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40–669 PDF 2009

S. HRG. 110–825 

THE FAIR PAY RESTORATION ACT: ENSURING 

REASONABLE RULES IN PAY DISCRIMINATION 

CASES 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

ON

EXAMINING S. 1843, TO AMEND TITLE VII OF THE CIVIL RIGHTS ACT OF 

1964 AND THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 

TO CLARIFY THAT AN UNLAWFUL PRACTICE OCCURS EACH TIME 

COMPENSATION IS PAID PURSUANT TO A DISCRIMINATORY COMPENSATION DECISION OR OTHER PRACTICE 

JANUARY 24, 2008 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/senate 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

EDWARD M. KENNEDY, Massachusetts, Chairman 

CHRISTOPHER J. DODD, Connecticut 

TOM HARKIN, Iowa 

BARBARA A. MIKULSKI, Maryland 

JEFF BINGAMAN, New Mexico 

PATTY MURRAY, Washington 

JACK REED, Rhode Island 

HILLARY RODHAM CLINTON, New York 

BARACK OBAMA, Illinois 

BERNARD SANDERS (I), Vermont 

SHERROD BROWN, Ohio 

MICHAEL B. ENZI, Wyoming, 

JUDD GREGG, New Hampshire 

LAMAR ALEXANDER, Tennessee 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

LISA MURKOWSKI, Alaska 

ORRIN G. HATCH, Utah 

PAT ROBERTS, Kansas 

WAYNE ALLARD, Colorado 

TOM COBURN, M.D., Oklahoma 

J. MICHAEL MYERS, Staff Director and Chief Counsel 

ILYSE SCHUMAN, Minority Staff Director 

(II) 

C O N T E N T S 

STATEMENTS 

THURSDAY, JANUARY 24, 2008 

Page 

Kennedy, Hon. Edward M., Chairman, Committee on Health, Education, 

Labor, and Pensions, opening statement ........................................................... 1 

Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, opening 

statement .............................................................................................................. 3 

Murray, Hon. Patty, a U.S. Senator from the State of Washington ................... 4 

Prepared statement .......................................................................................... 4 

Mikulski, Hon. Barbara A., a U.S. Senator from the State of Maryland ............ 6 

Ledbetter, Lilly, Resident, Jacksonville, AL .......................................................... 7 

Prepared statement .......................................................................................... 9 

Dorfman, Margot, Chief Executive Officer, U.S. Women’s Chamber of Commerce ..................................................................................................................... 12 

Prepared statement .......................................................................................... 13 

Bagenstos, Samuel R., Professor of Law and Associate Dean, Washington 

University in St. Louis School of Law, St. Louis, MO ...................................... 16 

Prepared statement .......................................................................................... 18 

Dreiband, Eric S., Akin Gump Strauss Hauer & Feld LLP, Washington, 

DC .......................................................................................................................... 23

Prepared statement .......................................................................................... 25 

Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, prepared statement ...................................................................................................................... 42 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc.: 

Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming ............. 49 

Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of New 

York ................................................................................................................ 52 

American Benefits Council (ABC) ................................................................... 53 

(III) 

(1) 

THE FAIR PAY RESTORATION ACT: ENSURING 

REASONABLE RULES IN PAY DISCRIMINATION CASES 

THURSDAY, JANUARY 24, 2008 

U.S. SENATE, 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 10:06 a.m. in room 

SD–430, Dirksen Senate Office Building, Hon. Edward M. Kennedy, chairman of the committee, presiding. 

Present: Senator Kennedy, Harkin, Mikulski, Murray, and 

Isakson. 

OPENING STATEMENT OF SENATOR KENNEDY

The CHAIRMAN. Come to order. Good morning. Equal pay for 

equal work is a fundamental civil right in our society. All workers 

should have the right to fair pay, regardless of their race, gender, 

national origin, religion, age, sexual orientation, or disability. Unfortunately, reality has too often failed to live up to this ideal. Prejudice and discrimination too often deny some employees their fair 

pay that they deserve for the work that they do. 

Civil rights is still the Nation’s unfinished business. Over the 

years, Congress has stood up for justice and fairness by passing 

strong bipartisan laws against pay discrimination. The Civil Rights 

Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, the Americans With Disability Act, the Civil Rights Act 

of 1991, all protect workers from pay discrimination, and these 

laws have made our Nation a stronger, better, fairer land. 

The U.S. Supreme Court’s 5–4 decision last May in Ledbetter v. 

Goodyear Tire & Rubber Company undermined the fundamental 

protections against pay discrimination by imposing serious obstacles in the path of workers seeking to enforce their rights. 

Ledbetter was a textbook case of pay discrimination. 

Lilly Ledbetter, who is here today, was one of the few women supervisors at a Goodyear Tire & Rubber Company plant in Gadsden, 

AL. She worked at the plant for almost two decades, constantly 

demonstrating that a woman could do a job traditionally done by 

men. 

She endured the frequent scorn of her male co-workers, but she 

persevered and constantly gave the company a fair day’s work for 

what she thought was a fair day’s pay. What she didn’t know, however, was that Goodyear wasn’t living up to its part of the bargain. 

For almost two decades, the company used discriminatory evaluaVerDate Nov 24 2008 16:01 Jun 02, 2009 Jkt 035165 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\DOCS\40669.TXT DENISE
2 

tions to pay her less than her male colleagues who performed the 

same work. 

The jury saw the injustice in Goodyear’s treatment of Ms. 

Ledbetter, and it awarded her full damages. But five members of 

the U.S. Supreme Court ignored that injustice and held that Ms. 

Ledbetter was entitled to nothing at all because she was too late 

in filing the claim. The court imposed the unreasonable rule that 

she should have filed her claim within 6 months from the day 

Goodyear first decided to discriminate against her. 

Never mind that Ms. Ledbetter didn’t know about the discrimination when it first began. Never mind that she had no way to obtain this information because Goodyear kept such salaries confidential. Never mind that Goodyear continued to discriminate each and 

every time it gave Ms. Ledbetter a smaller paycheck than it gave 

her male co-workers. 

The court’s decision gives employers free rein to continue such 

discrimination, and it leaves workers powerless to stop it. That result defies both justice and common sense. 

The bipartisan Fair Pay Restoration Act will restore the clear intent of Congress when we pass these important laws. It provides 

a reasonable rule that reflects how pay discrimination actually occurs in the workplace. It recognizes that workers may not know immediately that they are being underpaid because of discrimination. 

It specifies that the time for filing a pay discrimination claim begins on the date the worker receives a discriminatory paycheck. It 

gives workers a realistic opportunity to stop ongoing discrimination, and it holds firms accountable for violating the law. 

We know this legislation is fair and workable. It was the law in 

most of the land and had the support of the EEOC under both 

Democratic and Republican administrations until the U.S. Supreme 

Court upended the rules last year. 

As Justice Ginsburg wrote in her stirring dissent in the case, 

‘‘Once again, the ball is in Congress’s court.’’ We must act to correct 

this misreading of the law and must do so as soon as possible. 

I thank the witnesses for appearing today and look forward to 

their testimony and meeting our own responsibility to guarantee 

that our civil rights laws provide the full protection that America 

deserves. 

I would just mention here, if they would be kind enough, staff 

put this chart up. This is the chart of the various circuit courts. 

If you tip it over here, where do you think my eyes are? 

[Laughter.] 

If you would just look at this, we have got the Second Circuit, 

Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth Circuit, and 

the DC Circuits. 

I am not going to take more time in my opening statement. But 

for those with wonderful eyes, or they may come up afterwards, 

they will note that in each of these, they have referred to the cases 

where these decisions were made. And each and every one of these 

cases notes that each discriminatory paycheck is a discrete act. 

And as the count in Forsyth v. Federation said, any paycheck 

given within the statute of limitations period therefore would be actionable, even if based on a discriminatory pay scale set up outside 

the statutory limitations period. These were the court decisions 

3 

and, basically, the EEOC’s position prior to a 5–4 decision that 

needs to be changed. 

Senator. 

STATEMENT OF SENATOR ISAKSON

Senator ISAKSON. Thank you, Mr. Chairman. Thanks for calling 

this hearing. I would like to welcome and thank all of the witnesses for taking their time and being here today. 

The legislation before us today would purportedly overturn the 

U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & 

Rubber in which the court determined that Ms. Ledbetter waited 

too long to file her claim against Goodyear. 

Certainly, all of us in this room agree that employment discrimination cannot be tolerated. But as even the editors of The Washington Post have noted, this legislation goes overboard in favor of 

trial lawyers. And in fact, this bill repeals any and all time limitations for employment discrimination claims, allowing employees to 

wait many years to file a claim and making it much more difficult 

for the employer to disprove an allegation that may be made. 

In Ledbetter, the court found that Ms. Ledbetter’s lawsuit against 

her employer was barred because it was not filed in a fashion consistent with the time periods Congress set out in title VII, 180 

days. In enacting title VII, Congress mandated that lawsuits must 

be filed no more than 180 days after the alleged employment practice occurred. That is not my opinion. That is the plain language 

of the law that has been in place for 40 years. 

The court’s decision was not only consistent with plain language 

in title VII, but also with four previous U.S. Supreme Court decisions whereby the court held that title VII statute of limitations 

prohibits the filing of claims based on employment practices that 

occurred outside the 180-day window, even if those employment 

practices continued to affect the plaintiff ’s pay. 

Proponents of the legislation will allow every paycheck to restart 

the 180-day clock and reopen the possibility of an employment discrimination allegation on the presumption that the discrimination 

victim is on a lower-paid track than his or her colleagues. 

Under this bill, losses could even be filed if the alleged discrimination occurred decades earlier and the offending supervisor is no 

longer with the company or, as in the Ledbetter case, the alleged 

offending supervisor is deceased. Indeed, by her admission, Ms. 

Ledbetter knew in 1992 that she was earning less than most of her 

male colleagues, but she waited until 1998 to sue after the alleged 

harasser had died. 

Proponents of the bill argue the Ledbetter decision leaves alleged 

victims with no adequate remedy for pay discrimination because 

they may be unaware what their peers are paid until after the 180- 

day period. That argument ignores the discovery rule. This rule, 

which is on the books today, allows plaintiffs to file an EEOC suit, 

case allegations up to 180 days after discovering the difference in 

pay. 

In summary, the legislation does not just allow, but rather encourages employees to wait many years to allege pay discrimination. The longer they wait, the more difficult it is for the employer 

to disprove the allegation. As such, the bill is ripe for abuse and 

4 

amounts to nothing more than a gift to trial lawyers eager for a 

frivolous lawsuit. 

Again, I want to thank the Chairman for calling the hearing 

today, and thank all the witnesses for taking their valuable time 

to come. 

The CHAIRMAN. Thank you very much. Senator Murray is chairman of the Employment Subcommittee. If she wants to say a word, 

we would welcome it. 

STATEMENT OF SENATOR MURRAY

Senator MURRAY. Mr. Chairman, I can have Senator Mikulski go 

first. She was ahead of me. Thank you very much, and I thank 

Senator Mikulski as well. 

I really appreciate your calling this important hearing to talk 

about the need to restore workplace pay equity, and I want to 

thank all of our witnesses who are here today, particularly Lilly 

Ledbetter. She has turned the discrimination she suffered into a 

battle cry for justice, and we all really admire your courage. Thank 

you very much. 

Mr. Chairman, I will submit my full statement for the record. 

This is an important topic, and I want to just make a couple of 

points. Too many workers today have turned to their government 

for help recently and have found silence or injustice within this Administration. 

And now the highest court in our country has made it almost impossible for workers who suffer unfair pay discrimination to seek 

swift justice. The Ledbetter decision has become a roadblock to the 

workplace equality that Congress intended to achieve with the 

Civil Rights Act more than 40 years ago. 

In most of our workplaces, talking about your salary or raise or 

performance evaluation with your co-workers is taboo. So it can 

take a worker months before they realize, much less prove, that 

they are being paid less than their colleagues of a different gender, 

skin color, or who are born in another country. 

But now the U.S. Supreme Court has effectively said that workers have to figure that out within 6 months of their employer making that pay decision. Mr. Chairman, that sounds to me like we are 

asking our workers to be mind readers. It is unfair, and it may 

lead to unintended consequences down the road, and I think it is 

time for a change. 

So I hope all of our colleagues will join us in supporting this important bill and ensure that congressional intent is honored by our 

courts. I look forward to hearing from today’s witnesses, and I really, again, want to thank you for calling this important hearing. 

[The prepared statement of Senator Murray follows:] 

PREPARED STATEMENT OF SENATOR MURRAY

Thank you, Mr. Chairman, for calling this important hearing to 

discuss the need to restore workplace pay equality. 

I’d also like to thank our witnesses for joining us today, particularly Lilly Ledbetter, who’s turned the discrimination she suffered 

into a battle cry for justice; we admire your courage. 

5 

Unfortunately, the Supreme Court’s Ledbetter decision does not 

stand out as an exception to the treatment workers have received 

from those meant to protect their rights. In fact, when workers 

have turned to their government for help, they’ve found silence or 

injustice over and over again. Too many workers who need skills 

training have been left high and dry by the President’s budget cuts. 

Workplace safety seems to be an afterthought for this Administration, which has issued just one new standard in the last 8 years— 

and that one only by court order. And now the highest court in our 

country has made it almost impossible for workers who suffer unfair pay discrimination to seek swift justice. 

Title VII of the Civil Rights Act of 1964 was a major step forward 

for equality in our country. It leveled the playing field for tens of 

thousands of workers and opened the door to new opportunities. 

Unfortunately, the Ledbetter decision has become a roadblock to 

the workplace equality that Congress intended to achieve with the 

Civil Rights Act more than 40 years ago. 

In effect, the decision may create a catch-22 for workers who believe they’ve been discriminated against. If they file a claim too 

early, they run the risk of alienating their employer before they 

know all of the facts. If they file too late, they’ll miss the narrow 

time frame established by the Ledbetter decision and forego their 

rights under the law. And this decision doesn’t just affect workers 

who’ve been discriminated against because of their gender. It 

changes the rules for the countless number of workers who may experience employment discrimination based on their race, national 

origin, or religion. 

Mr. Chairman, we all know that pay discrimination is real, and 

it occurs in today’s workforce. Last year, research showed that 

women still make only 77 cents for every dollar that their male 

counterparts make. 

That’s real money taken from the pockets of single mothers trying to provide for their children, and from women who are trying 

to build their savings for retirement and make themselves less dependent on government services. 

In most workplaces, discussing salaries, raises and performance 

evaluations with co-workers is taboo. 

And it may take a worker months before they realize, much less 

prove, they’re being paid less than their colleagues who may have 

been a different gender, have a different skin color, or who were 

born in another country. 

But the Supreme Court has effectively said that workers should 

figure this out within six months of their employer making the decision to pay them less. Mr. Chairman, that sounds a lot like we’re 

asking workers to be mind readers. It’s unfair and may lead to unintended consequences down the road. 

Mr. Chairman, this is just another example of how the deck’s 

been stacked against working families in America, and it’s time for 

a change. 

I hope my colleagues will join me in supporting this important 

bill and ensure that congressional intent is honored by our courts. 

And I look forward to hearing from our witnesses. 

The CHAIRMAN. Thank you very much. 

Senator Mikulski. 

6 

STATEMENT OF SENATOR MIKULSKI

Senator MIKULSKI. Thank you very much, Senator Kennedy. I 

know we want to get quickly to our witnesses, distinguished witness table. But first, Senator Kennedy, I want to thank you for 

your swift response to the U.S. Supreme Court decision regarding 

Ms. Ledbetter, the fact that you helped act so promptly and worked 

with us. 

When I say ‘‘us,’’ I know that Senator Clinton and I were working to put together a bill, and we thank you for taking the leadership. That is why we call these good guys that support us the 

‘‘Galahads of the Senate.’’ Senator Clinton also feels very strongly 

about this legislation and wanted me to convey to you her gratitude, though she is a little tied up today. 

But to our witnesses and to everyone, I think this is one of the 

most important hearings and pieces of legislation we can have. 

Right now, everybody is jazzed and needs to talk about a stimulus 

package. Well, I will tell you, if you want to get the economy going, 

let us start paying women what they are worth. Let us start paying 

women equal pay for equal work or comparable work. 

What we saw in the U.S. Supreme Court decision was a dangerous message. So dangerous that it took Ruth Ginsburg speaking 

from the bench to object to it. It said that someone cannot sue their 

employer over unequal pay if the person doesn’t file suit within 180 

days after the pay was established. 

It ignores the reality of pay discrimination. How many people 

know the salary of their co-workers, especially in the first 6 months 

on the job? If you are hired at an equal rate, when do you know 

that someone, the guy next to you gets a raise? And I quote Justice 

Ginsburg, ‘‘In our view, the court does not comprehend or is indifferent to the insidious way in which women can be victims of pay 

discrimination.’’ 

Well, I think we are here to right a wrong and to write a remedy 

that is sound, achievable, and affordable. So I thank you for the 

leadership on the legislation. And Ms. Ledbetter, I thank you on 

behalf of all the women who sometimes are just too scared to speak 

up and for the courage of your convictions. You know, each and 

every one of us can make a difference. But let us work together, 

and we will make change. 

The CHAIRMAN. Thank you very much, both of you, for your comments. 

We will have a very good panel this morning. We will start off 

with Lilly Ledbetter, who worked for Goodyear Tire & Rubber 

Company 19 years as a manager of the Goodyear Gadsden, AL, tire 

production plant. After learning she had been paid less than her 

male counterparts most of her career, Ms. Ledbetter fought back, 

filed a pay discrimination claim against Goodyear. 

In 2003, a jury agreed with Ms. Ledbetter, and awarded her 

more than $3 million in damages. The U.S. Supreme Court reversed that decision last year. Since the U.S. Supreme Court’s decision, Ms. Ledbetter has become a strong public advocate in support 

of fair pay for all workers. 

After Ms. Ledbetter, we will hear from Margot Dorfman, who is 

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merce. In that position, she advocates across the country greater 

opportunities for women in business. Previously an executive, for 

General Mills, she has a Bachelor of Science degree from Northeastern University and a Master’s degree in Education from Lesley 

College, in Massachusetts. Wonderful universities. 

And we will hear from Professor Samuel Bagenstos. He is the Associate Dean for Research and Faculty Development, Washington 

University School of Law, St. Louis. He teaches civil rights, disability rights, and employment discrimination law. Prior to coming 

to Washington University, the professor taught civil rights at Harvard Law School. He is also a former clerk to Justice Ruth Bader 

Ginsburg and a former attorney in the appellate section of the Civil 

Rights Division at the Department of Justice. We are glad to welcome you. 

Eric Dreiband is a partner of the law firm of Akin Gump Strauss 

Hauer & Feld. And Mr. Dreiband previously served as general 

counsel of the Equal Employment Opportunity Commission and as 

deputy administrator of the Department of Labor, Wage and Hour 

Division. He is a graduate of Princeton University and Northwestern University School of Law. 

Ms. Ledbetter, we will look forward to hearing from you. Thank 

you very much for being here. We know it is never easy to talk 

about your own personal kinds of challenges that impact you. So 

we are very appreciative and grateful for your willingness to share 

this life experience that you have had and caused a good deal of 

anxiety to you and your family. And to share it with us in public, 

we know this always takes special courage. And so, we are very 

grateful to you for joining us. 

STATEMENT OF LILLY LEDBETTER, RESIDENT, 

JACKSONVILLE, AL 

Ms. LEDBETTER. Good morning. Thank you, Mr. Chairman and 

members of the committee, for the opportunity to testify before you. 

My name is Lilly Ledbetter. It is an honor to be here today to talk 

about my experience trying to enforce my right to equal pay for 

equal work. 

I wish my story had a happy ending, but it doesn’t. I hope that 

this committee, and the Congress as a whole, can do whatever is 

necessary to make sure that in the future what happened to me 

does not happen to other people who suffer discrimination like I 

did. 

My story begins in 1979, when Goodyear hired me to work as a 

supervisor in their tire plant in Gadsden, AL. I worked hard at 

Goodyear, and I was good at my job. But it wasn’t easy. I was one 

of only a handful of female supervisors, and I was subject to challenges the men didn’t have to face. 

I faced flat-out discrimination by those who didn’t want women 

in the workforce, as well as sexual harassment. I also, unbeknownst to me, faced pay discrimination for virtually my entire career at Goodyear. Toward the end of my career, I began to suspect 

that I wasn’t getting paid as much as the men doing the similar 

jobs. Of course, it was hard to be sure, since Goodyear instructed 

us that we were not supposed to talk about our wages with our coworkers. 

8 

All I knew before 1998 was that some of the men were bragging 

about how much overtime they got. It was more than me, but I 

didn’t know the rate at which they were being paid, much less that 

it was the result of discrimination. I only got some real evidence 

when, in 1998, someone left an anonymous note in my mailbox at 

work, showing me how much less I got paid than the other three 

male managers. 

On my next day off after that, I filed a complaint with EEOC to 

challenge the pay gap. It was only after that, that I filed that complaint, that I was finally able to get the whole picture on my pay 

compared to the men’s. It turned out that while at the end of my 

career I was earning $3,727 per month, the lowest-paid male was 

getting $4,286 per month, and the highest-paid male was making 

$5,236 for the same work. 

This happened because, time and again, I got smaller raises than 

the men, and over the years, those little differences added up and 

multiplied. So I was actually earning 20 percent less than the lowest-paid male supervisor in the same position. There were lots of 

men with less seniority than me who were paid much more than 

I was. 

At trial, the jury found that Goodyear had discriminated against 

me in violation of title VII. The jury awarded me back pay as well 

as more than $3 million in compensatory and punitive damages. 

