetter claims 

retaliated against her in the early 1980s and mid–1990s for rejecting his sexual advances; by the time the case went to trial, this supervisor had died). Ms. Ledbetter argued that as a result of these 

evaluations her pay was not increased as much as it would have 

been if she had been evaluated fairly, and that these past pay decisions continued to affect the amount of her pay throughout her employment. Notably (and as discussed in further detail below), she 

did not appear to claim that the alleged discrimination on which 

she based her suit in 1998 was unknown to her at the time it occurred in the 1980s and 1990s. 


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5 The jury awarded Ms. Ledbetter $223,776 in back pay, $4,662 in compensatory damages, 

and $3.3 million in punitive damages. The trial court reduced the back pay award to $60,000, 

and capped compensatory damages at $300,000 pursuant to the Civil Rights Act of 1991 (which 

generally sets for limits damages other than back pay). 6 Justice Alito wrote the majority decision, in which he was joined by Chief Justice Roberts, 

and Justices Scalia, Kennedy, and Thomas. 

At trial, Goodyear maintained that Ms. Ledbetter’s evaluations 

had been nondiscriminatory. The jury found in her favor and 

awarded her back pay and damages.5 Goodyear, on appeal, contended that Ms. Ledbetter’s pay discrimination claim was timebarred with respect to all pay decisions made prior to September 

26, 1997 (180 days before she filed her charge at the EEOC), and 

that it committed no discriminatory act relating to her pay after 

that date. 

The Court of Appeals for the Eleventh Circuit held that a Title 

VII pay discrimination claim cannot be based on any pay decision 

that occurred prior to the last pay decision that affected the employee’s pay during the charging period. Put more simply, the court 

found that any pay decision made more than 180 days prior to Ms. 

Ledbetter filing her charge with the EEOC could not provide the 

basis for a claim of discrimination. The court then concluded that 

there was insufficient evidence to prove that Goodyear had acted 

with discriminatory intent in making the only two pay decisions 

that occurred within that time span, namely, a decision made in 

1997 to deny Ms. Ledbetter a raise and a similar decision made in 

1998. Thus, the Appeals Court found in the company’s favor and 

vacated the jury’s verdict. 

Ms. Ledbetter appealed her case to the Supreme Court, but did 

not seek review of the Court of Appeals’ holdings regarding the sufficiency of the evidence in relation to the 1997 and 1998 pay decisions. Rather, she sought review of the following question: 

Whether and under what circumstances a plaintiff may 

bring an action under Title VII of the Civil Rights Act of 

1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay 

decisions that occurred out-side the limitations period? 

THE SUPREME COURT’S RULING

On May 29, 2007, in a five to four decision,6 the Supreme Court 

held that Ms. Ledbetter’s claims were not timely. In arriving at its 

ruling, the Court’s majority stressed two points. First, the Court 

stressed that its holding in Ledbetter was consistent with its prior 

rulings on the question of when the statute of limitations begins to 

toll for a discrete act of discrimination. Second, the Court went on 

at length to note that its decision was compelled by the terms of 

the statute of limitations included in Title VII by Congress, and 

that Congress plainly had given special attention to the policy 

choices underlying a short statute of limitations. As the Court observed: 

Statutes of limitations serve a policy of repose. They ‘‘represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within 

a specified period of time and that ‘the right to be free of 


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7 127 S. Ct. at 2170–71 (citations omitted). 8 Justice Ginsburg was joined by Justices Stephens, Souter, and Breyer in her dissent. Significant media attention has been paid to the fact that Justice Ginsburg read her dissent from the 

bench, an unusual occurrence, if not one of substantive import. 9 127 S. Ct. at 2178–79. 10 Id. at 2179 (citation omitted). 11 A ‘‘discovery rule’’ generally provides that the statute of limitations on a claim begins to 

run when a plaintiff is on notice (or reasonably should be on notice) of a potential claim, and 

is intended to ensure that meritorious claims are not time-barred simply because a defendant 

conceals facts or otherwise attempts to ‘‘run out the clock’’ on a plaintiff’s claim. 12See 127 S. Ct. at 2177 n. 10. 

stale claims in time comes to prevail over the right to prosecute them.’ ’’ The EEOC filing deadline ‘‘protect[s] employers from the burden of defending claims arising from employment decisions that are long past.’’ Certainly, the 180- 

day EEOC charging deadline is short by any measure, but 

‘‘[b]y choosing what are obviously quite short deadlines, 

Congress clearly intended to encourage the prompt processing of all charges of employment discrimination.’’ This 

short deadline reflects Congress’ strong preference for the 

prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.7

Based on this reasoning, the Court held that Ms. Ledbetter could 

not base a claim in 1998 on alleged discrimination which occurred 

outside of the 180-day charging period, even if such discrimination 

‘‘tainted’’ her wages today. The Court affirmed the Eleventh Circuit’s decision in favor of Goodyear. 

In dissent, Justice Ginsberg 8 argued that pay disparities are ‘‘significantly different’’ than other adverse employment actions 

such as termination and failure to promote, which she believed involve ‘‘fully communicated discrete acts.’’ In contrast, Justice Ginsburg wrote, ‘‘[p]ay disparities often occur, as they did in Ledbetter’s 

case, in small increments; cause to suspect that discrimination is 

at work develops only over time,’’ Ginsburg said.9 She asserted that 

under Supreme Court precedent ‘‘the unlawful practice is the current payment of salaries infected by gender-based (or race-based) 

discrimination—a practice that occurs whenever a paycheck delivers less to a woman than to a similarly situated man.’’ 10

Finally, Justice Ginsburg’s dissent suggested that an employer 

might ‘‘conceal’’ pay discrimination, or otherwise make it difficult 

for an employee to be on notice that he or she was the victim of 

discrimination. In that light, it is worth noting that the Court’s majority opinion expressly left open the question of whether Title VII 

claims are amenable to a ‘‘discovery rule.’’ 11 The Court did note, 

however, that in Ms. Ledbetter’s case, there was no indication that 

a ‘‘discovery rule’’ would have changed the outcome—Ms. Ledbetter 

herself did not claim that the discrimination she alleged to have 

been the victim of in the 1980s and 1990s was unknown to or hidden from her.12

Almost immediately upon its announcement, the Ledbetter decision was met with criticism from plaintiffs’ advocates, the trial bar, 

and others in the civil rights community, who claimed that the decision represented a radical departure from established law validating the ‘‘paycheck rule.’’ The Supreme Court’s decision ‘‘severely 

weakens remedies for employees who have faced wage discrimination and represents a flawed interpretation of our civil rights laws,’’


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13 ‘‘Supreme Court Rules 5–4 Filing Period Applies to Each Discrete Pay Decision,’’ Daily 

Labor Report, No. 103 (May 30, 2007) (BNA) at AA–1. 14 Id. 15 Id. 

said the National Women’s Law Center.13 ‘‘Not only does the ruling 

ignore the reality of pay discrimination, it also cripples the law’s 

intent to address it, and undermines the incentive for employers to 

prevent and correct it.14 ‘‘The National Partnership for Women & 

Families described the decision as ‘‘a painful and costly step backward for the nation and a deep disappointment to those of us who 

want to see strong measures in place to give all workers meaningful protections against discrimination.’’ 15

In contrast, the employer community has generally supported the 

Supreme Court’s ruling in Ledbetter, noting, as did the Court’s majority, that the holding is directly in line with judicial precedent as 

to when a cause of action for discrimination accrues and when it 

is time-barred. Moreover, employer groups have posited that that 

the decision may encourage employees to file pay discrimination 

charges earlier so that pay disputes can be resolved before documents are gone and memories have faded. Moreover, they note, filing a charge gets the attention of the employer and allows the 

EEOC to investigate and conciliate, which in many instances may 

result in a pay increase for the employee or otherwise reveal a 

bona fide reason for the pay disparity. 

