Mohammed, Sameena

English

Loyola University Chicago, School of Law: LAW eCommons

Public Interest Law Reporter
Volume 14
Issue 2 Spring 2009 Article 6
2009
President Obama Keeps Campaign Promise in
Signing Fair Pay Act, Drawing Praise and Criticism
Sameena Mohammed
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Recommended Citation
Sameena Mohammed, President Obama Keeps Campaign Promise in Signing Fair Pay Act, Drawing Praise and Criticism, 14 Pub. Interest
L. Rptr. 147 (2009).
Available at: http://lawecommons.luc.edu/pilr/vol14/iss2/6
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PRESIDENT OBAMA KEEPS
CAMPAIGN PROMISE IN
SIGNING FAIR PAY ACT,
DRAWING PRAISE
AND CRITICISM
by SAMEENA MOHAMMED
In January 2008, then-Senator Barack Obama was one of several co-sponsorsof the Lilly Ledbetter Fair Pay Act (Act).1  One year later, in his new role as
President of the United States, he has signed the legislation that he helped
introduce.2  The Act was proposed to overturn the Supreme Court’s ruling in
Ledbetter v. The Goodyear Tire & Rubber Co., in which the Court held that a
timely wage discrimination complaint under Title VII must be filed within
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180 days (or 300 days, depending on the state) of an employer’s discrimina-
tory decision to pay less, not from the time discrimination is discovered.3  In
the year and a half since the decision, over 1,300 courts, including 12 of the 13
federal Courts of Appeals, have cited Ledbetter in some capacity.4
When this legislation was introduced in previous terms, President Bush
threatened to veto it, and when it came up for consideration in the Senate in
April 2008, it fell four votes short of overcoming a filibuster.5  President
Obama often referenced Lilly Ledbetter, the plaintiff in the case, during his
debates and campaign stops.6  On January 28, 2009, Congress passed the Act
with a largely party-line vote, and the next day, as promised, President Obama
signed the legislation into law, proclaiming that “making our economy work
means making sure it works for everyone.”7
The Act begins by finding that the Supreme Court in Ledbetter undermined
Title VII protections by narrowly construing the statute of limitations period
in which plaintiffs can bring pay discrimination claims.8  Under Ledbetter, a
plaintiff would have 180 or 300 days from the time her employer made a
discriminatory decision about her compensation to bring a claim.9  The prob-
lem with this, proponents of the legislation contend, is that potential plaintiffs
often do not discover until years later that their employer is paying them less
than their colleagues, due to the taboo on discussing salaries with co-workers.10
The Act takes this problem into account by providing that the 180 or 300 day
claim-filing period would start anew every time plaintiffs receive a paycheck –
every time they are affected by their employer’s decision to pay them less.11
Supporters of the Act included Speaker of the House Nancy Pelosi, Democrat
of California, and Senator Barbara A. Mikulski, Democrat of Maryland, the
chief sponsor of the bill.  The Equal Employment Opportunity Commission’s
(EEOC) Acting Chairman, Stuart Ishimaru, also supported this legislation,
noting, “The act is a victory for . . . all workers across the country who are
shortchanged by receiving unequal pay for performing equal work.”12  Plain-
tiff-side labor and employment attorneys in Chicago, including Marvin Gittler
and Lori Deem, note that the EEOC and the courts had been interpreting
Title VII as this legislation requires for years prior to Ledbetter.13  Ms. Deem
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explains, “The Court [in Ledbetter] really unsettled what was settled law,” and
this Act has a restorative effect.14
2009 AP Photo/Ron Edmonds
President Obama center, signing Fair Pay Act. Standing from left
are: House Majority Leader Steny Hoyer of Maryland, Sen. Barbara
Mikulski, D-Md., Sen. Olympia Snowe, R-Me., Lilly Ledbetter,
D.C. Delegate Eleanor Holmes Norton, and Senate Majority
Leader Nancy Pelosi of California.
available at: http://www.jcfloridan.com/jcf/news/politics/national_
govtpolitics/article/obama_signs_equal-pay_bill/57013/ 
A “TRIAL LAWYER GIVEAWAY?”15
While some praise the Act as restoring the status quo, not everyone shares in
celebrating the realization of President Obama’s campaign promise.  Senator
Jim Inhofe, Republican of Oklahoma, argues that the bill essentially eliminates
