Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Lilly Ledbetter’

Employee Rights Short Takes: Wage Discrimination, Paternity Leave, Disability Discrimination And More

Wednesday, May 4th, 2011

ellen simonHere are a few employee rights Short Takes worth noting:

It’s A First: Major League Baseball Player Takes Paternity Leave

National Public Radio recently announced that Texas Ranger’s pitcher Colby Lewis became the first major league baseball player to take paternity leave. The new MLB collective bargaining agreement allows players 24 – 72 hours off due to the birth of a child so Lewis took advantage of it. Shortly after the news, NBC Sports reported that another player, Washington National’s shortstop Ian Desmond, was also preparing to take leave to be at his wife’s side during the birth of their first child. It comes as no surprise that some folks aren’t happy about the new rule. For more, read here.

New Rules For The Americans With Disabilities Act

New regulations were issued by the Equal Employment Opportunity Commission and will take effect May 24th. The new rules were mandated by the ADA Amendments Act of 2008 (“ADAAA”). The law made significant changes with respect to the interpretation of  the term “disability” under the Americans with Disabilities Act.

Before the amendments, many employees who were discriminated against were not protected because the courts narrowly construed “disability” and determined that they were not disabled. The change in the legislation, which is spelled out in the final regulations, makes it crystal clear that the term “disability” should be broadly construed to include coverage.  As legal commentator noted:

The message from Congress and the EEOC for business couldn’t be any clearer. Stop focusing on whether someone is disabled and focus on the potential discrimination and reasonable accommodation.

The new regulations also list certain impairments which will almost always be considered a disability including deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. Employees with these disabilities were often excluded from coverage in cases interpreting the law before the ADA amendments. In other words, thousands of employees who had cancer, diabetes, epilepsy, etc. lost their discrimination cases because their employers argued, and the courts agreed, that they were not disabled under the ADA.

The bottom line is that thanks to the ADAA and the new regulations, ADA litigation will finally turn on whether the disabled employee was discriminated against – not whether he or she meets the definition of disabled under the Act. This is really good news and it’s about time. For more, read here.

Discrimination Lawsuit Raises Issue Of Who Is A Man

I ran across this very interesting story in the NY Times about a recently filed discrimination case and it’s worth talking about because it will make new law. The case is about  El’Jai Devoureau, who was born a female, but identified himself as a man his whole life. In 2006, after he began taking male hormones and had a sex change operation, he adopted a new name, and received a new birth certificate from the State of Georgia which identifies him a male. His driver’s license and social security records also identify him as a male. 

The legal problem for Devoureau came up when he began working part time as a urine monitor at Urban Treatment Associates in Camden.  His job was to make sure that people recovering from addiction did not substitute someone else’s urine for their own during regular drug testing. On Devoureau’s second day, his boss confronted him stating that she had heard he was transgender. She asked if he had any surgeries. He refused to answer, stating that was private, and was fired.

Devoureau sued claiming discrimination. Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund said it was the first employment case in the country to take on the question of a transgender person’s sex.

New Jersey is one of 12 states that ban discrimination based on transgender status.  The federal Employment Non-Discrimination Act (ENDA), which would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity nationwide was reintroduced in Congress in April.

In its defense, Urban Treatment claims that the firing was legitimate since the sex of the employee in this particular position is a bona fide occupational qualification (“BFOQ”), an exception to employment discrimination laws which permits an employer to give preference to one group over another in narrow circumstances.  (for more about the BFOQ exception, see here)

This groundbreaking case will certainly be an interesting one to follow.

Fair Pay Act And Paycheck Fairness Act Reintroduced On Equal Pay Day

Data from the U.S. Census Bureau in 2009 shows that women who worked full time earned, on average, only 77 cents for every dollar men earned. The figures are even worse for women of color. African American women only earned approximately 62 cents and Latinas only 53 cents for each dollar earned by a white male.

Accordingly, Senator Tom Harkin most appropriately chose April 12, 2011 — Equal Pay Day — to reintroduce the Fair Pay Act of 2011. Harkin has introduced this bill every congress since 1996. The bill would require employers to provide equal pay for jobs that are equivalent in skills, effort, responsibility and working conditions. It would also require companies to disclose their pay scales and rates for all job categories.

Under current law a women who believes she is the victim of pay discrimination must file a lawsuit and go through what is almost always a long drawn out legal discovery process to find out whether she makes less than the man working beside her.

Many will recall that it took Lilly Ledbetter nearly 20 years before she discovered she was being paid less than men doing the same job which prompted her to file a lawsuit.  After the U.S. Supreme Court ruled against her in 2007 — because it held that the case was filed too late — Congress passed the Lilly Ledbetter Fair Pay Act which helps level the playing field for victims of wage discrimination. The bill was signed in 2009 by President Obama – but it didn’t go far enough.

Harkin was also an original co-sponsor of the Paycheck Fairness Act which passed the House during the 111th Congress but was filibustered in the Senate. The Paycheck Fairness Act would close loopholes in the enforcement of the current equal pay laws, prohibit retaliation against workers for sharing salary information with co-workers, and strengthen penalties against employers for violations of equal pay laws.

The Paycheck Fairness Act was reintroduced on Equal Pay Day by Senator Kristin Gillibrand and Senator Barbara Mikulski. For more about it, read here.

It’s both disheartening and disturbing that women still must fight this hard for laws intended to effectively prevent wage discrimination which remains rampant in the workplace today.  For more, read here.

images: blogs.orlandosentinel.com image.spreadshirt.com www.glbtq.comf

This blog originally appeared in Employee Rights Post on May 2, 2011. 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.

A Year After Ledbetter - What’s Next for Fair Pay for Women?

Tuesday, February 2nd, 2010

One year ago, Obama signed the Lilly Ledbetter Fair Pay Act into law, ensuring that workers can go to court to protest pay discrimination. Now it’s time for the next step.

For almost twenty years, I got paid less than my co-workers. I was a woman doing the same work as the men on my team — and apparently, my gender was all the excuse my employers at a Goodyear tire plant needed to cut my paychecks. My salary was far lower, and I got lower raises – over and over again.

But one year ago today, to my amazement, the President signed the Lilly Ledbetter Fair Pay Act into law, which restored the law to make sure workers can go to court to protest pay discrimination.

And now it’s time for the next step. The right to go to court is important, but it isn’t enough. We need to do more to keep women from being discriminated against in the first place.

We need to pass the Paycheck Fairness Act. This bill gives teeth to the protections against pay discrimination. And women, who are still shortchanged in the workplace, deserve just that. The bill would empower women to negotiate for equal pay, create stronger incentives for employers to follow the law, and strengthen federal outreach and enforcement efforts. It would also strengthen penalties for equal pay violations.

But from where I sit, one of the most important aspects of the Paycheck Fairness Act is a provision that would prohibit retaliation against workers who ask about employers’ wage practices or disclose their own wages to co-workers. This would have been particularly helpful to me, because Goodyear prohibited my colleagues and me from talking about our wages. This policy delayed my discovery of the pay inequities between my male counterparts and me by — literally — decades.

