Some thoughts on the Lilly Ledbetter Fair Pay Act of 2009

Imagine this, you are a woman supervisor in a plant with 16 other male managers and find out that after twenty years on the job, your pay is 20% to 40% less than all the other male supervisors. Imagine that once you learn that, you promptly file a charge of discrimination with the EEOC, get a right to sue letter, and actually win your trial before a jury which awards you $360,000. Then imagine that the verdict is taken away by a U.S. Supreme Court which holds that you had only 180 days from the FIRST moment the pay disparity began to occur, not when you finally learned about it.

This is precisely what happened to Lilly Ledbetter, and was the holding of the Ledbetter v. Goodyear Tire & Rubber Company case before the Supreme Court. Justice Ruth Bader Ginsburg, the Court's only female justice, protested loud and long in her dissent, and urged Congress to fix the purported problem upon which the majority had hung its judicial mantle in reversing the verdict.

Now imagine it's two years later, and you are standing next to the President of the United States, who hugs and kisses you as he signs into law the Lilly Ledbetter Fair Pay Act of 2009. No, it's not worth $360,000 --- not to you --- but it will hopefully be worth more than that to millions of employees who do not receive fair pay due to their age, sex, religion, race, or qualified disability.

So said President Obama today, during the White House signing ceremony, when he announced to Ms. Ledbetter and the assembled guests:

"It is fitting that with the very first bill I sign ... we are upholding one of this nation's first principles: that we are all created equal and each deserve a chance to pursue our own version of happiness.… If we stay focused, as Lilly did, and keep standing for what's right, as Lilly did, we will close that pay gap and ensure that our daughters have the same rights, the same chances, and the same freedom to pursue their dreams as our sons."

It is uplifting to see that the lawmaking process as originally conceived by our country's founders works. It is heartwarming to see an individual disenfranchised by the courts vindicated by the Congress. More importantly, it is a testament to what the workplace of the future has to start looking like.

Finally, it is a warning shot across the bows of employers who fail to engage in enlightened human resources management.

For another blogger's take on the Bill, see this post.

Supreme Court extends anti-retaliation protection to anyone participating in investigation --- even if its not their own complaint.

The Supreme Court held yesterday in Crawford v. Metropolitan Government of Nashville that persons who participate in an internal investigation of alleged discriminatory behavior are protected from retaliation even if they did not bring the original internal complaint. The provision of the Civil Rights Act which prohibits retaliating against those who ‘oppose’ discriminatory acts includes everyone who participates in an investigations of allegations of discrimination, even if the investigations precede in the time the official filing of a charge of discrimination with an administrative agency, and even if those investigations involve allegations by other employees than the one interviewed.

In a 9-0 decision, with Justices Alito and Thomas concurring in the judgment, Justice Souter explained that to hold otherwise would undermine the mechanism established by the Faragher and Ellerth cases which provide an incentive for employers to prevent and eliminate workplace discrimination by allowing the punishment of anyone who participated in such activities.

The decision, completes a series of cases starting with Burlington Northern v. White (expanding what constitutes retaliation under Title VII) in the 2007 term, continuing with Gomez-Perez v. Potter (federal employees can sue for retaliation under ADEA) and CBOCS West, Inc. v. Humphries (Section 1981 also bars retaliation claims) from the 2008 term in which the Supreme Court has expanded and fortified retaliation claims.

City of Philadelphia Ordinance extends FMLA type leave to victims of domestic violence.

The City of Philadelphia passed an ordinance which took effect January 5th providing for up to 12 weeks of leave for victims of domestic or sexual violence and members of their immediate families.

This new law provides that employers of fifty or more employees must provide FMLA-type leave for any victim of sexual assault, stalking, or domestic violence or face fines, penalties and a private right of action.
Even employers of 50 or fewer are covered, but are only required to provide up to 4 weeks of leave. The ordinance also provides for intermittent and reduced schedule leave, as well as a certification process not dissimilar from the FMLA's.

The ordinance is set to sunset on January 5, 2010 because it was feared that it would 'open the floodgates.' There are plans, however, among advocates groups and others to incorporate the provisions into amendments to the city's Human Relations Ordinance, which already goes beyond Title VII and the Pennsylvania Human Relations Act in extending protection from employment discrimination based on gender affinity or gender identification.

