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Wednesday, February 04, 2009

Reflections on Ledbetter, the Statute

Thanks to Dan and everybody for letting me guest blog over here this month. I am usually found at Workplace Prof Blog or speaking only to my students at McBlogmick (my class blog), so having the option to publicly embarrass myself on subjects beyond workplace law will be a real treat. I'll start small and stick with a workplace subject first, though.

I hesitate to express value judgments in my analysis of workplace issues at those other places because of the nature of those fora, but I'd like to do that here a little, starting with the first-ish bill that Obama signed into law, the Lilly Ledbetter Fair Pay Act. The statute changes the statute of limitations for when an employee can file a charge of discrimination in pay on the basis of race, sex, age, disability, religion, national origin, or color, restoring it to what the circuits had held before the Supreme Court issued its decision in Goodyear Tire v. Ledbetter almost 2 years ago.

There was a lot of rhetoric on both sides of this legislation--it was going to eliminate discrimination v. it's a field day for the trial lawyers--but no one seemed to ask this question: is it really going to have any effect? My gut reaction is, not much, and I'll explain why after the jump.

All the Ledbetter Fair Pay act does in terms of enforcement is to extend the time to file a charge to within 180 days of a discriminatory paycheck or other decision. It makes these claims easier to bring then, in that plaintiffs will not be time barred so easily. But the time bar was just one obstacle that, frankly, didn't even really exist until the Ledbetter case. It seems to me that other obstacles operate with much more force, and this statute does not address those.  Other, more powerful obstacles include a fear of retaliation and lack of access to legal help to pursue the claims.

I'll address the lack of legal help first. Discrimination cases are difficult to win or get enough of a settlement for to warrant an attorney taking the case on contingency, and most workers can't afford the kinds of hourly fees to pay an attorney up front. There is a wealth of empirical research on this winnability point. And this statute doesn't make these cases more likely to pay, which would enable attorneys to take them. The pay difference (amount of damages) may be a big deal to the individual plaintiff, but a relatively small amount in terms of recovery for the attorney. And attorneys can get fees if they win a judgment, but these cases almost never get to trial, when they get to trial most often lose, and when plaintiffs win at trial, are twice more likely to get reversed on appeal than when defendants win. And even where they win, plaintiffs can only recover damages for the two years prior to the charge being filed, so the available recovery is relatively limited.

And retaliation is a bigger problem. Pay discrimination cases are almost always going to arise in the context of continued employment. Particularly in a weak economy, no one is going to want to give their employer a reason to look for problems by suing for pay discrimination. Some kind of backlash is highly likely. Research has shown that people who complain about discrimination are viewed negatively even when the viewer knows that the person was actualy discriminated against. On top of that retaliation is very difficult to prove, and even if a person can prove they were discharged in retaliation for filing a charge, they're out of work during the time they're pursuing that claim. And at least some industries are tightly knit enough that the person wil be unlikely to be hired anywhere else, either.

So, the statute opens the door to the one group of people who don't have retaliation to worry about, people just like Lilly Ledbetter, those retiring. Maybe that will be enough.

Posted by Marcia L. McCormick on February 4, 2009 at 04:09 PM in Employment and Labor Law, Law and Politics, Workplace Law | Permalink


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Employers win so many cases because the employees' claims lack merit. The real scandal is the cost to businesses of defending the frivolous claims brought by disgruntled, incompetent employees.

Posted by: SmokeVanThorn | Feb 11, 2009 10:14:07 PM

Most employment discrimination cases are won by defendants at the summary judgment stage (even after the plaintiffs overcome statute of limitations hurdles). I continually hear it cited (as in one of the comments) that the majority of cases in the federal docket are employment discrimination cases, but I think that this is misleading. There are many FLSA (over-time wage cases). Lawyers do not want to take on discrimination employment cases because they know that the statistics demonstrate that federal judges often grant summary judgment for the defendants in these cases, so the cases do not even make it to trial. Even when they make it to trial, plaintiffs and their lawyers face the additional obstacle of having to rely on witnesses who depend on the employer for their employment and references. Fellow employees, fearing for their present and future employment, or wishing to ingratiate themselves with their employer, become forgetful and cannot recall incidents, or worse yet, deny that events happened. Some employees fear retaliation if they testify on behalf of the “whistleblower.” Other lawyers fear sanctions for frivolous filings even when the cases have merit. Some lawyers also do not want to risk having the defendants get a judgment against the plaintiff for fees and costs after the defendants win. The employers are often represented by large firms who rack up the fees and costs. There are definitely not enough lawyers willing to bring forth these cases. I also agree that the great majority of employees who do report discrimination are black-listed for the remainder of their careers. Nonetheless, the Ledbetter case is a small step in support of justice. How dare does the Supreme Court rule that an employee must ascertain whether they are being pay-discriminated (when they receive their first discriminatory paycheck) unless it also orders that employers shall disclose all employees’ salaries for comparison? It is apparent that the majority of federal judges, thanks to their life-tenured, autonomous jobs, cannot relate to the employment conditions faced by American workers.

Posted by: Lady Justice | Feb 6, 2009 10:46:10 PM

I think you are missing another group of people who don't have to worry about retaliation: those recently laid-off. I predict an increase in EEOC charges alleging pay discrimination, as recently laid-off employees can now file Charges complaining about not only their recent termination, but also every decision ever made during the course of their employment that may have had an effect on their total compensation.

(Also, pointing to the difficulty of an employee succeeding at summary judgment, trial, or appeal ignores the large majority of claims that settle at any point from the EEOC stage on. Also, employment cases represent a substantial percentage of the federal civil docket, which I think tends to suggest that they are relatively lucrative for Plaintiff's attorneys.)

Posted by: JP | Feb 4, 2009 6:43:59 PM

I agree that the law will not affect that many cases or fundamentally (or even significantly) change the dynamics of Title VII litigation.

But it certainly has the effect of overturning the Ledbetter decision, which is the whole point.

Posted by: AF | Feb 4, 2009 5:13:38 PM

The statute not only opens the door to achieving justice against discriminatory employers, but will probably act to end wage discrimination at the outset. If employers are more worried about the increased potential for a wage discrimination lawsuit, they may be more likely to equalize pay between the genders. This fairly pessimistic post did not address this critical purpose of the act.

Posted by: Anonymous Law Student | Feb 4, 2009 4:45:05 PM

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