Lawffice Links - President Obama on Equal Pay and New EEO-1s

On Friday, President Obama made some announcements regarding his efforts to address pay equity. He timed them to match the 7th anniversary of the Lilly Ledbetter Fair Pay Act"

• From the White House Blog: Taking Action to Advance Equal Pay
• President Obama is once again pushing the Paycheck Fairness Act. Jon Hyman has a good summary of an early version of the bill: Do you know? What is the Paycheck Fairness Act and why should employers be concerned?
• The Council of Economic Advisers released an issue brief: Gender Pay Gap on the Anniversary of the Lilly Ledbetter Fair Pay Act
• Part of the plan is for the EEOC to collect more data via revisions to the EEO-1 form. Eric Meyer has a good (and entertaining) post: Those EEO-1s you love to complete are gonna get more complicated

That should keep you busy for awhile. 

Employment Law in the Presidential Debates . . . Sort Of

Well, the good news is that the topic of employment law came up in the presidential debates. Unfortunately, I can not say it was a particularly enlightening conversation. During the second debate (transcript here), President Obama brought up Ledbetter:

[T]he first bill I signed was something called the Lilly Ledbetter bill. And it was named after this amazing woman who had been doing the same job as a man for years, found out that she was getting paid less, and the Supreme Court said that she couldn't bring suit because she should have found out about it earlier, when she had no way of finding out about it. So we fixed that.

Ummm, actually that's not even close to an accurate description of the Supreme Court's ruling (opinion here). Somewhere, Justice Alito (who wrote the opinion) is shaking his head and mouthing "not true." Had Ms. Ledbetter filed her lawsuit upon discovery of her employer's discrimination, she could have argued that her suit was timely under something called "the discovery rule." However, as the Supreme Court noted:

We have previously declined to address whether Title VII suits are amenable to a discovery rule. Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.

In fact, Ms. Ledbetter initiated her claim (by submitting a questionnaire to the EEOC) in 1998. According to her deposition testimony, she knew she was making less than her peers in 1992 and even knew the extent of the disparity as early as 1994 or 1995.

So, surely Governor Romney eloquently explained President Obama's misstatement of the case and detailed his own position on the Lilly Ledbetter Fair Pay Act, right? Yeah, actually he dropped his now (in?)famous comment about "binders full of women" and made some vague argument about:

adapting to a — a flexible work schedule that gives women the opportunities that — that they would otherwise not be able to — to afford.

It was not clear how these flexible schedules would be implemented. I can't say I was particularly impressed by either candidate's response. I guess I'll call it a draw.

Image: White House seal - Not official use.

Failure-to-Promote Not Covered by Ledbetter FPA - New Third Circuit Decision

On Friday, the Third Circuit addressed the scope of the Lilly Ledbetter Fair Pay Act (FPA) in Noel v. Boeing Co., 2010 WL 3817090 (3d Cir. Oct. 1, 2010).

The plaintiff brought a Title VII claim based in part on his employer's failure to promote him in 2003. He did not file a charge of discrimination with the EEOC, however, until March 2005. This was well outside the 300-day statute of limitations (a complex issue, but suffice it to say it was 300 days here) so the District Court granted summary judgment in favor of the employer.

But wait! There was still a glimmer of hope for the plaintiff. Congress passed the Lilly Ledbetter Fair Pay Act (FPA) which took effect in 2009. As the Third Circuit described it:

[E]ach paycheck that stems from a discriminatory compensation decision or pay structure is a tainted, independent employment-action that commences the administrative statute of limitations.

See 42 U.S.C. § 2000e-5(e)(3)(A). So, if his failure-to-promote claim was covered by the FPA, he'd be back in business!

Alas, this glimmer of hope was short-lived. The Court held that "a failure-to-promote claim is not a discrimination-in-compensation charge within the meaning of the FPA." Plaintiff's Complaint made no allegations of disparate compensation during the relevant time period and his factual allegations focused on his employer's failure to promote him. Thus, the Third Circuit affirmed the District Court's grant of summary judgment in favor of the employer.

Sidenote: The Court also noted that the only other Circuit to address this issue similarly held that "the FPA's terms do not cover failure-to-promote grievances." See Schuler v. Pricewaterhouse Coopers, LLP, 595 F.3d 370, 375 (D.C.Cir.2010).

Image: Lilly Ledbetter speaks during the second day of the 2008 Democratic National Convention in Denver, Colorado. By Qqqqqq. Reused under Creative Commons Attribution-Share Alike 3.0 Unported license.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Ledbetter - Document Creation and Retention on The Proactive Employer

I appeared on The Proactive Employer , hosted by Stephanie Thomas, this morning. A few weeks ago, I announced that I would be appearing to discuss:

"[C]ompensation decisions . . . [and] how the Ledbetter Fair Pay Act has affected recordkeeping and document creation and retention."

If you missed it, you can listen on the embedded Podcast Player below:

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Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Ledbetter, Compensation Docs, and Me on The Proactive Employer 4/2

On Friday, I confirmed with Stephanie Thomas that I will appear on her podcast, The Proactive Employer, on April 2, 2010. Per the official announcement, the topic will be:

"[C]ompensation decisions . . . [and] how the Ledbetter Fair Pay Act has affected recordkeeping and document creation and retention."