And I can tell you that that was a good moment. It showed that 

the jury took my civil rights seriously and wasn’t going to stand for 

a national employer like Goodyear paying me less than others just 

because I was a woman. And it seemed like a large enough award 

that the company like Goodyear might feel the sting and think better before discriminating like that again. 

I was very disappointed, however, when the trial judge was forced to reduce the award to $300,000 statutory cap. It felt like 

the law was sending a message that what Goodyear did was only 

10 percent as serious as the jury and I thought it was. 

I am not a lawyer, but I am told that most of the time the law 

doesn’t put an arbitrary cap like that on the amount a defendant 

has to pay in damages. I don’t see why a company like Goodyear 

should get better treatment just because it broke a law protecting 

workers against discrimination instead of some other kind of law. 

But the worst was yet to come. By a single vote, the U.S. Supreme Court took it all away, even the back pay. They said I 

should have complained after the first time I was paid less than 

the men, even though I didn’t know what the men were making, 

and I had no way to prove that that decision was discriminatory. 

But the court said that once 180 days passes after the pay decision 

is made, the worker is stuck with unequal pay for the rest of her 

career. 

Justice Ginsburg hit the nail on the head when she said that the 

majority’s rule just doesn’t make sense in the real world. You can’t 

expect people to go around asking their co-workers how much 

money they are making. At a lot of places, that could get you fired. 

Plus, even if you know some people are getting paid a little more 

than you, that is no reason to suspect discrimination right away. 

Pay can go up and down, and you want to believe that your employer is doing the right thing, and it will even out down the road. 

9 

Especially where you are one of the only women in a male-dominated factory, you don’t want to make waves unnecessarily. And 

any way, it is hard to fight over the small amount of money at 

issue early on and hard to prove discrimination unless you have 

proof that the pay disparity continues. 

What happened to me is not only an insult to my dignity; it also 

had real consequences for my ability to care for my family. While 

every paycheck I received I got less than what I was entitled to 

under the law, the U.S. Supreme Court said this didn’t count as 

illegal discrimination. But it sure feels like discrimination when 

you are on the receiving end of that smaller paycheck and trying 

to support your family on less money than what the men are getting for the same job. 

It doesn’t feel any less like discrimination because it started a 

long time ago. Quite the opposite, in fact. But according to the 

court, if you don’t figure things out right away, the company can 

treat you like a second-class citizen for the rest of your career, and 

that is not right. 

The truth is Goodyear continues to treat me like a second-class 

worker to this day because my pension and my Social Security is 

based on the amount I earned while working there. Goodyear gets 

to keep my extra pension as a reward for breaking the law. 

My case is over, and it is too bad that the U.S. Supreme Court 

decided the way that it did. But by enacting the Fair Pay Restoration Act, you can make sure that people will be able to challenge 

discriminatory paychecks as long as they continue to get them. The 

House has already passed this bill, which would protect workers 

like me and give employers the incentive to fix continuing pay 

problems. 

I urge the Senate to pass the bill as well so that our civil rights 

laws can once again offer effective protection against discrimination. Goodyear may never have to pay me what it cheated me out 

of, but if this bill passes, I will have an even richer reward because 

I will know that our daughters, our granddaughters, and all workers will get a better deal. 

That is what this fight is worth fighting for, and it makes this 

a fight that we must win. Thank you very much. I do appreciate 

this so much. 

[The prepared statement of Ms. Ledbetter follows:] 

PREPARED STATEMENT OF LILLY LEDBETTER

Good morning. Thank you, Mr. Chairman and members of the committee, for the 

opportunity to testify before you. My name is Lilly Ledbetter. It is an honor to be 

here today to talk about my experience trying to enforce my right to equal pay for 

equal work. I wish my story had a happy ending. But it doesn’t. I hope that this 

committee, and the Congress as a whole, can do whatever is necessary to make sure 

that in the future, what happened to me does not happen to other people who suffer 

discrimination like I did. 

My story begins in 1979, when Goodyear hired me to work as a supervisor in their 

tire plant in Gadsden, AL. I worked hard at Goodyear, and I was good at my job. 

For example, Goodyear gave me a ‘‘Top Performance Award’’ in 1996. 

But it wasn’t easy. Of the approximately 80 people who held the same position 

that I did during the 19 years I worked at Goodyear, only a handful were women. 

And I was subject to challenges the men didn’t have to face. For example, the plant 

manager flat out said that women shouldn’t be working in a tire factory because 

women just made trouble. Also, one of my supervisors asked me to go to a local 

hotel with him. He promised that if I did, I would get good evaluations; if I didn’t, 

10 

he would put me at the bottom of the list. I didn’t say anything about it at first 

because I wanted to try to work it out and fit in without making waves. But it got 

so bad that I finally complained to the company. The manager I complained to refused to do anything to protect me and just told me I was being a troublemaker. 

So I filed a charge with the EEOC, and they worked out a deal with the company 

to make sure the supervisor would no longer manage me. But the company continued to treat me badly, trying to isolate me, leaving me out of important management meetings, having employees refuse to talk to me. I got a taste of what happens 

when you complain about discrimination. 

Despite these problems with my supervisor, for virtually all of the time I worked 

at Goodyear, I did not know that I was also being subjected to discrimination in 

pay. When I first started at Goodyear, all the managers got the same pay, so I knew 

I was getting as much as the men. But then Goodyear switched to a new pay system 

based on performance. After that, people doing the same jobs could get paid differently. Goodyear kept what everyone got paid strictly confidential. No one was 

supposed to know. Over the following years, sometimes I got raises, sometimes I 

didn’t. Some of the raises seemed pretty good, percentage-wise, but I didn’t know 

if they were as good as the raises other people were getting. 

I only started to get some hard evidence of what men were making when someone 

anonymously left a piece of paper in my mailbox at work, showing what I got paid 

and what three other male managers were getting paid. I thought about just moving 

on, but in the end, I could not let Goodyear get away with their discrimination. So, 

I filed another complaint with the EEOC in 1998. 

After I filed my EEOC complaint and then filed a lawsuit, I was finally able to 

get the whole picture on my pay compared to the men’s. It turned out that I ended 

up getting paid what I did because of the accumulated effect of pay raise decisions 

over the years. 

In any given year, the difference wasn’t that big, nothing to make a huge fuss 

about all by itself. Some years I got no raise when others got a raise. Some years 

I got a raise that seemed OK at the time, but it turned out that the men got bigger 

percentage raises. And sometimes, I got a pretty big percentage raise, but because 

my pay was already low, that amounted to a smaller dollar raise than the men were 

getting. 

For example, in 1993, I got a 5.28 percent raise, which sounds pretty decent. But 

it was the lowest raise in dollars that year because it was 5.28 percent of a salary 

that was already a lot less than the men’s because of discrimination. So the gap 

in my pay grew wider that year. Without knowing what the men were getting paid, 

I had no way of knowing whether that raise was potentially discriminatory or not. 

All I knew was that I got a raise. 

The result was that at the end of my career, I was earning $3,727 per month. 

The lowest paid male was getting $4,286 per month for the same work. The highest 

paid male was making $5,236. So I was actually earning 20 percent less than the 

lowest paid male supervisor in the same position. There were lots of men with less 

seniority than me who were paid much more than I was. 

When we went to court, Goodyear acknowledged that it was paying me a lot less 

than the men doing the same work. But they said that it was because I was a poor 

performer and consequently got smaller raises than all the men who did better. 

That wasn’t true, and the jury didn’t believe it. At the trial, two other women managers took the stand and explained how they were also subject to discrimination. 

One of them was a secretary who got promoted to manager but was only paid a secretary’s salary. The company kept telling her they would give her a raise, but they 

never did and she got fed up with that and went back to being a secretary. The 

other woman was also paid less than Goodyear’s mandatory minimum wages. 

At the end of the trial, the jury found that Goodyear had discriminated against 

me in violation of title VII. The jury awarded me backpay as well as more than $3 

million in compensatory and punitive damages. 

I can tell you that that was a good moment. It showed that the jury took my civil 

rights seriously and wasn’t going to stand for a national employer like Goodyear 

paying me less than others just because I was a woman. And it seemed like a large 

enough award that a big company like Goodyear might feel the sting and think better of it before discriminating like that again. 

I was very disappointed, however, when the trial judge was forced to reduce that 

award to the $300,000 statutory cap. It felt like the law was sending a message that 

what Goodyear did was only 10 percent as serious as the jury and I thought it was. 

I’m not a lawyer, but I am told that most of the time, the law doesn’t put an arbitrary cap like that on the amount a defendant has to pay for mental anguish or 

punitive damages. I don’t see why a company like Goodyear should get better treatVerDate Nov 24 2008 16:01 Jun 02, 2009 Jkt 035165 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 S:\DOCS\40669.TXT DENISE
11 

ment just because it broke a law protecting workers against discrimination instead 

of some other kind of law. 

But the worst was yet to come. By a single vote, the Supreme Court took it all 

away, even the backpay. They said I should have complained after the first time 

I was paid less than the men, seemingly ignoring the fact that I didn’t know what 

the men were getting paid and had no way to prove that the decision was discriminatory in any event. But the Court said that once 180 days passes after the pay 

decision is made, the worker is stuck with unequal pay for equal work for the rest 

of her career and there is nothing illegal about that under the statute. 

Justice Ginsburg hit the nail on the head when she said that the majority’s rule 

just doesn’t make sense in the real world. You can’t expect people to go around asking their co-workers how much money they’re making. At a lot of places, that could 

get you fired. And nobody wants to be asked those kinds of questions anyway. 

Plus, even if you know some people are getting paid a little more than you, that’s 

no reason to suspect discrimination right away. Pay can go up and down, and you 

want to believe that your employer is doing the right thing and that it will all even 

out down the road. Especially when you work at a place like I did, where you are 

one of the only women in a male-dominated factory, you don’t want to make waves 

unnecessarily. You want to try to fit in and get along. As I found out all too well, 

calling something ‘‘discrimination’’ isn’t appreciated—I suffered the consequences 

when I went to the EEOC with proof of sexual harassment. 

Anyway, the small amount of money at issue early on isn’t worth fighting over 

at first. No lawyer is going to take a case to fight over an extra $100 a month, and 

most people can’t afford to pay a lawyer out of their own pockets. It would have 

been hard to demonstrate to the EEOC or a jury that the first $100 pay difference 

was discrimination. It was only after I got paid less than men again and again, 

without any good excuse, that I had a case that I could realistically bring to the 

EEOC or to court. 

What happened to me is not only an insult to my dignity, but it had real consequences for my ability to care for my family. With every paycheck I received, I 

got less than what I was entitled to under the law. The Supreme Court said that 

this didn’t count as illegal discrimination, but it sure feels like discrimination when 

you are on the receiving end of that smaller paycheck and trying to support your 

family with less money than the men are getting for doing the same job. It doesn’t 

feel any less like discrimination because it started a long time ago. Quite the opposite, in fact. But according to the Court, if you don’t figure things out right away, 

the company can treat you like a second-class citizen for the rest of your career. 

That just isn’t right. 

The truth is, Goodyear continues to treat me like a second-class worker to this 

day because my pension and social security is based on the amount I earned while 

working there. Goodyear gets to keep my extra pension as a reward for breaking 

the law. 

As you may know, making ends meet during retirement is not easy for a lot of 

seniors like me, even under the best of circumstances. It shouldn’t be harder just 

because you are a woman who was discriminated against during your career. 

My case is over and it is too bad that the Supreme Court decided the way that 

it did. But this committee and the Senate have the chance to make sure that no 

one else will suffer the same injury that I have. Senator Kennedy and numerous 

others have introduced the Fair Pay Restoration Act, which would make sure that 

people can challenge discriminatory paychecks as long as they continue to receive 

them. The House has already passed this bill, which would protect workers like me 

and give employers the incentive to fix pay problems even after 180 days has passed 

from the time of their original decision. I urge the Senate to pass the bill as well 

so that our civil rights laws can once again offer effective protection against discrimination. 

Goodyear may never have to pay me what it cheated me out of. But if this bill 

passes, I’ll have an even richer reward because I’ll know that my daughters and 

granddaughters, and all workers, will get a better deal. That’s what makes this 

fight worth fighting and it’s what makes this fight one we have to win. 

Thank you. 

The CHAIRMAN. Thank you very much, Ms. Ledbetter. 

Ms. Dorfman. 

12 

STATEMENT OF MARGOT DORFMAN, CHIEF EXECUTIVE 

OFFICER, U.S. WOMEN’S CHAMBER OF COMMERCE 

Ms. DORFMAN. Chairman Kennedy, Senator Isakson, and members of the committee, I thank you for the opportunity to testify on 

behalf of millions of American women business owners who seek 

your urgent action. 

The U.S. Women’s Chamber of Commerce was founded to support the continued economic advancement for women in America. 

In essence, we are both a product as well as part of the great civil 

rights movement. The Women’s Chamber has over 500,000 members, and we reach into every State, young and old, students and 

retirees, employees and business owners, and all ethnicities. 

Our members understand that the fight for equal pay is part of 

the battle that all women face for economic independence. The economic successes and struggles of American women echo the story 

of our Nation as a whole. To gain our independence, establish economic fairness, and create new opportunities, women have moved 

from their homes to the factories, into the workforces and, finally, 

into business ownership. 

Just as America fought for her independence at each step of the 

road and to equality, women have been forced to fight for our own 

economic freedom. While the Civil Rights Act of 1964 provided individuals with ground-breaking legal protection against discrimination, it has done much more in the intervening years. 

By assuring our civil rights and by putting the force of our legal 

system behind these rights, it has allowed America to ignite a generation of growth and prosperity. This sense of economic empowerment propelled an incredible surge of women into higher education, 

management, business ownership, and home ownership. 

But in spite of our long and dedicated struggle, women continue 

to earn less than their male counterparts. Women work full-time, 

earn on an average only 77 cents for every dollar men make. The 

figures are even worse for women of color. 

This persistent wage gap can be addressed and the promise of 

our civil rights advanced only if women are armed with the tools 

necessary to challenge sex discrimination against them. We can no 

longer blindly paint the fight for equal pay as a struggle between 

business owners and the labor force. The commitment to protect 

equal pay is important to America, period. 

The Fair Pay Restoration Act offers an opportunity to right a 

fundamental wrong that arose from the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Company. The Women’s Chamber was deeply disappointed in the court’s willingness to 

overturn decades of legal precedence and EEOC practice. We believe this misguided decision must be addressed with this timely 

legislative fix. 

With its short-sighted decision, the court ignores the realities of 

the 21st century workplace. For example, the confidential nature of 

employees’ salary information complicates workers’ abilities to recognize and report discriminatory treatment. And the Ledbetter decision turns a blind eye to the long-term effects of pay discrimination 

on individuals, their families, and our communities. 

Nearly 14 million American households are headed by women, 

who are entering their retirement years with fewer financial assets 

13 

than men. Studies show that millions of women will run out of retirement savings. And even today, a woman is 41 percent more 

likely to end up in poverty than a man. 

The 180-day time limit also creates incentives for business practices that will be detrimental to both business owners and workers. 

Rather than take the time necessary to evaluate their situation 

and confirm they have been subject to discrimination before filing 

a claim, the new deadline puts pressure on employees to file complaints as quickly as possible. This will prompt workers to act more 

hastily than they would have in the past. 

And while the previous system promoted voluntary employer 

compliance, this new interpretation provides an entirely different 

incentive. When each new paycheck triggered a new claim-filing period, employers had a strong motivation to eliminate discriminatory 

compensation practices. Under this decision, employers instead 

have a reason to be less vigilant about pay discrimination, knowing 

that after 180 days, they will be insulated from future challenges. 

There is a special concern to the Women’s Chamber and its members. Why? As women have moved from employees to business 

owners, we have brought perspective to America’s business leadership. Women now own over 30 percent of all firms in the United 

States and are exercising the decisionmaking authority that comes 

with the role to effect positive changes in the workplace. 

Studies have shown that women business owners frequently provide stronger employee benefits than their male counterparts. And 

our members tell us that even as business owners, they understand 

and respect the ongoing struggle against wage discrimination that 

women face. The Fair Pay Restoration Act rewards those who play 

fair, including women business owners, unlike the U.S. Supreme 

Court’s decision, which seems to give an unfair advantage to those 

who skirt the rules. 

As Americans, we are privileged to live in a country that has 

taken the extraordinary step of clearly committing to the protection 

of individual rights. We believe the question is simple. Does the impact of our failure to protect a worker’s civil rights end 180 days 

after the individual was first discriminated against? The Women’s 

Chamber believes the answer is clearly no. 

I understand—I urge you now to keep the flame of economic 

independence alive and ask you to move quickly to pass the 

Ledbetter Fair Pay Restoration Act. I thank you for this time. 

[The prepared statement of Ms. Dorfman follows:] 

PREPARED STATEMENT OF MARGOT DORFMAN

Chairman Kennedy, Ranking Member Enzi, and members of the Senate Committee on Health, Education, Labor, and Pensions, my name is Margot Dorfman. I 

am the CEO of the U.S. Women’s Chamber of Commerce. I appreciate the opportunity to testify today, and am here representing American women business owners 

who seek your urgent action. 

The U.S. Women’s Chamber of Commerce was founded to support the continued 

economic advancement of women in America. In essence, we are both a product as 

well as a part of the great Civil Rights Movement. The Women’s Chamber has over 

500,000 members—young and old, students and retirees, employees and business 

owners. We have members in every State, and these members understand that the 

fight for equal pay is part of the battle that all women face for economic independence. 

While the Civil Rights Act of 1964 provided individuals with ground-breaking 

legal protection against discrimination, it has done much more in the intervening 

14 

years. By assuring our civil rights, and by putting the force of our legal system behind these rights, it has allowed America to ignite a generation of growth and prosperity. This sense of economic empowerment propelled an incredible surge of women 

into higher education, management, business ownership, and home ownership. 

Consequently, the struggle for equal pay can no longer be blindly painted as a 

struggle between business owners and the labor force. The struggle for equal pay 

is important to America—period. In truth, the Civil Rights Act of 1964 gave legal 

authority to what we already knew in our hearts: we not only deserve the right to 

question inequality whenever and wherever it occurs—we must question it. We must 

question it if we are to keep the flame of economic opportunity and advancement 

alive in America. 

The Fair Pay Restoration Act (S. 1843) offers an opportunity to right a fundamental wrong that arose from the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. This decision severely limits the ability of victims of pay 

discrimination to seek a remedy under Title VII of the Civil Rights Act of 1964. The 

Women’s Chamber was deeply disappointed in the Court’s willingness to overturn 

decades of legal precedents and EEOC practice, and believes this misguided decision 

must be addressed with this timely legislative fix so that the flame of economic opportunity is not extinguished. 

The economic successes and struggles of American women echo the story of our 

Nation as a whole. To gain our independence, establish economic fairness, and create new opportunities, women moved from their homes to the factories, into the 

workforce, and finally into business ownership. Just as America fought for her independence, at each step in the road to equality, women have been forced to fight for 

our economic independence. 

In spite of this long and dedicated struggle, and more than four decades after 

Congress outlawed wage discrimination based on sex, women continue to earn less 

than their male counterparts. According to the U.S. Census Bureau, women who 

work full-time earn, on average, only 77 cents for every dollar men earn. The figures 

are even worse for women of color. And while women are going to college in record 

numbers, that hasn’t been the panacea we’d hoped it would be. According to the 

American Association of University Women’s recent report, Behind the Pay Gap, just 

1 year out of college, women working full-time are already earning less than their 

male colleagues—even when they work in the same field. Ten years after graduation, the pay gap widens. A gap remains even after controlling for hours, occupation, 

parenthood, and other factors known to affect earnings—and this unexplained gap 

is likely due to sex discrimination. This persistent wage gap can be addressed—and 

the promise of our civil rights advanced—only if women are armed with the tools 

necessary to challenge sex discrimination against them. As employees and business 

owners, women understand the profound need to actively advance and protect our 

civil rights. And, as one of our members said in a recent letter to Congress calling 

for passage of the Fair Pay Restoration Act, ‘‘We deserve to question inequality at 

anytime it is occurring.’’ 

The Ledbetter decision represents a step backwards on this road to economic 

equality. Previously, title VII’s requirement that employees file complaints within 

180 days of ‘‘the alleged unlawful employment practice’’ was interpreted to include 

a worker’s last paycheck tainted by discrimination. Despite their own precedent and 

congressional intent, the Supreme Court has narrowly re-defined the timeframe for 

discrimination claims, leading to the dismissal of Ms. Ledbetter’s case on the 

grounds that she failed to file her complaint in a timely manner. As a result, Ms. 

Ledbetter was left with no recourse against discrimination that continued unabated 

for years. Now, potentially millions of other people maybe as well. 

With this misguided decision, the Court ignores the realities of the 21st century 

workplace. The confidential nature of employee salary information complicates 

workers’ abilities to recognize and report discriminatory treatment. Employees generally do not know enough about what their co-workers earn, or how pay decisions 

are made, to file a complaint as quickly as required by the Court’s reasoning. Justice Ruth Bader Ginsburg’s dissenting opinion distinguishes pay disparities from 

other types of adverse employment actions, such as refusal to hire, failure to promote, or termination. Whereas these actions are clear to both the affected employee 

and others in her workplace, pay discrimination is rarely so obvious. In fact, special 

efforts are often undertaken to ensure that compensation details are not made public. Such was the case at Goodyear. 

