Constitutional Law

'Hulteen' May Provide Clue To High Court's Reaction To Fair Pay Act

by Harper Jean Tobin, staff attorney for the National Senior Citizen Law Center’s Federal Rights Project. Tobin’s work has been published in The Nation, The American Prospect and Roll Call.

The era of Ledbetter v. Goodyear Tire & Rubber Co. was nasty, brutish and short – and its demise may provide a very simple resolution to what could have been one of this term’s most significant Supreme Court cases.

Last December ACSBlog described how AT&T and the Bush administration relied on Ledbetter to justify discrimination in pension benefits based on pregnancy leave retiring employees took decades ago. AT&T’s analogy to Ledbetter is a flawed one, because the company’s use of past service calculations that punished pregnant workers is so explicitly discriminatory that there’s no excuse for not correcting it. Nevertheless, at oral argument the justices appeared receptive to the employer.

Today, however, the employees filed a supplemental brief arguing that the Lilly Ledbetter Fair Pay Act definitively resolves the case. The Act declares that a new illegal act occurs with each instance of discriminatory compensation. The Act is expressly retroactive, reaching back to all cases pending when Ledbetter was decided, or filed since; several district courts have already relied on the Act to revive cases that were about to be dismissed. Additionally, the Act applies not only to wages but to all “benefits, or other compensation.” Thus, the Hulteen plaintiffs quite logically argue that the Act applies to their case, and removes any question that it can go forward. While there is no word yet of whether the Solicitor General will weigh in, the Obama administration now has a clear opening to break from the Bush administration’s deplorable position in this case.

As Brooklyn Law School Professor Deborah Widiss describes in an excellent new article, the Court has in the past given short shrift to Congressional acts overriding its interpretations of the civil rights law, giving these overrides narrow interpretations at odds with Congressional intent. In fact, it did so in Ledbetter with regard to the 1991 Civil Rights Act. In this case, the language of the Ledbetter Act is sufficiently broad that it would be difficult for the Court to say it does not apply in a case like Hulteen. Less clear is how the Court might respond to other recent and proposed overrides, such as last year’s ADA Amendments Act. Whatever happens in Hulteen, the case is likely to be only the first in the coming years in which the Court will decide how to respond to Congressional push-back.

Full post as published by ACS Blog on February 12, 2009 (boomark / email).