Letter Opposing H.R. 11, the "Lilly Ledbetter Fair Pay Act"

January 7, 2009

TO THE MEMBERS OF THE U.S. HOUSE OF REPRESENTATIVES:

The U.S. Chamber of Commerce, the world's largest business federation representing more than three million businesses and organizations of every size, sector, and region, urges you to oppose H.R. 11, the "Lilly Ledbetter Fair Pay Act," which may be considered by the full House as early as this week. This bill would amend Title VII of the Civil Rights Act of 1964 and several other civil rights laws by effectively abolishing the statute of limitations for the vast majority of discrimination cases.

The Chamber strongly supports equal employment opportunity and effective mechanisms to achieve this important goal. However, H.R. 11 is purported to overturn the Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which rejected the "paycheck theory" of compensation discrimination that would permit claims to be filed many years after an alleged act of discrimination occurs. The Ledbetter decision is a common sense result that should be supported.

Proponents of H.R. 11 claim legislative relief is necessary because the Court's decision would make it harder for people who do not know they are being discriminatedagainst from obtaining their day in court. People who have been unlawfully discriminated against deserve effective remedies under civil rights laws, but H.R. 11 is an inappropriate response to the Court's decision. The bill ignores existing legal doctrines that protect unknowing victims and expands the law so that even people who know all relevant facts and fail to exercise their rights for years or even decades could have a viable claim. As an example of the bill's overreaching, not only would the Court's Ledbetter decision be overturned, but so would other longstanding decisions such as the noncontroversial 1980 decision of the Supreme Court in Delaware State College v. Ricks, a case holding that the statute of limitations for a professor denied tenure begins running when tenure was denied, not when he found himself out of work a year later.

H.R. 11 also contains numerous technical problems, such as appearing to expand the class of individuals with standing to bring a claim, application to unintentional disparate impact claims, and the creation of springing causes of action that could operate when an individual receives retirement benefits. Some of these impacts may be intentional while others may simply be the product of the rushed legislative process that occurred when this bill was originally drafted in 2007. The hasty attempt to pass this bill without considering these important issues only heightens the Chamber's concerns that this legislation would dramatically expand the number of frivolous and otherwise questionable cases to which employers would be subject.

The Chamber strongly urges you to oppose H.R. 11 and may consider votes on, or in relation to, this issue in our annual How They Voted scorecard.

Sincerely,
R. Bruce Josten