According to Justice Ginsburg, ‘‘The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination.’’ She points out, and rightly so, 

that pay disparities tend to be incremental, making it difficult to detect discrimination until a significant amount of time has passed—easily more than the 180 days 

that the Court’s new standard now requires for most workers. The Women’s ChamVerDate Nov 24 2008 16:01 Jun 02, 2009 Jkt 035165 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 S:\DOCS\40669.TXT DENISE
15 

1 U.S. Census Bureau. ‘‘Selected Social Characteristics in the United States: 2006.’’ http:// 

factfinder.census.gov/servlet/ADPTable?l bm=y&geolid=01000US&-qrlname=ACSl2006l 

ESTlG00lDP2&dslname=ACSl2006lESTlG00l&llang=en&redoLog=false&-lsse=on. 2Legal Momentum. ‘‘Reading Between the Lines: Women’s Poverty in the United States: 

2006.’’ http://www.legalmomentum.org/site/DocServer/lmlpovertyreport2006.pdf?docID=721. 3 Center for Women’s Business Women Research, ‘‘Women’s Owned Businesses in the United 

States 2006.’’ http://www.cfwbr.org/national/index.php. 

ber wholeheartedly agrees with Justice Ginsburg’s assertion that, ‘‘This initial readiness to give her employer the benefit of the doubt should not preclude her from later 

challenging the then-current and continuing payment of a wage depressed on account of her sex.’’ With time, these small differences can expand exponentially over 

the course of a worker’s career, affecting future raises, pension contributions, and 

other earnings—related benefits in dramatic ways. Thus, the Ledbetter decision 

turns a blind eye to the long-term effects of pay discrimination on individuals, their 

families and our communities. Research shows that nearly 14 million American 

households are headed by women,1 who enter their retirement years with fewer financial assets than men. Millions of women run out of retirement savings, leaving 

a woman 41 percent more likely to end up in poverty than a man.2 Being paid less 

than men and taking time off work to raise our families already reduces the amount 

of retirement income we receive and limits the savings available to us. Who pays 

for that sad state of affairs—the company that paid these women unfairly or America as a whole? 

Not only does the 180 day time limit have the potential to prevent legitimate discrimination claims from being addressed, but the Women’s Chamber is also concerned it creates incentives for practices that will be detrimental to both business 

owners and workers. Rather than take the time necessary to evaluate their situation and confirm that they have been subject to discrimination before filing a claim, 

the new deadline puts pressure on employees to file complaints as quickly as possible, which will prompt workers to act more hastily than they would have in the 

past. This change creates a potentially greater burden than the previous system, 

which provided our members with a well-established, reasonable method for resolving discrimination complaints that protected the worker, recognized the demands on 

business owners, and balanced these factors in the context of the modern workplace. 

Good business practices are also at risk as a result of the Ledbetter decision. 

Whereas, the previous system promoted voluntary employer compliance, this new 

interpretation provides an entirely different incentive. When each new paycheck 

triggered a new claim filing period, employers had a strong motivation to eliminate 

discriminatory compensation practices. Under this decision, employers instead have 

reason to be less vigilant about pay discrimination, knowing that after 180 days 

they will be insulated from future challenges. This is of special concern to the Women’s Chamber and its members. Why? As women have moved from employees to 

business owners, we have brought a new perspective to America’s business leadership. Women now own over 30 percent of all firms in the United States 3 and are 

exercising the decisionmaking authority that comes with that role to effect positive 

changes in the workplace. Studies have shown that women business owners frequently provide stronger employee benefits than their male counterparts. And our 

members tell us that—even as business owners—they understand and respect the 

ongoing struggle against wage discrimination that women continue to face, and they 

recognize the need to support workers as they seek fair treatment in the workplace. 

The Fair Pay Restoration Act rewards those who play fair—including women business owners—unlike the Supreme Court’s decision, which seems to give an unfair 

advantage to those who skirt the rules. 

To effectively address the Court’s detrimental decision in Ledbetter, the Women’s 

Chamber urges Congress to move quickly to enact a legislative fix for Ledbetter. 

Rights must have enforceable remedies, and remedies must be adequate to deter 

discriminatory conduct. To ensure that effective remedies are available to women 

like Lilly Ledbetter who are victims of pay discrimination, Congress must pass the 

Fair Pay Restoration Act, which would amend Title VII of the Civil Rights Act of 

1964 to make it clear that a pay discrimination claim accrues when a pay decision 

is made, when an employee is subject to that decision, or at anytime they are injured by it. 

A woman business owner’s will to succeed, her will to offer meaningful opportunity to her employees, demands that you act now to guard this flame of economic 

opportunity that ensures that every citizen has the right and the ability to question 

inequality that stands in the way of that progress. As Americans, we are privileged 

to live in a country that has taken the extraordinary step of clearly committing to 

the protection of our individual civil rights. We do not value a person’s civil rights 

16 

for one day, one year, or one decade. In America, we value the civil rights of the 

individual every single day, whether you are female or male, black or white, from 

cradle to grave. 

In conclusion, the Women’s Chamber would ask the committee to consider this 

simple question: does the impact of our failure to protect the worker’s civil rights 

end 180 days after the individual was first discriminated against? We believe the 

answer is clear—absolutely not. 

We hope you agree, and urge you to move quickly to pass the Ledbetter Fair Pay 

Restoration Act. Thank you for the opportunity to testify today, and I look forward 

to taking any questions you might have. 

The CHAIRMAN. Thank you very much. 

Mr. Bagenstos. 

STATEMENT OF SAMUEL R. BAGENSTOS, PROFESSOR OF LAW 

AND ASSOCIATE DEAN, WASHINGTON UNIVERSITY IN ST. 

LOUIS SCHOOL OF LAW, ST. LOUIS, MO 

Mr. BAGENSTOS. Yes, Mr. Chairman and members of the committee, Senator Isakson, I am pleased to testify before you today. 

My name is Samuel Bagenstos. I currently serve as Professor of 

Law and Associate Dean at the Washington University School of 

Law in St. Louis. And for the past 15 years, I have spent my time 

litigating, studying, researching, writing about civil rights litigation in Federal courts. 

I have been invited by the committee to discuss the U.S. Supreme Court’s recent decision in the Ledbetter v. Goodyear Tire 

case and the bill currently pending to overturn that decision, the 

Fair Pay Restoration Act. The Fair Pay Restoration Act would 

adopt a very simple and common-sense straightforward rule for 

governing the timeliness of pay discrimination claims. 

The rule would be each paycheck that is infected with an employer’s discrimination is a separate violation of the employment discrimination laws, and the victim of pay discrimination may recover 

back pay for up to 2 years prior to the last discriminatory paycheck 

he or she has received. 

In these remarks, I want to make three essential points. First, 

the Ledbetter decision makes it exceptionally difficult, as we have 

heard a little bit about, to enforce the legal prohibitions on discrimination in pay. 

Second, the paycheck accrual rule that the Fair Pay Restoration 

Act adopts is not at all new or a change in the law. In fact, it was 

the law in most of the Nation before the court’s decision last summer in Ledbetter, and there is simply no evidence, none, that it imposed significant burdens on employers. 

Third, the paycheck accrual rule is far preferable to the alternatives that have been most prominently suggested by opponents 

of the bill. So Ledbetter, as the committee has heard, requires an 

employee who is the victim of pay discrimination to file a charge 

with the EEOC within 180 days of the employer’s original discriminatory pay decision, even if that initial decision continues to be reflected in the victim’s paychecks many years later. That rule substantially undermines the enforcement of the prohibitions on pay 

discrimination. 

As I describe in my written testimony, as we have heard today, 

employees are unlikely to know that they have gotten paid less 

than their co-workers. They are unlikely to attribute differences in 

pay to discrimination, and they are unlikely to bring a lawsuit 

17 

after the initial discriminatory pay decision even if they do know 

they have been the victims of discrimination because of the small 

stakes of any incremental pay discrimination decision. 

I should emphasize these problems aren’t limited to sex discrimination cases and, in fact, may be especially significant outside of 

sex discrimination because the Equal Pay Act is available for sex 

discrimination cases, but not for race discrimination cases, national 

origin discrimination cases, disability discrimination cases, age discrimination cases. The paycheck accrual rule would solve the problem that Ledbetter created by permitting an employee to challenge 

any paycheck that continues to be infected by prior discriminatory 

decisions, and it would recognize the workplace realities that the 

Ledbetter court ignored. 

Now some opponents of the legislation adopting this rule contend 

that such legislation would make it very hard or impossible for employers to defend themselves against charges of pay discrimination. 

But there is just no evidence for this, and we actually had a good 

test of this because for many years, 10 Federal circuit courts of appeals—actually the Eleventh Circuit, in addition to the circuits on 

the chart presented before, before the Ledbetter case, actually 

adopted the paycheck accrual rule. 

And yet there is no evidence that there was any difficulty, any 

particular difficulty for employers. No systematic studies, no significant anecdotal evidence. There is just no evidence employers 

had difficulty in defending pay discrimination claims. And that 

makes sense because the law gives employers substantial protections against late claims. The most important protection is the burden of proof. 

So it is not the case that the employer has to disprove an allegation of discrimination. The employee, the plaintiff, has to prove it, 

and the absence of evidence will inure to the detriment of the 

plaintiff. If it doesn’t, right, then we still have the laches defense, 

which gives an employer the right to defend if the employee has 

slipped on her rights and the employer is prejudiced. And even absent that, this bill would incorporate a 2-year back pay cap, which 

would protect employers against open-ended liability. 

Now, opponents of the bill have suggested that equitable tolling 

principles or a discovery rule would mitigate the unfairness of this 

decision, but they are wrong. Equitable estoppel and the discovery 

rule—and equitable tolling as well—would give employers less certainty and repose than would the Fair Pay Restoration Act, right? 

An employer is never going to know when liability ends, unlike 

with the Fair Pay Restoration Act, where each paycheck starts the 

accrual of a claim. So the employer knows, has certainty as to 

when the claim runs. 

The doctrines would also promote wasteful satellite litigation 

over the employer’s and the victim’s conduct after the discrimination, moving the litigation away from what should be the issue in 

the litigation, which is whether the employer, in fact, discriminated. And it wouldn’t solve the basic problem that it is so difficult 

to bring a lawsuit challenging pay discrimination initially, right? 

Experience with standards like the discovery rule and equitable 

tolling in lower courts suggest that it will not be sufficient, for reasons that I discuss in my written testimony. Now the question beVerDate Nov 24 2008 16:01 Jun 02, 2009 Jkt 035165 PO 00000 Frm 00021 Fmt 6633 Sfmt 6601 S:\DOCS\40669.TXT DENISE
18 

1 127 S. Ct. 2162 (2007). 

2See id. at 2166–2177. 

fore the committee, I want to emphasize, is not whether the 

Ledbetter decision is consistent with the U.S. Supreme Court’s earlier precedents. I think Justice Ginsburg makes a very strong case, 

persuasive case, that it was not consistent with the U.S. Supreme 

Court’s earlier precedents. 

But the question before this committee is whether the Ledbetter 

decision is consistent with the policy that underlies the legal prohibitions on pay discrimination. And for the reasons I have explained 

here and in my written testimony, it is not. 

By adopting the paycheck accrual rule, which was the law in 

most of the country for many years before Ledbetter, the Fair Pay 

Restoration Act would properly balance the interest in employer 

repose against the imperative to enforce the laws that prohibit pay 

discrimination. 

Thank you very much. 

[The prepared statement of Mr. Bagenstos follows:] 

PREPARED STATEMENT OF SAMUEL R. BAGENSTOS

Mr. Chairman and members of the committee, I am pleased to testify before you 

today. My name is Samuel Bagenstos. I currently serve as Professor of Law and Associate Dean for Research and Faculty Development at the Washington University 

in St. Louis School of Law. For the past 15 years, I have been working on and writing about civil rights litigation. I served as an attorney in the Civil Rights Division 

of the U.S. Department of Justice in the mid-1990s. Since entering academia in 

1999, I have focused my research and teaching on civil rights litigation and antidiscrimination law, and I have continued to serve as counsel for individuals and organizations in civil rights cases in the Federal Courts of Appeals and the Supreme 

Court. 

I have been invited to discuss the Supreme Court’s recent decision in Ledbetter v. Goodyear Tire & Rubber Co.,1 and the bill currently pending before this committee to overturn that decision, the Fair Pay Restoration Act. The Fair Pay Restoration Act would adopt a simple and common sense rule to govern the timeliness 

of pay discrimination claims: Each paycheck that is infected with an employer’s discrimination is a separate violation of the employment discrimination laws—lawyers 

call this the paycheck accrual rule—and the victim of pay discrimination may recover back pay for up to 2 years prior to the last discriminatory paycheck he or she 

has received. 

In these remarks, I will make three essential points. First, the Ledbetter decision 

makes it exceptionally difficult to enforce the legal prohibitions on discrimination 

in pay—not just discrimination on the basis of sex, but also discrimination on the 

basis of race, religion, age, or disability. Second, the paycheck accrual rule that the 

Fair Pay Restoration Act adopts is not at all new; to the contrary, it was the law 

in most of the Nation before the Court’s decision last summer in Ledbetter, and 

there is simply no evidence that it led to an avalanche of stale claims. Third, the 

paycheck accrual rule is far preferable to the alternatives that have been most 

prominently suggested: equitable tolling or a discovery rule. 

THE LEDBETTER DECISION UNDERMINES ENFORCEMENT OF PAY DISCRIMINATION LAWS

Ledbetter requires an employee who is the victim of pay discrimination to file a 

charge with the Equal Employment Opportunity Commission within 180 or 300 

days of his or her employer’s discriminatory pay-setting decision.2 For a number of 

reasons, that rule substantially undermines the enforcement of the prohibitions on 

pay discrimination in Title VII, the Age Discrimination in Employment Act, and the 

Americans with Disabilities Act. 

First, pay discrimination sneaks up on its victims. When an employer discriminates against an individual in hiring, promotion, or discharge, that individual will 

know at least that he has been disadvantaged—that he did not get the job or promotion he desired, or that he was discharged from his job. The individual may not 

know that the employer’s action resulted from discrimination, but the employer’s 

readily identifiable act of rejecting his application for a job or a promotion, or of firVerDate Nov 24 2008 16:01 Jun 02, 2009 Jkt 035165 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 S:\DOCS\40669.TXT DENISE
19 

3See Adrienne Collella et al., Exposing Pay Secrecy, 32 Acad. of Mgt. Rev. 55, 57 (2007) (36 

percent of surveyed employers ‘‘prohibited discussion of pay’’). 4See Leonard Bierman & Rafael Gely, ‘‘Love, Sex and Politics? Sure. Salary? No Way’’: Workplace Social Norms and the Law, 25 Berkeley J. Emp. & Lab. L. 167, 176–181 (2004) (discussing 

strong social norms that keep employees from discussing pay with co-workers). 5Ledbetter, 127 S. Ct. at 2182 (Ginsburg, J., dissenting). 6 Cheryl R. Kaiser & Brenda Major, A Social Psychological Perspective on Perceiving and Reporting Discrimination, 31 Law & Social Inq. 801, 804 (2006); see also id. at 805 (‘‘Results of 

several studies are consistent with the idea th[at] people often err on the side of minimizing, 

or not seeing, discrimination when it is directed at the self.’’ ); Faye J. Crosby & Stacy A. Ropp, 

Awakening to Discrimination, in The Justice Motive in Everyday Life 382 (Michael Ross & Dale 

T. Miller, eds., 2002). 7Kaiser & Major, supra note 6, at 805. 8Laura Beth Nielsen & Robert L. Nelson, Rights Realized? An Empirical Analysis of Employment Discrimination Litigation as a Claiming System, 2005 Wis. L. Rev. 663, 683 (footnotes 

omitted); see also Charles Stangor et al., Reporting Discrimination in Public and Private Contexts, 82 J. Personal & Social Psychol. 69, 73 (2002) (concluding that ‘‘because they are (or at 

least they are concerned about being) discriminated against, stigmatized individuals are particularly aware of the costs of claiming discrimination’’ and that ‘‘the costs of reporting discrimination are particularly salient when the social context includes members of another social category’’). 9Kaiser & Major, supra note 6, at 818–819. 10See Ledbetter, 127 S. Ct. at 2182 (Ginsburg, J., dissenting) (‘‘[T]he amount involved may 

seem too small, or the employer’s intent too ambiguous, to make the issue immediately actionable or winnable.’’). 11See id. at 2178. 

ing him, puts him on notice of the adverse treatment that might form the basis for 

an antidiscrimination claim. 

Pay discrimination is very different. Although the practice is itself of dubious legality, many employers prohibit their employees from discussing how much they are 

paid with their co-workers.3 And even in the absence of an employer policy, many 

employees are unwilling to discuss their wages with their co-workers.4 As a result, 

a victim of pay discrimination is unlikely to know right away that other employees 

were paid more than she was. She might know, for example, that she received a 

raise, but she is unlikely to know that other employees received higher raises. As 

Justice Ginsburg explained in her dissent in Ledbetter, the victim of pay discrimination in such circumstances is especially unlikely to know that she has been treated 

less well than her colleagues: ‘‘Having received a pay increase, the female employee 

is unlikely to discern at once that she has experienced an adverse employment decision.’’ 5

Even if an employee knows he has experienced an adverse employment decision, 

there is another hurdle: He has to understand that the adverse decision is based 

on discrimination. An extensive body of work by social psychologists shows that victims of discrimination ‘‘often fail to notice discrimination, underestimate it, or deny 

being the target of discrimination, even when they objectively are.’’ 6 Individuals 

find discrimination ‘‘difficult to detect on a case-by-case basis where each individual’s outcomes can be attributed to multiple causes’’—which will be true in nearly 

every pay discrimination case.7

And even if an employee knows that she was paid less than her co-workers and 

believes that the difference was the result of discrimination, she is still unlikely to 

file an EEOC charge immediately. Although it is not true of every victim of discrimination, psychological and sociological studies show that many ‘‘underreport’’ perceived discrimination due to a sense of shame or their rejection of victimhood, because friends, family, and co-workers discourage them from thinking they were victims of discrimination, or due to the interpersonal costs associated with making a 

discrimination claim.’’ 8 Those interpersonal costs can be severe. Workers who make 

discrimination claims ‘‘report that they often are targeted by retaliation,’’ and a 

body of psychological experiments demonstrates that people who claim discrimination are often viewed as troublemakers or complainers.9

These problems are exacerbated by the small stakes in any challenge to a single, 

incremental act of pay discrimination—a point Justice Ginsburg noted in her 

Ledbetter dissent.10 As Lilly Ledbetter’s case demonstrates, discriminatory pay decisions can accumulate into big money over a series of years—in her case, over the 

course of 20 years her pay fell 15 to 40 percent behind that of her similarly situated 

co-workers.11 But in any given year, the difference will be quite small in absolute 

terms. Imagine two co-workers who start out receiving the same salary of 

$50,000.00 per year. In the first year, one gets a raise of 5 percent, and, for discriminatory reasons, the other gets a raise of 3 percent. If that pattern continues for 20 

years, the victim of discrimination will be earning less than 70 percent of what her 

co-worker earns—a difference of over $40,000.00 in annual salary. But after the first 

20 

12See Michael Selmi, Public vs. Private Enforcement of Civil Rights: The Case of Housing and 

Employment, 45 UCLA L. Rev. 1401, 1452–1454 (1998) (explaining that statutory attorneys’ fee 

recovery provides an ‘‘insufficient’’ incentive for private attorneys to bring civil rights suits, and 

that the prospect of significant damages recovery is therefore frequently necessary to encourage 

an attorney to bring such a suit); cf. John J. Donohue III & Peter Siegelman, The Changing 

Nature of Employment Discrimination Litigation, 43 Stan. L. Rev. 983, 1031–1032 (1991) (explaining that few incumbent employees sue their employers for on-the-job discrimination, because the ‘‘meager benefits’’ are not worth the costs of bringing suit). 13See Deborah L. Brake, Retaliation, 90 Minn. L. Rev. 18 (2005). 14See 42 U.S.C. § 2000e–2(a)(1) (prohibiting discrimination in terms and conditions of employment based on ‘‘race, color, religion, sex, or national origin’’). 15See 29 U.S.C. § 626(d) (Age Discrimination in Employment Act); id. § 794(d) (Rehabilitation 

Act); 42 U.S.C. § 12117(a) (Americans with Disabilities Act). 16See Ledbetter, 127 S. Ct. at 2176 (‘‘If Ledbetter had pursued her EPA claim, she would not 

face the title VII obstacles that she now confronts.’’). 17Statement of the U.S. Chamber of Commerce Before the House Committee on Education 

and Labor 5–6 (June 12, 2007) (internal quotation marks and alterations omitted). 18See, e.g., Forsyth v. Federation Employment & Guidance Service, 409 F.3d 565, 572–573 (2d 

Cir. 2005); Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007, 1013–1014 (7th Cir. 2003); Goodwin v. General Motors Corp., 275 F.3d 1005, 1009–1011 (10th Cir. 2002); Cardenas v. Massey, 

set of discriminatory raises, the gap will be much smaller: The victim of discrimination will still earn more than 98 percent of what her co-worker earns, and the difference in annual salary will be only $1,000.00. 

Few attorneys will be willing to take an employment discrimination suit where only $1,000.00 is at stake. The costs of bringing a suit are too high, and the potential recovery too low.12 A wise attorney might well counsel her client not to bring 

such a suit, because the risks for an employee are much higher than for a lawyer. 

An employee who files a claim of pay discrimination, as I have shown, subjects himself to retaliation. Although the Federal employment discrimination laws prohibit 

retaliation, that prohibition is often illusory in practice.13 With the prospect of only 

a very small recovery even if a claim of pay discrimination succeeds, even a small 

risk that the employer will retaliate will be enough to deter many employees from 

filing a claim in the first place. 

