Articles Posted in Gender Discrimination

Last week, the New Jersey Supreme Court ruled that each day an employee is paid a lower salary based on a past unlawful discriminatory decision is a separate violation of the New Jersey Law Against Discrimination (LAD). As a result, three tenured Seton Hall University professors can proceed with their age and gender discrimination lawsuit, even though (1) the alleged discriminatory decision was made more than two years before they filed the lawsuit, and (2) the LAD has a two-year statute of limitations.

Specifically, in Alexander v. Seton Hall University, three female professors who are over 60 years old sued Seton Hall and certain school officials. They claim they were paid less than their younger male colleagues. They largely based their claims on the University’s 2004-2005 annual report, which shows that Seton Hall pays higher salaries to younger male faculty members than older female faculty members.

However, the trial court dismissed the case, ruling that since the allegedly discriminatory decision was made more than two years before the employees sued, their case was barred by the statute of limitations. That decision was affirmed by New Jersey’s Appellate Division. Both courts relied on the United States Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which ruled that the statute of limitations for claims of discriminatory wages under federal law begins when the employer makes the discriminatory decision.

On May 22, 2009, in the case of Sassaman v. Gamache, Commissioner, Dutchess County Board of Elections, the United States Court of Appeals for the Second Circuit reinstated the gender discrimination claim of an employee who was forced to resign because another employee accused him of sexual harassment. The Second Circuit is the federal appellate court that covers several states, including New York.

The plaintiff in that case, Carl Thomas Sassaman, worked for the Dutchess County Board of Elections. In March 2005, another Board of Elections employee, Michelle Brant, accused Mr. Sassaman of harassing and stalking her. Mr. Sassaman denied harassing Ms. Brant. He also claimed that she had previously asked him if he was interested in a one-time sexual encounter with her, which he declined.

When Ms. Brant complained about the sexual harassment, the Commissioner of the Board of Election, David Gamache, suggested that Ms. Brant file a complaint with the Dutchess County Prosecutor’s office. The Prosecutor’s office subsequently found insufficient proof that Mr. Sassaman had enaged in a crime.

Earlier this month, the United States Equal Employment Opportunity Commission (EEOC) published suggested best practices for companies to minimize the chance of violating the rights of employees who are also caregivers. Those suggested practices supplement the guidelines the EEOC issued in 2007 regarding when it is unlawful for an employer to discriminate against an employee who is a caregiver.

Although there is no law in New York or New Jersey which expressly prohibits discrimination against employees because they are caregivers, many state and federal laws provide protection to caregivers under certain circumstances. For example, the New Jersey Law Against Discrimination, the New York Human Right Law, the Family & Medical Leave Act (FMLA), the New Jersey Family Leave Act, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA) all provide some protection to caregivers.

The EEOC’s 2007 guidelines regarding employees with caregiving responsibilities recognize that, in part due to anti-discrimination laws, women now make up nearly half of the workforce in the United States. In addition, while the role of men as caregivers has substantially increased over the past 50 years, women still disproportionately have the primarily responsibility for caring for children and elderly parents, in-laws, and spouses. As a result, employment practices that disfavor caregivers disproportionately harm women.

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.

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