COMMITTEE ON EDUCATION AND LABOR HEARING ON LEDBETTER V. 

GOODYEAR DECISION

On June 12, 2007, the Committee on Education and Labor held 

a hearing entitled ‘‘Justice Denied? The Implications of the Supreme Court’s Ledbetter v. Goodyear Employment Discrimination 

Decision.’’ At that hearing, Ms. Ledbetter herself testified, as did 

an academic, a representative of civil rights groups, and Neal D. 

Mollen, the attorney who represented the United States Chamber 

of Commerce as amicus curiae in the Ledbetter case and testified 

at the hearing on their behalf. The hearing focused on the policy 

issues arising from the Ledbetter decision, but did not focus on any 

particular piece of legislation or proposed legislative solution. Mr. 

Mollen testified as to the Court’s reasoning in Ledbetter, as well 

as the fundamental policy issues advanced served by the Court’s 

decision. In his own words: 

[The] ‘‘paycheck’’ limitations rule, soundly and expressly 

rejected in Ledbetter, would have utterly frustrated Congress’ design for attempting to resolve such matters, at 

least in the first instance, without litigation. 

Moreover, in order to embrace this ‘‘paycheck’’ rule, the 

Supreme Court would have been required to renounce a 

rule announced in a long line of well-understood cases regarding the application of rules of limitation under Title 

VII. The Court had repeatedly held that the statute’s limitations period begins to run when the alleged discriminatory decision is made and communicated, not when the 

complainant feels the consequences of that decision. For 

the Court to overrule this precedent or for the Congress to 


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16Testimony of Paul D. Mollen, testifying on behalf of the U.S. Chamber of Commerce, Committee on Education and Labor Hearing, ‘‘Justice Denied? The Implications of the Supreme 

Court’s Ledbetter v. Goodyear Employment Discrimination Decision,’’ (June 12, 2007) (hereinafter, ‘‘Mollen Testimony’’ ) at 3–4 (emphasis added). 

supersede this settled law with legislation would promote 

instability and confusion in the law. 

Finally and perhaps most importantly, the Ledbetter decision recognized the profound unfairness inherent in a 

limitations rule that would permit an individual to sleep 

on his or her rights for years, or even decades, before raising a claim of discrimination. To defend itself against a 

claim of discrimination, an employer must be in a position 

to explain—first to the EEOC and the charging party, and 

perhaps later to a jury—the reasons it had for making the 

challenged decisions. To do so, it must rely on the existence of documents and the memories of people, neither of 

which is permanent. If a disappointed employee can wait 

for many years before raising a claim of discrimination, as 

Ms. Ledbetter did in this case, he or she can ‘‘wait out’’ the 

employer, i.e., ensure that the employer is effectively unable to offer any meaningful defense to the claim. That, 

the Court properly held, is patently unfair. It does not 

serve Congress’ goal—eliminating discrimination to substitute a game of ‘‘gotcha’’ for the investigation and conciliation Congress envisioned. 

Statutes of limitation are an expression of society’s principled, collective judgment that is it unfair to call upon a 

defendant to answer serious charges when placed at such 

a disadvantage. A rule that ‘‘refreshes’’ the period of limitations with every paycheck received to permit a challenge to 

every decision that contributed to current pay cannot be 

squared with this important societal value.16

Mr. Mollen, an employment law practitioner with decades of experience, explained to the Committee why, in particular, the policy 

underlying decisions as to the appropriate time period in which to 

bring a claim should be given particular attention in the context 

of employment-related lawsuits. As Mr. Mollen testified: 

The interest in repose is particularly compelling in the 

employment setting. To defeat a claim of discrimination, 

an employer must be able to articulate its rationale for the 

challenged decision, and to do so convincingly. In an employment discrimination case, the employer attempts to 

show at trial that it had good reason for treating the plaintiff in the way it did, and the plaintiff tries to show that 

the employer’s explanation is unworthy of credence; the 

jury must decide whom to believe. In many, if not most, 

trials, the testimony devolves to a ‘‘he said/she said’’ battle 

of recollections, and the most vivid rendition of events usually prevails. 

An employer ’s ability to tell its story dissipates sharply 

as time passes. Memories fade; managers quit, retire or 

die, business units are reorganized, disassembled, or sold; 

tasks are centralized, dispersed, or abandoned altogether. 


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Unless an employer receives prompt notice that it will be 

called upon to defend a specific decision or describe a series of events, it will have no ‘‘opportunity to gather and 

preserve the evidence with which to sustain [itself] . . .’’

That is precisely why Congress wisely selected relatively 

brief periods of limitation for filing administrative charges 

under Title VII. 

This problem is becoming ever more acute for employers, 

exacerbated by trends in employee mobility, mergers, expansions, acquisitions, reductions-in-force, divestitures and 

reorganizations. When a dispute in the workplace is raised 

promptly as Congress intended, most or all of the decisionmakers, witnesses, and human resources representatives an 

employer will need to consult and to tell its story convincingly are likely to still be working for the defendant employer at the time of a trial, or at least the employer will 

usually be able to locate them. The employer’s ability to 

muster a defense dwindles, however, as the challenged decision recedes into the past . . . 

The fact that an employer may keep some employment 

records documenting decisions affecting pay is of little 

comfort. First, in practice, employers rarely record detailed 

explanations on paper as to why one employee might have 

received an incrementally lower or higher pay increase 

than his or her co-worker. Unlike terminations, which are 

relatively rare and therefore are usually documented thoroughly at the time, most employers make compensation decisions about every one of their employees every year. The 

employer can hardly be expected to write extended narratives explaining the rationale for every one of those decisions for every employee, or record comparisons between 

and among all of the other similarly situated employees—

i.e., why Employee A got a 3.5% increase and Employee B 

got 4%. 

Second, even if this kind of documentation existed, the 

‘‘story line’’ of an employment decision cannot be told at 

trial solely with a few pieces of paper. Few defendants are 

likely to prevail at a trial—even when the challenged decision was entirely bias-free—by meeting the live, detailed, 

and often emotional testimony of the plaintiff with a few 

words recorded on a document . . . 

Thus, the limitations periods selected by Congress in enacting Title VII are rooted in notions of fundamental fairness that are the hallmarks of our American system of justice. The American people are fair. They want individuals 

to have an opportunity to raise their concerns and, where 

their legal rights have been invaded, a process through 

which they can seek redress. But they also believe—correctly—that an injured party has to act with reasonable 

dispatch in pressing his or her claims. It violates the most 

basic notions of justice to allow an individual—even one 

who may have been subjected to discrimination—to wait 


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17 Id. at 5–7 (emphasis added; citation omitted). 18See H.R. 2831 (as introduced) § 3, proposed subparagraph 3(a). 19See id. § 3, proposed subparagraph 3(b). 

until the employer is essentially defenseless to raise the allegation. 17

Insofar as no legislative proposal was pending before the witnesses, the Committee was not able to ascertain the views of any 

witness, stakeholder, or interested party as to what specific language to reverse the Ledbetter decision or adopt a ‘‘paycheck rule’’

more broadly might look like. These witnesses were not able to 

offer their views as to whether H.R. 2831 accomplishes these goals, 

does less than that, or does more than that, insofar as that bill was 

not introduced until ten days after the hearing. 