I should emphasize that these problems are not limited to sex discrimination 

cases. The statute of limitations provision that the Court interpreted in Ledbetter 

applies not just to sex discrimination, but also to discrimination on the basis of race, 

color, national origin, and religion.14 Title VII’s statute of limitations provision is 

incorporated by reference in the Americans with Disabilities Act and the Rehabilitation Act, and the Age Discrimination in Employment Act contains a substantively 

identical provision.15 Indeed, there is good reason to believe that the Ledbetter decision will have more far-reaching consequences in the race, color, national origin, religion, age, and disability contexts than in the sex context. Even after Ledbetter, many employees who challenge sex discrimination in pay can continue to sue under 

the Equal Pay Act, which incorporates a paycheck accrual rule in its statute of limitations.16 But the Equal Pay Act does not apply to race, color, national origin, religion, age, or disability discrimination. 

The paycheck accrual rule incorporated in the Fair Pay Restoration Act avoids 

these problems. By permitting an employee to challenge any paycheck that continues to be infected by prior discriminatory decisions, that rule recognizes the 

workplace realities that the Ledbetter Court ignored. Absent such a rule, it will be 

extremely difficult to enforce the legal prohibitions on pay discrimination. 

THE PAYCHECK ACCRUAL RULE HAS BEEN APPLIED ACROSS THE NATION FOR YEARS, 

WITH NO DIRE CONSEQUENCES

Some opponents of legislation adopting the paycheck accrual rule contend that 

such legislation would make it well nigh impossible for employers to defend themselves against charges of pay discrimination: 

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. 

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. . . . [W]hen an 

employee of even moderate tenure delays in bringing a claim, the employer is 

unlikely to have the necessary witnesses at its disposal to defend itself.17

What is notable about this contention is its entirely theoretical nature. Although 

10 Federal Circuit Courts of Appeals had adopted the paycheck accrual rule before 

the Ledbetter case,18 the opponents of that rule have not pointed to any systematic 

21 

269 F.3d 251, 257–258 (3d Cir. 2001); Anderson v. Zubieta, 180 F.3d 329, 335–336 (D.C. Cir. 

1999); Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 168 (8th Cir. 1995) (en banc); 

Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 346–347 (4th Cir. 1994); Calloway v. Partners Nat. Health Plans, 986 F.2d 446, 448–449 (11th Cir. 1993); Gibbs v. Pierce County Law 

Enforcement Support Agency, 785 F.2d 1396, 1399–1400 (9th Cir. 1986); Hall v. Ledex, Inc., 669 

F.2d 397, 398 (6th Cir. 1982); see also Lamphere v. Brown University, 685 F.2d 743, 747 (1st 

Cir. 1982) (‘‘a decision to hire an individual at a discriminatorily low salary can, upon payment 

of each subsequent pay check, continue to violate the employee’s rights’’). 19See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). 20 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121–122 (2002). 21See 42 U.S.C. § 2000e–5(g)(1) (‘‘Back pay liability shall not accrue from a date more than 

2 years prior to the filing of a charge with the Commission.’’); see also S. 1843, 110th Cong., 

1st Sess. § 3 (2007) (reaffirming that principle). 22See Statement of U.S. Chamber of Commerce, supra note 17, at 9. 23Fair Pay, The Right Way: The House Overcorrects a Supreme Court Decision, Wash. Posts, 

Aug. 14, 2007, at A12. The Supreme Court has never resolved whether a discovery rule applies 

to employment discrimination cases, see Ledbetter, 127 S. Ct. at 2177 n.10, but four justices in 

Morgan, supra, endorsed such a rule. See Morgan, 536 U.S. at 124 (O’Connor, J., concurring 

in part and dissenting in part) (‘‘In my view, therefore, the charge-filing period precludes recovery based on discrete actions that occurred more than 180 or 300 days after the employee had, 

or should have had, notice of the discriminatory act.’’). 24See Statement of U.S. Chamber of Commerce, supra note 17, at 5 (‘‘The interest in repose 

is particularly compelling in the employment setting.’’). 

evidence (or even any significant anecdotal evidence) that the rule caused employers 

to be unable to defend themselves against pay discrimination claims. 

That should not be surprising, for the law provides employers a number of protections against stale claims, even when those claims are not barred by a statute of 

limitations. The most fundamental of those protections is the burden of proof. It is 

the plaintiff who must show that her wages were discriminatory.19 If, because of the 

passage of time, relevant evidence becomes unavailable, it is the plaintiff who will 

suffer the consequences. And in the rare case in which an employee sleeps on her 

rights, and the burden of proof is not sufficient to protect the employer from prejudice, the employer has another protection. If the employer can show that the plaintiff ’s lack of diligence in bringing her employment discrimination claim has caused 

‘‘unreasonable and prejudicial delay,’’ the action may be barred by the defense of 

laches.20

The Fair Pay Restoration Act, in any event, protects employers against openended liability. The bill would reaffirm the law’s current 2-year cap on back pay 

awards.21 Under the bill, victims of pay discrimination would have no incentive to 

sleep on their rights. Because a plaintiff can recover back pay for only the 2 years 

preceding his filing of the charge with the EEOC, an employee who waits to file for 

more than 2 years after the initial discrimination will lose the chance to obtain full 

compensation. Given the complete lack of evidence that the paycheck accrual rule 

led to harmful results in the 10 circuits that adopted it before the Ledbetter case, 

and given the substantial protections against stale claims that employers would retain under the Fair Pay Restoration Act, there is no basis for concluding that the 

bill will unfairly burden employers. 

NEITHER EQUITABLE TOLLING NOR A DISCOVERY RULE SOLVES THE PROBLEMS CREATED

BY THE COURT’S DECISION IN LEDBETTER

Opponents of the Fair Pay Restoration Act contend that the bill is unnecessary. 

In their view, existing principles of equitable tolling and estoppel are sufficient to 

mitigate any unfairness that might result from the Ledbetter decision.22 At most, 

they argue, Congress should pass legislation that makes clear that a discovery rule 

applies to pay discrimination cases—a rule that starts the statute of limitations at 

the time—‘‘a ‘reasonable person’ could or should have been aware of the discrimination.’’ 23 These contentions are profoundly misguided. 

Opponents of the bill before this committee place great emphasis on the employer’s interest in certainty and repose.24 But the Fair Pay Restoration Act serves that 

interest far better than do the proffered alternatives of equitable tolling or the discovery rule. Under the Fair Pay Restoration Act’s paycheck accrual rule, an employer knows that it has an obligation to avoid discrimination with every paycheck, 

and it knows that its back pay liability will not extend back more than 2 years. Reliance on the principle of equitable tolling or the discovery rule, by contrast, will 

mean that an employer can never be certain that the limitations period has run 

until after a court makes a factual determination about when the employee knew 

or should have known of the discrimination, and whether the employer took any action to mislead the employee about the discrimination. Although equitable tolling 

and the discovery rule would likely ensure that employers would win statute of limiVerDate Nov 24 2008 16:01 Jun 02, 2009 Jkt 035165 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 S:\DOCS\40669.TXT DENISE
22 

25Wallace v. Kato, 127 S. Ct. 1091, 1100 (2007). 26Morgan, 536 U.S. at 113. 27Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). 28See Rotella v. Wood, 528 U.S. 549, 555 (2000) (‘‘[I]n applying a discovery accrual rule, we 

have been at pains to explain that discovery of the injury, not discovery of the other elements 

of a claim, is what starts the clock.’’ ). 29See David Sherwyn, et al., Don’t Train Your Employees and Cancel Your ‘‘1–800’’ Harassment Hotline: An Empirical Examination and Correction of the Flaws in the Affirmative Defense 

to Sexual Harassment Charges, 69 Fordham L. Rev. 1265, 1266–1267 (2001) (finding that 

‘‘courts often find that the complaining employee acted ‘unreasonably’ as a matter of law, even 

when such a determination may merit a more thorough review of the facts of the case’’); see 

also Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 

Cal. L. Rev. 1, 14 n.67 (2006) (collecting studies reaching the same conclusion). 30Ledbetter, 127 S. Ct. at 2177. 31See id. at 2178–2188 (Ginsburg, J., dissenting). 

tations arguments more often than they would under the Fair Pay Restoration Act, 

those principles would give employers less certainty and repose, because an employer could never be sure which claims would be time-barred. They would also promote wasteful satellite litigation over both the employer’s and the victim’s conduct 

after the alleged discrimination. 

More important, neither equitable tolling nor the discovery rule would solve the 

basic problem: Because of all of the barriers that keep an employee from discovering 

pay disparities, attributing those disparities to discrimination, and pursuing an 

antidiscrimination claim, it will be the rare case in which the victim of pay discrimination can file a claim within 180 or 300 days of the first discriminatory pay decision. 

Just last Term, the Supreme Court emphasized that ‘‘[e]quitable tolling is a rare 

remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs.’’ 25 In the employment discrimination context specifically, the 

Court has declared that the principle of equitable tolling is ‘‘to be applied sparingly.’’ 26 A litigant seeking equitable tolling must show both ‘‘(1) that he has been 

pursuing his rights diligently, and (2) that some extraordinary circumstance stood 

in his way.’’ 27 As I have explained, though, the barriers to pursuing pay discrimination claims are the ordinary circumstance, not an extraordinary one. The Fair Pay 

Restoration Act takes account of that fact by restoring the paycheck accrual rule for 

pay discrimination cases. 

The discovery rule is insufficient for similar reasons. Under a discovery rule, the 

statute of limitations typically begins to run on the date the plaintiff knows of her 

injury, even if that is before the plaintiff knows the other elements of a legal claim 

exist.28 As I have explained, however, the victim of pay discrimination may know 

that she is paid less than co-workers long before she knows or can prove that the 

disparity is the result of discrimination. The typical discovery rule will accordingly 

bar a large percentage of meritorious pay discrimination claims. Moreover, by asking when the plaintiff reasonably should have known of her injury, the discovery 

rule essentially places the victim’s conduct on trial and detracts attention from the 

central issue in the case—whether the employer discriminated. Experience with 

workplace harassment doctrine suggests that courts are quite unreliable in determining whether an employee acted ‘‘reasonably’’ in responding to discrimination.29

The Fair Pay Restoration Act avoids these problems. In place of the uncertainties 

and limitations of the equitable tolling doctrine and the discovery rule, the bill 

adopts a very simple principle: Each and every paycheck that is infected by an employer’s discriminatory pay decision is a new violation of title VII. That is the rule 

that the overwhelming majority of circuits applied before the Supreme Court’s decision in Ledbetter, and it is a rule that takes account of the dynamics of pay discrimination. The alternatives proposed by opponents of the bill would bar many meritorious pay discrimination claims, and they would do so without meaningfully advancing the employer’s interest in repose. 

It bears emphasis that there is nothing in the Supreme Court’s Ledbetter decision 

that even purports to address the policy questions that are before the committee. 

In his majority opinion, Justice Alito expressly refused to consider whether it makes 

sense, as a matter of policy, to apply a paycheck accrual rule to claims of pay discrimination. He explained that the Court was ‘‘not in a position to evaluate 

Ledbetter’s policy arguments’’ but instead must ‘‘apply the statute as written.’’ 30 As 

Justice Ginsburg’s dissent demonstrated, there is ample reason to believe that the 

Court was wrong in its interpretation of what ‘‘the statute as written’’ said.31 But 

that is not the question before this committee. The question before this committee 

is whether the Ledbetter decision is consistent with the policy that underlies the 

legal prohibitions on pay discrimination. For the reasons I have explained, it is not. 

23 

The Ledbetter decision makes the prohibitions on pay discrimination exceedingly 

hard to enforce—not just in the sex discrimination context, but also in the contexts 

of race, religion, age, and disability discrimination—and its holding is unnecessary 

to protect employers against stale claims. By adopting the paycheck accrual rule, 

which was the law in most of the country for many years before Ledbetter, the Fair 

Pay Restoration Act properly balances the interest in employer repose against the 

imperative to enforce the laws that prohibit pay discrimination. 

Thank you. 

The CHAIRMAN. Thank you very much, Professor. 

Mr. Dreiband. 

STATEMENT OF ERIC S. DREIBAND, AKIN GUMP STRAUSS 

HAUER & FELD LLP 

Mr. DREIBAND. Good morning, Chairman Kennedy—— 

The CHAIRMAN. Good morning. 

Mr. DREIBAND [continuing]. Senator Isakson, and members of the 

committee. I thank you and the entire committee for affording me 

the privilege of testifying today. My name is Eric Dreiband, and I 

am a partner at the law firm of Akin Gump Strauss Hauer & Feld 

here in Washington, DC. 

I am here today at your invitation, of course, to speak about the 

Fair Pay Restoration Act. I do not believe the bill would advance 

the public interest. Since 1964, when Congress created the Equal 

Employment Opportunity Commission and established the requirement that alleged victims file a charge of discrimination within 

precisely defined time limits, millions of Americans have participated in the EEOC’s process and obtained redress for their grievances. 

The charge-filing periods and other similar requirements have 

made it possible for the EEOC to conduct timely investigations and 

for State and local governments, unions, employers, and others to 

take prompt action to investigate and respond to charges. The Fair 

Pay Restoration Act would alter this process apparently because 

the perception that the U.S. Supreme Court’s decision in Ledbetter 

v. Goodyear Tire & Rubber Company departed from long-established legal standards. It did not. 

The U.S. Supreme Court first articulated the doctrine that led to 

the Ledbetter decision in 1977, when it decided United Airlines v. 

Evans. In that case, the court explained that a discriminatory act 

which is not made the basis for a timely charge has no present 

legal consequences. The court reaffirmed the Evans decision in 

1980, 1986, 1989, 2002 and, more recently, in 2007, when it decided the Ledbetter case. 

Furthermore, the Fair Pay Restoration Act appears premised on 

the notion that the law sanctions hidden discrimination or that 

somehow the decision in Ledbetter does so. This premise is not correct. The law currently provides a remedy for any such hidden or 

concealed discrimination, and the Ledbetter case did not change 

this at all. 

Both the U.S. Supreme Court and the EEOC recognize that the 

statutory time limits may be extended or tolled when a person who 

alleges unlawful discrimination was unaware of the EEO process 

or of important facts that should have led him or her to suspect 

discrimination. This is known as equitable tolling. 

24 

The doctrine of equitable estoppel also permits the charge-filing 

period to be extended when, for example, an employer conceals or 

misrepresents facts that would support a charge of discrimination. 

The Congress could codify these standards and in so doing would 

preserve the EEOC’s enforcement process and establish a clear, 

congressionally mandated rule for when the EEOC’s charge-filing 

period ought to be extended. 

Of course, the court in the Ledbetter case did not extend the 

charge-filing period, and the record in that case establishes why. 

According to the record in the case, in 1982, Ms. Ledbetter filed a 

charge in which she alleged that her supervisor had sexually harassed her. Goodyear and Ms. Ledbetter promptly settled the dispute. 

More than 15 years later, during the litigation, Ms. Ledbetter 

testified that, ‘‘Different people that I worked for along the way 

had always told me that my pay was extremely low.’’ She explained 

that she knew by 1992 that her pay was lower than her peers and 

that she learned about the amount of difference about 1994 and 

1995. 

She testified that she spoke with her supervisor about this in 

1995. ‘‘I told him at that time that I knew definitely that they were 

all making $1,000 at least more per month than I was and that I 

would like to get in line.’’ 

Ms. Ledbetter, however, did not file a charge in 1992, 1993, 1994, 

1995, 1996, or 1997. Instead, she waited until July 21, 1998, to file 

a charge. A timely charge would have enabled the EEOC and Goodyear to investigate the allegations and to resolve the matter 

promptly. The delay had real consequences. Ms. Ledbetter’s case 

dragged on for nearly 10 years, and one of the defendant’s most important witnesses died before the trial. 

The Fair Pay Restoration Act would also sweep away the EEOC’s 

time-tested enforcement scheme because it would remove completely any requirement that alleged discrimination be dealt with 

swiftly. By eviscerating the charge-filing period, the Fair Pay Restoration Act would require the EEOC to conduct investigations into 

events that happened decades before anyone filed a charge despite 

the absence of records. Witnesses’ memories will be faded. Some 

witnesses will be missing. Others, as in the Ledbetter case, may be 

dead. 

The Fair Pay Restoration Act would also require anyone accused 

of discrimination to make a dreadful choice—preserve records in 

perpetuity or lose the ability to mount a defense to a charge that 

challenges decades-old employment decisions. The cost of perpetual 

recordkeeping would be enormous and, in the case of public employers, would add to the taxpayers’ burden. 

Furthermore, the bill repeatedly invokes the phrase discriminatory compensation decision or other practice’’ and would define an 

unlawful employment practice to occur any time an individual is 

affected by application of such practice. The bill is, therefore, not 

limited to compensation or anything else. It also contains no time 

limit for any award of compensatory and punitive damages. 

The bill likewise contains no time limit for back pay and liquidated damages that may be recovered under the Age Discrimination in Employment Act. If enacted, then the Fair Pay Restoration 

25 

1Fair Pay Restoration Act, S. 1843, 110th Cong. § 2 (2007). 

2 Id. 

Act would subject State and local governments, unions, employers, 

and others to potentially unlimited compensatory and punitive 

damages, back pay, and liquidated damages. 

Finally, the Fair Pay Restoration Act mentions pension benefits, 

but it does not, however, exclude or exempt pension benefits. If enacted, therefore, it may be construed to apply to pension benefits, 

and this may have the effect of exposing pension funds to unanticipated and potentially staggering liability that could risk the retirement security of many Americans. 

I look forward to your questions. Thank you. 

[The prepared statement of Mr. Dreiband follows:] 

PREPARED STATEMENT OF ERIC S. DREIBAND

Good morning Chairman Kennedy, Ranking Member Enzi, and members of the 

committee. I thank you and the entire committee for affording me the privilege of 

testifying today. My name is Eric Dreiband, and I am a partner at the law firm of 

Akin Gump Strauss Hauer & Feld LLP here in Washington, DC. 

Prior to joining Akin Gump in September 2005, I served as the General Counsel 

of the U.S. Equal Employment Opportunity Commission (‘‘EEOC’’ or ‘‘Commission’’ ). 

As EEOC General Counsel, I directed the Federal Government’s litigation of the 

Federal employment discrimination laws. I also managed approximately 300 attorneys and a national litigation docket of approximately 500 cases. 

Title VII of the Civil Rights Act of 1964 created the EEOC. Title VII also made 

unlawful discrimination in employment on the basis of race, color, religion, sex, and 

national origin. EEOC enforcement authority over title VII is plenary, with the exception of litigation against public employers. The employment protections of the 

Americans with Disabilities Act incorporate title VII’s enforcement scheme, and so 

the EEOC also enforces that act. The EEOC enforces two other statutes: the Equal 

Pay Act, which prohibits sex-based wage discrimination, and the Age Discrimination 

in Employment Act. Collectively, then, Congress has vested the EEOC with enforcement authority over a broad array of employment discrimination laws, including 

laws that protect American workers against discrimination on the basis of race, 

color, religion, sex, national origin, disability, and age. 

During my tenure at the EEOC, the Commission continued its tradition of aggressive enforcement. We obtained relief for thousands of victims of discrimination, and 

the EEOC’s litigation program recovered more money for victims of discrimination 

than at any other time in the Commission’s history. The Commission settled thousands of charges of discrimination, filed hundreds of lawsuits every year, and recovered, literally, hundreds of millions of dollars for victims of discrimination. 

I am here today, at your invitation, to speak about the proposed Fair Pay Restoration Act. I do not believe that the bill would advance the public interest. The bill 

assumes that the decision by the Supreme Court of the United States in Ledbetter 

v. Goodyear Tire & Rubber Company ‘‘ impairs statutory protections’’ that ‘‘have 

been bedrock principles of American law for decades.’’ 1 This assumption is not correct. The Ledbetter decision is entirely consistent with more than three decades of 

Supreme Court decisions. Furthermore, the bill appears inspired by the mistaken 

notion that, after Ledbetter, the law currently provides no remedy for concealed discrimination—what the bill describes as ‘‘the reality of wage discrimination.’’ 2 Finally, the bill is not limited to compensation and, if enacted in its present form, will 

create unanticipated and potentially ruinous liability for State and local governments, unions, employers, and others covered by the Federal antidiscrimination 

laws. The bill may also subject pension funds to unanticipated liability that may 

jeopardize the integrity of those funds and risk the retirement security of pension 

fund beneficiaries. 

As an alternative to the Fair Pay Restoration Act, Congress could codify the 

EEOC’s Compliance Manual standard for equitable tolling and equitable estoppel. 

This would preserve the EEOC’s enforcement process and establish a clear, congressionally mandated rule for when the EEOC’s charge-filing period ought to be extended. 

26 

3 EEOC v. Shell Oil Co., 466 U.S. 54, 77–78 (1984); Occidental Life Ins. Co. v. EEOC, 432 

U.S. 355, 367–68 (1977) (quoting Alexander v. Gardner Denver Co., 415 U.S. 36, 44 (1974)). 4The legislative history of title VII explains: ‘‘The purpose of [this legislation] is to achieve 

a peaceful and voluntary settlement of the persistent problems of racial and religious discrimination or segregation[.] . . . In brief, the measure speaks on the problem solving level with primary reliance placed on voluntary and local solutions. Only when these efforts break down 

would the residual right of enforcement come into play.’’ S. Rep. No. 88–872, as reprinted in 

1964 U.S.C.C.A.N. 2355, 2355–56. 5 42 U.S.C. § 2000e–5(b). 

6 Id.; EEOC v. Shell Oil Co., 466 U.S. at 78 (citing Ford Motor Co. v. EEOC, 458 U.S. 219, 

228 (1982)). 7Title VII’s ‘‘powers, remedies, and procedures’’ apply to the employment protections of the 

Americans with Disabilities Act. 42 U.S.C. § 12117(a). The Age Discrimination in Employment 

Act similarly adopts the charge-filing requirement, contains the same 180- and 300-day chargefiling periods as title VII, obligates the EEOC to ‘‘make investigations and require the keeping 

of records,’’ to eliminate discriminatory practices through ‘‘informal methods of conciliation, conference, and persuasion,’’ requires prompt notice to persons named in charges, and authorizes 

the Commission to conduct litigation. 29 U.S.C. § 626(a)–(d). 8 42 U.S.C. § 2000e–5(b); 29 U.S.C. § 626(d). 

