Victoria Toensing explains the Lilly Ledbetter Fair Pay Act, in the Wall Street Journal.
President Obama makes much of his concern for women's rights, particularly regarding equal pay, but he seems not to be aware that for nearly half a century we have enjoyed the protection of two laws requiring equal pay. The 1963 Equal Pay Act and Title VII of the 1964 Civil Rights Act combined to settle the matter in law.
Mr. Obama brags that the 2009 Lilly Ledbetter Fair Pay Act bestowed equal-pay rights for women. The act, he has said, "is a big step toward making sure every worker," male and female, "receives equal pay for equal work." No, it was a teensy step. It merely changed how the statute of limitations is calculated.
The Equal Pay Act of 1963 prohibits wage disparity between men and women who work in the same place and perform jobs that require substantially the same "skill, effort, and responsibility." The statute of limitations for filing suit is two or three years, depending on whether the discriminatory act is intentional.
Title VII of the 1964 Civil Rights Act covers discriminatory hiring, firing and promotions as well as pay. It requires filing a complaint with the Equal Employment Opportunity Commission within 180 days after an intentional discriminatory act.
Ms. Ledbetter didn't file suit until after her retirement, years after the discrimination ooccurred. The Supreme Court ruled against, stating the law's explicit 180-day statute of limitations.
Statutes of limitation are not technicalities. In Ledbetter, for example, the Supreme Court pointed to the dead witness, stating it is unfair to fail to put an adversary on notice within a specific time period because employers should not have to defend claims far in the past. The court reflected that it does not want to alter congressional deadlines.
In 2009, the Democratic-controlled Congress amended Title VII, allowing a suit to be brought within 180 days of any "discriminatory compensation decision"—in other words, any too-low paycheck. In its legislative "findings," Congress proclaimed that the Ledbetter Supreme Court decision "undermines . . . protections by restricting the time period . . . contrary to the intent of Congress."
So the Lilly Ledbetter Fair Pay Act was premised on the legislators' pretending that Congress was not responsible for the precise words of its own law setting the 180-day deadline.