Hearings Held On Federal Discrimination Bill To Overturn Gross Decision

Last week, both the House and Senate held hearings on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756). The legislation would overturn the awful Gross v. FBL Financials Services, Inc. case decided by the Supreme Court last year. If passed,  the bill will apply retroactively to all cases pending on or after June 17, 2009, the date of the Gross decision.

Simply stated, the Gross decision holds age discrimination plaintiffs to a higher standard of proof than other victims of discrimination by requiring them to prove that their age was the “but for” cause of the employer’s adverse decision instead of  “a motivating factor.” I predicted, as did others, that Gross would get a Congressional fix and that’s exactly what POWADA does – and more.

For one, POWADA allows the plaintiff to win an age discrimination case by proving that:

(A) an impermissible factor under the Act (the discrimination statute) was a motivating factor for the practice complained of  — even if other factors also motivated the practice, or

(B) the practice complained of would not have occurred in the absence of an impermissible factor.

The legislation also establishes that:

• standards of proof for all federal laws forbidding discrimination and retaliation (including whistleblowing) are the same

• the plaintiff can choose the method of proof for the case, including the McDonnell Douglas framework

• employees can rely on any type or form of admissible circumstantial or direct evidence to prove their discrimination and retaliation cases

The Act explicitly states that the standard for proving unlawful disparate treatment under the Age Discrimination in Employment Act of 1967 and other anti-discrimination and anti-retaliation laws is no different than the standard of proof under Title VII of the Civil Rights Act of 1964, including amendments made by the Civil Rights Act of 1991.

In other words, all plaintiffs in discrimination cases will be held to the same standards of proof and will be able to prove their discrimination cases in the same way. While this is most certainly what Congress intended in the first place, it will be very beneficial for all of us who litigate these cases — and our clients — to have these evidentiary matters settled once and for all.

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*This post originally appeared in Employee Rights Post on May 9, 2010. Reprinted with permission.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Wage Discrimination Needs Attention And A Legislative Fix

April 20, 2010 is Equal Pay Day. It was established in 1996 to illuminate the gap between men’s and women’s wages. The date symbolizes how far into 2010 women must work to earn what men earned in 2009.

This year, with the support of President Obama, Equal Pay Day should also bring attention to pending legislation intended to address lingering issues of pay disparity in the American workforce.

Here are some facts about pay equity from the National Organization for Women:

• In 2007, women’s median annual paychecks reflected only 78 cents for every $1.00 earned by men. Specifically for women of color, the gap is even wider: In comparison to a man’s dollar, African American women earn only 69 cents and Latinas just 59 cents. 

• In 1963, when the Equal Pay Act was passed, full-time working women were paid 59 cents on average for every dollar paid to men. This means it took 44 years for the wage gap to close just 19 cents — a rate of less than half a penny a year.

• The narrowing of this gap has slowed down over the last six years, with women gaining a mere two cents since 2001.

• Women’s median pay was less than men’s in each and every one of the 20 industries and 25 occupation groups surveyed by the U.S. Census Bureau in 2007. Even men working in female-dominated occupations earn more than women working in those same occupations.

• According to the Institute for Women’s Policy Research,  if equal pay for women were instituted immediately, across the board, it would result in an annual $319 billion gain nationally for women and their families (in 2008 dollars).

• When The WAGE Project looked exclusively at full-time workers, they estimated that women with a high school diploma lose as much as $700,000 over a lifetime of work, women with a college degree lose $1.2 million and professional school graduates may lose up to $2 million because of pay disparity.

• As a result, these inequities follow women into their retirement years, reducing their Social Security benefits, pensions, savings and other financial resources.

• A study by the American Association of University Women examined how the wage gap affects college graduates. Wage disparities kick in shortly after college graduation, when women and men should, absent discrimination, be on a level playing field.

• One year after graduating college, women are paid on average only 80 percent of their male counterparts’ wages, and during the next 10 years, women’s wages fall even further behind, dropping to only 69 percent of men’s earnings ten years after college

I have represented women in discrimination cases for many years.  From my vantage point it’s clear that while the pay equity issues are not as blatant as they once were, wage discrimination is still a prevalent concern for women of all socio-economic groups.