9 42 U.S.C. § 2000e–5(e)(1); 29 U.S.C. § 626(d); National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). 10 EEOC v. Shell Oil Co., 466 U.S. at 68 (1984). 11 42 U.S.C. § 2000e–5(b). 12 EEOC v. Shell Oil Co., 466 U.S. at 74. 13S. Rep. No. 92–415, at 25 (1971), quoted in EEOC v. Shell Oil Co., 466 U.S. at 75 n.31. 

See also id. at 75 n.30 (‘‘Thus, the section-by-section analysis of S. 2515, from which the notice 

of requirement was derived, explained the provision as follows: ‘In order to accord respondents 

fair notice that charges are pending against them, this subsection provides that the Commission 

I. HISTORY AND PURPOSE OF THE CHARGE-FILING PERIOD

When Congress enacted title VII in 1964, it determined that cooperation and voluntary compliance were the preferred means for achieving equal employment opportunities and eliminating unlawful discrimination.3 To accomplish this legislative 

goal, Congress created the EEOC and established an administrative procedure that 

required the EEOC to settle disputes through conference, conciliation, and persuasion. Congress also required that a charge of discrimination be filed within a precisely-defined charge-filing period as a prerequisite to the EEOC’s administrative 

process and any subsequent lawsuit.4

In 1972, Congress amended title VII to strengthen the EEOC’s ability to enforce 

the law. Congress retained the charge-filing requirement and the charge-filing period and added a new requirement: Congress required the EEOC to provide those 

accused of discrimination with prompt notice of the charges against them.5 Congress 

authorized the EEOC to sue private employers in Federal court, but the Commission 

could do so only if it failed to resolve disputes through informal methods of conference, conciliation, and persuasion.6

Title VII thus established the multi-step, integrated enforcement procedure that 

survives to present day. In 1967, Congress enacted the Age Discrimination in Employment Act, and that law contains the same charge-filing period and substantially 

the same investigation and conciliation process as title VII. In 1990, Congress incorporated title VII’s enforcement scheme into the employment protections of the 

Americans with Disabilities Act.7 Accordingly, then, the EEOC administers the following four-step process. 

1. The Charge. The EEOC receives charges of discrimination from aggrieved individuals, from persons who file charges on behalf of aggrieved individuals, and from 

EEOC Commissioners.8 In a State that has an agency with the authority to grant 

or seek relief for an alleged unlawful practice, an individual who initially files a 

charge with that agency must file the charge with the EEOC within 300 days of 

the employment practice. In all other States, the charge must be filed within 180 

days.9 A charge places the EEOC on notice that a named respondent may have violated the Federal antidiscrimination laws.10

2. Notice Requirement. The Commission must ‘‘serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) 

on [the accused] . . . within 10 days’’ of the filing of the charge.11

‘‘[T]he principal objective of [this] provision seems to have been to provide employers fair notice that accusations of discrimination have been leveled against 

them and that they can soon expect an investigation by the EEOC.’’ 12

The 10-day notice provision, like the charge-filing period, fosters ‘‘the importance 

that the concept of due process plays in the American ideal of justice’’ and ‘‘insure[s] 

that fairness and due process are part of the enforcement scheme.’’ 13

27 

must serve a notice of the charge on the respondent within 10 days. . . . ’ ’’ (quoting 118 Cong. 

Rec. 4941 (1972))). 14 42 U.S.C. § 2000e–8(a). 15 Id. § 2000e–9. 16 Id. § 2000e–5(b). 17 Id. § 2000e–5(f)(1). 18 Id. 19 431 U.S. 553 (1977). 20 Id. at 558. 21 Id. 22 449 U.S. 250 (1980). 23 Id. at 257–58. 24 Id. at 258. 

3. EEOC Investigation. After the EEOC receives a charge, and provides notice to 

the accused, the EEOC undertakes an investigation into the allegations contained 

in the charge. The Commission may inspect and copy ‘‘any evidence of any person 

being investigated or proceeded against that relates to unlawful employment practices covered by [title VII] and is relevant to the charge under investigation.’’ 14 The 

Commission may also issue administrative subpoenas and seek judicial enforcement 

of those subpoenas.15

4. Disposition of a Charge. If the Commission determines that there is ‘‘reasonable 

cause’’ to believe that a respondent violated an EEOC-enforced law, the EEOC may 

issue a ‘‘probable cause’’ finding. The Commission then must ‘‘endeavor to eliminate 

[the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.’’ 16 The EEOC may file suit only if these efforts fail.17

If the EEOC finds that no ‘‘reasonable cause’’ exists, it must promptly inform the 

accused and the person, if any, who claims to be aggrieved. The aggrieved person 

may then file a private action in Federal court against the accused.18

The EEOC’s enforcement scheme has served the Nation well. Since 1964, millions 

of American workers have participated in the EEOC’s process and obtained redress 

for their grievances. The charge-filing requirement, charge-filing periods, and notification requirements have made it possible for the EEOC to conduct timely investigations, and for State and local governments, unions, employers, and others to 

take prompt action to investigate and respond to charges. 

II. LEDBETTER V. GOODYEAR TIRE & RUBBER COMPANY IS CONSISTENT WITH THREE

DECADES OF SUPREME COURT DECISIONS

The Supreme Court first articulated the doctrine that led to Ledbetter in 1977, 

when it decided United Air Lines, Inc. v. Evans.19 In that case, flight attendant 

Carolyn Evans married in 1968 and lost her job because her employer, United Air 

Lines, did not permit married women to work as flight attendants. United later 

abandoned its no-marriage rule and, in February 1972, rehired Ms. Evans. Ms. 

Evans filed a charge discrimination and alleged that United violated title VII because it refused to credit her with seniority for any period prior to February 1972. 

The Court acknowledged that the seniority system gave ‘‘present effect to a past act 

of discrimination[,] ’’ but determined that there was no discriminatory intent within 

the charging period.20 The Court explained: 

A discriminatory act which is not made the basis for a timely charge is the 

legal equivalent of a discriminatory act which occurred before the statute was 

passed. It may constitute relevant background evidence in a proceeding in 

which the status of a current practice is at issue, but separately considered, it 

is merely an unfortunate event in history which has no present legal consequences.21

The Court re-affirmed Evans 3 years later, in 1980, when it decided Delaware 

State College v. Ricks.22 In that case, Professor Columbus Ricks alleged that his employer, Delaware State College, discriminated against him because of his national 

origin when it denied him tenure, offered him a 1-year ‘‘terminal’’ contract, and terminated his employment at the end of that contract. The Court observed that ‘‘termination of employment at Delaware State is a delayed, but inevitable, consequence 

of the denial of tenure,’’ and held that the alleged discrimination occurred when the 

college denied Mr. Ricks tenure.23 Because Mr. Ricks waited to file his charge until 

after the charge-filing period expired—as measured by the time that lapsed between 

the decision to deny Mr. Ricks tenure and the date of his charge—Mr. Ricks’s claim 

was time-barred. The Court rejected his argument that the loss of his job should 

transform his last day of work into a discriminatory act.24 The Court reasoned: 

[T]he only alleged discrimination occurred—and the filing limitations periods 

therefore commenced—at the time the tenure decision was made and commuVerDate Nov 24 2008 16:01 Jun 02, 2009 Jkt 035165 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 S:\DOCS\40669.TXT DENISE
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25 Id. (quoting Abramson v. Univ. of Haw., 594 F.2d 202, 209 (1979)). 26 Id. at 256–57. 27 478 U.S. 385 (1986). 28 Id. at 397. 29 Id. at 395. 30 Id. at 396 n.6. 31 536 U.S. 101 (2002). 32 Id. at 114. 33 Id. at 113. 34 Id. at 117. 35Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162, 2165–66 (2007). 36Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169 (11th Cir. 2005). 37Ledbetter, 127 S. Ct. at 2166. 

nicated to Ricks. That is so even though one of the effects of the denial of tenure—the eventual loss of a teaching position—did not occur until later[,]. . . . 

‘‘The proper focus is upon the time of the discriminatory acts, not upon the time 

at which the consequences of the acts became most painful.’’ 25

The Court in Ricks noted that ‘‘limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect 

employers from the burden of defending claims arising from employment decisions 

that are long past.’’ 26

The Court re-affirmed the Evans line of cases in 1986 when it decided Bazemore 

v. Friday.27 In that case, an employer maintained a segregated work force and a 

discriminatory pay structure that pre-dated title VII. The defendant did not eliminate the discriminatory pay structure after it became covered by title VII. Instead, 

the defendant merged the two race-based ‘‘branches’’ of workers, then continued to 

utilize its racist pay structure—that is, it continued intentionally to pay black employees less than white employees.28 The Court concluded that the defendant violated title VII: 

A pattern or practice that would have constituted a violation of title VII, but 

for the fact that the statute had not yet become effective, became a violation 

upon title VII’s effective date, and to the extent an employer continued to engage in that act or practice, it is liable under that statute.29

The Court explained that its decision was entirely consistent with Evans and its 

progeny. The Court reasoned that Evans ‘‘support[ed] the result’’ in Bazemore because Ms. Evans, unlike the Bazemore plaintiffs, ‘‘made no allegation that [United’s] 

seniority system itself was intentionally designed to discriminate.’’ 30

More recently, in 2002, the Court decided National Railroad Passenger Corporation v. Morgan.31 In that case, Abner Morgan, Jr., a black male, alleged that his 

employer subjected him to discrete discriminatory and retaliatory acts and a racially 

hostile work environment throughout his employment. 

The Court in Morgan determined that discrete acts that fell outside the charging 

period were time-barred. So-called ‘‘discrete acts,’’ the Court said, include ‘‘termination, failure to promote, denial of transfer, [and] refusal to hire.’’ 32 The Court explained that a discrete discriminatory act within the charge-filing period does not 

make timely ‘‘related’’ discriminatory acts that fall outside the time period.33

The Court distinguished Mr. Morgan’s hostile environment claims from his ‘‘discrete act’’ claims. The Court concluded that if ‘‘an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may 

be considered by a court for the purposes of determining liability.’’ 34

Evans, Ricks, Bazemore, and Morgan are entirely consistent with the Court’s decision in Ledbetter. 

In Ledbetter, the plaintiff, Lilly Ledbetter, worked for Goodyear from 1979 until 

she retired in 1998. Ms. Ledbetter claimed that throughout this period, her supervisors gave her poor evaluations because of her sex, and that, as a result, her pay 

did not increase as much as it would have if she had been evaluated fairly.35

Ms. Ledbetter sued Goodyear after she retired, and the U.S. Court of Appeals for 

the Eleventh Circuit reversed a jury verdict in her favor.36 Ms. Ledbetter appealed 

and raised the following issue: 

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 outside the 

limitations period.37

Ms. Ledbetter did not claim that the relevant Goodyear decisionmakers acted with 

discriminatory intent during the charge-filing period. Instead, she asserted ‘‘that the 

29 

38 Id. at 2167 (citing Brief for Petitioner at 22). 39 Id. at 2171. 40 Id. at 2174. 41 Id. 42 Id. at 2179, 2182. 43 455 U.S. 385 (1982). 44 Id. at 393. 45 Id. at 395 n.11 (citing legislative history to the 1978 amendments to the Age Discrimination 

in Employment Act, H.R. REP. NO. 95–950, at 12 (1978) (Conf. Rep.), as reprinted in 1978 

U.S.C.C.A.N. 504, 534). 46 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002). 47 EEOC Compliance Manual § 2 Threshold Issues, Number 915.003 (May 12, 2000) available 

at http://www.eeoc.gov/policy/docs/threshold.html. 48 Id. 49 Id. 

paychecks were unlawful because they would have been larger if she had been evaluated in a nondiscriminatory manner prior to the EEOC charging period.’’ 38

The Court applied Evans and its progeny and concluded that Ms. Ledbetter’s challenge to pay decisions that pre-dated the charge-filing period was time-barred. The 

Court explained that in discrimination cases, ‘‘the employer’s intent is almost always disputed, and evidence relating to intent may fade quickly with time.’’ 39 The 

Court observed that ‘‘Bazemore stands for the proposition that an employer violates 

title VII and triggers a new EEOC charging period whenever the employer issues 

paychecks using a discriminatory pay structure.’’ 40 Because Goodyear’s pay system 

was facially nondiscriminatory and neutrally applied, a new title VII violation did 

not occur every time a paycheck issued.41

III. DISCRIMINATION VICTIMS MAY ASSERT CLAIMS THAT PRE-DATE

THE CHARGE-FILING PERIOD

The proposed Fair Pay Restoration Act appears premised on the notion that 

Ledbetter was wrongly decided and that existing law sanctions hidden discrimination. This notion apparently finds its inspiration in Justice Ruth Bader Ginsburg’s 

dissent in Ledbetter. According to the dissent, wage discrimination is often ‘‘concealed,’’ and so EEOC charge-filing periods should not apply.42

But, existing law provides a remedy for any such hidden or concealed discrimination. In fact, for decades, both the Supreme Court of the United States and the 

EEOC have recognized that EEOC charge-filing periods can be extended or ‘‘tolled’’ 

in such circumstances. 

Twenty-five years before Ledbetter, in 1982, the Court decided Zipes v. Trans 

World Airlines, Inc.43 In that case, the Court explained that ‘‘filing a timely charge 

of discrimination is not a jurisdictional prerequisite to suit in Federal court, but a 

requirement that, like a statute of limitations, is subject to waiver, estoppel, and 

equitable tolling.’’ 44 The Court also explained that ‘‘equitable modification for failing 

to file within the time period will be available to plaintiffs under [title VII].’’ 45

Twenty years later, in Morgan, the Court reaffirmed Zipes and held that ‘‘[t]he application of equitable doctrines . . . may either limit or toll the time period within 

which an employee must file a charge.’’ 46 Ledbetter did not change any of this. 

Like Zipes and Morgan, the EEOC maintains that the charge-filing period ‘‘is subject to equitable tolling, equitable estoppel, and waiver. Thus, there are circumstances under which the charge should be accepted as timely even though the 

alleged violation transpired outside the limitations period.’’ 47

According to the EEOC’s Compliance Manual, and consistent with Zipes and Morgan, the statutory time limits may be extended, or ‘‘tolled,’’ for equitable reasons 

when a person who alleges unlawful discrimination ‘‘was understandably unaware 

of the EEO process or of important facts that should have led him or her to suspect 

discrimination.’’ 48

Grounds for equitable tolling include: (1) no reason to suspect discrimination at 

the time of the disputed event; (2) mental incapacity; (3) misleading information or 

mishandling of a charge by the EEOC or State fair employment practices agency; 

and (4) timely filing in the wrong forum. The EEOC explains: 

Sometimes, a charging party will be unaware of a possible EEO claim at the 

time of the alleged violation. Under such circumstances, the filing period should 

be tolled until the individual has, or should have, enough information to support 

a reasonable suspicion of discrimination.49

The EEOC Compliance Manual provides the following examples: 

Example 1.—On March 15, 1997, CP, an African-American man, was notified by 

Respondent that he was not hired for an entry-level accountant position. In FebVerDate Nov 24 2008 16:01 Jun 02, 2009 Jkt 035165 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 S:\DOCS\40669.TXT DENISE
30 

50 Id. 51 Id. 52 42 U.S.C. § 2000e–10; 29 U.S.C. § 627; 29 CFR § 1601.30; 29 CFR § 1627.10. 53 EEOC Compliance Manual, § 2. 54See, e.g., Frazier v. Delco Electronics Corp., 263 F.3d 663, 666 (7th Cir. 2001) (‘‘[w]hen . . . 

the victim of harassment is reasonably induced by the defendant or others to believe that the 

situation has been or is in reasonable course of being resolved, the statute of limitations is 

tolled’’ ); Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 1368 (D.C. Cir. 1998) 

(‘‘an employer’s affirmatively misleading statements that a grievance will be resolved in the employee’s favor can establish an equitable estoppel’’ (emphasis in original)); EEOC v. Ky. State 

Police Dep’t, 80 F.3d 1086, 1096 (6th Cir. 1996) (equitable tolling proper where employer failed 

to post required ADEA notices and employee was unaware of his rights); Dring v. McDonnell 

Douglas Corp., 58 F.3d 1323, 1329 (8th Cir. 1995) (equitable estoppel appropriate where employer lulls or tricks plaintiff into letting the EEOC discrimination filing deadline pass); Ander- son v. Unisys Corp., 47 F.3d 302, 307 (8th Cir. 1995) (misleading letter from Minnesota Department of Human Resources justified equitable tolling); Oshiver v. Levin, Fishbein, Sedran, & Ber- man, 38 F.3d 1380, 1387, 1392 (3d Cir. 1994) (automatic extension of length of tolling period 

justified where employer’s deceptive conduct caused untimeliness); Rhodes v. Guiberson Oil 

Tools Div., 927 F.2d 876, 880–81 (5th Cir. 1991) (timeframe should be extended under equitable 

estoppel theory because employer misrepresented facts about discharge by indicating that employee was being terminated due to reduction in force and would potentially be rehired, and 

failed to disclose that it was replacing him with younger individual at lower salary); Cada v. 

Baxter Healthcare Corp., 920 F.2d 446, 450–51 (7th Cir. 1990) (terminated older worker who 

had no reason to suspect discrimination until younger worker replaced him given a reasonable 

period of time to file charge); Felty v. Graves-Humphreys Co., 785 F.2d 516, 520 (4th Cir. 1986) 

(limitations period may be extended because employer’s misconduct caused employee to delay 

filing a discrimination complaint); Leake v. Univ. of Cincinnati, 605 F.2d 255, 259 (6th Cir. 

1979) (filing period should be extended because plaintiff and defendant agreed not to use time 

ruary 1998, more than 300 days later, CP learned that the selectee, a white woman, 

was substantially less qualified for the position than CP. CP filed a charge of race 

and sex discrimination on March 15, 1998. The charge would be treated as timely 

because he filed promptly after acquiring information that led him to suspect discrimination. 

Example 2.—On March 1, 1997, CP, a 55-year-old woman, learned that she was 

denied a promotion in the Office of Research and Development, and that the position was awarded to a 50-year-old man with similar qualifications. She subsequently 

applied for another promotion opportunity in the same office, and was notified in 

January 1998 that the position was awarded to a 35-year-old woman with similar 

qualifications. The second rejection prompted CP to suspect that she was being discriminated against because she was an older woman, and she filed a charge 5 weeks 

later, in February 1998. Tolling should apply, and she can challenge both promotion 

denials.50

Like the doctrine of equitable tolling, the doctrine of equitable estoppel also permits the charge-filing period to be extended. This doctrine applies when any delay 

associated with the filing of a charge is attributable to active misconduct by an employer, union, or other respondent that is intended to prevent timely filing. For example, the charge-filing period can be extended when an employer or union conceals 

or misrepresents facts that would support a charge of discrimination. The chargefiling period may also be tolled or extended when an employer or union lulls the 

alleged victim ‘‘into not filing a charge by giving assurances that relief would be provided through internal procedures.’’ 51

Additionally, the Federal antidiscrimination laws and EEOC regulations require 

employers to post notices about Federal antidiscrimination protections, including the 

timeframes for filing a charge.52 According to the EEOC, when an employer fails 

to post notices that explain these protections and processes, and an individual who 

alleges unlawful discrimination was not otherwise aware of his or her rights, the 

charge-filing period can be extended or tolled. The EEOC provides the following example: 

Example 3.—CP was sexually harassed by her supervisor, leading to her resignation on March 1, 1997. CP contacted Respondent’s human resources department regarding the alleged violations, and was told that Respondent would conduct an internal review. Respondent said that appropriate relief would be provided after the 

completion of the investigation and told CP that she did not have to file an EEOC 

charge until the internal investigation was complete. On February 1, 1998, Respondent notified CP that the investigation was complete and that it had concluded that 

CP was not sexually harassed. CP was dissatisfied with the results of the investigation and filed a charge on March 1, 1998. Under these circumstances, the timeframe 

should be extended, and CP’s charge accepted as timely.53

The Federal courts routinely follow the EEOC’s approach.54

31 

spent to investigate complaint to prejudice complainant with respect to time limitations); Jones 

v. Bernanke, 493 F. Supp. 2d 18, 25–26 (D.D.C. 2007) (employee’s claims not time-barred where 

employer allegedly misled and dissuaded him from contacting the EEOC by falsely promising 

future promotions); Duhart v. Fry, 957 F.Supp. 1478, 1486 (N.D. Ill. 1997) (African-American 

employee did not ‘‘discover his injury’’ for filing period purposes until he learned of promotions 

of allegedly less qualified white employees); Bracey v. Helene Curtis, Inc., 780 F. Supp. 568, 570 

(N.D. Ill. 1992) (equitable tolling appropriate where EEOC letter misstated filing deadline); 

Sarsha v. Sears, Roebuck & Co., 747 F. Supp. 454, 456 (N.D. Ill. 1990) (tolling appropriate 

where State agency improperly rejected charge on jurisdictional grounds). 55Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (2007), Joint Appendix at 103– 

09 [hereinafter ‘‘J.A. atll’’ ]. 56 J.A. at 42–43. 57 J.A. at 233. 58 J.A. at 233. 59 J.A. at 231–32. 60Ledbetter, 127 S. Ct. at 2177 n.10. 61See Ledbetter, 127 S. Ct. at 2171 n.4 (‘‘Ledbetter’s claims of sex discrimination turned principally on the misconduct of a single Goodyear supervisor, who, Ledbetter testified, retaliated 

against her when she rejected his sexual advances during the early 1980’s, and did so again 

in the mid-1990’s when he falsified deficiency reports about her work. His misconduct, Ledbetter 

argues, was ‘a principal basis for [her] performance evaluation in 1997.’ Brief for Petitioner 6; 

see also id., at 5–6, 8, 11 (stressing the same supervisor’s misconduct). Yet, by the time of trial, 

this supervisor had died and therefore could not testify. A timely charge might have permitted 

his evidence to be weighed contemporaneously.’’ ). Accord J.A. at 39–46, 77–82. 