For the past year, I’ve been speaking out to build up support of this bill, with the help of my friends at the National Women’s Law Center.

The bill has already passed the House, and now it’s up to the Senate. It is time to improve the law, not just restore it. You can count on my continued commitment to passing this Act and to ensuring that women will some day, as the President called for in his State of the Union, truly have equal pay for equal work.

About the Author: Lilly Ledbetter is a volunteer and mother of two. She resides in Jacksonville, Alabama.

Women of the World Unite, All We Have to Win Is 22 cents

Tuesday, April 28th, 2009

Today is Pay Equity Day. The National Committee on Pay Equity came up with the idea in the mid-1990s to acknowledge a day in April to remind us that it takes women a full year PLUS an extra four months of earning a salary (or a total of 16 months) to equal the amount male colleagues net in just one calendar year (12 months). That is what it means when you hear the statistic that women who work full time earn about 78 cents for every dollar men earn (See U.S. Census Bureau and the Bureau of Labor Statistics). Minority women are subject to a far greater wage gap.

Not mad yet? Those twenty-two cents add up. The Center for American Progress reports that women who work year-round earn less than men in comparable jobs and at all educational levels. The wage gap increases over a woman’s lifetime and adds up to $434,000 over a 40-year career for the typical woman. A woman with a bachelor’s degree or higher can lose more than $713,000 (See Center for American Progress, “Wage Gap by the Numbers“).

“Well,” you’re thinking, “that sounds pretty bad, but this is someone else’s problem; surely I am not being paid less than my male colleagues!” Think again. The statistics say otherwise. The gender wage gap is documented in all 50 states and is at a national average rate of 78 percent (Source: National Women’s Law Center‘s calculations from the U.S. Census Bureau, Income, Earnings and Poverty Data from the 2007 American Community Survey (August 2008). You do the math – chances are, if you are a woman in the workforce, it is highly likely that you are earning less than had you been a man.

If you are a man reading this, then it should trouble you that the gender wage gap is harming your wife, sister, mother, daughter, friends and colleagues. According to the AFL-CIO, working families lose $200 BILLION every year due to the wage gap! Your women are bringing home less bacon than they should be, and it is affecting everyone’s bottom line.

Or think of it another way: the current recession is especially hitting male-dominated industries, such as construction and manufacturing. Four out of every five jobs being lost in this recession affect men. Women are becoming the main breadwinner, but, on average, make up only one-third of a family’s income. Prolonged, systemic pay inequity will further hurt families who have lost the earnings of the male breadwinner and must solely depend on the woman’s wages, to say nothing of single mothers who struggle year in and year out independent of economic downturns.

In honor of Pay Equity Day, it is reasonable and even encouraged to express your well-earned outrage. There are a number of legislative efforts seeking to close the wage gaps between men and women, and minorities as well. A number of organizations’ web sites today will detail current and soon-to-be-introduced legislation to close loopholes, enhance provisions under the Equal Pay Act, and prohibit employer retaliation against workers who inquire about employers’ wage practices. I encourage you watch one of the more amusing Equal Pay legislation videos out from the Center for American Progress. Check out EQUAL PAY: Batgirl vs Chamber of Commerce.

Fixing this issue legislatively is one important approach, but cannot be achieved exclusively in this manner. If you have any doubts, consider that it was President Kennedy who signed the Equal Pay Act into law more than forty-five years ago. If Kennedy’s challenge to land a man on the moon were as successful as the Equal Pay Act, Neil Armstrong’s ‘giant leap for mankind’ would have been referring to a cool telescope.

The most direct, proven tool to combat pay inequity are unions. According to AFL-CIO compiled data from the Bureau of Labor Statistics for 2008, on average, unionization raised women’s wages by 32% compared to non-union women. A study by the Center for Economic and Policy Research found that for the years 2004 – 2007, unionized women were much more likely to have health insurance (75.4%) and a pension (75.8%) than women workers who were not in unions (50.9% for health insurance, 43% for pensions.) In real dollar terms – the average unionized woman working full-time earns a weekly salary of $809 per week vs. the $615 a non-unionized woman will earn.

The same business groups, such as the Chamber of Commerce, who fought against the Ledbetter Fair Pay Act, which restores the right of victims of pay discrimination on the basis of sex, race, national origin, age, religion and disability to challenge the discrimination in court, are the same groups waging war against the Employee Free Choice Act – the bill that will give workers the freedom to choose a union to represent them. The more women unionize, the more they rightfully earn and the narrower the wage gap becomes.

Help pass the Employee Free Choice Act, and soon we might be celebrating Pay Equity Day when it should be celebrated – in December.

About the Author: Eileen Toback is a political strategist and labor relations expert. To read more of Eileen’s commentary on labor issues, check out unionmaiden.wordpress.com. If you have a question for Eileen, contact her via eileentoback@gmail.com.

Rising Hope for Women

Friday, February 6th, 2009

Talk about the audacity of hope – who could have imagined that barely a week into office, President Obama would sign the Lilly Ledbetter Fair Pay Act and that the Supreme Court would unanimously rule that employees who report discriminatory treatment during an internal investigation are protected from retaliation by Title VII of the Civil Rights Act in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee?

But will the winds of change continue to blow when the Supreme Court considers AT&T v. Hulteen, the last case heard in 2008?

AT&T v. Hulteen raises the question: Does the Pregnancy Discrimination Act of 1978 prohibit AT&T from giving smaller pensions to women who took pregnancy leave before its passage than it gives to other retirees with the same length of service? The Pregnancy Discrimination Act amended Title VII to require that “women affected by pregnancy … shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons … similar in their ability or inability to work.”

Before 1978, it was standard practice in the telecommunications industry to treat pregnant employees differently from employees who were temporarily disabled for other reasons. Company policy forced pregnant women like Noreen Hulteen to go on leave while they were still physically able to work, and new mothers were not guaranteed immediate return to work after recovery from childbirth. Their leaves were classified as “personal” rather than “disability,” depriving them of the full seniority accrual enjoyed by employees disabled for reasons other than pregnancy. They were not permitted to shift to disability leave even if an unrelated disability extended their absence from work.

Non-pregnant employees who anticipated or suffered a period of disability were not subject to forced leave or delayed return. They received full seniority credit for the entire leave period. Upon return to work, non-pregnant employees retained the “net credited service” date that they had at the outset. By contrast, employees returning from pregnancy leave had their dates of hire “adjusted,” reducing their seniority by all but 30 days of the leave’s duration. Hulteen lost 210 days of service credit under this regime.

After the act went into effect, AT&T eliminated its discriminatory leave policies, but not the discriminatory service credit adjustments created by those policies. AT&T continued to use pregnancy adjusted net credited service dates to calculate retirement benefits after the Pregnancy Discrimination Act went into effect, and has been insisting on its legal right to do so, with mixed success, for 30 years.