the statute of limitations on employment discrimination claims.16  Representa-
tive Howard P. McKeon, Republican of California, and a ranking member of
the House Education and Labor Committee, has also been a vocal opponent of
the bill, characterizing it as an “economic stimulus” for trial lawyers.17  The
U.S. Chamber of Commerce shares his concern about the increase in litigation
this legislation could spawn.18  Ms. Deem, however, dismisses these concerns
as “overblown” because of the difficulties that persist in obtaining proof of
wage discrimination.19
149
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Max G. Brittain Jr., an employment lawyer practicing for over thirty years, also
believes this legislation is redundant.20  According to Mr. Brittain, the Equal
Pay Act is already in place as “a means by which a female [can] challenge pay
decisions,” with a longer statute of limitations.21  Mr. Brittain further ex-
pressed concern at the difficulty employers may face in defending decades-old
claims against supervisors who may have left the company or passed away.22
In response to such fears, Mr. Gittler notes that “courts have always stepped
in” when plaintiffs are intentionally dilatory in exercising their rights.23
This controversial Act is significant not only as a realization of President
Obama’s campaign promise, but because it signals the administration’s com-
mitment to ensuring equal pay for equal work.  Pending legislation, such as the
Paycheck Fairness Act,24 which passed the House on January 9, 2009, is fur-
ther evidence of the commitment by President Obama and his supporters to
eliminate wage discrimination.25  Opponents, meanwhile, wary of increased
litigation, will have new opportunities to issue challenges and amendments to
the next wave of fair pay legislation.
NOTES
1 Robert Pear, Justices’ Ruling in Discrimination Case May Draw Quick Action by Obama, N.Y.
TIMES, Jan. 5, 2009, at A13.
2 Supporters Cheer, Critics Brace for Litigation as Obama Signs Ledbetter Measure into Law, 18
Daily Lab. Rep. (BNA), at A-1 (Jan. 30, 2009).
3 Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-5, 2009 U.S.C.C.A.N. (123 Stat. 5);
Ledbetter v. The Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2169 (2007).
4 Nancy Zisk, In the Wake of Ledbetter v. Goodyear Tire & Rubber Company: Applying the
Discovery Rules to Determine the Start of the Limitations Period for Pay Discrimination Claims, 16
Duke J. Gender L. & Pol’y 137, 138-39 (2009);
5 Carl Hulse, Republican Senators Block Pay Discrimination Measure, N.Y. TIMES, Apr. 24,
2008, at A22.
6 The Third McCain-Obama Presidential Debate (Oct. 15, 2008), http://www.debates.org/
pages/trans2008d.html.
7 Sheryl Gay Stolberg, Obama Signs Equal-Pay Legislation, N.Y. TIMES, Jan. 30, 2009.
8 Fair Pay Act of 2009, supra note 3.
9 Ledbetter, 127 S. Ct. at 2179.
10 The Lilly Ledbetter Fair Pay Act of 2007: Hearing before the H. Education and Labor Comm.,
110th Cong., 1st Sess. (2007) (testimony of Wade Henderson, President and CEO, Leadership
Conference on Civil Rights); see also 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,
171 (2004).
11 Fair Pay Act of 2009, supra note 3.
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12 Daily Labor Rep., supra note 2.
13 Telephone Interview with Lori Deem, Partner, Abrahamson Vorachek & Levinson, in Chi.,
Ill. (March 5, 2009); Telephone Interview with Marvin Gittler, Partner, Asher, Gittler, Green-
field & D’Alba, Ltd. in Chi., Ill. (Feb. 5, 2009).
14 Id.
15 Congressional Documents, Democrats Lock Down House Floor, Send Trial Lawyer Give-
away to President Without Serious Debate (Jan. 27, 2009) (2009 WLNR 1630289).
16 Government Press Release, Inhofe Voices Support for Balanced Approach to Workplace
Discrimination (Jan. 23, 2009) (2009 WLNR 1363688).
17 Derrick Cain, Ledbetter, Paycheck Fairness Measures Win House Approval, 60 Human Re-
sources Rep. (BNA), at 2 (Jan. 13, 2009); Congressional Documents, supra note 15.
18 Daily Labor Rep., supra note 2.
19 Interview with Deem, supra note 13.
20 Telephone Interview with Max J. Brittain, Jr., Partner, Schiff Hardin, in Chi., Ill. (Feb. 27,
2009).
21 Id.
22 Id.
23 Interview with Gittler, supra note 13.
24 Paycheck Fairness Act, H.R. 12, 111th Cong. (1st Sess. 2009).
25 Robert Pear, House Passes 2 Measures on Job Bias, N.Y. TIMES, Jan. 10, 2009 at A13.
151
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President Obama Keeps Campaign Promise in Signing Fair Pay Act, Drawing Praise and Criticism

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