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Article Excerpt
I. INTRODUCTION
Congratulations. You have been offered a renewal of your employment contract and, with it, a salary increase. You wonder if anyone else has received a raise, but you are afraid to ask. While at lunch with your co-workers, you feel compelled to inquire whether anyone else received a raise, even though you know it is not polite. (1) If you do not ask, you may run the risk of losing the right to bring a pay discrimination claim challenging your employer's decision to give you a lower raise than it gave your male co-workers doing substantially similar work. This is at least how it seems after the Supreme Court's decision in Ledbetter v. Goodyear Tire and Rubber Co. (2)
In Ledbetter, the Court held that a female employee's complaint of pay discrimination was time-barred when she did not file her claim within a 180 day period, because she discovered that her paychecks were lower than those of her male co-workers in substantially similar jobs much later. (3) In so holding, the Court appeared to place an employee in the untenable position of having to see what is "often hidden from sight" (4) to bring a timely claim under Title VII of the Civil Rights Act of 1964. (5) Indeed, when Title VII's short limitations period (6) collides with the prevailing "social norms" and employers' rules that prohibit or discourage employees from discussing or comparing their salaries, (7) employees may lose the opportunity to vindicate their rights under Title VII. (8) Immediately after the decision was rendered, commentators warned of its implications and Congress moved to limit its reach. (9)
The initial reaction to the decision, however, may have been unwarranted. This article examines whether Ledbetter, in fact, requires an employee to violate the "social norm" by asking co-workers how much they make to preserve his or her right to challenge pay disparity. (10) When read closely, the decision should not lead to a major shift, if any shift at all, in the law as it existed before, and in this regard the lower court rulings are consistent. (11) It may be read, instead, as a case lacking either in proof of discrimination or a plaintiff's failure to litigate the case to prove discrimination. (12) While over 1300 courts have cited the Ledbetter decision in some capacity since its publication, its impact appears to be limited by its very specific facts. This article examines the state of the law before and after Ledbetter and concludes that the limitations period for any discrimination claim should start only after the victim is or should be aware of the existence and source of an injury; a determination which must be made on a case-by-case basis. (13) Section II examines the requirements for filing a timely claim of pay discrimination and reviews Ledbetter's analysis of what kind of an act or occurrence starts the running of the limitations period. Section III examines the difficulty in identifying the discrete act that triggers the limitations period for a pay discrimination claim under Title VII and the limited reach of the Supreme Court's decision in Ledbetter. Section IV reviews the lower courts' application of Ledbetter and, based on that review and the realities of the workplace, Section V proposes a case-by-case application of the discovery rule for identifying when the limitations period is triggered in a pay discrimination claim. In Section VII, this article concludes that the limitations period for a pay discrimination claim should be triggered when an employee discovers or should discover a disparity in pay that violates Title VII, whether the act that leads to that discovery is a decision to award raises or set salaries or when employees are talking at lunch and someone mentions the size of his or another co-worker's paycheck.
II. THE REQUIREMENTS FOR FILING A TIMELY CLAIM OF PAY DISCRIMINATION
A. The Statutory Regime
Congress enacted a series of statutes "to address the pervasive problems of employment discrimination." (14) These laws include Title VII of the Civil Rights Act of 1964, (15) Section 1981 of the Civil War Reconstruction statutes, (16) the Age Discrimination in Employment Act of 1967 (ADEA), (17) the Equal Pay Act (EPA), (18) and the Americans with Disabilities Act of 1990 (ADA). (19) While the statutes define different types of discrimination, each addresses discrimination in employment and defines a limitations period in which an employee can bring a claim. (20) With Title VII defining the "paradigm," the first step in determining whether a claim is timely under any statute is determining when the discriminatory act takes place. (21) To do that, one must "identify with care the specific employment practice that is at issue." (22) Once identified, the determination of when the employment practice "occurs" will define the time for filing a charge of employment discrimination. (23) Eluding precise definition, the Supreme Court has explained that an act occurs "on the day that it 'happened."' (24) Similarly imprecise is a lower court's suggestion that a discrete act of discrimination occurs when it "takes place." (25) This imprecision may allow for the necessary flexibility when faced with the various ways and the differing contexts in which employment discrimination arises. Indeed, the Supreme Court affirmed this when addressing the question of when a discriminatory act "occurs:" "The answer varies with the practice." (26) Therefore, a factual analysis of any case will be critically important in determining when a limitations period begins. (27)
B. Identifying the "Act" or "Occurrence" that Triggers the Start of the Limitations Period
In some cases, certain discriminatory acts are "easy to identify." (28) They include acts "such as termination, failure to promote, denial of transfer or refusal to hire." (29) Other acts, in contrast, may be difficult to discern. Specifically, an "act" of pay discrimination, like the one at issue in Ledbetter, may be particularly hard for an employee to identify. (30) Despite the factual difference from a pay disparity case, the Ledbetter Court relied on cases involving obvious acts like termination or a denial of tenure without analyzing how one rule for all cases will affect victims of pay discrimination. (31)
In United Air Lines, Inc. v. Evans, (32) the employee, as described by the Ledbetter Court, "was forced to resign because the airline refused to employ married flight attendants, but she did not file an EEOC charge regarding her termination. Some years later, the airline rehired her but treated her as a new employee for seniority purposes." (33) The employee sued, recognizing that any suit based on the original discrimination was time-barred but arguing that the airline's refusal to give her credit for her prior service gave "present effect to the past illegal act and thereby perpetuate[d] the consequences of forbidden discrimination." (34) The Court noted that the airline's "seniority system [did] indeed have a continuing impact on her pay and fringe benefits," (35) but held that the discriminatory act was the employee's forced termination, which occurred outside the limitations period. (36) Despite the difference between a forced termination and the pay disparity that grew gradually over a term of years, the Ledbetter Court described the Evans precedent as speaking "directly" to the point. (37)
The Ledbetter Court also relied on Del. State Coll. v. Ricks, (38) with facts distinguishable from Ledbetter, but which the Court found "[e]qually instructive." (39) In that case, a college librarian, Ricks, alleged that he had been discharged because of his national origin. (40) At some point outside the limitations period, Ricks was denied tenure but was given a final, nonrenewable one-year contract that expired a little over a year after his tenure was denied. (41) He delayed filing a charge with the EEOC until almost a year after the denial of his tenure, but he argued that the EEOC charging period ran from the date of his actual termination rather than from the date when tenure was denied. (42) Holding that the limitations period began to run when the "tenure decision was made and communicated," the Court held that the employee's claim was out of time. (43) Unlike the plaintiffs in Evans and Ricks, the plaintiff in Ledbetter did not suffer constructive termination or denial of tenure--things that she would have understood to be adverse job action. She did not even suffer a reduction in pay. Indeed, in some of the years in which she received negative evaluations that, according to the appellate court and affirmed by the Supreme Court, triggered the limitations period, she still received a raise in pay. (44) Her negative performance evaluations only gradually led to the differential in pay and her loss was only obvious when she compared her pay with the salaries of men in similar jobs. (45) It took years, in fact, for the differential to become obvious. (46)
The Ledbetter Court also relied on Lorance v. AT & T Technologies, Inc. (47) There, the defendant employer changed the way in...
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