The Lilly Ledbetter Fair Pay Act and Syntactic Ambiguity—A Cautionary Tale

Reader Kazu brought to my attention the following language from the recently enacted Lilly Ledbetter Fair Pay Act (emphasis added):

For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

What we have here is repeated instances of two modifiers (discriminatory and compensation) preceding two nouns (decision and practice), hence the possibility of syntactic ambiguity. (See MSCD 11.3.)

In Jottings by an Employer’s Lawyer, Michael Fox suggests that courts might be willing to hold that only discriminatory, and not compensation, modifies practice. That could result in the law reaching “all types of employment decisions that affect pay beyond a simple decision on wages, including demotions and promotions.”

By contrast, Ross Runkel of LawMemo says that compensation modifies both nouns, so that whatever the “other practice” is, it must relate to compensation. (It goes without saying that if compensation modifies both nouns, so does discriminatory.)

I can think of another possibility, at least a theoretical one: that discriminatory and compensation both modify just decision and not practice.

The quoted text makes it clear that the language applies in the context of discrimination in compensation, so I think a reasonable reader would conclude that discriminatory compensation modified both decision and practice. But it’s unfortunate that one should even have to think about this.

Michael Fox suggests that he doesn’t know how to avoid this sort of problem with a new piece of legislation. I have an idea! Don’t botch the drafting! If you draft statutes or contracts, you should become familiar with the sources of syntactic ambiguity and learn how to purge it from your drafting. (You might want to check out chapter 11 of MSCD.)

In this case, it would have been simple enough to refer to “a discriminatory compensation decision or other discriminatory compensation practice.” That would have precluded any arguments and reader miscues.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

6 thoughts on “The Lilly Ledbetter Fair Pay Act and Syntactic Ambiguity—A Cautionary Tale”

  1. As I read it, “discriminatory” could be the thing that traverses to the other side of the “or:” a discriminatory compensation decision or discriminatory other practice. Or, at least, this makes more sense than say it’s “compensation” that does it.

    But from a strictly interpretation perspective, it makes little sense to apply either “discriminatory” or “compensation” to the latter side of the “or.” It just doesn’t read correctly unless you insert the language between the words “other” and “practice.” The problem is that “other” already modifies “practice”–namely, it is some practice other than a discriminatory compensation decision.

    If it had read “a discriminatory compensation decision or practice,” then I think you have a much clearer argument that “discriminatory compensation” is to be applied on both sides.

    And the only reason we’re having this argument is because the intent is much clearer in this case: the law is about about discriminatory compensation.

  2. Mike: I don’t think Ross Runkel was saying that only compensation modifies practice; I suspect that he took it as a given that discriminatory does too. [I’ve added a sentence to the post a sentence to that effect.]

    I don’t get the point you’re making in your second paragraph, but that’s perhaps because this stuff gives me a headache after a while!

    As for saying instead “decision or practice,” that might well make sense, but it changes the meaning of the original.


  3. My problem is with the word “other” coming between “decision” and “practice,” as in “decision or other practice.” Does this mean that one decision constitutes a practice? Or do you need to find more than one (“several,” “many,” or “a pattern and practice of”) decisions before you find a violation of the Fair Pay Act? In my view, one decision does not constitute a practice. If the Act wants to provide that one decision constitutes a violation, it should say so, unambiguously.

  4. I think each of the three subordinate “when” clauses should be read in light of the sentence’s main clause which they modify: “an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title….” I’m not denying the systematic ambiguity in the “when” clauses (taken in isolation from the sentence’s main clause), but the main clause makes clear that the sentence as a whole relates to discriminatory compensation. Ideally, subordinate clauses should modify main clauses, and not also the other way around, but I think a holistic approach warrants the latter when necessary to clarify subordinate clauses.


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