H.R. 2831, THE LEDBETTER FAIR PAY ACT

On the afternoon of Friday, June 22, 2007, Chairman Miller introduced H.R. 2831, the ‘‘Ledbetter Fair Pay Act of 2007,’’ legislation which its supporters purport is a ‘‘narrowly drawn’’ bill simply 

intended to overturn the Supreme Court’s Ledbetter decision. The 

afternoon of the June 22 was the first time that Minority Members 

and staff were afforded the opportunity to review legislative text 

ostensibly relating to the Supreme Court’s Ledbetter decision. 

In general, H.R. 2831 amends four different statutes (Title VII 

of the Civil Rights Act of 1964, which applies to discrimination on 

the basis of race, color, religion, sex, or national origin; the Age 

Discrimination in Employment Act, which prohibits discrimination 

on the basis of age; and the Americans with Disabilities Act and 

its precursor, the National Rehabilitation Act, which both prohibit 

discrimination on the basis of disability). With respect to each of 

these statutes, H.R. 2831 would: 

• Eliminate the statute of limitations and EEOC charging requirements for any claim of discrimination, no matter how long 

ago, that could be characterized as an (undefined) ‘‘discriminatory 

compensation decision or other practice.’’ H.R. 2831 allow an individual to bring a claim of discrimination where he or she alleges 

to have been the victim of a ‘‘discriminatory compensation decision 

or other practice’’ at any of the following times: (a) the time the decision or practice is adopted; (b) the time an individual became 

‘‘subject to’’ the decision or practice; or (c) the time an individual 

is ‘‘affected by’’ application of the decision or practice, ‘‘including 

each time wages, benefits, or other compensation is paid, resulting 

in whole or in part from such a decision or other practice.’’ 18 There 

is no limit on how many years into the future a plaintiff may bring 

a claim, or as to how many years a future plaintiff can look backward (e.g., with respect to, for example, pension benefits, a plaintiff 

retiring in 2057 could bring a claim of discrimination based on pay 

decisions made on her first day of employment fifty years ago in 

2007). 

• Allow an ‘‘aggrieved person’’ who files a charge of discrimination to challenge ‘‘similar or related instances’’ of discrimination 

that occur after the filing of the initial charge, without having to 

file a subsequent charge with the EEOC;’’ 19 and 


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20See id. § 3, proposed subparagraph 3(c). 21The Majority would appear to imply in their Views, see supra, that the Committee on Education and Labor’s hearing on June 12, 2007, concerning the policy implications of the Ledbetter 

decision is an adequate substitute for a legislative hearing on the specific language and proposed 

statutory amendment set forth in H.R. 2831. As demonstrated by the range of unanswered questions raised by and the unknown consequences resulting from the precise language used in the 

bill (discussed more fully below), plainly, it is not. Moreover, insofar as H.R. 2831 purports to 

be a reversal of the Supreme Court’s Ledbetter decision, the Majority’s attempt to portray as 

part of the legislative history of this bill a Committee hearing held five weeks prior to the 

issuance of the Court’s decision (an April 24 hearing entitled ‘‘Strengthening the Middle Class: 

Ensuring Equal Pay for Women’’), which in no way even purported to be a discussion of the 

statute-of-limitations issues raised by the pending Ledbetter case, strains credulity at best. 

• Provide that an aggrieved person could obtain damages and relief, including recovery of back pay for up to two years preceding 

the filing of a charge with the EEOC, where discrimination that occurred during the charging period was ‘‘similar or related to’’ (an 

undefined term) claims of discrimination that would be otherwise 

barred by the statute of limitations.20

H.R. 2831 appears to have been written to expressly revive plaintiff Ledbetter’s claim in the lower court: the bill applies retroactively to all cases that were pending on May 28, 2007—the day 

before the Supreme Court disposed of Ms. Ledbetter’s claim. 

LEGISLATIVE ACTIVITY

No hearing on H.R. 2831 was held in the Committee on Education and Labor subcommittee of jurisdiction, the Subcommittee 

on Health, Employment, Labor and Pensions. 

No hearing on H.R. 2831 was held in the Committee on Education and Labor.21

The Subcommittee on Health, Employment, Labor, and Pensions 

did not meet to consider or mark up H.R. 2831. 

On Wednesday, June 27, 2007, five days after its introduction, 

the Committee on Education and Labor met to consider and mark 

up H.R. 2831. An Amendment in the Nature of a Substitute offered 

by Mr. Miller was adopted without objection. Amendments to the 

Miller Substitute offered by Representatives Boustany and Keller 

were rejected on roll call votes of 18 to 24 and 20 to 25, respectively. The Committee favorably reported H.R. 2831, as amended 

by the Miller Amendment in the Nature of a Substitute, on a roll 

call vote of 25 to 20. Republican Members were unanimous in their 

opposition to reporting the bill favorably to the House of Representatives. 

REPUBLICAN VIEWS

Committee Republicans are united in their opposition to intentional discrimination and their support of Title VII’s protection 

from and prohibition of discrimination in the workplace. Committee 

Republicans are equally united, however, in their opposition to the 

fundamentally flawed legislation that is H.R. 2831. 

Stripped of its rhetoric and the characterization of the bill by its 

supporters notwithstanding, H.R. 2831 positively eliminates the 

statute of limitations and EEOC charging requirements contained 

in current law with respect to almost every conceivable claim of 

discrimination one can imagine. It allows an employee—or any individual who can arguably claim to be ‘‘affected’’ by an allegedly 

discriminatory decision relating to compensation, wages, benefits—


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22 Brief of Petitioner Lilly Ledbetter, Petition for a Writ of Certiorari, Ledbetter v. Goodyear 

Tire and Rubber Company, Inc., No. 05. ll (February 17, 2006) at 9, 13 (emphasis added). 

or any other practice—to sue for discrimination that may have occurred years or even decades in the past. 

As set forth below, H.R. 2831 is fundamentally flawed on almost 

every level. It proceeds from faulty assumptions; it adopts flawed 

new constructions of law; and it expands the scope of liability 

under our nation’s civil rights laws exponentially. The bill’s failings 

as a matter of substantive policy are magnified by the failure of 

process which has led to its hasty consideration, and which does a 

grave disservice to the thoughtful and deliberate legislative process 

for which this Committee in particular has come to be known. H.R. 

2831 should be rejected by the House. 

Courts have long been divided as to the propriety of the so-called ‘‘paycheck rule’’

As a preliminary matter, H.R. 2831’s supporters proceed from 

the flawed premise that the Supreme Court’s decision in Ledbetter 

reversed well-settled law, or in some fashion rejected a ‘‘paycheck 

rule’’ that had been applied universally, uniformly, and without 

question or confusion by courts administering and interpreting federal civil rights laws. H.R. 2831’s supporters may wish that this 

was the case; they may even believe that this was the case—but 

they are alone in doing so. 