IV. TOLLING DID NOT APPLY IN LEDBETTER

The Court in Ledbetter did not consider whether Ms. Ledbetter’s charge-filing period should be extended, nor did Ms. Ledbetter argue that the Court should extend 

the charge-filing period. The record in the case establishes why. 

In 1982, Ms. Ledbetter filed a charge of discrimination in which she alleged that 

her supervisor had sexually harassed her.55 Goodyear and Ms. Ledbetter settled the 

dispute without litigation shortly after Ms. Ledbetter filed her charge.56

Years later, during litigation, Ms. Ledbetter testified that ‘‘[d]ifferent people that 

I worked for along the way had always told me that my pay was extremely low.’’ 57

She explained that she knew by 1992 that her pay was lower than her peers and 

that she learned about the amount of the difference ‘‘probably about 1994 and 

1995.’’ 58 In 1995, she spoke with her supervisor about her pay: ‘‘I told him at that 

time that I knew definitely that they were all making a thousand at least more per 

month than I was and that I would like to get in line.’’ 59

Ms. Ledbetter did not file a charge in 1992, 1993, 1994, 1995, 1996, or 1997. Instead, she waited until July 21, 1998 to file the charge that gave rise to the Supreme Court’s decision. Her 1998 charge sought to challenge each pay decision that 

occurred during her 19 years of employment at Goodyear. 

Because Ms. Ledbetter ‘‘knew definitely’’ that her pay was lower than her peers 

several years before she filed a charge, she could not and did not assert that the 

charge-filing period should be extended. The Court therefore declined to consider 

whether to extend the charge-filing period.60

A timely charge would have enabled the EEOC and Goodyear to investigate the 

allegations and, as occurred when Ms. Ledbetter filed her 1982 charge, to resolve 

the matter promptly. The delay had real consequences: Ms. Ledbetter’s case dragged 

on for nearly 10 years, and the supervisor accused of sexual harassment in 1982, 

and who later evaluated Ms. Ledbetter’s work and affected her pay, was dead by 

the time the case went to trial.61

V. THE PROPOSED FAIR PAY RESTORATION ACT WOULD NOT BE IN THE BEST INTEREST

OF THE AMERICAN PEOPLE

The Fair Pay Restoration Act would require the EEOC to investigate events that 

happened years or decades before anyone files a charge, would force respondents to 

implement incredibly costly recordkeeping or lose the ability to mount a defense, 

and would create unanticipated and potentially limitless monetary penalties for 

State and local governments, unions, employers, and others covered by the Federal 

antidiscrimination laws. The bill may also create unforeseen and unanticipated liability for pension funds. 

1. EEOC Process. For more than four decades, the EEOC has used its authority 

to receive and investigate charges of discrimination, and to settle disputes through 

conference, conciliation, and persuasion. The EEOC’s ability to do so has come about 

because the charge-filing period and notice requirements mandate prompt investigations, prompt responses, and prompt resolutions of charges. The Fair Pay Restoration Act would sweep away this time-tested enforcement scheme because it would 

32 

62 29 CFR § 1602.14. Title VII and Americans with Disabilities Act regulations require personnel records to be maintained for 1 to 2 years. See 29 CFR §§ 1602.21 (apprenticeship programs); 1602.28 (labor organizations); 1602.31 (State and local governments); 1602.40 (schools); 

1602.49 (institutions of higher learning). Other statutes enforced by EEOC contain similar recordkeeping and record-preservation requirements. See, e.g., 29 CFR §§ 1620.32(c) (Equal Pay 

Act); 29 CFR §§ 1627.3 to 1627.5 (Age Discrimination in Employment Act). 63Fair Pay Restoration Act, S. 1843, 110th Cong. § 3(a) (2007). 64 Id. § 3(b); 42 U.S.C. § 1981a (compensatory and punitive damages); 29 U.S.C. § 626(b) (back 

pay and liquidated damages). 65Fair Pay Restoration Act, S. 1843, 110th Cong. § 2(4) (2007). 

remove, completely, any requirement that alleged discrimination be dealt with swiftly. By eviscerating the charge-filing period, the Fair Pay Restoration Act would require the EEOC to conduct investigations into events that happened decades before 

anyone filed a charge, despite the absence of records. Witnesses’ memories will be 

faded. Some witnesses may be missing. Others, as in Ledbetter, may be dead. 

2. Recordkeeping. EEOC regulations require State and local governments, unions, 

employers, and others to preserve records for up to 2 years ‘‘from the date of the 

making of the record or the personnel action involved, whichever occurs later.’’ 62

The Fair Pay Restoration Act would require any entity accused of discrimination to 

make a dreadful choice: preserve records in perpetuity or lose the ability to defend 

against a charge that challenges decades-old employment decisions. The cost of perpetual recordkeeping would be enormous, and, in the case of public employers, 

would add to the taxpayers’ burden. The alternative is not better: a decision to forego such recordkeeping would render respondents incapable of responding. And, even 

if such records exist, the problem of faded memories and missing witnesses would 

invariably accompany any challenge to long-ago personnel decisions. 

3. Limitless monetary penalties. The Fair Pay Restoration Act is not limited to 

pay. Rather, it repeatedly invokes the phrase ‘‘discriminatory compensation decision 

or other practice’’ and would define an ‘‘unlawful employment practice’’ to occur anytime an ‘‘individual is affected by application of ’’ such a practice.63 The bill contains 

no time limit for any award of compensatory and punitive damages. The bill likewise contains no time limit for back pay and liquidated damages that may be recovered under the Age Discrimination in Employment Act.64 If enacted, then, the Fair 

Pay Restoration Act would subject State and local governments, unions, employers, 

and others to potentially unlimited compensatory and punitive damages, back pay, 

and liquidated damages. 

4. Pension benefits. The Fair Pay Restoration Act contains a provision about pension benefits: ‘‘Nothing in this Act is intended to change the law in effect as of May 

28, 2007, concerning the treatment of when pension benefits are considered paid.’’ 65

May 28, 2007 is the day before the Supreme Court announced its decision in 

Ledbetter. By citing this date, the bill seems to assume that Ledbetter changed existing law about pension benefits. But, Ledbetter did not even mention pension benefits, and it did not change the law about pension benefits or anything else. Furthermore, the remaining sections of the bill do not exclude or exempt pension benefits, 

so the bill may be construed to apply to pension benefits. This may have the affect 

of exposing pension funds to unanticipated and potentially staggering liability. 

I look forward to your questions. Thank you. 

The CHAIRMAN. Thank you very much. Let me start off with Mr. 

Bagenstos. What is your reaction to this perpetual bookkeeping, 

witnesses losing their memories and dying, all of the burdens that 

this is going to place on companies? What is your response to that? 

Mr. BAGENSTOS. I think there are a couple of points there. I 

mean, No. 1, is the point that there are all sorts of reasons why 

even under the discovery rule, which the opponents of this bill are 

suggesting are equitable tolling, equitable estoppel, employers 

would be, as a practical matter, required to keep records for a very 

long time anyway. Because they don’t know under discovery rule 

when a claim is going to be brought against them. Their recordkeeping requirements under the existing decision in Amtrak v. 

Morgan, the U.S. Supreme Court decided in 2002, right, there are 

various kinds of discrimination that form a continuing violation 

and can sweep in earlier acts, which have to be proven. And so, I 

think that the claim is overstated. 

33 

It is also true that if there really is a problem for employers here, 

then in an individual case, they can go to a court and say because 

we were prejudiced by the delay and it was the employee’s fault in 

waiting to bring the suit, we can get the case dismissed against us. 

That is the laches defense, which has been recognized by the U.S. 

Supreme Court many times. 

So I think given the absence of any evidence that there was a 

problem for employers under the very, very broad agreement in the 

circuits that the paycheck accrual rule applied before Ledbetter, I 

don’t think it is a significant issue. 

The CHAIRMAN. Well, my own sense, it is in the interest of the 

person that has been aggrieved to bring the case quickly because 

they don’t want to lose all the evidence as well. I mean, common 

sense would seem to me that rather than waiting and waiting and 

waiting to try and see that they may be able to recover, common 

sense would say if they find out that they have been aggrieved, 

they would like to get some resolution of it and get it done in a 

timely way. But I might be wrong. 

Ms. Ledbetter, let me ask you why you have devoted so much 

time and effort and energy to working to pass this legislation. Why 

do you think it is so important? 

Ms. LEDBETTER. I believe it is so important to the people out 

there. I first thought that this was just a southern problem because 

I was born and reared in Alabama and never lived anywhere else. 

But I have heard from women and minorities from all over the 

country. And since I have received so much publicity about the 

case, and my picture has been in different publications, I have been 

recognized. And people will reach out to me in department stores, 

grocery stores or wherever I might be, begging me to keep after 

this to try to help get it through. 

And as you know, being the Chairman of this committee, this 

will not do me any good. I will not get anything from this. My time 

is over. But it is important for the minorities that are out there 

being treated like this in the workplace today. 

If I might, could I clarify a couple of things that I have heard 

from—— 

The CHAIRMAN. Sure. 

Ms. LEDBETTER. One thing, he referred to the 1982 case. That is 

exactly right. I had to file a case, a charge in 1982 because I was 

told by my direct supervisor that if I didn’t sleep with him, I would 

not work at Goodyear. Well, at that time, I had two children in college. I filed—I called EEOC. I got a charge filed, protected my job. 

The agreement was that when I received the right to sue, I didn’t 

want to sue. All I wanted was a job and be treated fair. So I took 

my old job back. They separated the two of us, and I went on with 

my career and that was it. 

Then in late 1990s, at the end of my career, the same man became the auditor, not a supervisor. He was not my immediate supervisor, but he was an auditor in my department, where he persistently gave me and my department bad ratings, which were not 

true. And then I retired in 1998, after this case was filed with 

EEOC, and I had started on the way with it. 

Then he retired much later, and he didn’t die until about just 

prior to us going to trial. So if Goodyear had been interested in getVerDate Nov 24 2008 16:01 Jun 02, 2009 Jkt 035165 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 S:\DOCS\40669.TXT DENISE
34 

ting his information, they knew that I had filed a charge in 1998, 

and they had a copy. They could have pursued that at that time. 

The man dying had nothing to do with them not being prepared. 

The CHAIRMAN. Let me just—it has been claimed you raised the 

possibility of discrimination early as 1992. Did Goodyear stop discriminating against you 1992, 1993, 1994, 1995, 1996, 1997, or 

1998? 

Ms. LEDBETTER. No, sir. No, sir, it did not. In fact, and how this 

suspicion came about, we first-line supervisors were paid time and 

a half, double time, triple time. And in a factory like the tire plant 

in Gadsden, AL, we worked 12-hour shifts. There were four crews. 

And if my counterpart had a heart attack, that meant that I had 

to work my shift and his, too, or at least half of it. So that meant 

that I was working 12 hours, plus 6 hours of his. 

And there were often many, many, many months that I worked 

12-hour shifts, which I was required to be there an hour before 

shift and stay 2 hours or longer afterwards, and work his. And 

there was not much time left. But that is what I did. 

So, when I heard some of my male peers bragging, that was 

splitting a shift of overtime with me, that they made something 

like $20,000, and I am looking at mine and mine is $4,000, I know 

there is something wrong. But I don’t have any proof. I don’t even 

know if what they are saying is true or not. 

So what the gentleman on the end referred to, the suspicions in 

the early 1990s all the way up, and when I was evaluated, I continued to talk to my bosses. ‘‘What do I need to do?’’ I need to get my 

pay up because I know that my retirement, which is coming in a 

few years, is based on what I earn, as well as the Social Security. 

‘‘What do I need to do? Where can I improve?’’ And I never received 

a response. 

The last person that I worked for—I have lost my way in saying that I felt like I knew the men were making at least $1,000. But 

you can see how far out of the ballpark I was because when we 

started preparing for trial, I learned that most of them were making $5,000 a month. And you can imagine how much overtime— 

when it gets involved, and you are making that time and a half, 

double time, and triple time—how much money a person can lose. 

The Goodyear retirement is based on what I earned. The contributory that I had signed up for was based on what I earned. The 

401(k), I could put in 10 percent of what I earned and they would 

match it with 6 percent stock. Well, you can see how much money 

I could lose with that. And then when I signed up for retirement, 

Social Security is less. 

But there is no way that I would have ever, ever waited. I would 

have wanted that time and a half and that overtime. And I would 

like to say to this committee, and I am sure these ladies recognize 

this, and many in the room, there is no way anybody wants to go 

through a trial and filing a charge. That is the last thing you want. 

The CHAIRMAN. Senator Isakson. 

Senator ISAKSON. Well, thank you, Mr. Chairman. As I said in 

my opening remarks, none of us, especially me, tolerates discrimination of any type. And I have great empathy for the testimony 

and the circumstances and the events through which Ms. Ledbetter 

has gone. 

35 

I do think, however, there are important issues in her case that 

ought to be a part of the record. And just in the interest of what 

you are trying to do here, and that is full discovery, I would ask 

unanimous consent that the record of that case and its appendices 

be entered in the record with this testimony. 

The CHAIRMAN. So ordered. 

[Editor’s Note: Due to the high cost of printing, previously published material is not reprinted in the record. It can be found at: http:// 

www.supremecourtus.gov/opinions/06pdf/05–1074.pdf. The joint appendix 

can be found at: http://suprem.lp.findlaw. com/supremelcourt/briefs/05– 

1074/05–1074.mer.joint.app.pdf]. 

Senator ISAKSON. I don’t want to get into re-debating that, but 

I have to ask the two attorneys a question. I just love it when two 

attorneys side by side are there. Both of you, by the way, did 5 

minutes on the spot, just like you had internal clocks. I couldn’t believe it. 

But let me ask on the discovery rule, equitable tolling, or the estoppel—I am not an attorney, but I heard those three interchangeable phrases. I will start with you, Mr. Bagenstos. Why would that 

not have applied in the case of Ms. Ledbetter? 

Mr. BAGENSTOS. Well, there are a couple of reasons why any of 

them might not be an effective way of prosecuting. I am sorry. 

Might not be an effective way of prosecuting pay discrimination 

claims. And so, the different rules have different requirements. 

The discovery rule says when you knew or should have known 

of your injury, you had to file a lawsuit. A couple of problems with 

that. One problem with that is, of course, someone might know of 

their injury, but not know that they are being paid differently. It 

might be hard. But they might know they are being paid differently, but not know that it is because of discrimination. And 

there are lots of reasons why, with such little at stake, you 

wouldn’t want to file a charge against your employer if you didn’t 

know it was discriminatory. 

Also if you look—and in my written testimony I have some, I cite 

some studies of this. If you look at the way lower courts have dealt 

with the question of what an employee knew or reasonably should 

have known or did or reasonably should have done, there is a great 

deal of emphasis in the cases on really trying the victim and working very hard to see did the victim pursue her rights in a very fast 

way? 

As we see, though, it is just the normal practice. It is the normal 

case in pay discrimination cases that it is hard to know. It is hard 

to pursue quickly. It is hard to know it is discrimination. So I don’t 

think that works very well. 

Equitable estoppel, equitable tolling, the basic problems there 

are very similar, right? You have this long discussion of the employer’s conduct after the alleged discrimination. That is taking 

time. That is taking money. That is taking resources away from 

trying the discrimination claim. 

And I guess the ultimate thing I would say is I understand why 

employers might want a discovery rule or equitable estoppel or equitable tolling as opposed to the paycheck accrual rule because they 

might be able to knock out more cases. But it seems to me that the 

employers’ legitimate interest here is an interest in repose. It is not 

36 

an interest in knocking out meritorious cases, and repose is better 

served by the predictable rule of paycheck accrual. 

Senator ISAKSON. Mr. Dreiband. 

Mr. DREIBAND. Well, I respectfully disagree with Professor 

Bagenstos. 

Senator ISAKSON. Do it in about a minute, if you can. 

[Laughter.] 

Mr. DREIBAND. I will. The reason, if I understood, Senator, your 

question, that equitable tolling or any other discovery rule, theory, 

or anything like that did not apply in Ms. Ledbetter’s case was because her lawyer said it wouldn’t change the outcome of the case 

because the record in the case and the record as presented to the 

U.S. Supreme Court of the United States indicated that Ms. 

Ledbetter knew about the pay disparities several years before she 

filed the charge. And, in fact, the way they framed the question 

presented in the case, they assumed that all of the discriminatory 

decisions were made outside of the charge-filing period. 

Senator ISAKSON. On that point, and this is the question I want 

to ask. And let us remove Ms. Ledbetter’s case for a second and assume it was a case with the same circumstances except that there 

wasn’t a record of prior notice. Would the discovery, equitable tolling, or the estoppel rule allow you to go beyond the 180 days and 

file the case? 

Mr. DREIBAND. Potentially, yes. The EEOC standard, for example, says that any time a person who alleges unlawful discrimination ‘‘was understandably unaware of the EEO process or of important facts that should have led him or her to suspect discrimination, the charge-filing period can be extended.’’ That is the standard EEOC has endorsed. It is the standard that several Federal 

courts have endorsed that I have cited in my written testimony. 

Senator ISAKSON. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Mikulski. 

Senator MIKULSKI. Thank you, Mr. Chairman. Ms. Ledbetter, 

and then Ms. Dorfman, the same question. Ms. Ledbetter, you have 

talked about the chronology from filing a case in 1982, 3 years 

after you went to work at Goodyear on a sexual harassment case 

at EEOC. And then later on, of course, the now-famous pay discrimination. 

Could you tell me what you faced in doing this, just as a woman? 

Here you are, you are married. As you said, you had two kids in 

college. You had gone to work for a national, and even a global 

company. I bet it seemed pretty good in Alabama to have a job with 

Goodyear? 

Ms. LEDBETTER. Yes, ma’am. 

Senator MIKULSKI. There maybe weren’t a lot of jobs in your 

area. But when you embarked upon this, what did it take to do 

that? And what did it cost you not only financially, but what were 

the consequences? 

Were you ostracized by your employees? Were you further 

blacklisted? What happened? Because I think when we talk about 

frivolous lawsuits and the like that everybody is going to run to do 

this, could you tell us the cost, including the financial one? You 

were obviously a lady of modest means. You had significant family 

responsibilities. Could you share that with us? 

37 

Ms. LEDBETTER. Yes, ma’am. I would be grateful to, and I do appreciate that opportunity. Because in 1982, the reason I filed that 

charge, and I had—from day one walking into that factory, there 

were lots of sexual discrimination remarks, treatment, and I was 

separated from the peers that I had. But in 1982, the boss that I 

had continually discussed my underwear, whether or not I had 

worn a bra to work that day or if we were going down to the motel 

that afternoon and that I would be his next woman. 

Well, I tolerated all of that until he got sort of put out with me. 

And he said, ‘‘When our boss gets back’’—he was on a trip—‘‘I will 

get your job.’’ 

Senator MIKULSKI. Tell me then, obviously, you were subjected to 

very vulgar—— 

Ms. LEDBETTER. Oh, yes. Oh, yes. 

Senator MIKULSKI. And in these situations, I think people don’t 

realize when a woman is subjected to this, this is verbal violence. 

This is an assault. It is designed to humiliate and degrade. 

Ms. LEDBETTER. Right. 

Senator MIKULSKI. Now having said that, though, you went to 

EEOC. Did you have to hire a lawyer? 

Ms. LEDBETTER. Yes, I did. Yes, I did. 

Senator MIKULSKI. What was the financial cost to you in undertaking the claim? 

Ms. LEDBETTER. Yes, ma’am, I did. I had to hire an attorney. It cost me $6,000 just for the day to go. He went with me to EEOC, 

to the hearing, and Goodyear got found that they were in violation 

of several of the title VII regulations during that. 

Senator MIKULSKI. OK. So it cost you $6,000 to do that? 

Ms. LEDBETTER. Yes, ma’am. 

Senator MIKULSKI. And that came out of your own pocket? 

Ms. LEDBETTER. Yes, ma’am. 

Senator MIKULSKI. So you didn’t have a big corporation, a legal 

defense fund, a union—— 

Ms. LEDBETTER. No. No. 

Senator MIKULSKI [continuing]. To help you with this. You took out of your savings $6,000 because it was so important to you. 

Ms. LEDBETTER. That’s right. 

Senator MIKULSKI. Six-thousand dollars. And what were you 

making at the time? 

Ms. LEDBETTER. At that time, I was making about $1,800 per 

month. 

Senator MIKULSKI. So how much was that a year? 

Ms. LEDBETTER. Well, it depended on the overtime, probably 

roughly in any good year—— 

Senator MIKULSKI. It was under $24,000? 

