Raising the Dead?: The Lilly Ledbetter Fair Pay Act

If applied literally, the Lilly Ledbetter Fair Pay Act (FPA) has the potential to radically change the landscape for 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 a plaintiff twenty years ago would seem to be actionable today, as 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 Equal Employment Opportunity Commission 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 scope of the statute, to constitutional challenges, to the applicability of laches--a defense that has been barely developed in this context. This Article analyzes the FPA and concludes that its most radical implications are in fact the correct interpretation of the law and that Congress acted well within its constitutional powers in making the FPA retroactive. Ironically, the Justices who read Title VII as it was originally enacted to impose a strict limitations period will be compelled by their own interpretative approach to read the FPA as an override. This 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 the action was discriminatory.