It’s also true that the Equal Pay Act of 1963, while well intentioned, has not come close to fulfilling its goal due to a whole host of reasons.

The good news is that there is a bill pending in Congress aimed at correcting unlawful wage disparities and which offers a legislative fix for some of the problems with the Equal Pay Act.

The Paycheck Fairness Act (H.R.12 and S.182) was introduced January 2009 by then-Senator Hillary Clinton and Rep. Rosa DeLauro to strengthen the Equal Pay Act of 1963. The bill expands damages under the Equal Pay Act and amends its very broad fourth affirmative defense which will be a real help to victims of pay discrimination.

The Paycheck Fairness Act also prohibits retaliation against inquiring about or disclosing wage information  and proposes voluntary EEOC guidelines to show employers how to evaluate jobs with the goal of eliminating unfair disparities. The bill was passed by the House in January of 2009 and is pending in the Senate. It’s lead sponsor is Sen. Christopher Dodd.

There were hearings about the bill in March of this year with lots of illuminating testimony, including the remarks of Stuart Ishimaru, acting Chariman of the EEOC, which you can read here if you are interested in more detail about the subject.

The bottom line is if you care about equal rights for women and want to make a difference, please call or write your Senator and urge passage of the Paycheck Fairness Act. Here’s a link that will help you send the message. We know that the President  supports it — we just need to get it on his desk.

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*This post originally appeared in Employee Rights Post on April 20, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

On August 14, 2008, the Consumer Product Safety Improvement Act became law. Of interest to employees and their advocates is a new whistleblower provision. The Act creates a legal protection for employees who raise concerns about the safety of consumer products.

About 20 million Americans work for employers involved in the manufacture, distribution, and sale of consumer goods. Now they are protected from retaliation when they provide information about a violation of the Consumer Product Safety Act to their employer, the federal government, or any state attorney general. Employees who believe they have suffered unlawful retaliation have 180 days (from their first notice of the retaliatory act) to file a written complaint with the Occupational Safety & Health Administration (OSHA). However, if the safety violation involves toxic chemicals, and if the written complaint is filed within 30 days, then the employee can also seek punitive damages under the Toxic Substances Control Act (TSCA).

This new CPS Act protections provides for jury trials, compensatory damages, temporary and final reinstatement, and attorney fees. Congress protects employees as long as they have a reasonable basis to believe there is a violation. If the company proves that there was no violation, they still cannot retaliate against employees who reasonably raised a concern. Also, complaining employees only have to show that the unlawful motive was a contributing factor in the retaliatory act. Then the employer will have to prove, by clear and convincing evidence, that it would have imposed the same adverse action even if the employee had engaged in no protected activity.

If the Department of Labor takes more than 210 days to issue a final order, then the complainant can file a new action in U.S. District Court to seek a jury trial.

The National Whistleblower Center (NWC) is sponsoring a training seminar about this new law on November 21, 2008, in Washington, DC. It will be an opportunity to attorneys and other advocates to learn about the provisions of the new law, the Department of Labor’s plans for investigation and adjudication, and NWC’s strategies for maximizing the opportunities to get good results in the first court decisions under this new law. For more information about this seminar, see NWC Seminar on CPSIA.

About this Author: Richard Renner is a leading advocate for whistleblowers, with a long record of service for labor organizers and civil rights. He is a member of the Executive Board of the National Employment Lawyers Association (NELA) and a former Co-Chair of NELA’s Whistleblower Committee. Prior to joining the National Whistleblowers Center in 2008, Mr. Renner worked for 27 years as a lawyer in Ohio where he was a founding partner in the firm of Tate and Renner. Mr. Renner is the author of several articles including: “Federal Environmental Whistleblower Complaints,” in, Employee Rights Quarterly, Vol. 3, No. 1 (Summer 2002), pp. 29-34; “Whistleblower Book Helps with All Retaliation Cases,” a review of Concepts and Procedures in Whistleblower Law, NELA Employee Advocate, Spring 2001, p. 24; “Federal Whistleblower Complaints,” feature article for Ohio Employment Lawyers Ass’n Newsletter, October, 1996.