Did I mention the show will be LIVE!?

I don't want to show my hand too much but I have gone on the record regarding some of these issues. For example, in Employers Urged to Save Pay Documents, I am quoted as saying:

"Employers should be looking at how they document their compensation decisions, with an eye toward building a record that can be used many years down the line. Today's compensation decision could result under the Fair Pay Act in a claim several years down the road, and long after the people involved in the compensation decision have moved on. It may be the only thing they have."

And then, in Ledbetter Fair Pay Law Hasn't Flooded Courts, I'm again quoted:

"[It is difficult to] support your side of the story when you may not have the people or the documentation to support your side of the argument . . . . I would definitely say it's still an issue for employers and it's really going to be an ongoing issue . . . . It's something they're really going to have to continuously prepare for by creating and maintaining documentation."

Both articles appear in Business Insurance. That's just a sneak preview. Ms. Thomas and I will delve further into these issues on April 2, 2010. Be sure to tune in!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Top 5 Employer Lawsuit Risks - HR Hero

On Tuesday, July 21, 2009, HR Hero will present the Top 5 Employer Lawsuit Risks, and Protections, for 2009. So what are the top 5 according to HR Hero?

1. Age Discrimination

Talk about your no-brainers! As I showed you in the chart of EEOC stats on Monday, age discrimination claims shot up 29% last year alone. The work force is getting older, claims are on the rise, what more needs said?

2. Retaliation

With claims on the rise there are more and more individuals against whom an employer can retaliate. Combine an increase in the number of people who have filed claims with the drastic increase in "adverse employment actions" resulting from our current economic situation... well, I think you see where this is going.

3. Equal Pay Act Charges

This one surprised me a little. HR Hero cites a dramatic increase in the number of claims and mentions the Ledbetter Fair Pay Act which extends the statute of limitations for bringing claims. The Ledbetter Act applies to Title VII, ADEA, and ADA claims though, so I'm not sure why Equal Pay Act claims stand out.

4. Sex Discrimination (Including Pregnancy)

Sex discrimination is always a biggie. In fact, it's second only to race in number of claims filed. If you include pregnancy (which HR Hero has) then the number of claims is higher than race-based claims.

5. Disability Discrimination

This is another no-brainer. The ADA Amendments Act of 2008 (ADAAA) greatly expanded the definition of "disability" which will have the practical effect of dramatically increasing the number of disabled employees. OK, obviously it is not causing disabilities, I mean it's increasing the number of individuals covered by the ADA.

Noticeably absent from HR Hero's list: Race discrimination! As I just mentioned race is the number one basis for discrimination in terms of number of complaints filed. Aside from that omission, I think it's a great list and it should be an interesting audio conference.

Does the Ledbetter Act Extend Failure to Promote Claims?

A May 21, 2009 Eastern District of Pennsylvania decision has held that the recently enacted Lilly Ledbetter Fair Pay Act does not apply to failure to promote claims.  Rowland v. Certainteed Corp., 2009 WL 1444413 (E.D. Pa. 2009).

The Ledbetter Act essentially removes the statute of limitations for employment discrimination claims in limited circumstances:

with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person 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.

29 U.S.C. sec. 626(d)(3).  In plain English: If you're still getting paid less as a result of a "past discriminatory compensation decision or other practice" then you may file suit even after the ordinary  statute of limitations has run.

  

In Rowland v. Certainteed, the Court differentiated Ms. Rowland's claim from Ms. Ledbetter's claim (the basis for the Ledbetter Act):

Ledbetter's claim was based on allegations of discriminatory pay . . . . Here, Rowland's failure to promote claim is not based on a discriminatory compensation claim. Furthermore, her argument would eliminate any statute of limitations with respect to reporting discrimination to the appropriate agency, a change in law not found in the Ledbetter Act.

This holding underscores an emerging split among district courts over whether the Ledbetter Act applies to failure to promote claims... or does it? An earlier case from the Southern District of Mississippi applied the Ledbetter Act to a denial of tenure claim. Gentry v. Jackson State University, 2009 WL 1097818 (S.D. Miss. 2009).  The cases can be reconciled, however, upon closer examination of the language used by the Court in Gentry:

[P]laintiff has asserted that the denial of tenure also denied her a salary increase and hence was a compensation decision. Accordingly, the court concludes that it cannot grant summary judgment on the limitations basis urged by [Jackson State University].

The distinction emerges as a pure failure to promote claim (not extended) versus a failure to promote which would affect compensation (extended). This distinction would be consistent with the language of the statute ("discriminatory compensation decision"). As a promotion almost necessarily includes a compensation adjustment, however, this distinction may be illusory. As Pennsylvania Law Weekly reports (subscription required), in Rowland:

[P]laintiffs attorney Ayesha Hamilton of Lansdale, Pa., argued that the language of the Ledbetter Act, and its revision of the term "unlawful employment practice," should be read broadly to apply to failure-to-promote claims because the denial of a promotion also directly affects compensation.

It's therefore not really clear whether there is a distinction or a split.  I'm sure it's only a matter of time before the Circuits get involved.  Will they resolve this potential split or just widen the gap?  We'll see, but for now plead carefully!