Newspaper article THE JOURNAL RECORD

Commentary: Fair Pay Act

Newspaper article THE JOURNAL RECORD

Commentary: Fair Pay Act

Article excerpt

On Jan. 29, President Obama signed one of his first bills, the Lilly Ledbetter Fair Pay Restoration Act, into law.

The primary purpose of the law is to put into law the rule that the Equal Employment Opportunity Commission had been enforcing up to May 29, 2007. The EEOC rule allowed someone who was claiming pay discrimination under Title VII to base the time of the claim on the date of the last paycheck received rather than on the date the employer initially made the decision to pay the employee a discriminatory wage.

Since paychecks are issued at least monthly, the rule kept the employer's discriminatory act alive. Title VII requires that an employee file a charge with the EEOC, or its state agency equivalent, within a certain period of time, always less than one year. The rule did not create any type of presumption that the employer had discriminated but provided only a mechanism to escape the harshness of the statutory limitations of less than one year.

The problem arose when the discriminatory rate of pay was not discovered until years after the decision was first made to pay the discriminatory wage. The decision-maker might be long separated from the employer, but if no corrective action is ever taken to bring the employee into parity, the initial discriminatory intent is effectively carried forward. The rule was in line with the way statutes of limitations for claims of fraud or professional malpractice are calculated, usually tied to the date the complainant knew or should have known of the injurious act.

In Lilly Ledbetter's case against the Goodyear tire factory in Alabama, she did not discover she was being paid less than male counterparts with less seniority until years after she started. This lapse of time is not unusual since employers traditionally discourage informal discussions of pay, to prevent disharmony.

Even when employees do discuss and discover pay disparity, it likely will not be within the first year of working when the employee's position is more tenuous and her comfort level in disclosing private information to co-workers is less. …

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