No plainer evidence of this can be found than in the court filings 

made on behalf of the plaintiff in the case, Ms. Ledbetter herself, 

which recognized that federal courts had come to vastly differing 

conclusions about whether and how the paycheck rule was the 

proper application of law under Title VII. As Ms. Ledbetter’s attorneys argued to the Supreme Court: 

The courts of appeals are divided over the proper analysis and resolution of disparate pay claims like Ledbetter’s 

in light of National Railroad Passenger Corp v. Morgan, 

536 U.S. 101 (2002) and Bazemore v. Friday, 478 U.S. 385 

(1986). Some courts hold that an employee may challenge 

disparate paychecks received during the limitations period 

if the paycheck implements and carries forward into the 

limitation period discriminatory decisions made by her employer at any point in the past. Other decisions permit employees to challenge such disparities in pay only if they can 

demonstrate that the disparity arises from independently illegal decisions made during the limitations period itself or, 

at most, from the employer’s most recent pay decision. . . . Although the conflict in circuits is most clear in the decisions of the Second, Eleventh, and D.C. Circuits, the proper 

treatment of disparate pay claims under Morgan and 

Bazemore has generated considerable conflict and confusion in other circuits as well.22

H.R. 2831’s proponents find no support for the proposition that 

a ‘‘paycheck rule’’ was, pre-Ledbetter, the well-settled law of the 

land in the holding of various federal circuit and district courts. Indeed, as recognized by the parties to Ledbetter, practitioners, and 

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23 Compare, e.g., Elmenayer v. ABF Freight Syst., Inc., 318 F.3d 130 (2d Cir. 2003), Forsyth 

v. Federation Employment Guidance Service, 409 F.3d 565 (2d Cir. 2005), Anderson v. Zubieta, 

180 F.3d 329 (D.C. Cir. 1999), & Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005) with Dasgupta 

v. University of Wisconsin Board of Regents, 121 F.3d 1138 (7th Cir. 1997), Hildebrandt v. Illinois Department of Natural Resources, 347 F.3d 1014 (7th Cir. 2003) & Ledbetter v. Goodyear 

Tire & Rubber Co, Inc., 421 F.3d 1169 (11th Cir. 2005). 24 H.R. 2831 § 3, proposed subparagraph 3(a). 

clusions as to the proper application and/or limitation of a ‘‘paycheck rule’’ as applied to claims of discrimination under federal 

law.23 The elision of this point by the bill’s supporters is not one 

alone on which to base opposition, but it underscores that with respect to H.R. 2831, the claims of the bill’s proponents are too often 

at odds with—if not plainly contradicted by—the facts and law at 

hand. 

H.R. 2831 eliminates the statute of limitation for virtually all discrimination claims 

Foremost, H.R. 2831 would eliminate the statute of limitations 

and charging requirements with respect to any ‘‘discriminatory 

compensation decision or practice . . . each time wages, benefits, 

or other compensation is paid, resulting in whole or in part from 

such a decision.’’ 24 Nowhere in the text of the Civil Rights Act (nor 

in any of the other statutes amended by this bill) is the phrase 

‘‘discriminatory compensation decision’’ defined or limited. Thus, at 

the outset, the bill’s provisions extend to any claim of discrimination that concerns not only allegations of ‘‘pay discrimination’’ resulting in a lower paycheck, but also to any claim alleging that 

some decision by an employer at some point in time resulted in 

some diminution in whole or in part of some pension or other benefit. Under the express language of the bill, a claim of discrimination can be brought years after an employment decision is made, 

or even years after employment ends, if the employee claims that 

his or her compensation is less than it would have been but for alleged discrimination long in the past. 

An example of the broad scope of H.R. 2831, and the consequences (intended or not) that is poses for employers, is helpful. 

Assume that under the law as it stands today, post-Ledbetter, an 

employee is hired on January 1, 2008. One year later, on January 

1, 2009, the employee has an annual review, and is given a raise 

that she later feels is discriminatory. Under current law, the employee would have 180 days (or perhaps 300, depending on the 

state in which she works) to file a charge of discrimination—roughly July 1 or November 1 of 2009—with the EEOC or state agency. 

This time could be conceivably extended by a court if it was equitable to do so (for example, if there was evidence that the employer 

concealed information from the employee, or unlawfully prohibited 

the employee from asking questions about her raise). In this case, 

the employer is put on notice that the pay decision is being challenged, and the EEOC is able to immediately investigate while witnesses are available, recollections are fresh, and supporting documents and paperwork are available. If the employee is able to 

prove discrimination, he or she is entitled to recover damages, including back pay and other benefits. 

Applying the same set of facts under H.R. 2831, an employee is 

hired on January 1, 2008, and receives a pay adjustment that he 


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feels is discriminatory on January 1, 2009. The employee remains 

employed at that company for the next forty years, and every year 

has an annual review where his salary is adjusted upward on a 

percentage basis—at no time does the employee claim (or does evidence suggest) that any of these subsequent reviews are discriminatory. The employee retires in 2049 and receives a final paycheck. 

Under H.R. 2831, the employee now has 180/300 days to file a 

claim of discrimination relating back to the only discriminatory act 

ever claimed—his first pay adjustment in 2009, forty years ago—

on the theory that even if he got a fair review every year thereafter, he still makes less than he would have had he gotten a fair 

review in 2009. Indeed, if post-retirement the employee receives a 

monthly pension that was in some way based on his salary, the employee can bring a claim even further in the future, based on a pension allegedly ‘‘tainted’’ by a discriminatory decision forty years 

ago. 

In light of the potentially radical change to civil rights law embodied in H.R. 2831, it is hardly surprising that representatives of 

employers providing jobs to millions of Americans are united in 

their opposition to this bill, and, equally important, deeply concerned with the unanswered questions and unintended consequences the bill portends: 

While we strongly oppose unlawful discrimination in any 

form, the Ledbetter Fair Pay Act virtually eliminates any 

time limitations for claims of employment discrimination. 

In doing so, the legislation invites stale claims and frivolous litigation when unwarranted litigation is already an 

issue under current discrimination laws. In fact, the Equal 

Employment Opportunity Commission reported that it 

found reasonable cause in only 5.3% of the over 75,000 

charges of discrimination that it received in FY2006 and 

found absolutely no cause for discrimination in over 60% of 

the charges (amounting to 45,500 ‘‘no cause’’ charges). A 

study of previous years’ statistics yields similar results. 

When Congress passed Title VII of the Civil Rights Act, 

the Age Discrimination in Employment Act and the Americans with Disabilities Act, it created limits on the period 

of time under which an individual may file an employment 

charge. These limits promote rapid resolution of employment claims and quick remedial actions by employers 

where appropriate. The limitations also balance competing 

interests by providing plaintiffs a reasonable time to file 

charges while preventing courts and employers from facing 

stale claims in which the truth is difficult to ascertain because evidence is lost, memories have faded and witnesses 

have disappeared. We urge that you preserve this balance 

that has existed in civil rights law for over 40 years. 

