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What Ledbetter Has Wrought

By Michael W. Fox, Esq.

It hasn't taken long for the effects of The Lilly Ledbetter Fair Pay Act to be felt.
My colleague in Morristown, New Jersey, David Copus has been following the Act closely, as well as warning about its potential impact. Here's the latest:

The key section of the Act provides as follows:

For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual 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.

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.

Full post as published by Jottings By An Employer's Lawyer on February 11, 2009 (boomark / email).