The Spring of Hope: Labor and Employment Rights in the Early Days of the Obama Era
Zucker, Kiren Dosanjh, Zucker, Bruce, Labor Law Journal
The election of President Barack Obama raised the hopes of labor leaders and struck fear among employers. President Obama entered office on January 20, 2009 with a stronger pro-labor record than the previous five Presidents, including his Democratic predecessor, President Clinton.1 He supported the Employee Free Choice Act (EFCA) during his presidential campaign, nominated pro -labor Congresswoman Hilda L. Solis as Secretary of Labor, and designated National Labor Relations Board (NLRB) panel member Wilma Leibman, an outspoken Bush Administration critic and former labor union attorney, to chair the NLRB.2 John Sweeney, President of the AFL-CIO, lauded the "big, concrete steps" taken in the first one hundred days of die Obama administration toward "the protection of workers' rights that will build a more prosperous and fair future for working people.3 At the dawn of the Obama era, employers were warned by their counsel of a "perfect storm" with strong Democratic majorities in Congress, the heightened political power of organized labor and an "expanded civil rights movement" that had gained "momentum with the election of the first African American president."4
This article discusses the executive orders and legislation affecting labor and employment rights that have been signed by President Obama, describes potential legislative action, and analyzes whether the convergent forecasts offered to labor and employers are reliable indicators of the Obama administration's actual and potential impact on labor and employment law.
II. Lilly Ledbetter Fair Pay Act
A measure of the importance given to labor rights by the Obama administration might be found in the Lilly Ledbetter Fair Pay Act of 2009, the first major bill signed into law by President Obama.5
The United States Supreme Court's 5-4 decision in Ledbetter v. Goodyear Tire &Bubber Co.6 severely limited the ability of victims of pay discrimination to bring Tide VII claims.7 Legislative responses set the stage for a symbolic and significant stance on labor and employment rights in the early days of the Obama administration.
I. Ledbetter Decision
For nearly 20 years prior to her retirement in November 1998 from the Goodyear Tire & Rubber plant in Gadsen, Alabama, Lilly Ledbetter had worked in the male-dominated position of supervisor.8 Toward the end of her Goodyear career, Ledbetter discovered that she was paid 20-25% less than her male counterparts9 when she received an anonymous letter suggesting that she was the lowest paid supervisor because of her gender.10 Ledbetter began Equal Employment Opprtunity Commision (EEOC) proceedings in March 1998, subsequently filing a Title VII and Equal Pay Act claim in federal district court shortly after her retirement.11 The jury found that Goodyear had discriminated against Ledbetter in her pay because of her gender and not her performance, and awarded her $3.8 million in back pay and punitive damages.12 On appeal, the Eleventh Circuit Court of Appeals reversed, accepting Goody ear's argument that Ledbetter 's Title VII claim was time-barred as she did not file her EEOC charge within 180 days of the employer's pay decision at issue.13
In affirming the Eleventh Circuit's ruling in a 5-4 decision, the United States Supreme Court relied upon the assertion that the discriminatory intent behind Goodyear's pay decision was isolated, and did not resonate in the resulting payments to its employees.14 Thus, in the absence of requisite discriminatory intent for any pay decision made within the 180-day period preceding Ledbetter 's filing, Goodyear could not be held liable to Ledbetter for pay discrimination under Title VII.16
Under Ledbetter, victims of pay discrimination who do not learn of the discriminatory pay decision in time to meet the 180-day deadline to file an EEOC charge would be left without a Title VII remedy. The time restriction placed by Ledbetter is made more onerous when workplace confidentiality policies and practices regarding co-workers' salaries are taken into account. …