In addition, we are dismayed that this bill appears to go 

well beyond the issues raised in the Supreme Court’s recent 

decision in Ledbetter v. Goodyear Tire & Rubber Co. It is 

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25Letter to Chairman George Miller and Ranking Republican Member Howard P. ‘‘Buck 

McKeon,’’ dated June 27, 2007 urging opposition to H.R. 2831 from the American Bakers Association, American Hotel and Lodging Association, College and University Professional Association for Human Resources, HR Policy Association, International Foodservice Distributors Association, International Franchise Association, International Public Management Association for 

Human Resources, National Association of Manufacturers, National Association of WholesalerDistributors, National Public Employer Labor Relations Association, National Restaurant Association, National Retail Federation, Retail Industry Leaders Association, Society for Human Resource Management, and U.S. Chamber of Commerce (emphasis added). In addition to these 

groups, the National Federation of Independent Business has advised the Committee of its opposition to H.R. 2831. 26 H.R. 2831, § 3 proposed subparagraph 3(a). 27Mollen Testimony at 8. 28 490 U.S. 900 (1989). 

tential for such significant impact be carefully considered 

and not rushed through only days after its introduction.25

Committee Republicans share the concerns, both substantive and 

procedural, raised by these parties, and object to the hasty consideration of legislation which, whether intended or not, will result in 

an exponential increase in potentially frivolous litigation, and in 

any case directly upsets a balance that has been maintained under 

civil rights law for more than four decades. 

H.R. 2831 eliminates the statute of limitations in virtually all 

claims of discrimination 

H.R. 2831 does not merely eliminate statutes of limitation with 

respect to allegations of discrimination relating to pay decisions—

the issue before the Court in Ledbetter—or even to allegations relating to the setting of wages or other benefits. Rather, it expressly 

eliminates the statute of limitations with respect to any allegedly 

discrimination resulting from a ‘‘discriminatory compensation decision or other practice.’’ 26

As explained at the Committee’s June 12 hearing, even in the absence of broad and undefined ‘‘other practice’’ language, almost any 

alleged act of discrimination can be characterized to have consequences for an employee’s pay and thus result in an ‘‘individual 

[being] affected by application of a discriminatory compensation decision’’ under the bill: ‘‘Nearly every form of adverse employment 

action has an impact on compensation—denied promotions, demotions, transfers, reassignments, tenure decisions, suspensions and 

other discipline—they all have the potential to affect pay.’’ 27

The ‘‘other practice’’ clause contained in the text of the bill serves 

only to make explicit that which most would have understand was 

implied from a plain reading of the bill—that H.R. 2831 has the effect of eliminating the statute of limitations and charging requirements for almost every conceivable claim of workplace discrimination. 

H.R. 2831 modifies established law standards without explanation 

or definition 

As detailed more fully in the discussion of the Boustany Amendment set forth below, in 1991, Congress enacted amendments to 

the Civil Rights Act of 1964 that were intended, among other 

things, to reverse certain decisions of the Supreme Court, specifically (among others), Lorance v. AT&T Technologies, Inc.28 In 


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29 42 U.S.C. § 2000e–5(e)(2) (emphasis added). 30 H.R. 2831 § 3(a) (emphasis added). See also id. § 4(a) (making corresponding changes in Age 

Discrimination in Employment Act). 31The Majority’s Views, see Section by Section, supra, appears to attempt to argue that there 

is no ‘‘substantive difference’’ between a ‘‘person aggrieved’’ by a practice or ‘‘an individual,’’ or between a person ‘‘injured by’’ or ‘‘affected by’’ same. That argument fails, on its face, on several 

fronts. First, the drafters’ intent as expressed in legislative history notwithstanding, in both instances the latter term is far broader than the former. More to the point, barely a few words 

later, the Majority argues that ‘‘affected’’ is ‘‘simpler and clearer’’ than ‘‘injured’’—at some point, 

the drafters need make up their collective minds—the term has either the same meaning, or 

it doesn’t. Finally, as noted in the text above, a reviewing court is now left with the riddle of 

what Congress meant when it enacted different language in different places in the same statute, 

while its supporters apparently debate internally whether and what the purpose of that different language is. 32 At markup, bill supporters attempted to argue that such individuals would be limited in 

bringing claims of discrimination by courts through application of the doctrine of ‘‘standing.’’

Such an argument misses the mark. The standing doctrine provides that a party may bring a 

claim in federal court under a particular statute if that party can show that he or she has suffered some injury, and is generally within the confines of that class of individuals whom the 

1991, Congress amended the Civil Rights Act to overturn Lorance, 

by adopting a new section 706(e)(2), which provides that: 

For purposes of this section, an unlawful employment 

practice occurs, with respect to a seniority system that has 

been adopted for an intentionally discriminatory purpose 

in violation of this subchapter (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when 

an individual becomes subject to the seniority system, or 

when a person aggrieved is injured by the application of 

the seniority system or provision of the system.29

In crafting the language of H.R. 2831, it is clear that the bill’s 

supporters have attempted to model the language they propose to 

use to overturn Ledbetter on the section 706(e)(2) language that 

was used to overturn Lorance. The operative section of H.R. 2831 

provides: 

For purposes of this section, an unlawful employment 

practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory 

compensation decision or other practice is adopted, when 

an individual becomes subject to a discriminatory compensation decision or other practice, or 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.30

While modeled on the language of section 706(e)(2), on its face, 

the language of H.R. 2831 differs in two substantive respects.31

First, the bill—as contrasted with the law—applies not to ‘‘person[s] aggrieved’’ by alleged violation of the statute, but rather 

to a broader universe of ‘‘individuals’’—there is no requirement 

that such individual be ‘‘aggrieved.’’ Second, and plainly more questionable, section 706(e)(2) of existing law provides relief to a party 

that is ‘‘injured’’ by discrimination in the workplace. H.R. 2831, in 

contrast, extends relief to those merely ‘‘affected by’’ such alleged 

discrimination. It is clear that the universe of persons ‘‘affected by’’

a decision is far broader than the universe of persons ‘‘injured by’’

a decision—what delimits that expansion? 32


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statute protects. Where, as here, a statute expressly affords relief to an ‘‘individual . . . affected 

by’’ an allegedly discriminatory compensation decision, to say that courts would use the standing 

doctrine to disallow plaintiffs to bring claims where they allege that they are ‘‘individuals affected by’’ alleged discriminatory compensation decision and have thereby suffered some injury 

is circular logic, at best. See Black’s Law Dictionary (8th Ed. 2004) (defining standing as ‘‘a party’s right to make a legal claim or seek judicial enforcement of a duty or right’’). 33See H.R. 2831, as introduced, § 3 proposed subparagraph (c) (redesignated as proposed subparagraph (b) in the Miller Amendment in the Nature of a Substitute discussed infra). 

Again, a hypothetical serves to illustrate some of the unanswered 

questions raised by H.R. 2831. Assume that an individual starts 

working at an employer, Employer A, on January 1, 2008, and one 

year later, January 1, 2009, receives a pay raise that the employee 

some years later comes to believe is discriminatory. In the interim, 

the individual receives annual percentage increases over the next 

five years—there is no claim that these raises were discriminatory, 

but at the end of his employment with Employer A, the employee 

believes that his compensation is lower in total amount than it 

would have been absent alleged discrimination. The employee 

leaves Employer A on December 31, 2014. 

Employer B hires the worker on January 1, 2015, and sets his 

starting salary based, at least in part, on the worker’s prior final 

salary at Employer A. The individual works for Employer B for ten 

years and retires from Employer B in 2025, with no allegation discriminatory acts and regular annual raises at any time. In 2035, 

the employee reaches age 65 and begins receiving retirement benefits from both Employers A and B. 

