Change The Law

Change The Law

If you do not like the law, change the law.

Sometimes, badly drafted laws lead to an unjust outcome. When that happens, we need to change the law.

Ruth Bader Ginsburg, the revered United States Supreme Court justice, died on September 18, 2020. When she died, I remembered how her powerful dissent in Lilly Ledbetter v. Goodyear Tire & Rubber Co. caused Congress to change the law. Justice Ginsburg’s strong dissent explained why the law needed to be changed and gave Congress a road map to follow.

At Fitzgerald Law, pursuing equal pay is a passion. And the story of Lilly Ledbetter explains why we sometimes need to focus our efforts on changing bad laws.

Lilly Ledbetter had worked for Goodyear for decades—paid less than men the entire time. Ledbetter did not know she was paid less than her male peers. Goodyear—like most employers—did not make that fact public knowledge. Only decades into her career did Ledbetter discover she had been underpaid. When that happened, she sued.

One of her claims alleged pay discrimination under Title VII. However, Ledbetter had a problem. Under Title VII, you must file a charge of discrimination with the EEOC within 300 days of an “adverse employment action.” The issue:  was the “adverse employment action” Goodyear’s original decision to pay Ledbetter less than her male peers, or was it each paycheck in which she was underpaid?

This mattered a great deal. If the adverse employment action was Goodyear’s original decision to pay Ledbetter less, the 300-day deadline to file her charge had expired decades before. Yet, if it was based on each paycheck she received in which she was paid less than her male peers, then Ledbetter’s charge was timely filed.

The Supreme Court ruled that the deadline began on the date the discriminatory decision to pay Ledbetter less had been made by Goodyear. Never mind that Ledbetter did not learn of the decision for decades. 

So, Lilly Ledbetter lost.

However, Ruth Bader Ginsburg’s brilliant dissent explained how this outcome was a complete travesty of justice. She eloquently explained how companies hide pay discrimination and make it hard for a woman to discover she is underpaid compared to male peers.  She decried the injustice of it.

The many people who recognized the injustice of this result went to work.  They changed the law. 

In 2009, the first law that President Barack Obama signed into effect was the Lilly Ledbetter Fair Pay Act.  This law revised Title VII to clarify that the deadline to file a complaint of pay discrimination runs from each discriminatory paycheck—not the original decision to pay the employee less.

This landmark law changes the game and gives women a true chance to discover and timely file pay discrimination claims.

However, our work is not done.

Most people do not appreciate that the Texas law protecting women from pay discrimination claims requires that a charge be filed within 180 days of the “adverse action.”  For the past ten years, Texas refused to amend this law to adopt a state version of the Lilly Ledbetter Act.

So, in Texas, to pursue a pay discrimination claim under state law, you must file a charge of discrimination within 180 days of when the discriminatory pay decision was made by the company. 

Because companies take pains to keep salary data confidential, the odds of employees meeting that deadline are slim.

Texas lawmakers are failing women.  There is no good reason not to adopt a state equivalent of the Lilly Ledbetter Act—unless it is just an effort to allow companies to continue to pay women less and get away with it.

It is time to ask more of our Texas state senators and representatives. As we head into a new legislative session in 2021, ask them to do more.

 Let us continue the fight Ruth Bader Ginsburg started. If you do not like the law, change the law.

Big Win on the Equal Pay Front

Big Win on the Equal Pay Front

Boost For Equal Pay

In February, people pursuing equal pay claims got a big boost from the Ninth Circuit.

The Equal Pay Act was passed to combat pay differences between members of the opposite sex.  Though it applies to Under the act, an employer has several affirmative defenses it can rely on to justify a pay disparity. These include a difference in pay based in (1) a seniority system, (2) a merit system, (3) a pay system based on quantity or quality of output, or (4) any factor other than sex.

This law affirmative defense generates the most litigation by far.  And, the issue the Ninth Circuit looked as was whether a woman’s prior salary at an earlier employer can be a “factor other than sex” that allows an employer to pay a woman less than male employees who perform the same work.

This case is Rizo v. Yovino and it has been a long time in the making.  Rizo originally filed her lawsuit in 2014.  Rizo learned she was paid less than her male peer.  Her employer defended the pay disparity, which was based solely on her prior salary at an earlier job, as a “factor other than sex.”

After a trip to the Supreme Court and back, an en banc Ninth Circuit definitively held that an employer cannot cite a woman’s prior salary as a “factor other than sex” to justify paying a woman less than her male peers doing the same work.

As the Ninth Circuit noted, because equal pay disparities are so pervasive, allowing an employee to escape liability by relying on prior pay would simply perpetuate the very discrimination that the Equal Pay Act was passed to eliminate.

This is a huge win for anyone trying to pursue an equal pay claim as employers rarely have a good reason to justify a pay disparity.  An equal pay case does not require proof of a discriminatory intent.  Instead, all that is required is evidence that one gender is paid less than the opposite gender for doing the same work.  When that is shown, the employer must show it some job related basis for that difference. And, now that job related factor must be something other than a showing that the employer had a lower salary in an earlier job and thus deserved a lower salary in the current job.

 Getting Help

If you believe you have been the victim of pay discrimination, please contact my firm to see if we can assist you. Click the Tell Us About Your Problem button to start.

Cases to Watch in 2020

Cases to Watch in 2020

Cases to Watch in 2020 

Get prepared for some big developments in employment law in 2020.  One key case should answer a longstanding  question about whether Title VII protects a person from discrimination because of sexual orientation.  The other key case may lead to real and systemic change in equal pay.

Sexual Orientation Discrimination 

A trio of cases pending at the United State Supreme Court considers the issue of whether sexual orientation is a protected category under Title VII.  

Title VII outlawed discrimination “because of” sex.  What does that mean?  If a person is gay or lesbian and is discriminated against at work, is that “because of” sex?  In the past, most courts said no— sexual orientation was not protected under Title VII.  So, an employee fired for being gay or lesbian had no legal claim he or she could pursue. 

In recent years, some cases eroded those legal holdings. And, last year, 3 of those cases went to the Supreme Court.  Now, the Supreme Court will make the final decision on this issue.  We should get an opinion out of the Supreme Court on this issue before the end of June.

Right now, there really is no way to predict which way the court will go on this issue.  However, if the Court finds that sexual orientation is not protected under Title VII, the next stop in this legal battle will likely be Congress. If the Supreme Court finds that sexual orientation is not covered by the law, it is likely that Congress will be lobbied to change the law.

Equal Pay  

In 2019, the USA women’s soccer team cleaned up at the World Cup.  Notwithstanding their stellar success, the women were still paid significantly less than the far less successful male soccer team.  In a case that has gotten much publicity, the women sued for pay discrimination.  The women brought claims under both Title VII and the Equal Pay Act for the pay difference. 

In November, the women got a big victory when the court certified the lawsuit as a class action for the Title VII claim.  The lawsuit also got certified as a “collective action” on the Equal Pay Claim.  This was vigorously opposed, so getting this relief from the court is a big win for the women’s team members. 

And, the court set this case for trial in May 2020.  That means that we do not have to wait too long to see whether this case will actually go to trial or whether the parties reach some agreement. 

This case has been so important because the publicity it received has really stirred a dialog about equal pay issues and caused many people to start actively thinking about pay discrimination.  No matter what happens with the women’s soccer team, that conversation is certainly going to continue.

Stay Tuned!