Ledbetter Equal Pay Act Passes Congress

In response to the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. (2007) 550 U.S. 618,  Congress passed Senate Bill 181 (the “Lilly Ledbetter Fairy Pay Act of 2009”). There have been a number of attempts to legislatively alter the Ledbetter decision, which held that the statute of limitations for filing a Title VII charge of employment discrimination with the EEOC begins when the discrete discriminatory act occurs.

In Ledbetter’s case, she claimed she was paid a lower salary than her male counter-parts.  Goodyear Tire & Rubber Co. avoided liability by establishing the fact that Ledbetter’s salary had been lower than her male counter-parts for years.  Since discrimination claims must be filed with the EEOC within 180 days of the discrimination (or 300 days in some states), the court held that Ms. Ledbetter failed to timely exhaust her administrative remedies despite the fact that the consequences of discriminatory pay practice continued.  In essence, the court felt that the discriminatory act occured when Ms. Ledbetter initially received the lower pay and the fact that the lower pay led to lower raises over the next several years creating an even greater disparity was insufficient to start a new violation.  Employee advocates dissatisfied with the decision immediately began petitioning the legislature to amend Title VII.

Senate Bill 181 amends Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Rehabilitation Act, to clarify that a unlawful discriminatory compensation decisions occur each time compensation is paid pursuant to the discriminatory compensation decision.  The bill willmake it unlawful each time an employer writes a paycheck that gives some workers less than others, because of race, sex, disability, religion or national origin.  The bill still needs to be approved by President Obama.  Once signed into law, it will apply to bias claims that filed on or after May 28, 2007.

Sayar Fausto, LLP

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Your use of this blog does not create an attorney-client relationship between you and SAYAR FAUSTO LLP. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and SAYAR FAUSTO LLP cannot guarantee the confidentiality of anything posted to this blog.

Opposing Sexual Harassment

The United States Supreme Court clarified what it means to “oppose” sexual harassment.  in Crawford v. Metropolitan of Nashville and Davidson County, Tennessee, Crawford was asked questions during a sexual harassment investigation. In response to questions from the interviewer, Crawford said that the employee relations director had sexually harassed her.  No action was taken against the director, but Crawford soon found herself accused of embezzlement and fired.

Crawford sued aleging her employer retaliated against her for opposing sexual harassment in violation of Title VII.  The trial court and appellate court held that Crawford did not state a cause of action because her responses to questions was not an affirmative opposition of sexual harassment.  In essence, the lower courts believed that the opposition clause demanded “active, consistent” opposing activities, whereas the plaintiff in this case had not initiated any complaint prior to the investigation.  The U.S. Supreme Court disagreed.

Noting that Title VII does not define “oppose,” the Supreme Court applied the ordinary common definition meaning of resisting or contending against.  The court found that intent of the statute’s anti-retaliation provision’s protection extends to an employee who speaks out about discrimination even if it is not done on the employee’s own initiative.

The ruling may broaden the scope of what some employers believed constituted a “complaint” about harassment.  Employers must be cognizant of the fact that any opposition to unlawful harassment or discrimination is protected.  When conducting a sexual harassment or discrimination investigation it is extremely important to remember that additional allegations of harassment, possibly even unrelated events, may be divulged and that such additional allegations may need to be addressed.  The underscores the need to have such investigations conducted by competent outside consultants.

And never retaliate against someone who has participated in a sexual harassment/discrimination investigation!

Sayar Fausto, LLP

350 Second St. Suite 5
Los Altos, CA 94022
Tel: (650) 948-6114
Fax: (650) 947-0770

Your use of this blog does not create an attorney-client relationship between you and SAYAR FAUSTO LLP. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and SAYAR FAUSTO LLP cannot guarantee the confidentiality of anything posted to this blog.

New FMLA Poster

A revised Family and Medical Leave Act (FMLA) poster, reflecting the recently published final rule, is now available for viewing and downloading. Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions.

The FMLA applies to any employer with 50 or more employees working within a 75-mile radius.

The DOL has also provided optional forms for use by employers and employees during the FMLA process.  The DOL revised its Certification of Health Care Provider form (WH-380), and divided it into two separate forms for an Employee’s Serious Health Condition (WH-380E) and a Family Member’s Serious Health Condition (WH-380F).  The DOL also revised its Notice of Eligibility and Rights and Responsibilities form (WH-381).

In addition, the DOL added new forms for Designation Notice to Employee of FMLA Leave (WH-382), Certification of Qualifying Exigency for Military Family Leave (WH-384), and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

The poster and forms become effective on January 16, 2009.  Additional compliance assistance materials are also available on FMLA Final Rule Web site at www.dol.gov/esa/whd/fmla/finalrule.htm.

Sayar Fausto, LLP

350 Second St. Suite 5
Los Altos, CA 94022
Tel: (650) 948-6114
Fax: (650) 947-0770

Your use of this blog does not create an attorney-client relationship between you and SAYAR FAUSTO LLP. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and SAYAR FAUSTO LLP cannot guarantee the confidentiality of anything posted to this blog.