Grossman and Brake on Reviving Title VII's Protection Against Pay Discrimination

Joanna Grossman (Hofstra) and Deborah Brake (Pitt) have posted on FindLaw's Writ their commentary: Reviving Title VII's Protection Against Pay Discrimination In the Wake of the Supreme Court's Harsh Decision: A Call for Congressional Action.

Here are some highlights:

The Supreme Court has made a mess of pay discrimination law. In a prior column, we criticized the Court's recent ruling in Ledbetter v. Goodyear. In this column, we will argue that Congress should legislatively overturn that ruling - and should also take the opportunity to amend Title VII, the centerpiece of federal protection against employment discrimination, in other ways as well . . . .

The Ledbetter Court dismissed as "policy arguments" the concerns raised by the dissent about the hardship for employees who do not learn about pay disparities until it is too late. The Court ignored the elephant in the room: What kind of information suffices to place an employee on notice that she has a potential pay claim, so as to start the 180-day clock ticking? The majority simply states that the clock starts to run when the "discriminatory pay decision was made and communicated." . . . .

Specifically, Congress should restore the paycheck accrual rule--permitting employees to challenge pay discrimination that extends into the filing period, regardless of when it first began--that lower courts had applied before Ledbetter. The point is simple and just: As long as an employees' paycheck is still tainted by discrimination, she should not be time-barred from challenging it

The authors also suggest lengthening the Title VII statute of limitations to two years and "lift[ing] the statutory cap on damages in Title VII, so as to permit plaintiffs full recovery for intentional employment discrimination and impose sufficient incentives on employers to deter discrimination in the first place."

PS