As predicted, courts are interpreting the one-month old Lilly Ledbetter Fair Pay Act of 2009 as covering all adverse employment actions affecting wages, not just pay-setting decisions or policies. Based on two cases decided within a week of the bill’s signing, adverse employment actions related to demotions, promotions and pensions are clearly within the scope of the new law.
In Bush v Orange County Corr Dep’t, the Middle District of Florida cited the newly enacted legislation in holding that four African-American nurses timely challenged their allegedly race-based demotions, which resulted in reductions in pay and occurred 16 years before they filed charges with the EEOC. The employer’s untimeliness argument was deemed valid “prior to last week,” the trial court noted, finding the plaintiffs’ Title VII claims were no longer time-barred.
In Gilmore v Macy’s Retail Holdings, a federal court in New Jersey acted on its own motion and held the Lilly Ledbetter Fair Pay Act applied retroactively to an employee’s Title VII claim that she was denied the opportunity to fill in for an absent sales associate and thereby was deprived of potential bonus pay on sales of more expensive products. The Act provides that an aggrieved person may obtain back pay for up to two years preceding the filing of the charge where the unlawful employment practices occurring during the charge-filing period are “similar or related” to the unlawful employment practice occurring outside the time for filing a charge.
In AT&T Corp v Hulteen (Dkt No 07-543), the U.S. Supreme Court will decide is whether AT&T’s pre-PDA policy of calculating credit for pregnancy leave differently than other kinds of temporary disability leave was discriminatory. The employees recently filed a supplemental brief with the High Court, arguing the Ledbetter Fair Pay Act resolves the issue in their favor.