Lilly Ledbetter Fair Pay Act to Become Law Tomorrow

[More coverage: President Obama Signs Ledbetter Fair Pay Act]

Yesterday, the House voted 250-177 to send the Lilly Ledbetter Fair Pay Act to the President’s desk.  According to the San Francisco Chronicle, President Obama has indicated he will sign the bill tomorrow, making it the first major legislation approved under his tenure.

Named for the Plaintiff in a Supreme Court case the law effectively overturns, The Ledbetter Act alters the major discrimination laws – Title VII, the ADA, ADEA and the Rehabilitation Act – to make clear that each unequal paycheck an employee receives is a new discriminatory act, effectively continuing the statute of limitations for as long as the person is employed or receiving benefits from the company.

The Court had interpreted the original Act’s language, that the statute of limitations started at the time of “the alleged unlawful employment practice,” to mean that an employee had to bring a claim within 180 days of the initial decision to provide them unequal pay.  Which meant Ledbetter, who was tipped off to her unequal pay at 70, months before retirement, was years too late to bring a valid claim. 

Congress’s vote fell mainly along party lines; this was a statute that President Bush had vowed to veto had he seen it last year. 

Republicans are concerned that the change will lead to stale lawsuits that are hard, if not impossible, to defend.  Management-side attorneys are warning their clients that employee records that used to be cleared for shredding will now have to be stored indefinitely.

Proponents of the bill, including most Democrats, women’s-rights groups and organized labor, say the Ledbetter Act will finally provide the right statutory protection to level the playing field with regard to pay.  The view was succinctly summed up by Senator Barabara McKulski of Maryland (the bill’s chief sponsor in the Senate) in the N.Y. Times:

“If you don’t want to be sued, don’t discriminate.”

This early passage of such a controversial bill is heralding a wave of legislation that’s likely to come throughout the year.  Democrats have been holding onto similar bills until a more favorable climate arose for their passage, and have clearly found it in the new President and their increased power in both Houses of Congress. 

The bulk effect of these changes may be a shift of power under U.S. labor and employment law away from business and into the hands of employees and their labor representatives.

MLK on Labor & Employment

“I look forward confidently to the day when all who work for a living will be one with no thought to their separateness as Negroes, Jews, Italians or any other distinctions.

This will be the day when we bring into full realization the American dream—a dream yet unfulfilled. A dream of equality of opportunity, of privilege and property widely distributed; a dream of a land where men will not take necessities from the many to give luxuries to the few; a dream of a land where men will not argue that the color of a man’s skin determines the content of his character; a dream of a nation where all our gifts and resources are held not for ourselves alone, but as instruments of service for the rest of humanity; the dream of a country where every man will respect the dignity and worth of the human personality. That is the dream…”

December, 1961

“We are neither technologically advanced nor socially enlightened if we witness this disaster for tens of thousands [losing jobs to automation] without finding a solution. And by a solution, I mean a real and genuine alternative, providing the same living standards which were swept away by a force called progress, but which for some is destruction. The society that performs miracles with machinery has the capacity to make some miracles for men—if it values men as highly as it values machines.”

April, 1961

“The limited reforms we have won have been at bargain rates for the power structure. There are no expenses involved, no taxes are required, for Negroes to share lunch counters, libraries, parks, hotels and other facilities. Even the more substantial reforms such as voting rights require neither monetary or psychological sacrifice. The real cost lies ahead. To enable the Negro to catch up, to repair the damage of centuries of denial and oppression means appropriations to create jobs and job training; it means the outlay of billions for decent housing and equal education.”

May, 1967

“When there is massive unemployment in the black community, it is called a social problem. But when there is massive unemployment in the white community, it is called a Depression.

We look around every day and we see thousands and millions of people making inadequate wages. Not only do they work in our hospitals, they work in our hotels, they work in our laundries, they work in domestic service, they find themselves underemployed. You see, no labor is really menial unless you’re not getting adequate wages. People are always talking about menial labor. But if you’re getting a good (wage) … that isn’t menial labor.

What makes it menial is the income, the wages.”

March, 1968

Happy Martin Luther King Day.

- TRE

[Quotes From: AFSCME]

7th Circuit: Woman Fired After In Vitro Treatments Has Valid Cause for Suit

The Seventh Circuit Court of Appeals here in Chicago is known for having an aversion to the typical “bright line” rulings issued by other circuits (and, often, their bosses in D.C.). The judges say they like to think the cases through, instead of adhere to some “easy-to-follow” method spelled out in a previous case that just ends up confusing things*.

Whether that’s 100% true is debatable. But in an opinion released this week, they certainly followed that tack, and in the process issued a ruling that did a great job defining employee’s rights under the Pregnancy Discrimination Act.

The opinion in Hall v. Nalco, written by Judge Sykes, holds that in-vitro fertilization treatments are covered under the Pregnancy Discrimination Act.  Which means, basically, that employers can’t treat you differently (or fire you) for getting IVF treatments. That probably doesn’t seem revolutionary, but it suprised me.  Here’s why:

The plaintiff, a secretary who was fired when her office was merged with another, claimed that her firing was discrimination because it was based on her “absenteeism” related to her in-vitro treatments. The plaintiff argued that infertile women are protected under the Pregnancy Discrimination Act, which extends discrimination protection based on sex (the gender kind, not the “doin’ it” kind) to include pregnancy-related conditions.

Most people (including me) heard that argument and stopped paying attention, because the Supreme Court had already ruled that infertility is gender-neutral (i.e. the same for boys and girls – like a Slinky), which means it’s not related to “sex” and not protected. So, done deal. Plaintiff loses. That’s why the District Court threw the case out in the first place.

Well, not so fast. You can’t just say “infertility isn’t protected” and close the book. The Plaintiff’s “absenteeism” was related to IVF treatments. Show me a guy getting IVF treatments. It’s impossible – we don’t have the parts. So, says the 7th Circuit, who cares if there’s a “rule” about infertility?  This termination was about pregnancy.

Plaintiff gets to sue.

Agree or not, you have to love it when the judges (and their clerks) really pay attention to the case law.  It doesn’t always happen.  In this case, the Plaintiff’s complaint didn’t even separate IVF from “infertility” (see note 3 of the opinion). But because the court saw a distinction, we have an opinion that will do so much more for understanding what the PDA covers than any “bright line” rule ever would.

* See Paul W. Mollica, “Employment Discrimination Cases in the 7th Circuit“, 1 Emp. Rights & Emp. Policy J. 63, 100 (1997).