CONGRESS IS AT IT AGAIN

You have all heard about the Lilley Ledbetter Fair Pay Act. It was the very first bill that President Obama signed into law. Ms. Ledbetter was an active campaigner for the President and she was at the bill signing. We also all know that the whole point of the Ledbetter Fair Pay Act was to overturn the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 616 (2007). Congress it seems did not like the fact that the Court felt that Ms. Ledbetter should have brought her complaint when the pay decision was made, not when she got her last paycheck. 

Guess what? Congress is not done yet. Last week, the Wall Street Journal reported that the Senate was considering two bills that would overturn two more Supreme Court decisions.  Senator Harkin introduced S. 1756, the “Protecting Older Workers Against Discrimination Act” and last April Senator Finegold introduced S. 931, the “Arbitration Fairness Act of 2009”. Both Bills have companion bills that have been introduced in the House. 

Senator Harkin’s bill would reverse the Supreme Court’s decision in Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009). Congress it appears does not care for the Court’s holding in Gross that in a mixed motive age discrimination case, age must be a “but for” cause of the adverse employment decision. In fact, the bill’s introduction says that Gross improperly narrowed the protections of the Age Discrimination in Employment Act. The bill would overturn Gross and provide that in mixed motive cases age need only be a “motivating factor” in the adverse employment decision making it much easier for age plaintiffs to prove their case.

Senator Finegold’s bill does not expressly mention a Supreme Court decision but in recent years the courts have upheld arbitration of employment disputes.  S. 931 would prohibit pre-dispute agreements to arbitrate both employment and civil rights disputes among other kinds of disputes. The bill would specifically invalidate these agreements and would apply to any dispute that arises on or after the date the bill is signed into law, regardless of when the agreement to arbitrate was signed. You can see the WSJ article at http://online.wsj.com/article/BT-CO-20091007-711697.html

We will keep an eye on these bills and keep you informed.