San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

Two law professors are carrying on a friendly discussion of the Supreme Court's recent decision in Ledbetter v. Goodyear Tire (for the basics of the Court's Ledbetter decision, go here).Ross Runkle of Ross' Employment Law Blog argues that the case was rightly decided for the reasons set forth in the majority's opinion.Paul Secunda, of Workplace Prof Blog, begs to differ, outlining his argument that the decision was wrongly decided here.Interestingly, the two appear to agree on the relevant question: Whether, under existing precedent [the Morgan case], is pay discrimination a discrete act like a termination or failure to promote or is it more like a cumulative series of individual events like hostile work environment sexual harassment? If the former, cases like Ricks and Evans apply, and you can't depend on stale claims to give life to connected, but not independently discriminatory, claims. If the latter, you only need one event to occur in the relevant time period, and if each discriminatorily-infected pay check is seen as constituting such an event, the claim may be still timely even though many of the pay decisions and paychecks fall outside the statutory period.

Ross Runkle responds that Secunda and Justice Ginsburg's decent focus too much on the practical concern that it is unlikely a plaintiff will become aware that she is being discriminated against with regard to pay during the relatively short 180-day limitations period. He argues that this fact, which he allows may indeed be true, is not relevant to the analysis.

Their discussion highlights the importance of how an appellate question such as this is initially characterized. The majority characterized the case as a "pay setting" issue rather than simply a "pay" issue. By framing the issues in this way, the majority's answer seems only natural. But is that the correct way to set the issue? The discussion will certainly continue.

During most of the time that petitioner Ledbetter was employed by respondent Goodyear, salaried employees at the plant where she worked were given or denied raises based on performance evaluations. Ledbetter submitted a questionnaire to the Equal Employment Opportunity Commission (EEOC) in March 1998 and a formal EEOC charge in July 1998. After her November 1998 retirement, she filed suit, asserting, among other things, a sex discrimination claim under Title VII of the Civil Rights Act of 1964. The District Court allowed her Title VII pay discrimination claim to proceed to trial. There, Ledbetter alleged that several supervisors had in the past given her poor evaluations because of her sex; that as a result, her pay had not increased as much as it would have if she had been evaluated fairly; that those past pay decisions affected the amount of her pay throughout her employment; and that by the end of her employment, she was earning significantly less than her male colleagues. Goodyear maintained that the evaluations had been nondiscriminatory, but the jury found for Ledbetter, awarding backpay and damages. On appeal, Goodyear contended that the pay discrimination claim was time barred with regard to all pay decisions made before September 26, 1997--180 days before Ledbetter filed her EEOC questionnaire--and that no discriminatory act relating to her pay occurred after that date. The Eleventh Circuit reversed, holding that a Title VII pay discrimination claim cannot be based on allegedly discriminatory events that occurred before the last pay decision that affected the employee's pay during the EEOC charging period, and concluding that there was insufficient evidence to prove that Goodyear had acted with discriminatory intent in making the only two pay decisions during that period, denials of raises in 1997 and 1998.

Held: Because the later effects of past discrimination do not restart the clock for filing an EEOC charge, Ledbetter's claim is untimely.

In her dissent, Justice Ginsburg (joined by Justice Stevens, Souter and Breyer) stated:

The Court's insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter's case, insmall increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasonsfor those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environ-ment, is averse to making waves.

Pay disparities are thus significantly different from adverse actions "such as termination, failure to promote, . . . or refusal to hire," all involving fully communicateddiscrete acts, "easy to identify" as discriminatory. Citation omitted. It is only when the disparity becomes apparent and sizable, e.g., through future raisescalculated as a percentage of current salaries, that anemployee in Ledbetter's situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then currentand continuing payment of a wage depressed on account ofher sex.

Those on the cutting edge of workplace issues continue to argue that telecommuitng and increased use of distributed work is the way of the future. They see a perfect storm being created by the convergence of many factors, including: technology advances making it easy to work virtually from virtually anywhere, increasing cost of benefits making companies more and more interested in part-time and other non-traditional employment relationships, and polution, congestion and gas prices making it increasingly impractical to move such a large number of people across town twice a day.