Enter the Supreme Court. Twice, the 9th Circuit Court of Appeals held that AT&T’s conduct violates Title VII. The first time the Supreme Court denied certiorari. The second time, AT&T persuaded the court to take the case. At oral argument, its gamble appeared to have paid off.

In most press reports following the oral argument, the smart money was on victory for AT&T, and it was not hard to see why. Justice Anthony Kennedy is often the crucial swing vote on issues that divide liberals and conservatives. He seemed deeply troubled by the idea that a ruling in favor of AT&T’s retiring mothers could possibly, in the current economic climate, reduce pension funds available for everyone.

Still, reading tea leaves is a perilous game, and as inaugural afterglow fades, the Ledbetter Act and the Crawford opinion give rise to cautious optimism that the court’s decision in Hulteen will align more with Congress’ purpose in enacting the Civil Rights Act of 1964, than with its panic in enacting the Troubled Asset Relief Program. Here’s why.

First, the Lilly Ledbetter Fair Pay Act resolved a key issue in the case – timeliness – in Hulteen’s favor. In the words of the act: “[A]n unlawful employment practice occurs, with respect to discrimination in compensation … when an individual is affected by application of a discriminatory compensation decision or other practice.” Hulteen’s claim is timely under the Ledbetter Act because she filed a charge with the Equal Employment Opportunity Commission at the time AT&T awarded her a smaller pension than retirees with the same length of service.

Second, last week’s Crawford decision inspires hope that the justices will view the claim that Title VII permits AT&T to pay reduced pensions to women who took pre-Pregnancy Discrimination Act pregnancy leave with a skeptical eye. In Crawford, the employer argued that Title VII protects an employee who complains about discrimination on her own initiative, but not one who reports the same discrimination in the same words when her boss asks a question. Justice David Souter’s opinion rejected the employer’s position as not only wrong, but “freakish.” This is not language you hear every day from the Supreme Court.

Well, what could be more freakish than arguing that Title VII permits you to continue to calculate pensions using a discriminatory system that would violate the Pregnancy Discrimination Act if adopted today, just because it was in use when the act went into effect?

Twenty years ago, the court knew what to do with a similar argument. Speaking for a unanimous Supreme Court in Bazemore v. Friday, 478 U.S. 385 (1986), Justice William Brennan wrote: “A pattern or practice that would have constituted a violation of title VII, but for the fact that the statute had not yet become effective, became a violation upon title VII’s effective date, and, to the extent an employer continued to engage in that act or practice, it is liable under that statute.”

To be sure, Bazemore concerns paychecks, whereas Hulteen concerns pension benefits, but the fundamental equity principle is identical: Title VII was enacted to eliminate discrimination against everyone on the basis of protected status, not just those fortunate enough to enter the workforce after its effective date. Treating newly hired black employees (or newly pregnant women) the same as similarly situated others will not satisfy that statutory goal if the victims of pre-act discrimination remain in its thrall.

AT&T argues that imposing liability will upset its “settled expectation” that women who took pre-Pregnancy Discrimination Act pregnancy leaves would not receive equal benefits upon retirement. But Bazemore was decided in 1986. AT&T has already received a 30-year economic windfall by not changing its pension benefit calculation system. Now it’s time for justice.

In the words of Obama when signing the Lilly Ledbetter Fair Pay Act: “[M]aking our economy work means making sure that it works for everybody; that there are no second-class citizens in our workplaces….Ultimately, equal pay isn’t just an economic issue … it’s a question of who we are – and whether we’re truly living up to our fundamental ideals.”

And if AT&T needs a bailout, well, the Treasury Department is right down the street.

About the Author: Charlotte Fishman is a San Francisco employment attorney, a regular columnist on employment discrimination and women’s issues, and author of the National Employment Lawyers Association’s amicus brief supporting Noreen Hulteen et al. in the U.S. Supreme Court.

This article originally appeared in the San Francisco and Los Angeles Daily Journal on February 5, 2009. Reprinted with permission of the author.

President signs Lilly Ledbetter Fair Pay Restoration Act: government now respects women and workers

Friday, January 30th, 2009

In a ceremony rich with symbolism, President Barack Obama signed into law The Lilly Ledbetter Fair Pay Restoration Act on January 29, 2009. In front of a cheering throng who applauded enthusiastically when Ledbetter was introduced, the President said, “This is a wonderful day. It is fitting that the very first bill that I sign is The Lilly Ledbetter Fair Pay Restoration Act.”

The president described the Act as, “upholding one of this nation’s founding principles that we are all created equal and we each deserve a chance to pursue our own version of happiness.”

The president effusively praised the woman whose fight led to this day. “Lilly Ledbetter did not set out to be a trailblazer or household name. Lilly could have accepted her lot and moved on. But…she decided there was a principle at stake, something worth fighting for. Her fight took us to this day. It is the story of women still earning 78 cents for every dollar men earn. Today in 2009, countless women are still losing countless income….”

He continues, “Signing this bill today sends a clear message that making our economy work is to make sure that it works for everybody. It is not just unfair or illegal, it’s bad for business. Today I sign this bill not just in her honor, but for women who came before; women like my grandmother who worked in a bank…and for my daughters and all those who come after us so that there are no limits to there dreams.”

Ledbetter demonstrates the power of the grassroots to bring change from the bottom up. It is that power that will lead to a similar signing ceremony for the Employee Free Choice Act allowing workers to freely organize to improve their lives.

“This grandmother from Alabama kept fighting because she was thinking about the next generation. This bill is an important step. A simple fix. Thank you Lilly Ledbetter.”

It is not yet time for a “Mission Accomplished” banner, but we are finally moving in the right direction.

About the AuthorRon Moore is a freelance writer living in Silver Spring, Maryland with decades of service in the grassroots community as a local union president, union organizer, national AFL-CIO staff, and writer for the A. Philip Randolph Institute.

This article originally appeared in the Washington DC Examiner on January 29, 2009. Reprinted with permission of the author.

No Supreme Court Bail-Out for AT&T!

Friday, September 26th, 2008

As federal authorities scramble to rescue the nation’s financial institutions from the consequences of their reckless greed, AT&T seeks a bail-out of its own. In AT&T v. Hulteen, the telecommunications giant asks the United States Supreme Court to rescue it from the consequences of its reckless choice of pregnancy discrimination over basic fairness.

AT&T hopes to piggyback on the Court’s notorious Ledbetter v. Goodyear decision to avoid paying retirees who took pregnancy leave in the 1960’s and 70’s the same pensions as retirees who took disability leave for other reasons.

By now, most everyone in America knows the story of Lilly Ledbetter. In a 5-4 decision the Supreme Court refused to apply the “paycheck” rule previously articulated in Bazemore v. Friday (Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, even if rooted in a practice that pre-dated Title VII.) Instead, it held that because Lilly Ledbetter didn’t challenge the initial decision to pay her less than male supervisors, she is forever barred from challenging ongoing salary discrimination.

