Raising the Dead? The Lilly Ledbetter Fair Pay Act

If applied literally, the Lilly Ledbetter Fair Pay Act has the potential to radically change the landscape for litigating claims under Title VII and other antidiscrimination laws. While limited to discrimination in compensation, as opposed to discrimination in other terms and conditions of employment, the FPA removes the statute of limitations not only for compensation decisions per se but for any “other practice” affecting compensation. Further, the new law is explicitly retroactive. Thus, a failure to promote plaintiff twenty years ago would seem to be actionable today, so long as the nonpromotion has an effect on current compensation. While the statute has a liability- limiting provision, capping backpay at two years before the filing of an EEOC charge, the potentially enormous financial costs of the new law are sure to trigger a variety of responses from employers, ranging from interpretation disputes about the sweep of the new law, to constitutional challenges, to the FPA’s retroactive application, to raising the defense of laches, which has been barely developed in this context. This Article analyzes the new statute, generally concluding that its most radical implications are, in fact, the correct interpretation of the law and that, so read, Congress acted well within its constitutional powers in making the Fair Pay Act retroactive. Ironically, the justices who read Title VII as it was originally enacted to impose a strict limitations period, an interpretation that triggered the Lilly Ledbetter Fair Pay Act override, will be compelled by their own approach to statutory interpretation to read the Act as it is written. The Article does recognize, however, that laches may limit the impact of the new statute – most obviously where the plaintiff was aware both of the adverse employment action at the time it was taken and of the probability that that action was discriminatory.