Under the bill, in 2015, can the employee bring a challenge 

against Employer A for his initial act of discrimination in 2009? 

Going further, can he bring a claim against Employer A in 2020, 

on the basis that he is ‘‘affected by application of a discriminatory 

compensation decision or other practice’’ because he is receiving a 

lower salary from Employer B than he otherwise would have because of Employer A’s decision ten years earlier? Is Employer A responsible for Employer B’s independent determination of the individual’s worth? In the absence of an express ‘‘intent’’ requirement 

in the bill, can Employer B be subject to a charge in 2015 or beyond, because it arguably perpetuated, albeit unintentionally, a 

discriminatory act committed by a prior employers? Are decisions 

made by Employer A twenty-five years ago, or Employer B fifteen 

years ago, now ‘‘revived’’ and subject to challenge when the employee begins receiving his pension benefits? Were such claims viable or dormant all those years in between? The answer to almost 

every one of these questions is pointedly unknown. 

Committee Republicans are similarly concerned with provisions 

in the bill that eliminate the statute of limitations and charging requirements and expressly extend liability, not only for acts of discrimination for which the employer is charged, but also ‘‘similar or 

related to’’ acts which are, by definition, time-barred under the 

statute.33 ‘‘Similar or related to’’ is nowhere defined in the text of 

H.R. 2831, nor elsewhere in applicable civil rights statutes. By definition, this phrase expands the universe of actionable discrimination from a discrete act (even if only broadly defined as a ‘‘discriminatory compensation decision or other practice’’) to include a range 

of other unspecified acts that range far beyond those of which the 

employer has been put on notice by virtue of an EEOC charge. 


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34 In general, there are two theories of liability under Title VII and related civil rights laws. 

First, liability under Title VII may lie where an employer intentionally discriminates against 

an employee or class of employees, or otherwise treats an employee differently because he or 

she is in a protected class. In those cases, the plaintiff has the burden to prove that the employer acted with the intent to discriminate. Alternately, liability may be found where an employer adopts a facially neutral practice, but one which has disproportionate adverse consequences for employees in a protected class (for example, an employer requires applicants to 

take a test that while neutral on its face, disqualifies a disproportionate number of female applicants). In those instances, an employee need not show that the employer intended to discriminate against employees in a protected class, only that its policy or practice has the unintended 

effect of doing so. An employer may defend against such a claim be showing that it has a valid 

business necessity that justifies the use of its policy. Thus, in disparate impact cases, an employee need not prove ‘‘intent.’’

On their face, these textual choices raise serious questions—are 

they intended to expand liability or application of the statute’s protections? If so, to whom, and in what fashion? If not, what policy 

argument justifies choosing different language in one section of the 

bill than another—particularly where a reviewing court, applying 

canons of statutory construction, is bound to view Congress’s decision to use different language as implying some substantive import? Again, these questions—which may be susceptible to reasonable answers—are left unanswered, and the consequences of the 

bill remain unknown. At markup, H.R. 2831’s proponents were unwilling or unable to address these fundamental concerns with the 

text of the bill; this alone suggests that further consideration of 

this bill in the absence of legislative examination is premature and 

irresponsible. 

H.R. 2831 is not limited to claims of intentional discrimination 

such as Ledbetter 

H.R. 2831 does not limit itself to cases of ‘‘intentional’’ discrimination—the set of facts at issue in Ledbetter, Indeed, as detailed 

below in discussion of the rejected Boustany Amendment, by utilizing cognate language in Section 706(e)(2), but expressly removing the requirement of an ‘‘intentionally discriminatory purpose,’’

H.R. 2831 can be fairly read and construed to eliminate the statute 

of limitations and charging requirements with respect not only to 

cases of intentional discrimination, but with respect to cases alleging liability on the theory of non-intentional ‘‘disparate impact’’ discrimination.34

Indeed, as set forth in the Majority’s Views, supra, the fundamental contradiction of the bill’s supporters is made clear with reference to this issue alone—compare the language in the Majority 

View’s discussion at Congress’s Action Today (‘‘H.R. 2831 is designed to be a narrow reversal of the Ledbetter decision . . .’’) with 

that in Section by Section (‘‘[T]his provision is not limited to intentional discrimination but deals with all compensation discrimination in violation of Title VII . . .’’ (emphasis added)). 

Application of this bill to an entire class of cases which in no way 

were addressed in the Court’s Ledbetter decision potentially allows 

for claimants to allege, years after the fact, that facially neutral, 

nondiscriminatory pay systems ‘‘unfairly’’ pay some workers more 

than others, and thus violate Title VII or other civil rights laws. 

Such a claim radically expands the scope of liability under Title 

VII. More to the point, it goes far beyond the facts presented and 

decision rendered in the Ledbetter case, and should be rejected. 


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H.R. 2831 could result in drastic consequences for pension and 

other benefit plans 

Committee Republicans are deeply troubled by the significant 

concerns H.R. 2831 raises with respect to the sponsorship and administration of pension benefit and welfare plans under the Employee Retirement Income Security Act of 1974 (‘‘ERISA’’). These 

concerns were highlighted to the Committee as it prepared for 

markup by way of comment from the American Benefits Council 

(the ‘‘Council’’), who implored the Committee to not approve H.R. 

2831 until its consequences were more fully understood. The text 

of the Council’s appeal is set forth in its entirety below (emphasis 

added): 

AMERICAN BENEFITS COUNCIL, 

JUNE 26, 2007. 

DEAR CHAIRMAN MILLER AND RANKING MEMBER MCKEON: I am 

writing today on behalf of the American Benefits Council to express 

concern regarding proposed legislation (H.R. 2831) to overrule the 

Supreme Court’s Ledbetter v. Goodyear Tire & Rubber Co. decision. 

The Council is a public policy organization representing principally Fortune 500 companies and other organizations that assist 

employers of all sizes in providing benefits to employees. Collectively, the Council’s members either sponsor directly or provide services to retirement and health plans that cover more than 100 million Americans. The Council’s area of expertise is in the employee 

benefits area, and accordingly we limit our letter to the possible effect of the proposed legislation on benefit programs. 

Under the proposed legislation, each payment of compensation or 

benefits that is lower because of past discrimination is arguably a 

separate act of discrimination. Under this interpretation of the proposed legislation, an employee could file a charge or sue within the 

required period (180 days in the Ledbetter case) after each payment, without regard to when the actual act of discrimination that 

caused the compensation or benefits to be lower occurred. That actual act could have occurred 30 or 40 or more years earlier. 

This proposed legislation could possibly raise very serious retirement plan issues. For example, assume that the actual act of discrimination occurred 30 years ago. Assume further that the individuals who allegedly discriminated are all deceased, and the claim of 

discrimination is based purely on oral statements. In that case, the 

company may have no effective way to defend the case, which hardly seems fair. Our question is: how would a judgment in favor of 

the plaintiff affect the company’s retirement plan? If the company 

maintains a defined benefit plan that calculates benefits based on 

an employee ’s final average pay, would the plan need to recalculate 

the plaintiffs benefit based on the revised pay, which could be substantially higher? What if the lawsuit is a class action, so that large 

numbers of plan participants could be making the same claim for 

much higher benefits? In that case, the plan could become woefully 

underfunded, undermining the retirement security of thousands of 

other plan participants. 