Lilly Ledbetter, meet Noreen Hulteen.

Before 1978, it was standard practice in the telecommunications industry to treat pregnant employees differently from employees who were temporarily disabled for other reasons. Company policy forced pregnant women to take “personal” leave while they were still able to work. It did not permit them to accrue “service credit” while on leave, and upon return, credited them with only 30 days of “service” regardless of the actual duration of the leave. Upon return to work, new mothers had their “date of hire” moved forward – as if they had joined the company later than their actual first day of employment. Noreen Hulteen lost 210 days of service credit under this systemic practice.

By contrast, employees temporarily disabled by conditions other than pregnancy continued to accrue service credit while on leave, and retained full seniority when they returned to work. AT&T tracked and perpetuated this disparate treatment by a device known as the adjusted NCS [“net credited service”] date.

In 1978, Congress passed the Pregnancy Discrimination Act (PDA) reaffirming that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”

After the PDA went into effect, the company changed its leave policies, treating future pregnancies just like other temporary disabilities. It did not, however, restore the forfeited service credit to women who had been discriminated against in the past. Nor did it discontinue reliance on their discriminatory NCS dates as the basis for distributing benefits such as job bidding, shift preference, layoffs, eligibility for early retirement, and pension levels.

On June 1, 1994, Hulteen retired. She had been continuously employed since January 1, 1964, but AT&T calculated her pension using the “adjusted” NCS date of August 3, 1965. Hulteen filed a timely EEOC charge challenging the pension benefit calculation. The EEOC found reasonable cause to believe that AT&T had engaged in class-wide discrimination.

No one, not even AT&T, can deny that the use of discriminatory NCS dates to reduce the pension benefits of women who were prevented from accruing service credit during their pregnancies is unfair, but is it illegal? Well, it’s not as if AT&T had no clue. Title VII’s prohibition against sex discrimination was enacted in 1964. The EEOC issued guidelines mandating equal treatment of pregnancy “in written and unwritten employment practices involving … the accrual of seniority” in 1972. These were cited with approval by the United States Supreme Court in Nashville Gas Co. v. Satty, striking down a discriminatory leave policy that denied accumulated seniority to employees returning from pregnancy leave. And in 1991, the Ninth Circuit, in Pallas v. Pacific Bell explicitly held that using adjusted NCS dates to calculate retirement eligibility violates Title VII.

Given this history, AT&T’s continued use of tainted NCS dates seems as reckless as the behavior of the players in the mortgage crisis. The twin reeds upon which it attempts to justify its behavior are (1) Treating pregnancy differently than other temporary disabilities was legal before 1979, so it’s still legal to use Hulteen’s adjusted NCS dates to pay her a lesser pension than retirees with the same length of service; (2) Even if it wasn’t legal to use the NCS after 1979, Noreen Hulteen waited too long to complain.

AT&T is counting on the Supreme Court to “do another Ledbetter.” But I am not so sure.

Perhaps chastened by the Congressional and editorial outrage that greeted Ledbetter, the Court will recognize that immunizing systemic violators undermines enforcement of Title VII, reaffirm the principle set forth in Bazemore v. Friday and hold that employers who perpetuate previously accepted discrimination may be held to account for their intransigence.

Or not. AT&T could be in line for a “bail-out,” leaving its retiring mothers to foot the bill.

Come next Labor Day, we’ll know the answer. By all accounts, it’s going to be an interesting year.

About the Author: Charlotte Fishman is a San Francisco employment discrimination attorney, and Executive Director of Pick Up the Pace. She is currently drafting an amicus brief in support of the respondent in AT&T v. Hulteen.

Barriers to Justice: Examining Equal Pay for Equal Work (Part I)

Tuesday, September 23rd, 2008

TESTIMONY OF CYRUS MEHRI BEFORE THE COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
SEPTEMBER 23, 2008

[View Hearing Webcast]

Chairman Leahy, members of the Committee, thank you for inviting me to speak at today’s hearing. It is an honor to appear before you today, especially along with a genuine American heroine, Lilly Ledbetter.

My name is Cyrus Mehri. I am a partner at Mehri & Skalet. I have served as co-lead counsel in some of the largest and most sweeping race and gender employment discrimination cases in U.S. history: Roberts v. Texaco Inc. (S.D.N.Y 1997); Ingram v. The Coca-Cola Company (N.D. Ga. 2001); Robinson v. Ford Motor Company (S.D. Ohio 2005); Augst-Johnson v. Morgan Stanley (D.D.C. 2007); and Amochaev v. Smith Barney (N.D. Cal. 2008).

I have spearheaded a pro bono effort that has fundamentally changed the hiring practices of the National Football League for coaches as well as front office and scouting personnel. In addition, in 2004, my firm along with the National Council of Women’s Organizations launched the Women on Wall Street Project that focuses on gender inequities in the financial services industry.

Blessed with courageous and steadfast clients, I am most proud of the groundbreaking programmatic relief in our settlements. Senior management at companies such as Ford and Morgan Stanley, CEOs such as Neville Isdell of Coca Cola, and NFL owners such as Dan Rooney, have all praised the way we have sincerely and effectively brought about change at their organizations.

I am asked today to provide a practitioner’s perspective on employment discrimination claims in our federal courts, including pay discrimination claims. Let me say at the outset, that as a practitioner, I find Lilly Ledbetter’s story to be a compelling example of what is wrong with the system. In her case, the federal courts reached a decision that is entirely out of touch with the American workplace – requiring that she file an EEOC charge based on what she did not know, nor could have reasonably known, at that time regarding pay inequity. Her hard-fought trial victory vanished, and the factual findings of the jurors who heard her evidence firsthand counted for nothing.

Unfortunately, Ms. Ledbetter’s experience in the federal courts is far from isolated. It typifies the uphill battle that American workers face. A new study from Cornell University Law School confirms that thousands of American workers encounter a double standard in the U.S. Appellate Courts. The Cornell data shows that Ms. Ledbetter’s story is just the tip of the iceberg of a far larger systemic problem. After sharing key points from the Cornell study, I will provide real life examples of other “Lilly Ledbetters” who have had their civil rights remedies taken away by out-of-touch federal appellate courts. It is clear to me that to restore a level playing field, this Committee should infuse the federal bench with a dose of reality and appoint federal judges from diverse backgrounds, including those who have substantial experience representing average American workers.

The seminal new study is “Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?” by Dean Stewart J. Schwab and Kevin M. Clermont, both professors at Cornell Law School. 3 Harv. L. & Pol’y Rev. (forthcoming 2009). Cornell Law School is at the epicenter of scholarship on empirical legal studies and is the home of the peer-reviewed Journal of Empirical Legal Studies. Earlier this month, Cornell Law hosted the Conference on Empirical and Legal Studies, with 350 legal scholars and 120 new papers.

