The Problem with Relying on Legislative History

I made a mistake. The last post (which has been corrected) cited to a statutory provision that did not exist. It was an honest mistake but one I shouldn't have made.

The "provision" was 42 U.S.C. 2000e(0). Section 2000e is the statute that defines terms for the equal employment provisions in Title VII of the Civil Rights Act of 1964. So while 2000e does exist, subsection (o) - which I said defined "business necessity" does not, at least not in any reputable source I examined.

I was misled by statements in the legislative history (House Report 110-783, page 29) from the 110th Congress about HR 1338, the Paycheck Fairness Act (as it was called by the 110th Congress). HR 1338 is pretty much the same as Title II of the Lily Ledbetter Fair Pay Act (HR 181) that I discussed in the prior post. The legislative history quotes "42 U.S.C. 2000e(o)(1)(B) as being added as part of the Civil Rights Act of 1991. While the 1991 amendment certainly codified the idea that business necessity was part of the disparate impact analysis, it did not define "business necessity." In my own defense, I have never seen a published legislative history cite to a statute that does not exist.

I don't normally try to address my mistakes but the fundamental point I think this makes is that the current spate of well-intentioned laws that are supposed to redress compensation discrimination are not well-planned. Citing to a statute that does not exist is only one example of this. Not defining "business necessity" is another. It is quite sloppy to use a phrase ("business necessity") that is now part of Title VII (which is in a different title of the U.S. Code) and its caselaw without at least referring to Title VII or its cases to define the phrase. And it is an especially poor practice if the drafters think it is OK to rely upon legislative history from a prior Congress. That will only lead to confusion and frustration in trying to apply the new statute. No one, certainly not the persons the statute is designed to help, benefits from confusion.

Don't misunderstand me. Something needs to be done to address the pay disparity between the sexes and the races. I don't doubt that exists at some jobs. I doubt, however, whether the poorly-drafted pending legislation will help in erradicating it without also causing more problems than it resolves. This problem deserves a better solution.

Sorry for the mistake. I was fooled once. Not again.