We also note that, under the proposed legislation, a claim could 

arguably be made by an individual who retired many years ago and 

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35See, e.g., legislative histories of H.R. 4000 & S. 2104 (101st Congress); H.R. 1 & S. 1745 

(102nd Congress). 

mula that has not been in effect for a long time. The burdens of 

recreating both old data and old benefit formulas in order to recalculate that individual’s benefits would be immense, yet would arguably be required by the legislation. 

We have other questions regarding the possible effect of the legislation on 401(k) plans, 403(b) plans (generally maintained by 

schools and charities), and 457 plans maintained by state and local 

governments. To what extent would such plans have to recalculate 

benefits payable to the plaintiffs? If the employer needs to fund 

enormous additional benefits for the plaintiffs, would the employer 

be effectively forced to reduce or eliminate contributions for others? 

We are writing to ask you not to act until the possible ramifications of the bill are fully understood. We understand the concerns 

that led to the drafting of this proposed legislation. On the other 

hand, we are also very mindful of the severe practical problems 

created by the legislation in its current form. We strongly urge you 

to fully explore the practical, technical and policy issues before moving forward on legislation that could have far-reaching and unintended consequences. 

Sincerely, 

JAMES A. KLEIN, President. 

Committee Republicans are gravely concerned with the potential 

effects of H.R. 2831 on defined benefit, defined contribution, and 

other pension and welfare benefit plans both in the near term and 

far into the future. The concerns raised by the American Benefits 

Council and others suggest that H.R. 2831, as written, could potentially undermine the solvency of pension plans far into the future, 

and thereby risk the financial and retirement of security of millions 

of American workers and retirees. As discussed in further detail 

below, the response of the bill’s supporters—including in the Findings section of the bill one non-binding sentence that does not purport to address substantively these issues—is wholly insufficient to 

allay these concerns. 

H.R. 2831 does grave harm to the committee legislative process, and 

is flawed as a result 

Finally, we express again our grave concern with the failure of 

process that has led to consideration of H.R. 2831 in a hasty and 

uninformed fashion. The rush of this legislation from introduction 

to consideration and markup barely twenty-four business hours 

later need not be recounted. What bears note, and lays bare the 

failure of the process, is the comparison of this exercise to 

Congress’s last substantive debate over Civil Rights Act amendments in 1990 and 1991. At that time, in response to decisions by 

the Supreme Court construing Title VII in 1989, Congress undertook thorough examination of legislative proposals to address those 

decisions and other issues that had arisen under the Civil Rights 

Act. 

The debate over amendment of the Civil Rights Act spanned two 

Congresses, and more than two years.35 Legislative proposals were 


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36 Amendment in the Nature of a Substitute, offered by Representative George Miller, Committee on Education and Labor Consideration of H.R. 2831, the ‘‘Ledbetter Fair Pay Act of 

2007,’’ June 27, 2007, § 2, finding (4). 37Moreover, the Majority’s ‘‘finding’’ language in this instance appears to suggest that the current state of the law as to when a pension distribution is considered paid is at all clear, simple, 

universally applied to all pension plans, or, ultimately, relevant to the issue at hand. For instance, in the very case cited by the Majority for the proposition that pension checks are ‘‘qualitatively different’’ than paychecks, see supra, the Supreme Court expressly limited its holding 

to the facts at hand, and noted that different sets of facts with respect to a particular pension 

plan would likely result in differing outcomes. See Florida v. Long, 487 U.S. 223, 240 (1988) 

(applying principles of Arizona Governing Committee for Tax Deferred Annuity and Deferred 

Compensation Plans v. Norris, 463 U.S. 1073 (1983) and concluding that ‘‘[a] different case, and 

a different assessment of retroactivity, might result under pension plan structures which do not 

provide retirees with a contractual right to a fixed level of benefits or rate of return on contributions.’’). See also, e.g., Spirt v. Teachers Ins. and Annuity Ass’n, 735 F.2d 23, 27 (2d Cir. 1984) 

(distinguishing Court’s application of Norris principles) & Florida v. Long, 487 U.S. at 240 (recognizing different outcomes and continuing validity of Spirt). 

the subject of days of hearings in multiple committees and subcommittees of jurisdiction. They were marked up in subcommittees 

and full committees through days of thoughtful consideration. At 

the conclusion of nearly two years of thoughtful deliberation, Congress sent to the President the most comprehensive overhaul of our 

nation’s civil rights laws in decades, which were signed into law. 

These revisions continue to protect millions of Americans from discrimination in the workplace today. The contrast of that legislative 

process with the process that has sent H.R. 2831 to the House for 

consideration less than a week after it was introduced is profound 

and ominous. 

AMENDMENTS OFFERED IN COMMITTEE

Miller Amendment in the nature of a substitute 

The Miller Substitute, which was adopted without objection, 

made three changes to the text of H.R. 2831 as introduced. First, 

it changed the short title of the bill. Second, it deleted in two instances language in the introduced bill which would have allowed 

an aggrieved person who filed a charge of discrimination to challenge ‘‘similar or related instances’’ of discrimination that occur 

after the filing of an initial charge with the EEOC without having 

to file a subsequent charge with the agency. Finally, the Miller 

Substitute included a single sentence in the findings section presumably intended to address the bill’s potentially devastating consequences on defined benefit and defined contribution pension 

plans and other employee benefit schemes discussed above. 

The finding contained in the Miller Substitute provides that the 

bill ‘‘is not intended to change current law treatment of when pension distributions are considered paid.’’ 36

It does not require extended debate to dispose of the notion that 

this single sentence—a non-binding, non-substantive finding relating to the bill’s intent—does nothing to address the substantive 

concerns with the bill’s effect on pension and other benefit plans 

set forth above. Indeed, it is of little interest what the bill’s ‘‘intent’’

is, where its express and operative language provides that the statute of limitations for bringing a claim of discrimination is eliminated for claims ‘‘each time that wages, benefits, or other compensation is paid’’ which result ‘‘in whole or in part’’ from an alleged discriminatory practice.37


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38 490 U.S. 900 (1989). 39 42 U.S.C. § 2000e–5(e)(2). 

More to the point, even accepting arguendo that the finding— were it to be given substantive meaning by a reviewing court—addressed issues raised with the question of when a cause of action 

relating to pension benefits accrues under the bill, the language 

does nothing, implicitly or explicitly, to address fundamental concerns relating to the potential liability of pension and welfare benefit plans decades into the future when a plaintiff or class of plaintiffs brings a claim for benefits under the plan. 

In short, this provision of the Miller Substitute is, charitably, an 

insufficient resolution to some of the most troubling issues relating 

to pensions and benefits raised by the substantive provisions of 

H.R. 2831. 

Boustany Amendment to preserve intent requirement 

There is no debate that the facts of the Ledbetter case presented 

to the Supreme Court a question of intentional discrimination. Ms. 

Ledbetter alleged that her employer had, purposefully, discriminated against her because she was a woman, in violation of Title 

VII. That was the Title VII claim litigated in the lower court, and 

the case presented to and decided by the Supreme Court. 

