|Jottings By An Employer's Lawyer|
Wednesday, February 11, 2009
What Ledbetter Has Wrought
The key section of the Act provides as follows:
The reason for highlighting the phrase “other practice” is because plaintiffs are already successfully arguing that the Act reaches all types of employment decisions that affect pay beyond a simple decision on wages, including demotions and promotions.
And to further make his point, here are two cases he has found in the first week after the bill was signed:
Bush v. Orange County Corrections Dept., No. 6:07-cv-588-Orl, 2009 WL 248230 (M.D. Fla. Feb. 02, 2009) at *2. The court held that plaintiffs could timely challenge demotions, which resulted in reductions in pay, that occurred 16 years before plaintiffs filed their EEOC charges. The Court noted the irony of the timing of the Act’s passage: “Thus, while [defendant’s] untimeliness argument was valid prior to last week, with the passage of the Act Plaintiffs' Title VII claims are no longer administratively barred.”
Gilmore v. Macy’s Retail Holdings, No. 06-3020 (D.N.J. Feb. 4, 2009). The Court held that the Ledbetter Fair Pay Act applies to an allegedly discriminatory promotion decision, where the promotion would have been to a higher paying job.
Fasten your seat belts.
Update 2.12.09: I noticed the ABA Journal has picked this up, and also it is running at least for now on the front page of law.com, so a higher number of hits today than usual. In light of that, I should make clear that some loose wording on my part has actually not made clear what actually happened in the two cited cases.
Rather than plaintiffs making the arguments, in both cases the issue was raised by the Court on its own initiative. In both cases, it ultimately didn't matter as the Court ruled on the merits in favor of the employer, still the import of the Ledbetter Act seemed clear to these two judges.
Ross Runkel, who always provides a voice of reason thinks the rationale is wrong (and my concern premature) and explains why in, Ledbetter Act apply to demotions and promotions? I hope Ross is right, but even if he is, it points out one of the dangers of any legislation. Until it is sorted out, it makes things unclear as to what the law is, which always leads to more litigation and more cost. I do not know of any way to avoid that with a new piece of legislation, but that cost is certainly one that should be factored in when considering the alleged benefit of any legislation.
2nd Update 2.12.09: Jeff Siegel of Boston's Morgan, Brown & Joy who represented Macy's in the New Jersey case was kind enough to offer more insight, as well as a gentle correction, about that case:
3rd Update, 2.13.09: The plaintiffs' in a case that has already been argued before the U.S. Supreme Court, AT&T v. Hulteen, have now filed a supplemental brief arguing that the case is now resolved in their favor because of the Ledbetter Fair Pay Act. See comments on this development at Workplace Prof Blog and by Ross Runkel.