Dean Schwab and Professor Clermont both have sterling credentials. Dean Schwab served as a judicial law clerk for Justice Sandra Day O’Connor and is a law and economics scholar. In addition to teaching and serving as dean, he is a reporter for the Restatement on Employment Law. Professor Clermont is one of the nation’s leading scholars on civil procedure. Their article is to be published in the Harvard Law & Policy Review this winter. A pre-print was released by the American Constitution Society last week as part of a panel discussion moderated by former Sixth Circuit Judge Nathaniel R. Jones. During the panel discussion, Judge Jones declared that the study is a “profoundly important and significant work” that raises issues about the federal courts that “cry out for scrutiny and close examination.” (See the panel slideshow; listen to the panel discussion; questions from the audience. Windows Media Player required)

It is important to note that I am a Cornell Law School alumnus, serve on the law school’s advisory counsel, and have followed the law school’s empirical legal scholarship for several years, particularly as it relates to employment discrimination cases. I was interviewed for the Clermont/Schwab study (see footnote 47) to provide a practitioner’s insight.

THREE KEY FINDINGS OF THE CLERMONT/SCHWAB STUDY

Dean Schwab and Professor Clermont used data maintained by the Administrative Office of the United States Courts and assembled by the Federal Judicial Center, to analyze district court and appellate court data for cases identified by civil cover sheet category 442 “Civil Rights: Jobs”. Two-thirds of these cases are Title VII cases. The remainder are other cases involving discrimination in the workplace. They examined the most up-to-date and complete data available, covering the period from 1979 through 2007.

They made three key findings:

1. Double Standard on Appeal

Dean Schwab and Professor Clermont found that when employers win at trial, they are reversed by the U.S. Courts of Appeals 8.72% of the time. In striking contrast, when employees win at trial, they are reversed 41.10% of the time. Dean Schwab and Professor Clermont summarized:

In this surprising plaintiff/defendant difference in the federal courts of appeals, we have unearthed an anti-plaintiff effect that is troublesome.

They found this anti-plaintiff effect on appeal particularly disturbing because employment discrimination cases are fact-intensive and often turn on the credibility of witnesses:

The vulnerability on appeal of jobs plaintiffs’ relatively few trial victories is more startling in light of the nature of these cases and the applicable standard of review. The bulk of employment discrimination cases turn on intent, and not on disparate impact. The subtle question of the defendant’s intent is likely to be the key issue in a nonfrivolous employment discrimination case that reaches trial, putting the credibility of the witness at play. When the plaintiff has convinced the factfinder of the defendants’ wrongful intent, that finding should be largely immune from appellate reversal, just as defendant’s trial victories are. Reversal of plaintiffs’ trial victories in employment discrimination cases should be unusually uncommon. Yet we find the opposite.

They concluded that:

the anti-plaintiff effect on appeal raises the specter that appellate courts have a double standard for employment discrimination cases, harshly scrutinizing employees’ victories below while gazing benignly at employers’ victories.

The 8.72% reversal rate for employers compared to the 41.10% reversal rate for employees is shocking. From my perspective, a two to one disparity would be troubling, but could have possible explanatory variables such as the resource advantage that typically favors employers. However, an appeal reversal disparity that is five to one is indefensible. It creates a crisis of confidence in the federal courts. Further, it has debilitating consequences for civil rights litigants. This leads to the second important finding.

2. Precipitous Drop in Employment Cases Since 1998

Dean Schwab and Professor Clermont found an absolute drop in employment discrimination cases of 37% from fiscal 1999-2007. Cases are down dramatically, and the data indicate the decline in private enforcement is more pronounced in recent years. Specifically, in absolute terms, the number of such cases fell from 23,721 in 1999 to 18,859 in 2005. They declined even more sharply in the last two years of the data to 15,007 in 2007. Some might say discrimination has gone down; however, statistics from the Equal Employment Opportunity Commission (EEOC) show that EEOC charges have remained steady if not increased from 1997 (80,680 charges) to 2007 (82,792 charges). Thus far in 2008, the EEOC has experienced a 15% rise in charges compared with last year. The rise in EEOC charges suggests that discrimination in the workplace has not decreased. In short, employment discrimination persists, but federal court cases enforcing anti-discrimination laws are down dramatically.

The five to one appeal reversal disparity could have a chilling effect on private Title VII enforcement of Title VII. Dean Schwab and Professor Clermont state:

Discouragement could explain the recent downturn in the number of cases…there could be a growing awareness, especially with the prolonged lack of success on appeal, that employment discrimination plaintiffs have too tough a row to hoe.” It appears that the U.S. Courts of Appeals have become increasingly hostile to workers, and workers are increasingly unable to find counsel ready to take these contingency cases. Wrongdoers in effect go scot-free, while workers expecting a level playing field face heart-breaking defeats.

American workers such as Lilly Ledbetter, having faced an unlevel playing field in the workplace, find an equally unlevel playing field in the courts. No wonder the number of discrimination cases filed in the federal courts is down by an astonishing 37%. The U.S. Courts of Appeals with the most dramatic drops in employment discrimination cases are:

  • 11th Circuit: (FL, GA, AL)
  • 5th Circuit: (LA, MS, TX)
  • 4th Circuit: (MD, VA, NC, SC, WV)
  • 8th Circuit (MO, MN, IA, AR, ND, SD, NE)
  • 6th Circuit: (MI, OH, TN, KY)

3. Troubling Patterns in the Trial Court

Dean Schwab and Professor Clermont’s study also finds that employment discrimination plaintiffs fare significantly worse in judge, or bench, trials than other plaintiffs. The district court judicial disparity is particularly evident when outcomes in judge trials are compared with jury trials. Juries rule in favor of plaintiffs in job cases 37.63% of the time versus 44.41% in non-job cases. District court judges, however, rule in favor of jobs plaintiffs only 19.62%, while ruling in favor of non-jobs plaintiffs 45.53%, a striking disparity.

The three key findings of Dean Schwab and Professor Clermont suggest that American workers are denied a level playing field in the federal courts. Let me next provide a window into the plight of American workers confronting discrimination in the workplace.

[Read Part II]

About the Author: Cyrus Mehri is a founding partner of the law firm Mehri & Skalet, PLLC. Mr. Mehri served as Class Counsel in the two largest race discrimination class actions in history: Roberts v. Texaco Inc. which settled in 1997 for $176 million and Ingram v. The Coca-Cola Company, which settled in 2001 for $192.5 million.  Both settlements include historic programmatic relief, featuring independent Task Forces with sweeping powers to reform key human resources practices such as pay, promotions and evaluations. Trial Lawyers for Public Justice named Mr. Mehri a finalist for “Trial Lawyer of the Year” in 1997 and 2001 for his work on the Texaco and Coca-Cola matters respectively.

