Tuesday, December 7, 2010

Resisting the "Allure of Congruity"

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The New Jersey Supreme Court just issued an opinion which, by a somewhat different route, reaches the same result as the Lilly Ledbetter Fair Pay Act for state law claims under NJ's Law Against Discrimination.  Alexander v. Seton Hall University was brought by three female professors claiming age and sex discrimination in compensation.  Since I'm employed by the University and have written about the Lilly Ledbetter Act, it's important to stress that I had nothing to do with the case, on either side of the dispute! 

The plaintiffs claimed that they were the victims of discrimination in salary at the time of their hires, which had occurred twenty or thirty years before they filed their complaint. They also claimed, however, that the initial discrimination had continued to influence their salaries the entire time. The salary discrepancies apparently came to light as the result of a University 2004-05 study showing higher salaries being paid to younger professors and to male professors. For example, one plaintiff was earning $50,000 less than two younger (female) professors with far less service.

New Jersey has a two year statute of limitations for LAD claims, and the NJ Supreme Court ultimately held that the plaintiffs could recover for any discriminatory pay received during that period. Essentially, it adopted a paycheck rule. In the process, it rejected what it called plaintiffs' "sea change" argument that the discrimination in pay was a continuing violation such that they could recover all compensation ever lost (in much the same way a sexual harassment plaintiff can recover for any act of harassment that is part of a contaminated environment that continues into Title VII's charge-filing period).

What was more interesting to me than the result was the Supreme Court's approach to the relationship of state and federal law. To hold the way it did, Alexander had to also reject the lower court's application of Ledbetter v. Goodyear Tire, which would have held actionable only "fresh" acts of discrimination that occurred during that period:

The courts below succumbed to the draw of aligning our LAD jurisprudence to that which was developing under federal law for wage discrimination claims, We do not see the allure of that congruity....

Now, it's not like NJ doesn't succumb to the lure of congruity often, certainly in meshing LAD with Title VII, For example, the Court essentially adopted for LAD purposes the Morgan continuing violation doctrine under Title VII, although it has departed from Title VII with respect to the Faragher/Ellerth scheme of employer liability for sexual harassment.

The overarching question is why the state and federal laws should align in the first place. Alex Long addressed this question a few years ago in a piece at 40 Ga. L. Rev. 469, which is well worth reading.

To frame the question anew, however,  the respective statutes were enacted (or amended) by a different sovereign at different times using different language and reflecting (somewhat) different policy goals. LAD, in fact, antedated Title VII by two decades. While certain obvious differences between various state and federal laws (coverage for example) are routinely recognized, state courts,not merely in NJ, seem to have a sense that the federal courts know better about discrimination. That's far from clear to me.

Further, it's far from clear that the federal and various state court systems are even approaching the task of statutory interpretation in a similar manner. If, in fact, state courts take, say, a nontextualist approach to state law interpretation, why should they defer to federal courts taking a textualist approach to an entirely different statute? At this point, I'd like to give a hat tip to Abbe Gluck's terrific work on state statutory interpretation methodology and its possible significance in federal courts adjudicating state claims, work which sheds new light of the desirability of congruity.

There are, I am sure, a number or responses to this point. The most obvious is that the state courts are not exactly deferring, but rather simply looking to federal authority as persuasive precedent. This, of course, raises the question of why construction of a different statute should be (very) persuasive. The second argument is that there's some value to the employers of the world in having a unified regulatory regime; I concede the point, but question whether it should have any influence in any but the closest of cases.   

In any event, I wonder if the academy is not partially responsible.  By and large, we have left state law to its own devices (and to student notes), which means that almost any analysis of  a particular question is likely to focus primarily, if not exclusively, on the federal level. It's surely understandable why. But, given the repeated disappointments employment discrimination scholars have faced in having their views accepted by the federal courts, maybe a shift in focus might be worth considering -- even if, unlike New Jersey, many state courts systems have a more explicitly political bent due to judicial elections....

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