Category Archives: Employment discrimination

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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Act in favor of fair pay

Interested in the issue of fair pay for women but don’t know what to do?  Sign the petition over at the “Out of the Way of Fair Pay” campaign, the result of a collaboration between I Am Progress (part of the Center for American Progress Action Fund) and MomsRising.org.

The petition, which will be sent to the U.S. Chamber of Commerce, is in support of the Lily Ledbetter Fair Pay Act and the Paycheck Fairness Act, both of which the Chamber opposes.

Here’s the link to the petition: Out of the Way of Fair Pay

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Vera Glaser, a journalist who wrote about employment discrimination

From The Washington Post last Sunday, an article about the reporter Vera Glaser, who wrote a five-part series on employment and policy discrimination against women after a press conference with President Nixon.

In 1969, she asked the new president, Richard Nixon, why only 3 of his approximately 200 presidential appointments had been women. Here is an audio link to an interview with Glaser wherein she discusses that Nixon press conference.

Vera Glaser recently died at the age of 92.

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Recent case illustrates proper analysis under New Jersey Law Against Discrimination

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This week, the Superior Court of New Jersey, Appellate Division, decided a case involving a claim under the New Jersey Law Against Discrimination (NJLAD) and outlined the burdens of proof necessary to make a proper case under the NJLAD.

Factual background

According to the decision, the employee worked for her employer for about 24 years, until her employment was terminated. She had supervisory responsibility over the production of commercial print advertisements.

Her performance was satisfactory until 2003, when she received 2 written warnings for her failure to complete certain printing jobs, for mailing a package to the wrong location, and for working the wrong job for 2 shifts.

In September of 2003, the employee met with her department and human resources managers about her performance problems. A memo from the employee’s file summarizing the discussion reflected several complaints about her job performance. Her department manager told her to improve her performance in the areas they discussed and stated that her failure to improve could result in termination of her employment.

In October 2003, the employee supervised a project that was sent to press without having been completed, costing the employer over $200,000 to re-run the project. The following month, her employer fired her, stating in a written notice that her poor performance was the reason for the termination.

Two years later, the employee sued her former employer under the NJLAD, claiming gender and sexual orientation discrimination and breach of contract. Losing at the lower court level, she filed this appeal.

Framework for analysis

The appellate court determined that the employee’s claims had no merit. The court outlined the proper framework for analyzing NJLAD claims: 1) The plaintiff must present enough evidence to establish a prima facie case of illegal discrimination; 2) The defendant must present evidence to establish a legitimate, non-discriminatory reason for the adverse employment action; 3) If #2 is established, the plaintiff must prove that the defendant’s reasons are a pretext for illegal discrimination.

Assuming that the employee in this case presented a prima facie case under #1, above, the defendant-employer successfully met its burden under #2, above, by establishing that it fired the employee because of her poor performance.

To meet the burden of #3, above, the employee needed to show not only that the employer’s reason for firing her was false, but also that the employer’s motivation in firing her was, more likely than not, discriminatory. Her evidence of discriminatory intent included the assertion that ever since she refused to take a severance package offered to her in 2002, the employer was out to get her. However, the court pointed out that if the employer had wanted to let her go in 2002, they could have done so. And, the company later gave her an opportunity to improve her declining performance.

As further evidence, the employee asserted that another employee who worked on the costly print job error was not disciplined. The court declared that an employer’s decision to discipline only one employee does not create a cause of action for discrimination under the NJLAD. Overall responsibility for the print-job error admittedly rested with the employee, who was unable to present facts to show discriminatory intent based on gender or sexual orientation.

Brunner v. Vertis, Inc., et al., Docket No. A-0036-07T1 (Sup Ct NJ App Div 2008).

Commentary

This case illustrates the importance for employers of documenting complaints and meetings about employee performance and of placing that documentation in the employee file. In this case, it looks like the employer’s good record-keeping was a saving grace for them in providing evidence countering the employee’s claims.

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How do we remedy system-wide workplace discrimination?

The University of Buffalo reports that another academic article addressing individual vs. organizational responsibility for employment discrimination will be published. Entitled “Divergent Paths: Conflicting Conceptions of Employment Discrimination in Law and the Social Sciences,” by Ellen Berrey, Ph.D., Robert L. Nelson, Ph.D., and Laura Beth Nielson, Ph.D., the article will be published in Annual Review of Law and Social Science in December.

In an earlier post, “How the lack of fair pay affects us all,” I reported on an academic article entitled (in part) “Insular Individualism,” making the case that courts have been trending toward blaming an individual or a group for employment discrimination while keeping the employer and its work environment safe from blame.

Similarly, “Divergent Paths” recognizes that the U.S. legal system places blame for employment discrimination on individuals, seeking out those who maliciously committed deliberate discrimination, even though this is not the most effective method of correcting the problem of employment discrimination. Instead, workplace discrimination would be better addressed through remediation of organizational practices – in particular, practices employers use that tend to perpetuate discrimination.

I think that a major point of this article is that if the discrimination is systemic, affecting the entire organization, then the remedy should also be systemic. The article predicts that without system-wide remedies that affect entire organizations, the discrimination will continue and individual employment discrimination cases will continue to be difficult to prove.

The question that I have is, how does one shift the courts’ point of view away from individual instances of particular discrimination toward system-wide, organizational discrimination? Through legislation? Focused litigation efforts? Powerful business lobbies would push back, hard. I don’t think a remedy is forthcoming.

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New York Post: Employees suing their employers have a tough row to hoe

An article in today’s New York Post, “Rough Justice,” highlights some of the many difficulties that can arise for employees who choose to sue their employers for employment discrimination.

Indeed, anyone who is seriously considering suing for employment discrimination needs to take into account the potential for tough times ahead.  Potential issues include, but are not limited to: A long time period between commencement of the claim/suit and final resolution (there may be appeals); many out-of-pocket expenses (court reporters, transcripts, filing fees – to name a few); your personal time expenditures (for hearings, depositions, evidence gathering, etc.); and, after all of this, the potential for losing the case entirely.

Often, larger employers easily have more resources ($$$) than current or former individual employees.  It’s possible that an employer might want to settle a suit to avoid the hassle, but as today’s NY Post points out, it’s also possible that an employer might want to aggressively fight lawsuits to create an example for others.

Lawsuits are not without their risks.  Carefully weigh your risks by discussing both known and potential issues with your attorney.  Discuss with your attorney the evidence that would be required to prevail in your case.  Then do your own cost-benefit analysis to decide whether you really should sue. Potential clients often ask, “Can I sue?”  Remember, you can always sue, but you can’t always win.

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