In 2002 Mr. Mehri and Johnnie L. Cochran, Jr. released the report, Black Coaches in the National Football League: Superior Performance, Inferior Opportunities.  The report became the catalyst for the NFL’s creation of a Workplace Diversity Committee and the adoption of a comprehensive diversity program.  The NFL now has a record number of African American head coaches. Mr. Mehri graduated from Cornell Law School in 1988, and clerked for the Honorable John T. Nixon, U.S. District Judge for the Middle District of Tennessee. Mr. Mehri is a frequent guest on radio and TV and is guest columnist for Diversity, Inc.

Barriers to Justice: Examining Equal Pay for Equal Work (Part II)

Tuesday, September 23rd, 2008

TESTIMONY OF CYRUS MEHRI BEFORE THE COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
SEPTEMBER 23, 2008

[View Hearing Webcast]
[Read Part I]

BATTLING DISCRIMINATION IN THE WORKPLACE: THE LONG HARD JOURNEY FOR WORKERS

During the last 15 years, I have interviewed hundreds of employees in dozens of companies. Invariably, they contact counsel as a last resort after exhausting all internal channels within a company. One of my clients, Bari-Ellen Roberts, described this in her book, Roberts v. Texaco. Ms. Roberts tried to work with her company to develop “best practices” regarding diversity and discrimination and turned to me only when the head of human resources shut down any constructive discourse. Ms. Roberts’ experience is consistent with my own observations. The vast majority of employees remain extraordinarily loyal to their companies despite significant discrimination in the workplace. Many victims of discrimination do not want to believe they are discriminated against and only reach this sad conclusion reluctantly.

Once employees decide to take action, they typically begin a long hard journey. At the outset, most Title VII plaintiffs have a hard time finding counsel. Civil rights counsel generally take cases on a contingency fee basis since individuals are rarely able to pay costs or fees. Because of the risk involved, counsel carefully vet their cases and tend to take only the strongest of cases. The pre-filing vetting process screens out non-meritorious cases. In short, the private bar serves as the first gatekeeper.

Next, the employee generally starts the pretrial discovery process against a large and often aggressive corporate law firm. The employee turns over documents and is deposed. It becomes an all-consuming process. Often, reliving the discriminatory experience in litigation can be just as painful as the difficult experience in the workplace. Motion practice follows and the District Courts serve as a fierce gatekeeper, tossing out a large segment of cases during pre-trial motions. At trial, employers win about 62.37% of jury trials and 80.38% of bench trials. Most victims of discrimination have the unhappy experience of losing their case prior to or during trial.

Those employees who are victorious at trial have genuine cases that are not frivolous. They have overcome long and extraordinarily difficult odds with able counsel. They have faced a determined and well-financed defendant, followed by intense scrutiny by a district court. After all this, these “victorious” employees face the U.S. Courts of Appeals that reverse their victories an incredible 41.10% of the time. These extreme odds make employers more brazen in the workplace and in the courtroom. Civil rights attorneys are forced to counsel their clients about these sobering realities and the small probability of success for even the most meritorious claims.

If U.S. corporations had 41.10% of their trial victories reversed by the appellate courts there would be a stampede of lobbyists from the Chamber of Commerce crying foul. By contrast, American workers do not ask for much. They merely want each case to be heard by judges who approach all cases with an open-mind, devoid of politics or ideology. They just want a fair shake, not a double standard from our federal courts.

In preparation for this hearing, I asked Terisa Chaw, Executive Director of the National Employment Lawyers Association (NELA), to canvass NELA members for real life examples of appellate reversals of employee trial victories. There was an outpouring of calls and e-mails describing how individuals with powerful evidence of discrimination had their trial victories reversed by the U.S. Courts of Appeals. Many talented attorneys even expressed concerns about whether they could continue their civil rights practices. An email from one attorney, Nancy Richards-Stower, exemplifies the distress echoed by many civil rights practitioners:

I hope the article explains that all that stands between total collapse of federal enforcement and its continuation is the plaintiffs’ bar. I can’t afford to go through federal summary judgment procedures, let alone trial and appeal. When I was young I used to go to federal court for civil rights justice. Now I can’t. Federal courts are hostile towards employee rights.

Let me now turn to three case studies from NELA members illustrating the double standard on appeal shown in the Clermont/Schwab data:

Case Study No. 1: Ledbetter v. Goodyear Tire & Rubber Co.

Many of you have heard about the Supreme Court’s Ledbetter decision, and Ms. Ledbetter who is testifying with me today will surely tell her compelling story. But the Ledbetter decision by the U.S. Court of Appeals for Eleventh Circuit is equally deserving of attention.

For nearly 20 years, Lilly Ledbetter worked at the Goodyear Tire plant in Gadsden, Alabama. She was hired in 1979 as a supervisor. She was one of very few women supervisors. Early on, she endured sexual harassment at the plant, and her boss told her he did not think women should be working there.

Throughout her employment, she received fewer and lower raises than male supervisors. Unfortunately for Ms. Ledbetter, these smaller increases had a cumulative effect: “At the end of 1997, she was still earning $ 3727 per month, less than all fifteen of the other [male] Area Managers in Tire Assembly. The lowest paid male Area Manager was making $ 4286, roughly 15% more than Ledbetter; the highest paid was making $ 5236, roughly 40% more than Ledbetter.” Goodyear had a merit compensation plan where employees’ salaries were reviewed annually by a supervisor who recommended salary increases. Though the record is clear that Ms. Ledbetter’s supervisor reviewed her salary annually from at least 1992 through 1998, no one took steps to bring her salary in line with the men’s.

After she filed a complaint with the EEOC in 1998, Ms. Ledbetter filed a lawsuit in federal court to recover the wages she was unfairly denied throughout her employment. The jury found that she had been given an unequal salary because of her gender and awarded her $223,776 in backpay, plus compensatory and punitive damages.

Goodyear asked the district court to set aside the jury verdict based on a statute of limitations argument. Generally, employees are required to file EEOC charges with the Agency within 180-days of the discrimination. Goodyear argued that it made no discriminatory pay decisions within 180 days of Ms. Ledbetter’s 1998 EEOC charge. The district court disagreed and found that there was sufficient evidence of pay discrimination within the 180-day period because a male supervisor who was paid the same salary as Ms. Ledbetter in 1979 was paid over $12,000 more a year than her in 1998.

The U.S. Court of Appeals for the Eleventh Circuit reversed the jury verdict, holding that Ms. Ledbetter could not recover for pay discrimination throughout her employment because Goodyear’s initial decision to pay her less was not made within 180 days of her EEOC complaint in 1998. This decision effectively barred Ms. Ledbetter from any recovery for any of the years of undetected discrimination in her rate of pay.

Moreover, the Eleventh Circuit’s decision was contrary to the well-established paycheck accrual rule applied by the EEOC and virtually all other U.S. Courts of Appeals. The paycheck accrual rule states that each paycheck founded in discrimination, including past discrimination, triggers a new 180-day period for filing a charge with the EEOC. The paycheck accrual rule enabled employees, who are understandably almost always unaware of salary disparities, to recover for pay discrimination even if the initial discriminatory decision occurred before the 180-day period. Ignoring the concealed nature of pay discrimination, the Eleventh Circuit rejected the paycheck accrual rule, preferring that extreme limits be placed on workers’ ability to recover hard-earned wages. When the Supreme Court affirmed the decision in 2007, it became one of the most controversial in recent Supreme Court history.

