Monthly Archives: January 2009

What’s up with the Lily Ledbetter Fair Pay Act?

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Yesterday, the Senate passed a version of the Lily Ledbetter Fair Pay Act (61 Yeas to 36 Nays), which would change employment discrimination law to state that it is unlawful to adopt a discriminatory compensation decision or practice; to subject an employee to a discriminatory compensation practice or decision; or to pay an employee under a discriminatory compensation decision or practice.

A key provision of the Act is that each discriminatory payment would be unlawful.  That provision is key because it is meant to remedy the U.S. Supreme Court‘s decision that each discriminatory payment is not unlawful – instead, an employee would have to file a claim against his or her employer within 180 days after the very first discriminatory payment or else that claim would be barred.  With that decision, the U.S. Supreme Court made fair pay claims extremely difficult to file on time.

How did your Senator vote?

On January 9, the House had passed a slightly different version of the Lily Ledbetter Fair Pay Act (those vote results are here).  Since the House and Senate versions are different, the House will have to re-visit the issue. President Obama has said that he supports the legislation.

Some of the earlier House debate helps to explain the issues raised by the U.S. Supreme Court decision.  Here’s what Rep. Rush D. Holt of New Jersey, a supporter and co-sponsor of the bill, had to say about it:

According to Justice Samuel Alito, who wrote the flawed decision, when Ms. Ledbetter failed to file a discrimination case within the statutorily provided 180 days from the initial decision to pay her less than her male colleagues, she was barred from filing a complaint and no relief was available.  Despite documenting the sex based evaluation system Goodyear managers used, Lilly Ledbetter was denied justice and the rights afforded to her under the Civil Rights Act.

Justice Alito’s opinion runs contrary to decades of civil rights law, and the Lilly Ledbetter Fair Act would restore the law as it was prior to the Court’s ill considered decision.  This bill would make it clear that when it comes to discriminatory pay, the protections of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Rehabilitation Act extend not only to these discriminatory pay decisions and practices but to every paycheck that results from those pay decisions and practices.

The nut of the opposition appears to be, hey, we don’t like discrimination either and it’s too bad the statute of limitations ran out, but we don’t want you to help people sue employers.  Here’s Rep. Todd Tiahrt of Kansas opposing the bill:

Pay discrimination is not a partisan issue. Pay discrimination strikes at the heart of the American Dream. For more than 40 years, the 1963 Equal Pay Act and Title VII of the 1964 Civil Rights Act has made it illegal for employers to determine an employee’s pay scale based on his or her gender. I wholeheartedly agree and support these laws. Every American should be able to work hard, and make a living for his or her family. We can not tolerate gender discrimination in the workplace.

This legislation, however, is about bad politics rather than good policy. H.R. 11 was supposedly written to remedy a sad situation for one person–Lilly Ledbetter. She was apparently paid significantly less than her counterparts at Goodyear Tire Company during her tenure there. Decades later Ms. Ledbetter filed a claim of discrimination. Taking her claim through the courts, the U.S. Supreme Court ruled on May 29, 2007 that the statute of limitations had unfortunately run out.

Fact is, pay discrimination is not just a “sad situation for one person”.  The gender wage gap is a pervasive problem requiring an effective remedy. And wage gaps based on discriminatory factors other than gender must also be addressed. To pretend that employers don’t ever try to pay someone less just because of their gender, race, national origin, etc., or that it’s a rare occurrence, is to deny reality.

Despite the fact that those who oppose the Lily Ledbetter Fair Pay Act want everyone to believe that the Act would open the floodgates of litigation against poor, defenseless employers, this is just not the case – wage claims are still difficult to identify and to prove.  And if an employer wants to avoid being on the wrong side of litigation, it should adopt sensible, fair policies that largely involve treating employees with basic respect. Prematurely killing off a potentially effective remedy to unlawful discrimination is not the answer.

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Workplace perfume injury leads to workers comp award

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In an opinion that reminds me of my law-school torts class with its discussion of cringeworthy accidental injuries, the Superior Court of New Jersey, Appellate Division, decided the workers compensation appeal of a woman whose COPD was exacerbated by a fellow employee’s sprayed perfume.

The issue was whether the aggravation of the employee’s chronic obstructive pulmonary disease (COPD) arose out of her employment. The workers compensation judge thought not, so the employee appealed.


Five years ago, the employee was working as a nurse in a nursing home when she was exposed to three separate sprays of a perfume in one day. She experienced difficulty breathing after the second and third sprays.


Her breathing difficulties continued the next day, when her daughter took her to the hospital, where she was admitted to stay for 12 days. She was transferred to a rehabilitation center where she stayed for seven days and then to another hospital, where she was admitted and stayed for another seven days.

Ever since her hospital stays, the employee was dependent on oxygen. She was unable to return to work.

“Hair on fire” case comparison

In re-considering the workers compensation judge’s denial of benefits, the Appellate Division compared this case to that of Coleman v. Cycle Transformer Corp., 105 N. J. 285 (1986), in which an employee accidentally set her hair on fire while trying to light a cigarette during her lunch break. The New Jersey Supreme Court found that her injuries did not arise out of the course of her employment.

The Coleman court reasoned that the the nature of the risk to the employee of setting her hair on fire in that manner was personal to the employee and that the employment connection with the injury was minimal. There was no condition of her work or workplace that was a contributing cause of her injury.

Idiopathic (spontaneous) fall cases

As though the discussion of an employee’s setting her own hair on fire were not enough, the court moved on to a discussion of workplace injuries caused by spontaneous falls. An employee who burned his face when he fell into a pot stove during a seizure was awarded workers comp in 1944 because the stove was a condition of the workplace that contributed to his injury.

Likewise, an employee who fell because of a heart attack and hit his head on the floor, as a result of which he later died, was entitled to workers comp in 1965 because the injury he suffered was a risk of his employment – i.e., the impact with the floor, which was a condition of the workplace.

The smoking cases

Unable to leave well enough alone, the court reviewed the smoking cases, in which employees suffered smoking related injuries on the job. In a case from 1955, when an employee was injured after spilling gasoline on his clothing and then trying to light a cigarette, the injuries were compensable because they arose out of the course of his employment.

But in a 1952 case, an employee was denied workers comp when he suffered injuries from a match head that flew into his eye when he tried to light a cigarette while driving a truck during work. This particular risk of using matches or smoking was somehow unconnected to the employment. The different outcomes in these two smoking cases perplexes me.

The workers comp judge in the recent perfume case apparently thought it was more like the match-head cigarette case than the gasoline-spill cigarette case, due to the employee’s personal sensitivity to perfume. While I don’t like that outcome, I can’t blame the judge for being a bit confused about how these cases should be decided, considering the state of the past case law reviewed in this opinion (the match-head case in particular).

Perfume case, Appellate Division analysis

The Appellate Division reversed the workers comp judge, reasoning as follows: But for being at work that day, the employee would not have been injured by her co-worker’s perfume. The air she had to breathe, which was contaminated by the perfume, was a condition of (and a risk of) her employment. Since breathing the contaminated workplace air injured her, the injury arose out of her employment.

The court also pointed out that just because the employee had COPD did not mean that the subsequent aggravation of that COPD was not compensable. Employees may be entitled to compensation where the injury causing their total and permanent disability amounted to the aggravation of a pre-existing condition. In fact, the Second Injury Fund allows employers a credit under these circumstances.

Sexton v. County of Cumberland/Cumberland Manor, Docket No. A-6414-06T1 (Sup Ct NJ, App Div 2009).

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