Ms. LEDBETTER. Yes, ma’am. Yes, ma’am. 

Senator MIKULSKI. So you took 25 percent of your pay to go protect your dignity and seek redress under the law. Now when you 

did that, was it then common knowledge at Goodyear that you did 

that? 

Ms. LEDBETTER. Absolutely. In fact, the union people that I was 

supervising turned against me because the word had been passed 

on the floor that I had sued Goodyear, which filing a charge and 

suing is two different things. But then what happened was the salVerDate Nov 24 2008 16:01 Jun 02, 2009 Jkt 035165 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 S:\DOCS\40669.TXT DENISE
38 

ary people in every area, in quality control or scheduling or whatever, they were told do not speak to Ledbetter. Do not talk to 

Ledbetter, and we’re going to get rid of her as soon as we can. 

And also they were promised—in some instances, some of the 

women were promised promotions to go testify against me when 

the company did the investigation. 

Senator MIKULSKI. Now is this on pay discrimination or sexual 

harassment? 

Ms. LEDBETTER. That was the sexual harassment. That was 

when I was trying to protect my job. 

Senator MIKULSKI. And did you continue to be subjected to these 

violent, vulgar—— 

Ms. LEDBETTER. Oh, yes. Yes, yes, the men would cuss—— 

Senator MIKULSKI. Did anybody in that environment essentially 

offer any support to you? 

Ms. LEDBETTER. Not very many. Not very many. 

Senator MIKULSKI. What about other women? 

Ms. LEDBETTER. No. No, they were afraid to associate themselves 

with me because it would in some way harm their careers. In fact, 

I had one shift foreman that when he would—I worked night shift. 

When he came in in the morning, he said, ‘‘Goddamn, Lilly, your 

department looks like a whorehouse.’’ Well, what my response was, 

‘‘I have never been in one. I don’t know what one looks like. And 

what do I need to do to improve it?’’ Now those are the kind of 

things that I had to deal with day in and day out. 

Senator MIKULSKI. My gosh. 

Ms. LEDBETTER. And I tolerated it. 

Senator MIKULSKI. I am sure everybody is just going to run down 

and file these lawsuits. Second, so now you have won this case. 

When did you file your pay discrimination case? 

Ms. LEDBETTER. Three days after someone left me a note in my 

box. 

Senator MIKULSKI. What year? What year? 

Ms. LEDBETTER. 1998. 

Senator MIKULSKI. So you survived at Goodyear for 19 years. Did 

you feel blacklisted in terms of promotion and did you continue to 

be punished? 

Ms. LEDBETTER. Oh, yes. Yes. 

Senator MIKULSKI. Then in 1998—may I ask how old you are and 

were then? 

Ms. LEDBETTER. Then? I was 60. Sixty-years-old. I’m 69, will be 

70 in March—excuse me, April. I don’t even remember my birthday. 

Senator MIKULSKI. No, believe me, I can appreciate it. Why? Because we are both women of a certain age, and we have come out 

of this generation in the workplace. And we have modernized our 

technology, but we have not modernized our thinking. And we sure 

in heck have not modernized our laws. And I think we need to be 

as modern as our technology. 

So having said that, when you filed your case in 1998, again, and 

all the way up to the U.S. Supreme Court, this was a pretty expensive undertaking? 

Ms. LEDBETTER. Yes, ma’am. 

Senator MIKULSKI. And you lost it all? 

39 

Ms. LEDBETTER. I lost it all. 

Senator MIKULSKI. So you were awarded $3 million. Then the 

statutory cap against this because, God knows, frivolous lawsuits, 

capped it at $300,000. 

Ms. LEDBETTER. That is right. 

Senator MIKULSKI. Kind of in the same way we have caps on 

medical malpractice. 

Ms. LEDBETTER. Right. 

Senator MIKULSKI. Now again I am going to ask you, do you belong to a union? 

Ms. LEDBETTER. No, ma’am. I was salaried. We did not have a 

union. 

Senator MIKULSKI. OK, I understand. Because sometimes women 

who belong to a union get legal advice to be able to move along the 

lawsuit. So you paid this out of your own pocket? 

Ms. LEDBETTER. Yes, ma’am. But in this case, I did not have any 

money. So what I did, I found an attorney that would accept my 

case with a—— 

Senator MIKULSKI. Contingent? 

Ms. LEDBETTER. That is right. And then, but his firm and I both, 

we have a lot of money out of our pocket, traveling to and from, 

printing costs, a lot of costs. I have had enormous cost in this, and 

I have a cost of being here today. Even though I have support from 

organizations to help me travel, I still have money out of my pocket. This is not a freebie for me. 

Senator MIKULSKI. So Goodyear had their firm. Goodyear had 

their expenses. Goodyear had their lawyers. Goodyear had everything, including the U.S. Supreme Court, on their side. Now when 

the Goodyear lawyers come, they charge it as an expense account, 

etc. 

Ms. LEDBETTER. That is right. 

Senator MIKULSKI. So, really, the odds are stacked against filing 

a suit. 

Ms. LEDBETTER. Yes. Yes. 

Senator MIKULSKI. Well, I think that is very, very telling, and I 

know my time is up. But I think when we look at this; we have 

to look at it from what it takes to do this—the financial cost, first 

of all. The second, the psychological cost. 

And I’m sure this affected your family—— 

Ms. LEDBETTER. Yes. 

Senator MIKULSKI [continuing]. Your children, and so on? 

Ms. LEDBETTER. Yes. 

Senator MIKULSKI. Were they subjected to harassment when they 

went to school, or were they older? 

Ms. LEDBETTER. They are older. But my daughter was harassed 

when she was a senior in high school. Her guidance counselor told 

her that she shouldn’t be taking pre-med because women couldn’t 

make doctors. 

Senator MIKULSKI. But was she harassed because of what you 

did? 

Ms. LEDBETTER. No, I don’t think so. 

Senator MIKULSKI. Because you were in a company town, weren’t 

you? 

40 

Ms. LEDBETTER. That is right. I was in a different town. And she 

went to school in Jacksonville, AL, and I was in Gadsden, 25 miles 

separate. 

Senator MIKULSKI. Well, I don’t want to probe any more into 

your personal matters. But again, I just want to thank you for 

what you have done. This is not just about helping you. 

Ms. LEDBETTER. Right. 

Senator MIKULSKI. It is about helping the many. And I just 

wanted to outline not only the difficulty in knowing what wages 

and all are, which Ms. Dorfman and our fine dean has done, but 

what it takes to do this. And obviously, you are a woman of great 

grit, and I just want to thank you for being so willing to share 

these details. And we are going to do something about this. 

Ms. LEDBETTER. Thank you. Thank you. It took a lot of grit to 

go into that factory and work, too. But it was a good job. I liked 

it. I was good at it. And I had hoped to make a really good career, 

and I always believed that like the old westerns, that if you continued to do what you were supposed to do, that you would be recognized. 

Senator MIKULSKI. And I appreciate that. We had Goodyear in 

the western part of my State that is very close to Appalachia. It 

was a great place to work. 

Ms. LEDBETTER. Oh, it is. It is. A great company. 

Senator MIKULSKI. You know, in our State, that offered an alternative to going down into the coal mine, which was quite dangerous. But, you know, you should not have to swallow your pride 

or face ugly discrimination in our country in order to have a job. 

And I want to thank you and look forward to passing this bill. 

Ms. LEDBETTER. Thank you. I would like to say that I made the 

choice to go to Goodyear because I did a lot of research and interviewed with them. But when I went to Goodyear, I was a district 

manager for H&R Block, Inc. in the Anniston area, managing 14 

locations for them. So it wasn’t like, you know, this was my only 

choice. It was a choice that I made based on researching the company and going, you know, to the two companies and making the 

decision. And I felt like the future was better and brighter going 

to work for them. 

Senator MIKULSKI. Thank you. 

The CHAIRMAN. Thank you. Senator Harkin. We have been joined 

by Senator Harkin. You have had a great interest in this issue and 

question, and we are glad to have you here. 

Senator HARKIN. Thank you, Mr. Chairman. I apologize for being 

here a little late and not getting the testimony, although I read 

them all. 

Well, Ms. Ledbetter, I like you. You appear to me to be a person 

of real grit. 

Ms. LEDBETTER. Thank you. Thank you. 

Senator HARKIN. And I like that. I think what happened to you 

and this testimony today and the whole case, what it really brings 

back to us is that discrimination based on sex is still deeply embedded within the American society, and anyone that thinks it is not 

has got their head in the clouds. It is like Justice Ginsburg said, 

this decision doesn’t recognize the real world that is happening out 

there to so many people. 

41 

Now I really only have one question, but it is going to lead me 

into something else. Ms. Ledbetter, let me ask you this, would it 

have made any difference in your case if the pay levels of various 

job categories—not attaching personal data, not what everybody 

makes, but if Goodyear had published, here are the job categories 

for managers in this level, managers in that level, and here are the 

pay levels—if that had been provided to you in an open format, 

would that had made any difference? In other words, do you think 

that the existence of such information might have discouraged your 

employer from paying you a vast different salary than your male 

counterparts? 

Ms. LEDBETTER. Yes, sir. It would have made a tremendous difference because through the years, when the cost of living went up, 

they would adjust the bottom and the middle and the maximum 

amount. And I continually, in trying to pursue to get my income 

raised before retirement and asking about the money, how I stood, 

where I rated, they never told me. I could not even find out what 

the bottom and the top figures were, or the middle. And when my 

attorney and I were preparing for trial is when I saw the shocking 

news of where I stood. 

Senator HARKIN. Mr. Chairman, I just ask that my opening 

statement be made a part of the record. 

But I am going to read just a portion of it, and this is why I was 

getting to this question. 

As Justice Ginsburg said, this decision is totally out of touch 

with the real world and the workplace. In the real world, pay 

scales are kept secret. Employees are in the dark about their coworkers’ salaries. So lacking such information, it is difficult to determine when pay discrimination begins. 

Furthermore, a small pay gap that may not seem significant 

tends to widen over time, as you pointed out, because of cost of living adjustments and things like that. They can widen. And they 

only become noticeable when there is a systemic discrimination 

over a long period of years. 

So what this means is that once the 180-day window for bringing 

a lawsuit is past, the discrimination gets grandfathered in. This 

creates, I think, a free harbor for employers who have paid female 

workers less than men over a long period of time. Basically, it gives 

the worst offenders a free pass to continue their gender discrimination. 

Ledbetter v. Goodyear was a bad decision. I am pleased we are 

moving forward with this legislation to establish that the unlawful 

employment practice under the Civil Rights Act is the payment, 

not just the setting of a pay level. 

Now, with all deference to my Chairman, this is a good start. But 

I think it is still not enough. As long as pay scales are still kept 

secret, if there is not transparency, how can women know if they 

are being discriminated against? That is why we also need to pass 

the Fair Pay Act, which I re-introduced last April for the 10th year 

in a row. Now this is not the Paycheck Fairness Act. I am not talking about that. I am talking about the Fair Pay Act, which would 

require that employers would provide equal pay for equivalent jobs. 

It also requires disclosure of pay scales and rates for all job categories at a given company without disclosing individual pay levels. 

42 

That way, women would have the information they need to identify 

discriminatory pay practices and negotiate better for themselves. 

Which in the end, obviously, would reduce the need for litigation. 

So, again, unless and until we make it unlawful to keep this secret—now again, I am not saying that you have to tell what every 

single person makes. But categories, every company has categories. 

All we are asking, just publish those out there. Then people know 

where they fit and whether or not they are being discriminated 

against. So, again, I think this has been 10 years now we have 

been trying. We have had a lot of support for the Fair Pay Act from 

a lot of sectors. But people get it confused with the Paycheck Fairness Act, quite frankly. Those are two separate issues. Two separate issues. The Fair Pay Act is just what I said. It is to provide 

that kind of information and disclose those pay things and to require equal pay for equivalent jobs. 

I had one example here. I thought I had. Yes. I guess, Ms. 

Dorfman, you have testified either before my committee or someplace down here before. But for all of you, here is an example that 

Dr. Philip Cohen, in front of a hearing that I co-chaired last spring, 

Dr. Philip Cohen from UNC—I guess that is the University of 

North Carolina—raised the following example. 

There are 1.1 million nurse aides in this country, 2.5 million 

truck drivers. The nurse aides have more education on average, 

with 38 percent having at least some college training compared 

with 19 percent of truck drivers. Both groups’ average age is 43. 

Both do work that requires ‘‘medium’’ amounts of strength, and 

nursing aides require more on-the-job training to perform their duties. And yet those nurse aides, 89 percent of whom are women, 

have median earnings of only $20,000 per year. That’s 57 percent 

of the median earnings of truck drivers, 97 percent of whom happen to be male. That is what we are talking about. 

This is deeply embedded in our society, very deeply, and it is 

time—through the progress of civil rights and equal rights, it is 

time that we put this one to bed and get over it. Segregation, promoting wage inequality, that is what it is. And it is time to end 

it. And I think that your case, Ms. Ledbetter, really brought it 

home to everybody and the decision by this wayward court, I think, 

brought home that fact that we have got this kind of discrimination. 

So, again, I think this legislation is necessary. I hope we can 

move it, Mr. Chairman. I hope we can pass it as fast as possible. 

But unless and until women know what those pay categories are 

out there, how are they going to know? And they shouldn’t have 

to wait 10 years, 15 years to go back and try to recoup something. 

It ought to be done right away. 

I thank you, Ms. Ledbetter, for your courage, your grit, for doing 

what you did and bringing it home to all Americans just what is 

happening in the real world of the workplace. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Harkin follows:] 

PREPARED STATEMENT OF SENATOR HARKIN

It is astounding to me that, in the 21st century, women are paid 

only 77 cents for every dollar their male counterparts are paid. A 

43 

Government Accountability Office study found that 20 percent of 

that wage gap could not be explained by factors other than discrimination. 

Of course, the Civil Rights Act outlaws such gender discrimination. But, the Supreme Court’s 5–4 verdict in the case of Ledbetter 

v. Goodyear Tire & Rubber Co., made it extremely difficult for 

women to go to court to pursue these pay discrimination claims— 

even in cases where the discrimination is flagrant. 

I would especially like to thank Ms. Ledbetter for being here 

today. Opponents of fair pay didn’t know what they were getting 

into by fighting Lilly Ledbetter. She has become a tireless advocate 

for equal pay since she sued her employer for paying her $6,000 

less than her lowest-paid male counterpart. As we all know, the 

Supreme Court held that a person who has been discriminated 

against must file a claim within 180 days of their pay being set, 

even if they were not aware at the time that their pay was significantly lower than their male counterparts. However, Ms. Ledbetter 

hasn’t given up. She’s determined to make sure that we change the 

law so no one else has to endure what she has. 

As Justice Ginsburg said in her forceful dissent, this is totally 

out of touch with the real world of the workplace. In the real world, 

pay scales are often kept secret, and employees are in the dark 

about their co-workers’ salaries. Lacking such information, it is difficult to determine when pay discrimination begins. Furthermore, 

a small pay gap tends to widen over time, only becoming noticeable 

when there is systemic discrimination over a period of years. 

So what this means is that, once the 180-day window for bringing a lawsuit has passed, the discrimination gets grandfathered-in. 

This creates a free harbor for employers who have paid female 

workers less than men over a long period of time. Basically, it gives 

the worst offenders a free pass to continue their gender discrimination. 

Ledbetter v. Goodyear was a bad decision, and I am pleased we 

are moving forward on this legislative solution—to establish that 

the ‘‘unlawful employment practice’’ under the Civil Rights Act is 

the payment of a discriminatory salary, not the setting of the pay 

level. This is a good start, but it’s not enough. If pay scales are still 

kept secret—if there’s not transparency—how can women know if 

they are being discriminated against? 

That’s why we also need to pass my Fair Pay Act, which I reintroduced last April. In addition to requiring that employers provide equal pay for equivalent jobs, my bill also requires disclosure 

of pay scales and rates for all job categories at a given company 

without disclosing individual pay levels. This will give women the 

information they need to identify discriminatory pay practices and 

negotiate better for themselves—which, in the end, could reduce 

the need for costly litigation in the first place. 

I applaud Justice Ginsburg for her powerful dissent in the 

Ledbetter case. But there is a broader issue, here. Justice Samuel 

Alito, who wrote the majority opinion, and Chief Justice John Roberts, who sided with him, are taking the court in a direction that 

cramps and limits the interpretation of our civil rights laws. This 

is just what I predicted when I voted against these two new members of the Court. 

44 

Moreover, there is something unseemly when narrow majorities 

of five male Supreme Court justices are taking away women’s reproductive rights and narrowly interpreting women’s civil rights. 

This is exactly why we need more diversity on the Court—and why 

we need more justices like Ruth Bader Ginsburg, who wrote the 

dissent, and Justices Stevens, Souter and Breyer who also sided 

with Ms. Ledbetter. They need more colleagues who have a genuine 

passion for justice and fairness, especially for those in the shadows 

of American life. 

The CHAIRMAN. Thanks very much, Senator Harkin. I think we 

can certainly tell from your passion about this issue where you 

stand on this question, and I am proud to be a co-sponsor of that 

legislation. I admire you for your perseverance, and we will certainly do what we can to try and deal with that issue. 

Let me get back to some, just a few final questions from my point 

of view. I would like to ask Ms. Dorfman. You are here as a representative of business owners. We usually think about the people 

hurt most by Ledbetter as workers who are victims of pay discrimination. You have talked about how workers aren’t the only ones 

hurt by pay discrimination. Can you explain to the committee how 

pay discrimination can harm business owners who play by the 

rules? 

Ms. DORFMAN. Absolutely. We do see it as a challenge for women 

business owners and a challenge for women, this U.S. Supreme 

Court ruling. Women like Ms. Ledbetter, who has had to go 

through the processes that she has gone through. And then from 

a woman’s business owner perspective, we are those women. We 

left corporate America because of those issues. We started off with 

our own businesses, and when we did that, I noted that we were 

more likely to provide employee benefits than our male counterparts. Well, why is that? Because we have been a victim at some 

point, and we believe in fair practice. 

So what has happened is that as we move forward, when you 

look from a competitive nature, we are providing the compensation 

fairly, fair pay, and we are playing fair as well. And yet, our competitors who are getting away without paying fairly will be able to 

provide goods and services at a lower cost. And so, that will be a 

challenge for our competitive strength. 

Additionally, what we see is that if we don’t remedy this with 

legislation, we will end up in courts doing battle more often. I believe that the first 6 months people aren’t thinking about, ‘‘gee, am 

I being discriminated against?’’ But now that is going to be at the 

top of everybody’s mind. I better do something now because otherwise it won’t count. Regardless of whether they have done their research or not, they will file their claim and they will be doing the 

follow-up research afterwards. And that will also cost the employers or the business owners money as well. 

The CHAIRMAN. We have heard testimony from the Chamber of 

Commerce that the Fair Pay Restoration Act will increase the 

number of pay discrimination cases. So, in your testimony, you 

shared a different opinion. Can you explain to the committee why 

you believe that this legislation won’t increase the number of pay 

discrimination cases and why failing to pass the legislation would 

actually increase the number of cases? 

45 

Ms. DORFMAN. Correct. I really see this act as actually bringing 

us back to the day before the U.S. Supreme Court ruling. And that 

was, you know, of course, we don’t want to get into litigation, and 

we want to be able to continue business and be making money. But 

we know that there has to be some sort of compromise for dealing 

with these issues. There has to be a remedy out there for women, 

and this will open the doors, to minorities, whether it be ageism, 

or a number of other issues. But we have to have a remedy so that 

we can go in and make the claims and make sure that there is fairness in the pay. 

And the original process that we were subject to was very fair 

and a very good compromise. And I think, you know, I go back, and 

Mr. Dreiband, I wonder if we continue without this, and you listed 

a whole number of other issues that we would have to continue to 

address through legislation and that sort of thing. And that sounds 

like it would be more taxpayers’ money rather than just saying let 

us go back to the way it was working. It was working fine for decades. Everybody was in agreement. There was no challenge to this 

prior to this court ruling. 

The CHAIRMAN. Just on that point, let me ask Mr. Dreiband, 

from 2003 to 2005, you served as the general counsel for the Equal 

Employment Opportunity Commission, the Federal agency that 

deals with workplace discrimination. When you were at the commission, the agency calculated the deadline for filing pay discrimination claims from the date of the victim’s most recent discriminatory paycheck. I believe that was the cornerstone of the policy for 

many years even before you joined the agency. 

Of course, that is precisely what this bill would do. So why do 

you now oppose returning to this rule for filing pay discrimination 

claims when the EEOC found it worked so well for so many years? 

Mr. DREIBAND. Well, Mr. Chairman, I don’t oppose returning to 

a rule. I think that there has not been a correct interpretation in 

this hearing of the way the law stood before the Ledbetter decision. 

Let us not forget in the Ledbetter case, the U.S. Court of Appeals 

for the Eleventh Circuit ruled the exact same way in a unanimous 

opinion, as did the U.S. Supreme Court of the United States. And 

there seems to be this notion that the decision in the Ledbetter case 

is some radical departure from both the EEOC’s standards and 

from pre-existing U.S. Supreme Court decisions. It is not. There is 

a consistent line of cases, beginning in the 1970s with the Evans 

decision and repeatedly reaffirmed by the U.S. Supreme Court of 

the United States up as most recently as 2002, before the Ledbetter 

case, and again in 2007, when that decision was issued. 

So it is not that I am opposing some pre-existing rule. Rather, 

what I would say to you and I do say is that the decision is entirely 

consistent with the way the law was before the court announced 

this decision in 2007. 

