Ledbetter Law Makes Sex Discrimination Suits Worse

January 28, 2009 04:55 PM ET | Sam Dealey | Permanent Link | Print

By Sam Dealey, Thomas Jefferson Street blog

Yesterday Congress passed the Lily Ledbetter Fair Pay Act, a darling of the Left and likely the first bill that President Obama will sign. As the Washington Post described it:

The legislation, named for a retired supervisor at a tire plant who belatedly discovered that she was paid less than her male counterparts, essentially rewrites the rules that specify the time within which workers may sue...

Under the bill, workers may bring a lawsuit for up to six months after they receive any paycheck that they allege is discriminatory. The high court had held that such cases could be brought only within six months of the discrimination's beginning, rejecting a long-held interpretation by lower courts and the U.S. Equal Employment Opportunity Commission that each paycheck represented a fresh act of discrimination.

Americans are in broad agreement that discriminatory pay is Neanderthal-ish and should be punished. But the Ledbetter bill is far from perfect—and in fact may punish supervisors, company directors and shareholders who bear no guilt.

How? Consider the following scenario:

Say a woman was hired five, 10 or 15 years ago at a discriminatory pay level. She worked just as hard as her male colleagues, but received paltry raises or bonuses. But then her company underwent some sort of restructuring—a change of ownership, a new board, a new supervisor. Since then, the company has treated all employees the same, giving raises and bonuses where merited. The woman is a good worker and now her salary rises by 8- or 10-percent a year, well above many of her male colleagues. The company should be exempt from any possible lawsuit, right?

Maybe not. That's because a wily trial lawyer could well sell the argument that, no matter how generous the woman's recent raises, they were all applied to what was fundamentally a discriminatory salary baseline. What's more, as the Heritage Foundation points out:

This new rule is also broader in that it would apply to any (alleged) discrimination that has had an (alleged) effect on pay, such as an adverse promotion decision. In addition, retirees could bring suits alleging pay-related discrimination that occurred decades ago if they are presently receiving benefits, such as pensions or health care, arguably effected [sic] by the long-ago discrimination.

In other words, virtually any woman who receives a pension from or is still employed by a company that existed during the dark days of discrimination could now sue, regardless of that company's current practices. Punishing good, conscientious owners and unwitting shareholders for the sins of others long gone hardly seems appropriate. By all means active discrimination must be stopped, and the government has a role in helping achieve that. But societies grow and attitudes change, and some slights from the distant past simply have no remedy.