Similar legislation may be introduced in the Pennsylvania state legislature, but these types of leave policies are probably the wave of the future.

Bad Apples DO Spoil the Bunch

One of the biggest hits an employer takes is the cost associated with employee turnover. Show me a business with low employee turnover and I'll show you a thriving business. Show me one with employees coming and going like a revolving door and I’ll show you a business bleeding cash. It is also well documented that employees tend to leave jobs for reasons other than compensation. Employee dissatisfaction is more often tied to perceptions of management, coworkers and workplace conditions.

So it was fascinating to listen to Will Felps’ interview with Ira Glass on This American Life a few weeks ago, discussing the effect of “Bad Apples” on the performance of workgroups. The lessons of Felps’ study are valuable for the workplace. The study is published at How, When, and Why Bad Apples Spoil the Barrel: Negative Group Members and Dysfunctional Groups, Felps, Mitchell and Byington in Research in Organizational Behavior, Vol. 27, by Barry M. Slaw, Elsevier, 2006.

Felps created a study in which groups of competed on a short project. For one set of groups (the non-control), an actor played a ‘bad apple’ in one of three ways: “the jerk,” “the slacker” or “the depressive pessimist.” Not surprisingly, the performance of the groups with the bad apple were consistently worse than the control group teams.

The lesson is that employers need to be sensitive to the workplace dynamics of their shop. There are lots of ‘toxic bosses,’ and plenty of employers who support them without any though to whether these managers are affecting their bottom line. Felps’ lesson is that these managers probably are bad for the bottom line --- no matter what kind of ‘productivity numbers’ they appear to generate.

Appeals courts start to acknowledge impending ADAAA effective date

The ADA Amendments Act takes effect shortly, and the 6th Circuit Court of Appeals has already given a good indication of the dramatic effect these amendments might have for both employees and employers. In Verhoff v. Time Warner Cable, Inc., 2008 WL 4691794 (6th Circuit October 24, 2008), the trial court had granted summary judgment in an ADA case, with the appeals court affirming. The appeals court went on to note, however, that had the ADAAA already been in effect, the outcome would have been markedly different. The court wrote:

[C]ongress has recently enacted significant changes to the ADA. ADA Amendments Act of 2008 (citations omitted). Although these changes do not affect our decision today, we make three observations. First, there is no longer any dispute that ‘sleeping’ and ‘thinking’ are major life activities. Congress has expanded the class of major life activities to include ‘caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.’

Second, we relied on Sutton, 527 U.S. at 482, to find that Verhoff's inability to sleep well was largely ameliorated by his use of sleep medication. But Congress has explicitly rejected the Sutton Court's reasoning, and, the ADA, as amended, now states that the 'determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as ... medication.' Third and finally, Congress outright rejected the Supreme Court's directive in Toyota, 534 U.S. at 196, that the ADA's terms should be 'interpreted strictly to create a demanding standard for qualifying as disabled.' instead, Congress now tells us that the definition of disability in [the ADA] shall be construed in favor of broad coverage of individuals under this Act.

A comparable October decision out of the 10th Circuit also acknowledged the ADAAA in vacating an ADA verdict where the major life activity was claimed to be ‘driving,’ and the Plaintiff was an epileptic. The Court noted there that under the ADAAA the diagnosis of epilepsy is alone sufficient for an ADA ‘regarded as’ claim. See Kellogg v. Energy Safety Services Inc., 2008 WL 4571962 (10th Cir. Oct. 15, 2008).

We wonder whether when the EEOC opens up its doors again on January 2, 2009 it will be hit with a flood of ADA claims which could have been filed earlier, but were waiting for the new law to take effect.

Welcome to Human Racehorses

More than thirty years ago the late great Gilda Radner, playing Emily Latella, asked, "What's this about America's vanishing Race Horses?" In today's world, and especially the economy of the first decade of this millenium, we may feel that the workplace is less of a rat race and more of a horse race, making everyone a kind of 'human racehorse.'

On this blog I will keep current with developments in employment law, human resources developments, and to a lesser extent labor law. I am a lawyer in Pennsylvania, so my focus will tend to be more 3rd Circuit centric, but that doesn't mean I won't observe and comment on things I see outside my home base.

Note that nothing I post here is 'legal advice.' Nor could it be considered advisory. It's just my own opinions and observations on the industry in which I work. I hope you find it worth your visit.