This past week retired Harvard Business School Professor Shoshana Zuboff published an article addressing the issue from an environment standpoint. He is addressing mayors from the around the country that were meeting to discuss the air polution and road congestion issues facing their respective cities. Here is a snippet:

Big city mayors meet this week [note: that was the week of May 15] to discuss what they can do to reduce global warming. Alot of their talk will focus on how to get people to do less: drive less, use less electricity, etc. As in the spirit of John's recent post, the debate takes the form of parsing a scarce resource. It's punitive and puritanical. Worst of all, it assumes that the institutional demands on us stay the same. As always, it's the individual that is asked to sacrifice and change-not the institutions.

But inside the support economy is a far more sustainable and profound response to climate crisis. It entails the shift from concentrated to distributed patterns of life, work, consumption. Start with our daily obeisance to the gods of command and control: the commute. The commute exists because in the late eighteenth century canny British factory owners figured out that they could get more work out of people and use fixed assets more efficiently if everyone worked in the same place at the same time. Today, the concentrated pattern of work costs far more than it saves for firms, individuals, and the planet: It feeds needless bureaucracy; it destroys value by insulating employees from consumers; it requires mass-carbon-spewing transport. The barriers to distributed working are not technological or substantive. Progress on this front has been slow because employers don't want to give up physical supervision, because office politics require face time, because people who work "away" take unfair hits on their careers and prospects. Concentrated work patterns express power politics and are maintained out of inertia on both sides of the power equation.

You can read the rest of her article here.

I've received a few questions about the Civil Rights Tax Relief Act of 2007 ("CRTRA"), which is currently pending in Congress so I thought it appropriate to post some information about the bill, what it is designed to do and who supports it.

The CRTRA is meant to end certain types of taxation of damages received by those who have suffered unlawful discrimination or violations of employment rights. The bill was introduced in Congress by John Lewis (D-GA), who was joined by abipartisan group of original cosponsors, including Representative Deborah Pryce (R-OH) and Ways & Means Committee Members Sander Levin (D-MI), Jim Ramstad (R-MN), Xavier Becerra (D-CA), and Phil English (R-PA). The bill number is H.R. 1540.

No one disputes that when employees face employment discrimination and other violations of their employment and civil rights, it is best if they avoid litigation by coming to amicable agreements with their employers. But too often, cases like this are difficult to settle because the cost of settlements is so high. A significant reason for the high cost is the excessive and unfair tax treatment of settlements and awards in employment rights cases.

Today there are two major sources of excessive and unfair taxes in such cases:

1. taxation of damages for noneconomic harm that employees suffer as a result of egregious, intentional harassment, retaliation, or similar workplace wrongs; and
2. taxation of lump-sum settlements or awards that compensate for lost back pay over a period of years at the artificially high marginal tax rates of the year of receipt.

These taxes drive up the cost of settlement of workplace-related cases for America's businesses, while at the same time reducing recoveries for victims of discrimination. They also create unfair and arbitrary distinctions among taxpayers. The CRTRA is designed to address these concerns. Here are some answers to some basic questions about the legislation:What Does the Civil Rights Tax Relief Act Do?The Civil Rights Tax Relief Act (CRTRA) solves these two problems by amending the tax code in the following two ways:

• it eliminates noneconomic damages from gross income; and
• it permits income averaging for back pay received in a lump sum.

How Will the CRTRA Help Employers?The CRTRA will significantly reduce the costs of employment- and civil rights-related litigation for companies. More cases will be settled before trial, and it will be less expensive for employers to settle them.How Will the CRTRA Help Employees?The CRTRA will help employees who have to sue to vindicate their rights by requiring that they pay tax only on the economic component of their awards. It will reduce the taxes employees pay on monies awarded as back-pay in lump sums by requiring that they pay tax at fair marginal rates. And it will make it easier to settle cases because employers will not have to pay as much to resolve meritorious claims.Who Supports The Legislation?Groups ranging from the U.S. Chamber of Commerce and the Society for Human Resources Management to the Leadership Conference on Civil Rights, The National Employment Lawyers Association and AARP have endorsed the legislation.

You can read a copy of the bill here.