Historically, in amending Title VII, Congress has drawn distinction between intentional discrimination and so-called ‘‘disparate 

impact’’ discrimination. Most notably, in 1991 Congress amended 

the Civil Rights Act to overturn the ruling of the Supreme Court 

in Lorance v. AT&T Technologies, Inc.38 By way of brief background, in Lorance, the Court had held that female employees 

could not sue in 1982 for damages they suffered as the result of 

the company adopting an intentionally discriminatory seniority system in 1979—those claims were barred by the statute of limitations. Unsatisfied with this result, two years later Congress included in the Civil Rights Act of 1991 a provision expressly overturning Lorance. Specifically (and as noted supra) Congress added 

to the Civil Rights Act of 1964 a new section 706(e)(2) which provides: 

For purposes of this section, an unlawful employment 

practice occurs, with respect to a seniority system that has 

been adopted for an intentionally discriminatory purpose 

in violation of this subchapter (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when 

an individual becomes subject to the seniority system, or 

when a person aggrieved is injured by the application of 

the seniority system or provision of the system.39

Thus, under this section, a plaintiff challenging the legality of an 

allegedly discriminatory seniority system must prove that the system was adopted with the intent of discrimination. 

In crafting the language of H.R. 2831, it is clear that the bill’s 

supporters have attempted to model the language they propose to 

use to overturn Ledbetter on the section 706(e)(2) language that 

was used to overturn Lorance. The operative section of H.R. 2831 

provides: 


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40 H.R. 2831 § 3(a). See also id. § 4(a) (making corresponding changes in Age Discrimination 

in Employment Act). 

For purposes of this section, an unlawful employment 

practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory 

compensation decision or other practice is adopted, when 

an individual becomes subject to a discriminatory compensation decision or other practice, or 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.40

Note, however, one key exception: nowhere in the Ledbetter bill’s 

language is this provision limited to intentional discrimination, as 

it was in Lorance and the resulting Civil Rights Act legislative 

changes. Indeed, nowhere in the text of H.R. 2831 bill does the 

word ‘‘intentional’’ appear at all. Thus, on its face, the Majority’s 

language would appear to eliminate the statute of limitations not 

only in cases of intentional discrimination, but also with respect to 

cases of unintentional discrimination, such as claims of ‘‘disparate 

impact’’—an expansion far broader than the contours of the 

Ledbetter case. 

For these reasons, during markup, Representative Charles 

Boustany offered an amendment that would simply have clarified 

that—as was the case of the Court’s holding in Ledbetter—the provisions of the bill would apply only to cases of intentional discrimination. The Boustany Amendment was narrow and straightforward, and simply provided that in each instance where the 

phrase ‘‘discriminatory compensation practice’’ appeared it would 

be amended to read ‘‘intentionally discriminatory compensation 

practice.’’ The Boustany Amendment comports with precedent 

under section 706(e)(2) and the legislative language Congress used 

to overturn the Lorance case, and would have narrowed the bill (at 

least with respect to this issue) to limit the impact of the bill to 

the sort of case addressed in the Court’s Ledbetter decision. 

Notwithstanding the logic and simplicity of this language—and 

bill supporters’ claims that H.R. 2831 is a ‘‘narrowly drawn’’ bill intended only to overturn the Ledbetter decision—the Boustany 

Amendment was rejected on a vote of 18 to 24, with all Democrats 

voting against limiting the scope of the bill to the class of cases entertained in Ledbetter. 

Keller Amendment to eliminate unintended consequences of 

‘‘other practices’’

As noted above, H.R. 2831 would eliminate the statute of limitations with respect not only to an undefined ‘‘discriminatory compensation decision’’ but also with respect to any ‘‘other practice’’

which the individual believes resulted in pay discrimination. The 

term ‘‘other practice’’ is nowhere defined within the legislation. 

As set forth in detail above, Committee Republicans are gravely 

concerned that despite the assertions of its sponsors, H.R. 2831 

represents a vague and overbroad expansion of the Civil Rights 

Act. As was noted during the hearing on policy issues relating to 


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Ledbetter, almost every employment decision can in some way be 

linked to an employee’s compensation, benefits, or pay. The ‘‘other 

practice’’ provision of H.R. 2831 serves only to make the bill’s expansion of the scope of liability under the Civil Right Act explicit. 

On its face the phrase extends liability far beyond simple pay decisions to include any ‘‘other practice’’ that may affect compensation—this would include claims of denied promotions, demotions, 

transfers, reassignments, tenure decisions, suspensions and other 

discipline, all of which could be brought years after the employee 

left employment. 

Advocates of H.R. 2831 have repeatedly insisted that the bill is 

a narrowly-drawn measure intended solely to overturn the 

Ledbetter decision. Whether rightly or wrongly decided, all parties 

agree that the Ledbetter case addressed the issue of a discriminatory pay decision—not some allegedly discriminatory ‘‘other practice.’’ The lower court found that Ms. Ledbetter was the victim of 

a discriminatory compensation decision—not an ‘‘other practice.’’

The Supreme Court rejected Ms. Ledbetter’s claim that the statute 

of limitations should be extended in cases where an employee is the 

victim of a discriminatory compensation decisions—not some ‘‘other 

practice.’’

For these reasons, during Committee markup, Representative 

Ric Keller offered an amendment that simply would have struck 

the phrase ‘‘or other practice’’ in each instance it appeared, thus at 

least attempting to limit the application of H.R. 2831 to decisions 

relating to compensation—the practice at issue in Ledbetter. The 

Keller Amendment was rejected on a roll call vote of 20 to 25, with 

every Democrat present voting against it. As was the case with the 

Boustany Amendment, that argument that H.R. 2831 is a narrowly-drawn bill, tailored only to reverse the Supreme Court’ ruling 

in Ledbetter, is undone by Democrat opposition to the Keller 

Amendment. 

CONCLUSION

H.R. 2831 is fundamentally flawed as a matter of policy. As 

noted at the outset, one can legitimately debate whether legislation 

to modify, limit, or reverse the Supreme Court’s decision in 

Ledbetter is necessary or prudent. What is beyond serious debate 

is the proposition that H.R. 2831 simply modifies, limits, or reverses Ledbetter. As reported to the House, this legislation, without question, vitiates the statute of limitations requirements in a 

host of federal civil rights laws. It goes far beyond the facts presented in the Ledbetter case, and whether by accident or design, 

makes far more sweeping changes to our nation’s civil rights laws 

than its supporters either at best intend or at worst acknowledge. 

The unintended consequences of this bill are not yet fully known, 

nor are, would we submit based upon the responses of bill supporters to inquiries at markup, its intended consequences. The 

known policy and drafting flaws of this bill are numerous; the unknown exponentially so. These failings throw into high relief the 

complete abandonment and failure of regular order and the Committee’s legislative process, and the grave disservice done to both 

by the manner in which the Committee has considered this bill. 


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For all of these reasons, we oppose in strongest terms the passage of H.R. 2831. 

HOWARD P. MCKEON. THOMAS PETRI. PETER HOEKSTRA. MIKE CASTLE. MARK SOUDER. VERNON J. EHLERS. JUDY BIGGERT. TODD R. PLATTS. RIC KELLER. JOE WILSON. 

JOHN KLINE. 

CATHY MCMORRIS RODGERS. 

K. MARCHANT. 

TOM PRICE. 

LUIS FORTUN ̃ O. 

CHARLES W. BOUSTANY, Jr. 

VIRGINIA FOXX. 

RANDY KUHL. 

ROB BISHOP. DAVID DAVIS. TIMOTHY WALBERG. DEAN HELLER. 

Æ 


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