Supreme Court to Determine First Title VII Statute of Limitations Case in Post-"Ledbetter Fair Pay Act" Era

The Ledbetter Fair Pay Act redefined "unlawful employment practice" under Title VII to include three different points on an alleged pay discrimination timeline:

(1) when a discriminatory compensation decision or other practice is adopted;
(2) when an individual becomes subject to a discriminatory compensation or other practice;
(3) when an individual is affected by the application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

In addition to the questions raised regarding what exactly is included in "other practices" (discussed in a previous post), there are broader questions, such as whether the Ledbetter Fair Pay Act applies to  disparate impact claims, and whether it extends to claims beyond compensation discrimination.

Dylan King, of Ford and Harrison, has written an alert about the Supreme Court's decision to hear Lewis v. City of Chicago. He indicates that this case may give the Supreme Court the opportunity to answer these two questions. Mr. King's article, in full, can be found here.

Mr. King provides an excellent discussion of Lewis, which will not be repeated here. The issue in this matter is whether the plaintiffs' filing of an EEOC charge was timely. The City of Chicago argued that their charge was not timely, since it was filed more than 300 days after plaintiffs learned of their test results. Plaintiffs contend that their charge was timely, since it was filed within 300 days of the date the City of Chicago hired the first applicant from the "well-qualified" group.

The Supreme Court is expected to hear oral arguments in Lewis in early 2010. As Mr. King notes:

Regardless of whether the Supreme Court determines that the [Ledbetter Fair Pay] Act applies to disparate impact cases or cases unrelated to discrimination in compensation, the Court's decision in this case likely will have a significant effect on employers.

Aside from the obvious legal implications of the Supreme Court's decision in this matter, there are implications for the way in which economic and statistical experts conduct their analyses in disparate impact claims. For example, changes in the "start date" of the alleged discrimination may impact eligible population and pool definitions used in liability analyses. From a damages perspective, mitigation may take on even greater importance in the calculation of economic loss.

While the exact legal, economic and statistical implications of the Supreme Court's decision in Lewis cannot be predicted with certainty, we can predict that there will in fact be implications.