Posted Feb 12, 2009 02:32 pm CST
Updated: Three words in the Lilly Ledbetter Fair Pay Act could help plaintiffs suing over promotions and demotions.
The act signed into law last month reverses a 2007 U.S. Supreme Court decision that interpreted the statute of limitations to bar a pay discrimination suit by plaintiff Lilly Ledbetter. The new law provides that each discriminatory paycheck is a new violation of the law, at which time the limitations period begins to run.
But a three-word phrase used repeatedly in the fair-pay law could also help plaintiffs suing over promotions or demotions, according to the blog Jottings by an Employer’s Lawyer. The phrase is “or other practice”—used to describe the law’s statute-of-limitations protections, which reach discrimination in pay “or other practice.”
Partner David Copus of Ogletree Deakins predicts plaintiffs will use the “other practice” language to challenge any kind of employment decisions that affect workers’ paychecks—including promotions and demotions, or even decisions about sales territories. “Some of these plaintiffs lawyers have fertile minds that will be able to create opportunities now that were nonexistent before,” he told the ABA Journal.
Two plaintiffs have already won court rulings based on the language, Copus found. One suit in a Florida federal court allowed plaintiffs to challenge demotions that occurred 16 years before they filed a complaint with the Equal Employment Opportunity Commission. In another case, a federal court in New Jersey held the act applied to a promotion alleged to be discriminatory.
“What we’re seeing already is that courts are unquestionably applying the statute to decisions other than just pay decisions, and as predicted, they are applying them to [employment] decisions that go back many years,” Copus says.
The economic downturn is likely to result in many more suits since fired employees are more likely to sue. The suits will reach back to challenge long-ago employment decisions that resulted in lower paychecks, Copus says. “I think there’s a tsunami coming.”
Meanwhile, a plaintiff in a suit that claims his company’s pension plan discriminated against older workers is citing the Ledbetter law in an attempt to get his suit reinstated, the Denver Post reports. Wayne Tomlinson says he didn’t learn of the details of a 1997 pension plan conversion by the El Paso Corp. until 2004. A court dismissed his suit on statute of limitations grounds, citing the Supreme Court’s Ledbetter decision. The Ledbetter law, passed a day after the dismissal, is retroactive to the day after the Supreme Court’s 2007 decision. Tomlinson says he’ll take his case to the 10th U.S. Circuit of Appeals based in Denver, if necessary.
Tomlinson’s lawyer, Stephen Bruce, told the Denver Post that the Ledbetter decision was cited in dismissals in more than 300 cases before Obama signed the bill to overturn it.
Updated to include comments from Copus.