The National Women’s Law Center can provide more information on the impact of the Ledbetter Supreme Court decision.

Case Study No. 2: Ash v. Tyson Foods, Inc.

Anthony Ash and John Hithon, both African-Americans, worked as superintendents in the chicken processing plant run by Tyson Foods in Gadsden, Alabama. In their efforts to be promoted to the position of shift supervisor, both were rebuffed in favor of white employees. At trial, a jury heard evidence regarding the racial attitudes of the man who turned them down for promotion, as well as evidence of the relative qualifications of the whites he preferred. The jury concluded that Tyson was guilty of racial discrimination against both Messrs. Ash and Hithon and awarded each of them $250,000 in compensatory damages plus punitive damages.

There was testimony at trial that Thomas Hatley, the plant manager who made the promotion decisions, repeatedly addressed Messrs. Ash and Hithon as “boy.” Plaintiffs testified that they experienced these remarks as demeaning and hostile. Mr. Ash’s wife, present on one occasion, testified that Mr. Hatley laughed off her protest that her husband was a man, not a “boy.” In its closing argument to the jury, Tyson’s attorney conceded that Mr. Hatley’s use of the word “boy” could have racial connotations, but protested that the word was not delivered with that level of venom and hostility” claimed by the plaintiffs and their witnesses. The jury obviously disagreed.

In addition to the evidence of racist attitudes on the part of the decision-maker, plaintiffs offered substantial evidence that tended to show that under Tyson’s own written standards, Messrs. Ash and Hithon were more qualified than the promoted whites. Company policy preferred three to five years of experience, experience on-site at that plant, and longevity with the company. Messrs. Ash and Hithon, who had loyally worked for the company for 13 and 15 years respectively, met these standards, but the promoted whites did not. Moreover, one supervisor only went through the motions – interviewing Mr. Hithon after he had offered the job to a white applicant who had accepted the position.

The district court judge set aside the verdict, finding that there was no credible evidence that the Plaintiffs had superior qualifications and that the use of the word “boy” did not have racial connotations. The Court of Appeals for the Eleventh Circuit affirmed in an unpublished per curiam decision. Ignoring the jury’s contrary conclusion based on trial testimony and the demeanor of witnesses, as well as the concession of Tyson’s counsel, the Court of Appeals found that the decision-maker’s use of the word “boy” could never be evidence of discriminatory intent.

Acknowledging that Plaintiffs had adduced some evidence that their qualifications were superior to those of the successful white candidates, the Court of Appeals concluded that such evidence did not support a jury’s finding of discrimination unless the disparities in qualifications were so great that they “virtually jump off the page and slap you in the face.” The Court of Appeals concluded that the plaintiffs had not met this standard. The Court of Appeals cavalierly decided that the offensive use of the word “boy” could never be evidence of discrimination as a matter of law. The novel “jump off the page” standard the court articulated is patently absurd given that most discrimination is proven through circumstantial evidence.

In a per curiam decision the Supreme Court reversed, concluding that the “slap in the face” standard was “unhelpful” and that the term “boy” could be evidence of discrimination. On remand, however, the Eleventh Circuit has thus far stuck to its guns, purportedly following the Supreme Court’s guidance, but upholding its earlier conclusion that the Plaintiffs had not adduced sufficient proof of superior qualifications, and that the decision-maker’s use of the term “boy” was not evidence of racism.

The experience of Messrs. Ash and Hithon represents a classic example of the all-too-familiar pattern of judicial nullification of the right to a jury trial in discrimination cases. A properly instructed jury concluded that the man who rejected the Plaintiffs’ applications for promotion, in referring to the Plaintiffs as “boys,” exhibited racist tendencies, and that the promotions were awarded to lesser qualified whites. In holding that “boy” could never be construed as a racist remark, and that the jury incorrectly concluded that the promoted whites had fewer qualifications than those of the Plaintiffs, the Court of Appeals second-guessed the better informed factfinder.

For more information about Messrs. Ash and Hithon’s experiences of discrimination in the workplace and in the courts, contact Alicia Haynes of Haynes & Haynes, PC in Birmingham, Alabama who handled this case.

Case Study No. 3 : Septimus v. University of Houston

Susan Septimus worked for the University of Houston as an Assistant General Counsel handling business and transactional matters. In 1998, the University announced an opening for Associate General Counsel. Ms. Septimus informed her supervisor, General Counsel Dennis Duffy, that she was interested in the promotion. Mr. Duffy responded by criticizing her performance and comparing her to a needy former girlfriend. He flatly refused to consider her for the position and shortly thereafter hired an outside male candidate even before the deadline for accepting applications.

Following her denial of promotion, Mr. Duffy regularly verbally insulted Ms. Septimus, intimidated her in front of colleagues and generally created a hostile work environment. Ms. Septimus decided enough was enough and filed a grievance with the University. Six days later, Mr. Duffy retaliated by giving Ms. Septimus a negative performance review. Unbeknownst to Ms. Septimus, Mr. Duffy also brazenly wrote a memo that reflected his plans to retaliate against her for filing the grievance.

The University’s Chancellor hired an outside investigator – a well-known defense attorney – to examine Ms. Septimus’ complaints, as well as complaints of gender discrimination by two other women in the Office of General Counsel. The investigator issued a lengthy report finding that Mr. Duffy had discriminated against Ms. Septimus when he refused to consider her for the promotion, and that he had created a hostile work environment for women in general. Despite the extensive written report, a committee of University administrators concluded that the investigator’s findings of discrimination were unfounded.

Subsequently, Mr. Duffy followed through with his plans to retaliate against Ms. Septimus for filing a grievance. High-level administrators made it difficult for her to succeed in her job. The Chancellor informed Ms. Septimus that she could either stay in the Office of General Counsel and be supervised by her alleged harasser, Mr. Duffy, or transfer to a contract administrator position in a different department that also reported to Mr. Duffy at times.

Caught between a rock and hard place, Ms. Septimus took the contract administrator position. Her new supervisor criticized her work unfairly and forced her to get approval from the Office of General Counsel headed by Mr. Duffy on all legal work. Ultimately, Ms. Septimus could not endure this demeaning treatment and was forced to resign.

Ms. Septimus then exercised her civil rights and took her case to federal court. Though the district court judge summarily dismissed her gender discrimination claims before trial, the jury found in Ms. Septimus’ favor on retaliation and constructive discharge and awarded her $396,000. The Houston newspaper reported that jurors had “harsh words” for the University. One juror was dissatisfied by the employer’s inaction: “‘The University of Houston could have stepped in a lot sooner.’” Another juror was “troubled” that the University attempted to force Ms. Septimus to give up her legal rights before she could transfer to a new position.

