Butler Williams & Skilling Blog

Fixing a Systemic Problem - Discriminatory Race and Gender Pay Claims May Become Easier to Prove

On Friday, January 9, 2009, the U.S. House of Representatives passed legislation which could make proving race or gender based pay practices a little easier.  The Ledbetter Fair Pay Act and the Paycheck Fairness Act were passed by the House of Representatives as combined H.R. 11. 

This legislation, if enacted and signed into law, will overrule a hurdle to proving race or gender pay practices erected by the U.S. Supreme Court in Lilly Ledbetter v. Goodyear Tire & Rubber Co., Inc.  That 2007 U.S. Supreme Court decision erected a wall to proving such cases that meant many people receiving lesser pay than their white or male peers, would effectively, be out of court.  The Ledbetter rule states that if an employee fails to challenge the discriminatory pay practice or plan within a short time after the first notice or indication of the discriminatory pay practices, the case is untimely – and a discriminating employer is not legally responsible. 

But when was the last time an employer who was shorting women or minorities sent a memo around to bring attention to the fact that it is paying women or African American employees less, or providing lesser promotional or advancement opportunities to such workers?  Let’s face it - many, many employers do pay women and minority employees less than they pay comparably situated male or white employees.  Often, this fact does not come to light until the pay structure is examined more carefully, such as when a termination is questioned, or some other, more apparent differential treatment is observed – say the failure to promote or advance minorities or women.  But, under the Ledbetter rule, if that challenge is too late, then too bad – you cannot enforce the laws that prohibit pay discrimination based on gender or race.

Prior to the Ledbetter decision, most courts accepted a ‘paycheck accrual’ rule that held that every paycheck under a discriminatory pay plan was a separate actionable event, allowing an employee to go back in time to capture the underpayment once the discrimination becomes apparent.  Under such a rule, all discriminatory payments would be due under a theory which recognizes that an employer must be responsible for past, as well as present, violations under a ‘continuing violation’ theory. 

The Ledbetter decision rejects such a ‘paycheck accrual’ rule and makes it much more difficult for a women, African American, Hispanic, Asian American or other racial or religious minority to challenge the discriminatory pay practice.  H.B. 11, the legislation currently identified as the Ledbetter Fair Pay Act and the Paycheck Fairness Act, will reaffirm the prior ‘paycheck accrual’ rule and will allow underpaid women and minorities the ability to enforce the laws which prohibit such discriminatory pay practices.  It will eliminate artificial time barriers to challenge these illegal pay practices and will remove the employer defense that a person did not challenge the discrimination soon enough!  Please contact your U.S. Senator to encourage them to vote in favor of this legislation.  There is no legal excuse for paying women or minorities lesser wages for performing the same work – and there should be no legal incentive to avoid the law (or for keeping illegal pay systems in place) because some woman or racial minority failed to ‘beat the clock’ to challenge the practice.  Our laws should encourage following the law – not avoiding it!

Labels: Civil Rights Lawyer Employment Lawyer Gender Discrimination Pay Discrimination Race Discrimination Racial Discrimination