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Patty Wise
419-724-3321
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Margaret Lockhart
419-249-0260
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Renisa Dorner
419-724-3322
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E. Sharon Clark
419-249-0253
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It has been 18 months since the Supreme Court issued its decision in Ledbetter v. Goodyear Tire & Rubber Co. Since then, Congress has been working to overturn the Ledbetter decision. Congress succeeded today when President Obama signed the Lilly Ledbetter Fair Pay Act.
If it is true that “bad facts make bad law,” then this is a prime example. Many would agree that Lilly Ledbetter was subject to pay discrimination throughout most of her 19 years of employment with Goodyear. The pay disparity affected each pay check, and ultimately her pension benefits. She was not aware of the disparity until she received an anonymous tip near the end of her career. Unfortunately for Ms. Ledbetter, the Supreme Court ruled that a pay discrimination complaint had to be filed within 180 days (or 300 in certain states) of the initial discriminatory pay decision. Of course, that time had long passed, and Ms. Ledbetter was left with no ability to seek redress for the many years of pay discrimination she endured.
Many commentators, bloggers, and supporters have said that the new law “restores” the law in effect prior to Ledbetter. In fact, the Lilly Ledbetter Fair Pay Act goes far beyond any previous law regarding pay discrimination. Employers now face greatly expanded potential liability in this area of the law. Ms. Ledbetter’s case involved discrimination on the basis of gender. The new law prohibits pay discrimination on the basis of any protected classification (race, religion, age, disability, etc.). The new law expands liability to include benefit payments, in addition to pay checks. The time for filing a claim has been greatly extended (every pay check extends the statutory filing period for another 180 days). And most significantly, the new law allows lawsuits by the aggrieved employee, as well as by other individuals who were “affected” by the pay discrimination. This unprecedented expansion may allow spouses, children and others to become plaintiffs in pay discrimination lawsuits, even after the employee has died.
Employers should continue to self-audit pay practices, now taking into account all protected classes, not just gender. Pay differentials should be clearly justifiable and well-documented. Pay records should be maintained indefinitely. While backpay is still limited to two years, earlier records justifying pay differentials may be essential to defending pay disparity. For assistance, contact any member of Cooper & Walinski’s Labor and Employment Practice Group.
Other Developments
In another Supreme Court ruling, issued this week, the Court held that Title VII’s prohibition against retaliation extends to internal investigations. Employees who do not initiate but participate in those investigations by merely answering questions are protected from retaliation.
The Crawford v. Metropolitan Government of Nashville case involved an internal investigation of rumors of sexual harassment. Three witnesses were asked about the rumors, and confirmed various instances of harassment. The accused was not disciplined, but the three accusers were fired soon after the investigation. The Court held that merely participating in the investigation was sufficient to trigger protection from retaliation.
This decision should not discourage internal investigations of harassment. These investigations remain essential to eliminating harassment and protecting employers from liability. For guidance, contact any member of Cooper & Walinski’s Labor and Employment Group.
Finally, for those of you with 50 or more employees, do not forget that revisions to the FMLA became effective on January 16, 2009. Be sure to update your policies.
This article is provided for general informational purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. Employers are urged to consult a Cooper & Walinski attorney concerning any specific legal questions they may have. |
Janis Foley
419-249-0262
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Miles McKee
419-249-0257
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Diane Citrino
216-624-4055
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Beth Wilson
419-249-0254
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