The University asked the district court to set aside the jury’s verdict and order a new trial. When the district court did not, the University appealed to the U.S. Court of Appeals for the Fifth Circuit. On appeal, the University argued that the trial judge had used an erroneous jury instruction for the retaliation claim. Even though the University had arguably waived the objection by not raising it at trial, the Fifth Circuit boldly reversed the jury’s decision, holding that the trial court should have instructed the jury to use a “but for” causation standard, instead of the well-established “motivating factor” standard. Under the motivating factor standard, a plaintiff may prove retaliation by showing that retaliation was a “motivating factor” for the employer’s adverse employment decision. The Fifth Circuit decided that victims of retaliation who do not have direct evidence of retaliation must prove that “but for” retaliation they would not have endured an adverse employment action.

This case is an example of an appellate court reaching to overturn a jury’s decision in favor of an employee by shifting the legal standard. Even though the University failed to object to the jury instructions at trial, the Fifth Circuit, nevertheless, found that the use of the phrase “motivating factor,” instead of the nearly impossible “but for” causation standard, in the jury instructions was sufficient to set aside the jury verdict.

The double standard in appellate reversals that Dean Schwab and Professor Clermont uncovered and these examples of the impact of that double standard on real Americans raise significant questions about the federal judicial nomination process.

THE PATH TO A LEVEL PLAYING FIELD: DIVERSIFY THE JUDICIARY BY CASTING A FAR WIDER NET OF POTENTIAL NOMINEES

However discouraging the current state of affairs may seem, there is a clear path to a federal judiciary that would offer a level playing field for American workers. Namely, we need a fundamental shift that dramatically expands the pool of judicial nominees. The next President should seek, and this Committee should insist on, judicial nominees from widely diverse backgrounds. That means not just diversity in terms of race, gender and other personal traits. It means diversity in terms of legal expertise and life experiences.

In order to improve the public’s confidence that workers have a fair chance in court, we need more nominees confirmed to the federal bench who have experience representing ordinary Americans. We should value nominees who have devoted their careers to fighting poverty, expanding rights for children, enforcing civil rights, representing qui tam whistleblowers, helping break down barriers to equal opportunity or fighting for consumers. We should find potential nominees who have devoted their careers to representing ordinary Americans, small businesses and the underdogs of society. Until this major shift occurs, the double standard documented by Dean Schwab and Professor Clermont will persist and imperil civil justice in America.

Thank you.

[Read Part I]

About the Author: Cyrus Mehri is a founding partner of the law firm Mehri & Skalet, PLLC. Mr. Mehri served as Class Counsel in the two largest race discrimination class actions in history: Roberts v. Texaco Inc. which settled in 1997 for $176 million and Ingram v. The Coca-Cola Company, which settled in 2001 for $192.5 million. Both settlements include historic programmatic relief, featuring independent Task Forces with sweeping powers to reform key human resources practices such as pay, promotions and evaluations. Trial Lawyers for Public Justice named Mr. Mehri a finalist for “Trial Lawyer of the Year” in 1997 and 2001 for his work on the Texaco and Coca-Cola matters respectively.

In 2002 Mr. Mehri and Johnnie L. Cochran, Jr. released the report, Black Coaches in the National Football League: Superior Performance, Inferior Opportunities. The report became the catalyst for the NFL’s creation of a Workplace Diversity Committee and the adoption of a comprehensive diversity program. The NFL now has a record number of African American head coaches. Mr. Mehri graduated from Cornell Law School in 1988, and clerked for the Honorable John T. Nixon, U.S. District Judge for the Middle District of Tennessee. Mr. Mehri is a frequent guest on radio and TV and is guest columnist for Diversity, Inc.

The Importance of Fair Pay This Labor Day

Tuesday, September 2nd, 2008

To many, the 2007 decision of the U.S. Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co. marked a low point for protecting women against pay discrimination in the workplace. The case held that Lilly Ledbetter, the plaintiff, could not hold her employer, Goodyear, accountable for pay discrimination that had occurred over many years under Title VII because her statute of limitations for such a claim had run out before she even knew about the discrimination.

The Ledbetter decision creates an absurd result. Individual pay decisions by themselves are usually small, incremental changes, not as obviously motivated by discriminatory intent the way that more serious discrete acts such as terminations or failures to promote do.  It is not until many discriminatory wage decisions have occurred that the discriminatory injury becomes clear to the employee.  Often, it takes many years for this pattern to develop before the employee realizes that she might have a claim.

The Ledbetter decision is inconsistent with the purposes of Title VII to both make victims of discrimination whole and to eradicate employment discriminatory practices from society at large.  It leads to an absurd situation where employees must bring pay claims prematurely when they cannot be sure there has been unlawful pay discrimination. If the employee waits to a later time when there exists more substantial evidence of pay discrimination the employee will be barred from bringing the claim at all by the statute of limitations (as in Ledbetter).  This inequitable state of affairs cannot stand and, it is my hope, it will be legislatively nullified.

But legislative nullification depends on both what the next Congress and President plan to do to address this glaring gap in ensuring pay equity in the workplace. Even if Congress continues to support the Lilly Ledbetter Pay Equity Act and passes it in both houses next year, the identity of the next President may determine whether that legislation is signed into law.

John McCain has stated that he is “in favor of pay equity for women, but this kind of legislation, as is typical of what’s being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems . . . . This is government playing a much, much greater role in the business of a private enterprise system.” McCain chose not to return to Washington to participate in the Senate vote on the Ledbetter bill (See Washington Post article.)  Barack Obama, on the other hand, has pledged his unequivocal support for the Ledbetter bill and returned to Washington for the bill’s Senate vote in April.  (See Washington Post article.)

On this Labor Day, while we praise all the workers throughout this country for their dedication and selflessness in making the United States the economic power that it is today, let us not forget that without equal wages for an equal day’s work for all members of our workforce, we really have accomplished very little. Let’s hope that regardless of who is elected president that women are no longer afforded merely second-class status in the workplace and the Ledbetter decision’s days are numbered.

About the Author: Professor Paul Secunda joined the Marquette University Law School as an associate professor of law in the summer of 2008. He teaches employment discrimination, employee benefits, labor law, employment law, civil procedure, and seminars in special education law, global issues in employee benefits, and public employment law. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He is also the author, along with Rick Bales and Jeff Hirsch, of the treatise, Understanding Employment Law, along with Sam Estreicher and Rosalind Connor, of the case book, Global Issues in Employee Benefits Law, and of the Teacher’s Manual to the 14th Edition of the Cox, Bok, Gorman & Finkin Labor Law casebook.

Professor Secunda is a frequent commentator on labor and employment law issues in the national media and has written numerous columns and op-eds for the National Law Journal and Legal Times. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country, which is part of the Law Professors Blog Network.

Note: Workplace Fairness is a nonprofit organization and does not make political endorsements. The opinions expressed by our guest bloggers are their own.

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