Monday, April 28, 2008

Estreicher Asks About Ledbetter

Estreicher Seeking to provoke some thoughtful dialogue on the Ledbetter decision and the recent filibuster of the Ledbetter Bill in the Senate, Sam Estreicher (NYU and Director, NYU Center for Labor & Employment Law) poses the following comments for discussion:

All that Ledbetter held is that in a discrimination claim, it is legally insufficient for an individual plaintiff to be relying only on pay decisions taken outside of the charge filing period, where that plaintiff had notice of those pay decisions and their potentially discriminatory nature outside of the charge period.   T

The decision does not address:

(1)  whether the present effects of those prior decisions would state a timely claim under a disparate impact theory;

(2)  whether those prior pay decisions could be timely challenged as part of a pattern or practice claim on behalf of a class;

(3)  whether those prior pay decisions could be timely challenged if the plaintiff did not discover their potentially discriminatory nature until the charge filing period;

(4) whether and if so in what circumstances equitable tolling would apply to allow challenge to those prior decisions;

(5) whether a timely claim for those decisions would lie under the Equal Pay Act; and

(6) whether Ledbetter comes out the same way if there had been intentional discrimination during the limitiations period.

Some interesting points. Have at it people.


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Of course it doesn't - those issues were not before the Court. Except I thought the decision might have addressed #5, answering it in the affirmative, although I could be misremembering commentary on the case - Ledbetter's attorneys dropped her EPA claim, without real explanation.

Posted by: Tor | Apr 28, 2008 2:27:36 PM

These are good observations, the broader point being that Ledbetter does not bar challenges to ALL pay discrimination that started more than 180 (or 300) days ago, because sometimes the plaintiff can do one of several "end runs" around that short limitations period by (for example) citing a "discovery rule" (Sam's third point) or by using disparate impact doctrine to challenge reliance on pay scales initially set during a time of discrimination (Sam's first point). As a side note, I've argued for a broad construction of the discovery rule, but I have my doubts courts will say older pay discrimination can still be challenged, despite Ledbetter, WHENEVER a plaintiff reasonably did not know of the pay discrimination within the limitations period; courts just aren't that lenient with Title VII plaintiffs in virtually any area of the Title VII jurisprudence.

But I still see Ledbetter as bad law even setting aside the fairness concerns the dominate the argument: By requiring employees to RUSH to sue, Ledbetter is inconsistent with the Faragher/Ellerth demand that employees DELAY harassment suits to complain about the harassment internally, i.e., by complaining to company H.R. If there's a meaningful distinction here, it's that pay discrim (which is often provable from undisputed records) MORE sensible (than harassment) to challenge internally pre-suit (classically the sort of he/she said that makes HR officials throw up their hands, unable to make any finding of wrongdoing). If for almost a decade (since Faragher) we've been expecting employees to intuit, "I must hold off on filing my harassment suit until I file, and wait for HR to address, my harassment complaint," then how the heck can we say now that employees muct intuit that they better NOT delay a pay discrim suit to complain to HR because they'll lose their pay claim if they do so?

Worse: what of "dual claim" plaitiffs who (as is not uncommon) allege that the same sexist supervisor who harassed them also paid them less because of gender? Ledbetter and Faragher demand that they (1) sue immediately on their pay discrimination while (2) still complaining to HR on their harassment claim! I pity the HR official who is expected to undertake a fair eval of a harassment claim by a pay discrim plaintiff.

Troublingly, the Ledbetter Court never noted this inconsistency -- that its body of precedent now eliminates some Title VII cases (harassment cases) for being filed too quickly (before utilizing HR procedures) but others (pay claims) for being filed too late.

In short, Ledbetter has made a mess of the serious question of whether and when an employee must undertake internal dispute resolution efforts before suing. Where the Court makes a mess of its precedent, the case is especially strong for Congress to intervene to clean up that mess.

Posted by: Scott Moss | Apr 28, 2008 3:55:55 PM

Don't forget that plaintiffs already have three years to sue under the Equal Pay Act. And four years to sue under 42 U.S.C. 1981.

So few claims are really stopped by Title VII's shorter 180-day deadline -- which isn't rigid in any case, given that there are more holes in its deadline than swiss cheese, and given the existence of doctrines like equitable tolling that can extend the deadline where appropriate.

Posted by: Hans Bader | Jan 13, 2009 11:33:14 AM

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