New Jersey Employment Lawyer Blog

Earlier today, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. The Act reverses the United States Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which requires an employee to bring a federal claim of pay discrimination in violation of the Title VII of the Civil Rights Act of 1964 (Title VII) within 180 days (or in some states, including New York and New Jersey, within 300 days) of the decision that caused the pay disparity.

In the Ledbetter case, the Supreme Court ruled that Lilly Ledbetter was outside of Title VII's filing deadline when she initiated her gender discrimination claim against Goodyear. Ms. Ledbetter was seeking damages because she was paid less than men in comparable positions at the company. The Supreme Court found that her claim was untimely because she did not file a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) within 180 days after the company's initial discriminatory decision, even though she was still underpaid due to the past discrimination in that her salary remained lower than her male coworkers.

The Ledbetter decision was highly criticized on the basis that employees usually do not know how much their coworkers are paid, making it difficult or impossible for them to determine that they are experiencing discriminating against with respect to their compensation. As a result, employees who have been underpaid because of their race, color, sex (gender), religion, national origin, or disability are unlikely to know about it until long after the 180 (or 300) day EEOC filing deadline.

The Lilly Ledbetter Fair Pay Act amends both Title VII and the Americans with Disabilities Act of 1999 (ADA) by making it a separate violation of the law each time (1) a company adopts a discriminatory compensation decision or practice, (2) a company subjects an employee to a discriminatory compensation decision or practice, or (3) an employee is affected by a discriminatory compensation decision or practice, including each time an employee receives any wages, benefits, or other compensation that is at least in part the result of a discriminatory decision or practice.

Under the law, a new 180 (or 300) day period starts each time an individual is paid less due to his or her race, color, sex (gender), religion, national origin, or disability. In addition, the law permits an employee to prove damages resulting from pay discrimination for up to two years before the employee filed a charge of discrimination with the EEOC. The law is retroactive, applying to all covered discrimination that occurred on or after May 28, 2007, and to all claims that have been pending in the EEOC or in Court since that date.

As discussed in a previous article, the United States Senate voted in favor of the the Fair Pay Act on January 22, 2009. The House of Representatives voted in favor of the Act on January 27, 2009, paving the way for the President to sign it into law today.

On January 22, 2009, the United States Senate voted to pass the Lilly Ledbetter Fair Pay Act of 2009. If into becomes law, the Act would reverse the United States Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which requires an employee to bring a federal claim of pay discrimination in violation of the Title VII of the Civil Rights Act of 1964 (Title VII) within 180 days (or in some states, including New York and New Jersey, within 300 days) of the decision that caused the pay disparity.

In the Ledbetter case the Supreme Court ruled that Lilly Ledbetter was too late when she filed her gender discrimination lawsuit against Goodyear. In her case, Ms. Ledbetter as seeking damages because she was paid a lower salary than men in comparable positions at the company. The Supreme Court ruled that her claim was untimely because she did not file a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) within 180 days after the company's initial discriminatory decision, even though she was still underpaid due to the past discrimination, since her salary remained lower than her male coworkers throughout her career.

The Ledbetter decision has been highly criticized ever since it was decided. One problem with it is that employees generally do not know how much their coworkers are paid, often making it difficult or impossible for them to determine that their employers are discriminating against them with respect to their compensation, As a result, employees who have been underpaid because of their race, color, sex (gender), religion, national origin, or disability are unlikely to know about it until long after the 180 (or 300) day EEOC filing deadline.

The Lilly Ledbetter Fair Pay Act would amend both Title VII and the Americans with Disabilities Act of 1999 (ADA) by making it a separate violation of the law each time (1) a company adopts a discriminatory compensation decision or practice, (2) a company subjects an employee to a discriminatory compensation decision or practice, or (3) an employee is affected by a discriminatory compensation decision or practice, including each time an employee receives any wages, benefits, or other compensation that is at least in part the result of a discriminatory decision or practice.

As a result, under the law a new 180 (or 300) day period would start each time an individual is paid less due to his or her race, color, sex (gender), religion, national origin, or disability. In addition, the law would permit an employee to prove damages resulting from pay discrimination for up to 2 years before the employee filed a charge of discrimination with the EEOC. The law, as currently drafted, would be retroactive so it would apply to all covered discrimination that occurred on or after May 28, 2007, as well as to all claims that have been pending in the EEOC or in Court since that date.

Before the Fair Pay Act can become law, it still needs to be approved by the United States House of Representatives, and then to be signed into law by President Obama.

Many people who have been fired, demoted, harassed, or experienced some other violation of their employment law rights wonder what kind of damages they can recover if they win their case. Damages in employment law case can vary greatly in different states and under different laws, so it is recommended that you contact an employment lawyer in your area to discuss your specific claims. However, the most common type of damages available in employment law cases in New York and New Jersey include economic damages, emotional distress damages, attorneys fees and costs, punitive damages, and liquidated damages.

Economic Damages

Most employment laws allow for the recovery of economic damages. Economic damages are intended to compensate you for the salary and benefits you lost. They can include your lost salary and the value of your lost benefits like health insurance, a pension, or a 401(k) plan. Economic damages include past losses (called back pay) and future losses (called front pay).

Economic damages are normally available not only in termination cases, but also in cases in which an employee has been illegally suspended without pay, demoted, or denied a promotion. In demotion and promotion cases, economic damages are based on the difference between what you actually earned and what you would have earned if you had been promoted or had not been demoted.

The law requires you to make reasonable efforts to minimize your economic losses. This requirement to "mitigate" your economic damages is discussed in more detail in a previous article.

Emotional Distress Damages

Most employment law claims also allow you to recover damages for the emotional harm caused by an adverse employment action taken against you. This includes damages for emotional pain and suffering you experience as a result of being unlawfully harassed, fired, suspended, demoted, or denied a promotion. It also includes damages for psychological harm you suffer as a result of the discrimination or harassment, such as depression, anxiety, Post-Traumatic Stress Disorder (PTSD), difficulty sleeping, weight loss, weight gain, difficulty concentrating, headaches, or other physical pain.

Attorney Fees and Costs

Most employment law claims also permit an employee to recover reasonable attorney's fees and the costs of the lawsuit. However, it is important to understand that the attorney's fees are not necessarily based on what you paid your lawyer. Rather, they are based on your lawyer's reasonable hourly billing rate and the time he or she spent on your case.

Punitive Damages

In some employment law cases, you may be able to recover punitive damages. Unlike economic and emotional distress damages, punitive damages are not meant to compensate you for the harm you suffered. Instead, they are meant to punish the company or the individuals who discriminated against you, retaliated against you, harassed you, or otherwise violated your employment law rights.

Punitive damages are only recoverable in a limited number of cases. Generally, you have to prove that the conduct toward you was not just unlawful, but also "especially egregious," and that the company's upper management participated in the conduct toward you.

Liquidated Damages

A few laws, including the Family & Medical Leave Act (FMLA), the Age Discrimination in Employment Act (ADEA), and the Fair Labor and Standards Act (FLSA) provide for liquidated damages instead of punitive damages. Liquidated damages are double damages. Under these statutes, you can recover liquidated damages if the unlawful conduct was "willful," meaning that your employer either knew its conduct violated the law or acted in reckless disregard for your legal rights.

Conclusion

The damages you can recover in an employment law case depend on which law applies and the specific facts of your case. Accordingly, if you want to know what damages you can recover if you win your employment law case, you should contact an employment lawyer in your state.