The CHAIRMAN. Well, I just want to point out, as I understand 

that when the Ledbetter case was actually appealed to the U.S. Supreme Court, the agency declined to join the Justice Department’s 

brief asking the court to overturn the old rule. 

Mr. Bagenstos, what is your understanding of what the old rule 

was and what our legislation is? 

46 

Mr. BAGENSTOS. I think, with respect, I will disagree with Mr. 

Dreiband about what the rule was. The only pay discrimination 

case the U.S. Supreme Court ever decided before Ledbetter was 

Bazemore v. Friday, which explicitly said every paycheck that incorporates the past discrimination is a violation of title VII. All the 

other cases which involve different settings, not pay discrimination, 

you know, you can make an argument—I think Justice Ginsburg 

makes a persuasive argument that Bazemore is the case that is on 

point, the only pay discrimination case. 

It is also true that the EEOC, we have heard about the EEOC’s 

position here, we should adopt the EEOC’s view of equitable tolling. And Senator Kennedy, you point out the EEOC’s position, at 

least prior to the Ledbetter case, had two halves. Equitable tolling 

was part of it, but also the paycheck accrual rule, right? And that 

is the position that the EEOC took internally, that the EEOC promulgated, and that the EEOC took in litigation prior to the 

Ledbetter case. 

So, I think if you look at what the U.S. Supreme Court in the 

case on point, what the lower courts did up until Ledbetter in the 

Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and 

DC Circuits, right, the rule prior to Ledbetter was the paycheck accrual rule. 

The CHAIRMAN. Finally, Professor Bagenstos, isn’t it true that as 

long as an employer issues someone like Ms. Ledbetter a smaller 

paycheck, that employer is continuing to break the law, and 

shouldn’t those new violations be actionable regardless of who 

knew what, when? 

Mr. BAGENSTOS. Oh, absolutely. I think so. Every time the employer pays an employee less, a paycheck today that is less than 

it would be without discrimination, that is an act of discrimination. 

That should form the basis for a cause of action today. 

The CHAIRMAN. Senator Isakson. 

Senator ISAKSON. Thank you, Mr. Chairman. I want to repeat 

what I have said before. Nobody in this room, certainly not myself, 

is in favor of any discrimination. I do want to make a point with 

regard to the Chairman and Mr. Harkin’s comments. And I guess 

I will refer to that great—I ran a business for 22 years, and the 

law of unintended consequences is the most difficult law we deal 

with in life, and sometimes there are unintended consequences. 

And I will just make two points if I can. And this is not criticisms 

of you or the law or anything else, but the reality of the real world. 

No. 1, liability in perpetuity or an open-ended potential liability 

does cause tremendous burdens. I mean, people should be held liable. But if the opportunity to make the allegation is in perpetuity 

or extended beyond a reasonable term, it does cause—because you 

practice business defensively, it does cause you to practice defensively. 

The second thing, with regard to publishing parameters of pay 

without acknowledging there may be conditions of performance 

tends to have a downward suppressant on the pay brackets in 

which you publish because you, again, are defensive as a business 

in terms of what you are doing. This has nothing to do with discrimination, nothing to do with giving you the wiggle room to disVerDate Nov 24 2008 16:01 Jun 02, 2009 Jkt 035165 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 S:\DOCS\40669.TXT DENISE
47 

criminate. But it does have everything to do with how you react to 

the way you run your business. 

Now that is not a reason not to have a law against discrimination. It is not a reason not to see that somebody isn’t treated fairly. 

But it is a reason to see that there is a balance. And when you put 

the laws in place, that the law of unintended consequences doesn’t 

actually, in the end, have a suppressing effect either on pay parameters that might be published or some other benefit that might be 

there. That is just the only point I wanted to make. 

I do have a question, though, of Ms. Dorfman. You referred to 

the statute in this case. Is that a Federal—the $300,000 cap, the 

statutory cap? Is that in all cases? Is that—— 

The CHAIRMAN. That is the 1991 civil rights bill. That was put 

on as a condition. The caps were put on as a condition in order to 

get that legislation passed, and they are wrong. We had to include 

that in order to get that legislation passed. They have been on 

since that time. 

Ms. DORFMAN. And I would just also say that one of the things 

that hasn’t been hit on here, but that I have worked in corporate 

America, and those who are working to play fairly and pay fairly 

periodically run reviews on their pay equity to see where things are 

out of kilter and make adjustments accordingly. So had Goodyear 

done something like that along the way, they would have discovered these issues. They could have changed them, and maybe this 

never would have gotten to trial. 

The CHAIRMAN. That is right. I would point out, I was just talking with the staff. I remember the debate on this, actually, quite 

clearly. Senator Mitchell was very much involved in it, as a very 

good both lawyer and majority leader. With the ceiling and the capping, it primarily worked against women on this, the way it was 

an amendment to title VII. You had similar kind of discrimination 

for men. There are other provisions in the civil rights laws that 

permit men to get damages at higher levels. That was really the 

consequence of that. And that is basically, fundamentally wrong. 

We have had some hearings to try and deal with that at other 

times. And at some time down the road, we should. 

But it is interesting, Ms. Ledbetter, I was listening. When I 

heard you mention the cap, it just struck, and I said, that was 

1991. I remember when it was put in, and it just reminded me that 

we have additional work to do, Tom Harkin’s remark that we have 

got additional work. There is a lot of work to do around here. But 

the hearing this morning has been enormously helpful to me in 

sort of understanding the parameters and the challenges that we 

face, in this underlying issue of fairness, that is out there that we 

do have to address. 

Tom, is there anything further? 

Senator HARKIN. Mr. Chairman, the only thing I would just add, 

precedent, all of us who are trained as lawyers, you know, we adhere to precedent. But if the precedent is based upon discriminatory practices, then it is time to do away with the precedent. How 

many years did we labor under Plessy v. Ferguson? That is precedent. But it was based upon inherent discrimination. So that is 

when you do away with precedent. 

48 

And so, to say that somehow we are—either to the professor or 

the attorney over there—that we are somehow changing, there is 

just a little bit of difference there on that, whether the EEOC did 

one thing, that doesn’t faze me. 

The fact is the real world out there is just as we know it, just 

as you portrayed it. That is the real world out there. It is happening. The U.S. Supreme Court decision was a wake-up call to 

say, ‘‘wait a minute, this precedent, whatever they are talking 

about, is based on inherent discrimination.’’ And whenever you 

have precedents like that, it is time to overturn it. And that is 

what this legislation is trying to do. It is time to move on. 

Thank you, Mr. Chairman. 

The CHAIRMAN. I want to thank all of you. Thank all of our witnesses. Thank all of those who have attended the hearing. 

The committee stands in recess. 

[Additional material follows.] 

49 

ADDITIONAL MATERIAL 

PREPARED STATEMENT OF SENATOR ENZI

Good morning. I want to thank Senator Kennedy for holding this 

hearing on employment discrimination; and the important procedural issue of filing limitations. The title VII statute of limitations 

serves an important purpose, and that is fairness. The Fair Pay 

Restoration Act isn’t really about fairness. It effectively undermines the title VII statute of limitations, and congressional intent 

to fairly and expeditiously resolve employment discrimination 

claims. 

Discrimination in the workplace, or elsewhere, is simply not acceptable in a free society. The work of the Congress in combating 

employment discrimination is one of the most notable chapters in 

the long history of this body. 

Among the most important of our workplace discrimination statutes is Title VII of the Civil Rights Act of 1964. Title VII outlaws 

employment discrimination based on a number of factors, including 

gender. Since its enactment, Title VII has played a vital role in the 

effort to eradicate gender-based discrimination. Over the last 5 

years the intake of gender discrimination cases at the Equal Employment Opportunity Commission has averaged around 25,000 per 

year. Given this volume it should come as little surprise that title 

VII generates a significant volume of litigation every year. Such 

cases invariably entail strongly held views and emotionally charged 

issues. Thus, regardless of their outcome, it is not uncommon that 

they create controversy. The case which has prompted this hearing 

is no exception. 

Last year the U.S. Supreme Court handed down its decision in 

the case of Ledbetter v. Goodyear. The principal issue in the case 

involved the application of title VII’s limitations period for the filing of claims. Title VII requires that claims of employment discrimination be initiated within either 180 or 300 days, depending 

upon the State in which the claim arises. 

Virtually all statutes that contemplate the possibility of court 

litigation contain a statute of limitations provision. Such provisions 

serve a variety of very important purposes. First, a statute of limitations encourages the prompt and vigorous pursuit of important 

protected rights. This is particularly true in the instance of employment discrimination. None of us today; and, certainly none of the 

drafters of title VII, wanted discrimination in the workplace to go 

unaddressed one day longer than necessary. Accordingly, the drafters adopted a relatively short limitations period to ensure the quick 

eradication of discriminatory workplace practices. Statutes of limitation are designed to encourage the prompt resolution of contested 

claims; and, this is particularly important in the context of employment discrimination claims. An unresolved allegation or suspicion 

of discrimination is particularly corrosive in the workplace where 

the parties to a potential claim are in daily contact, and where the 

potential claim has effect, both direct and indirect, on everyone in 

the workforce. The drafters wisely determined that such matters 

cannot be allowed to fester, and should be addressed promptly and 

resolved as quickly as possible. 

50 

By ensuring that claims are promptly raised, a statute of limitations, serves to enhance the likelihood of voluntary resolution of 

claim. Claims that remain unaddressed for substantial periods of 

time can build significant financial liabilities that make voluntary 

resolution of a claim much more difficult and in some cases virtually impossible. Title VII was carefully crafted to encourage the 

voluntary resolution of discrimination claims and its statute of limitations is an integral part of that statutory framework. Further 

still, a statute of limitations serves the vital purpose of preserving 

a fair process for those claims that cannot be resolved, but must 

be adjudicated. If a claim is filed that is based on disputed facts 

that are 10 or 20 years old, the likelihood of finding witnesses with 

clear memories, or even finding witnesses or documentary evidence 

at all, is remote. The undeniable reality is that all evidence fades 

over time, this is particularly true in the context of an extremely 

mobile workforce. 

The decision and drafting of a limitations provision in any statute always requires the weighing of often competing considerations. 

The reasons I have just noted favor the imposition of short limitation periods. However, that must be balanced against the fact that 

any limitations period also has the effect of closing the courthouse 

door to a claimant that may have a meritorious case. There is no 

question that the drafters of title VII carefully considered these 

and many other competing factors in eventually arriving at the 

180–300 day formulation in the statute. 

Whenever we re-visit legislation enacted by a prior Congress, and 

contemplate changing that legislation because of a subsequent 

court decision, we need to proceed with considerable caution. If we 

are to have stability in our laws; and, if our laws are to reflect 

sound policy and not political happenstance, the bar for changing 

such laws must understandably be high. We should be very careful 

about doing so unless we conclude that the enacting Congress was 

wrong, the interpreting court was wrong, or that external circumstances have changed in such a way that a change in law is 

warranted. I would hope that today’s hearing will focus on whether 

or not these operative criteria have been met. 

Whenever we as a committee hold a hearing with respect to the 

technical aspects of a statute, or the circumstances of a particular 

case, I also believe it is essential that we exercise extreme care in 

accurately representing the important facts of such case, and the 

actual status of the law. Exaggeration, hyperbole, and plain old falsity may serve to advance political agendas, but it is an inexcusable departure from the fundamental responsibilities of this committee. Our first responsibility is to get the facts right. Accuracy 

and candor should never be sacrificed to make political hay. There 

are, quite frankly, a number of misconceptions regarding the limitations period in title VII and the essential facts of the Ledbetter 

case. I think two are worth noting up front. 

First, proponents of the legislation before us claim that the limitations period under title VII is totally inflexible. That simply isn’t 

true. For example, we have been told that this legislation is necessary because the facts that would cause an employee to suspect 

discrimination, particularly regarding pay issues, may be unknown 

or even hidden from an employee. Yet, once the 180 days runs, that 

51 

employee would lose his or her rights. This is a seemingly compelling argument except for one thing. It is not an accurate characterization of the way the law actually works right now. Under current 

law, the 180-day limitation period is not iron clad. To the contrary 

it is completely flexible, and is frequently, waived, tolled or suspended where fairness and circumstances require. It would certainly be suspended in the circumstances the proponents of the legislation so often cite. To those that continue to argue differently, 

I’d respectfully direct their attention to the Equal Employment Opportunity Commission’s own Compliance Manual regarding the 

timeliness of claim filing under such circumstances. It reads, in relevant part, as follows: 

‘‘Sometimes, a charging party will be unaware of a possible EEO claim at the 

time of the alleged violation. Under such circumstances, the filing period should 

be tolled until the individual has, or should have, enough information to support 

a reasonable suspicion of discrimination. 

• Example 1.—On March 15, 1997, CP, an African-American man, was notified by Respondent that he was not hired for an entry-level accountant position. 

In February 1998, more than 300 days later, CP learned that the selectee, a 

white woman, was substantially less qualified for the position than CP. CP filed 

a charge of race and sex discrimination on March 15, 1998. The charge would 

be treated as timely because he filed promptly after acquiring information that 

led him to suspect discrimination. 

• Example 2.—On March 1, 1997, CP, a 55-year-old woman, learned that she 

was denied a promotion in the Office of Research and Development, and that 

the position was awarded to a 50-year-old man with similar qualifications. She 

subsequently applied for another promotion opportunity in the same office, and 

was notified in January 1998 that the position was awarded to a 35-year-old 

woman with similar qualifications. The second rejection prompted CP to suspect 

that she was being discriminated against because she was an older woman, and 

she filed a charge 5 weeks later, in February 1998. Tolling should apply, and 

she can challenge both promotion denials. 

Because an individual’s ignorance must be excusable, the failure to act with 

‘‘due diligence’’ in attempting to obtain vital information will preclude equitable 

tolling. The filing period is tolled until the individual has enough information 

to reasonably suspect that s/he has a valid EEO claim. In other words, the filing 

period begins to run when the individual realizes that s/he may have a claim 

even if s/he is not certain about the claim.’’ 

The supposed inflexibility of title VII’s limitations period is a 

myth. You don’t need legislation to address the situations of fairness raised by this bill’s proponents since it is already the law. 

In the case we are reviewing today, it should be noted that the 

Plaintiff did have access to remedies. She could have pursued the 

claim she initially filed under the Equal Pay Act of 1963, which 

does not apply any statue of limitations. Yet this cause of action 

was inexplicably dropped during District court proceedings. The 

Plaintiff or any other individual who was subjected to discriminatory pay on the basis of sex can file an EPA claim years after the 

discrimination occurred. 

Since we are being asked to take the case at hand as justification 

for sweeping changes in the law, I want to urge my colleagues who 

have not had the chance to read the decision in full to do so. They 

will see that part of the court’s consideration was the Plaintiff ’s 

own admission that she did know of the pay discrepancy 6 years 

before she filed a complaint with the EEOC. Therefore, the court 

had no cause to suspend the statute of limitations for delayed discovery of the effect of discrimination. In fact, this case would have 

come out far better for all involved if the EEOC action had been 

52 

filed promptly, within the statutory deadline. First, if discrimination was confirmed, the Plaintiff would have suffered far less harm 

in the way of lost wages. Also, the employer would have had a 

fuller opportunity to investigate the validity of the claim and make 

any necessary workplace changes to ensure no other employees suffered discrimination. Finally, the manager in question, who died 

before Ms. Ledbetter finally did file her claim, would have had an 

opportunity to defend himself. 

In the case at hand, all parties would have been more fairly 

treated by the courts had it been honored. If the discrimination 

was not an isolated incident, other Goodyear employees would have 

been better protected, as well. The public policy consequences that 

would come of a wholesale elimination of the statute of limitations 

do not serve goals of employees or employers, though it will keep 

America’s trial lawyers and employment bar busy. I urge my colleagues to review this legislation with all of these factors in mind. 

PREPARED STATEMENT OF SENATOR CLINTON

Thank you to Chairman Kennedy and Ranking Member Enzi for 

holding this hearing, and to the four witnesses who have come here 

today to share their perspectives on equal pay with the committee. 

In particular, I would like to extend my gratitude to Lilly 

Ledbetter on her courage and perseverance in taking her fight all 

the way to the Supreme Court, and then to the Congress. I have 

had the great pleasure of meeting Lilly Ledbetter and hearing her 

story first-hand. Lilly is but one of countless hard-working people 

across our country who have played by the rules and deserve equal 

treatment from their employers. 

While I regret that I cannot be here today, I am proud to have 

joined Chairman Kennedy and a bipartisan coalition of Senators in 

introducing the Fair Pay Restoration Act legislation that would 

overturn the Supreme Court’s recent decision in Ledbetter v. Goodyear Tire & Rubber Company. The ruling in Ledbetter created obstacles that have made it far more difficult for women such as Lilly 

Ledbetter and all of the other Americans protected by title VII to 

receive equal pay for equal work. Along with our colleagues in the 

House, we are working to remove these obstacles, so that we can 

fully safeguard the rights of employees who have suffered pay discrimination based on their race, sex, religion or national origin. 

All Americans deserve equal pay for equal work, and it is our responsibility to get this right. The Fair Pay Restoration Act is a critical step towards this goal. So too is the Paycheck Fairness Act, legislation I have introduced that would take concrete steps forward 

to empower women to negotiate for equal pay, create better incentives for employers to follow existing law, and strengthen Federal 

outreach and enforcement efforts. Senators Kennedy and Harkin 

have also joined me in calling for the Government Accountability 

Office to investigate the role the Federal Government has and can 

play to remedy pay inequities in the workplace. 

I am also pleased to be a cosponsor to the Civil Rights Act of 

2008, legislation introduced today by Senator Kennedy and Representative John Lewis that will reverse a number of other judicial 

decisions that have walked back key civil rights protections in recent years. As is true of the legislation under consideration at the 

53 

hearing today, the Civil Rights Act of 2008 is a reflection of the historic and fundamental role that Congress has and must continue 

to play as a bulwark of individual rights. I urge my colleagues to 

support this important legislation. 

I look forward to continuing to work together to protect the civil 

rights of all employees across America. Thank you. 

AMERICAN BENEFITS COUNCIL, 

February 1, 2008. 

Hon. EDWARD KENNEDY, Chairman, 

Committee on Health, Education, Labor, and Pensions, 

644 Dirksen Senate Office Building, 

Washington, DC 20510. 

Hon. MICHAEL ENZI, Ranking Member, 

Committee on Health, Education, Labor, and Pensions, 

835 Dirksen Senate Office Building, 

Washington, DC 20510. 

Re: The Fair Pay Restoration Act: Ensuring Reasonable Rules in Pay Discrimination 

Cases 

DEAR CHAIRMAN KENNEDY AND RANKING MEMBER ENZI: The American Benefits 

Council submits this statement in connection with the hearing of the Senate Committee on Health, Education, Labor, and Pensions on ‘‘The Fair Pay Restoration Act: 

Ensuring Reasonable Rules in Pay Discrimination Cases.’’ We respectfully request 

that this statement be included in the record of this hearing. 

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. 

We wish to express our continued concern regarding proposed legislation (S. 1843, 

The Fair Pay Restoration Act) to overrule the Supreme Court’s Ledbetter v. Goodyear Tire and Rubber Co. decision. The Council’s area of expertise is in the employee 

benefit area, and accordingly we limit our letter to the possible effect of the proposed legislation on benefit programs. 

We are writing with regard to S. 1843, as we previously wrote to the House Education and Labor Committee with regard to H.R. 2831, because the proposed legislation could possibly raise serious retirement plan issues. Under both bills, each payment of compensation or benefits that is lower because of past discrimination is arguably a new act of discrimination and thus an employee could file a charge or sue 

many years after the discrimination actually occurred. We appreciate that the findings sections of the House and Senate legislation—which does not affect the actual 

statutory provisions—each include a finding that the bill is not intended to change 

the current law treatment of when pension distributions are considered paid. As we 

understand it, this finding was intended to clarify that, for purposes of the legislation, pension payments are treated as paid at an employee’s retirement, not as each 

actual payment is made. Such a clarification would help address an important concern, i.e., that an individual who has been retired for many years could file a charge 

or sue based on acts that occurred during his or her active service. 

However, in order to be effective, we believe that the finding must be reflected 

in the actual bill language; as currently drafted, the finding and bill language appear to conflict. 

Moreover, the underlying significant concern as to how a judgment in favor of a 

plaintiff would affect an employer-sponsored retirement plan still remains 

unaddressed. For example, if a company maintains a defined benefit plan that calculates benefits based on an employee’s final average pay, would the plan need to 

recalculate the plaintiff ’s benefit based on the revised pay? 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? What if this caused the plan to be woefully underfunded or resulted in the employer being forced to terminate the plan? The retirement security of other participants could be severely undermined as a result of a 

claim now being made for discrimination that occurred many years before. 

We continue to be concerned about the possible effect of the proposed legislation 

on 401(k) plans, 403(b) plans (those maintained by schools and charities generally), 

54 

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 

effectively have to reduce or eliminate contributions for others? 

We urge that this legislation not be considered by the full Senate until the possible ramifications of the bill are fully understood. We are very mindful of the concerns that led to the drafting of this proposed legislation, but we continue to have 

concerns about its application to employer-sponsored retirement plans in its current 

form. It would be very unfortunate to risk the retirement security of large numbers 

of plans participants as a result of failing to address the question of how a judgment 

in favor of a plaintiff affects the employer’s retirement plans. 

Thank you for the opportunity to share our views. 

Respectfully submitted, 

JAMES A. KLEIN, 

President, American Benefits Council. 

[Whereupon, at 11:35 p.m. the hearing was adjourned.] 

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