Tom Appeals Blog

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"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

Life Ain't Fair, And Neither Is Employment Law – Thank Goodness For Lilly Ledbetter

Posted: July 10, 2009 Filed under: Commentary, Employment Law, Legislation

While reading the case law that has developed since President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 into law last January, I was reminded that law is not always logical, intuitive, or fair. One of the cases surveyed case law evaluating the effect of unequal work assignments, emphasizing that a higher workload by itself is not actionable discrimination. That court cited, among other decisions, an Eleventh Circuit Court of Appeals decision from 2008, which held that an employee did not suffer adverse employment action when a supervisor increased the employee’s workload, assigned him additional tasks, and denied him breaks while allowing employees of another race to take breaks. The Eleventh Circuit felt that the abusive treatment experienced by the employee did not meet a “threshold level of substantiality” and did not “show a serious and material change in the terms, conditions, or privileges of employment.” Simply put, “unfair treatment does not, under Eleventh Circuit precedent, constitute the type of ‘adverse employment action’ necessary to support a disparate treatment claim.”

This type of case law is why employers win upward of 85% of the cases that go into litigation, as explained in a Wall Street Journal article linked in an earlier post on this site. Attorneys must be diligent and creative when asserting most discrimination claims because of restrictive interpretations found in court decisions.

On a brighter note, Congress did the right thing in enacting the Lilly Ledbetter Fair Pay Act of 2009. As a New Jersey federal district court explained, the Act reverses prior U.S. Supreme Court case law and now permits employees “‘recovery of back pay for up to two years preceding the filing of the charge [of discriminatory pay with the EEOC], where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.’” One purpose underlying the Act was to give victims of pay discrimination full back pay for two years rather than to limit it to 180 or 300 days. Under the Act, the statute of limitations period and the back pay recovery period are separate and distinct.

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