Comment on 'Go Time' For Discrimination Claims

Mark Batten, Steven Hurd, and Brian Gershengorn have an article appearing in today's "Corporate Counsel" entitled 'Go Time' for Discrimination Claims? Fallout From the Ledbetter Act. The article, in its entirety, can be found here. 

The authors note that federal courts have decided forty-seven cases interpreting the new statute, and they see a consistent approach beginning to emerge. Courts are limiting the application of the Ledbetter Act in several ways.

1. courts are reluctant to apply the Ledbetter Act when a plaintiff fails to demonstrate a prima facie discriminatory act;
2. courts will not apply the Act where the claim concerns something other than wage or compensation discrimination;
3. even where courts are applying the Act to revive an untimely claim, many ultimately deny plaintiff's claim for failure to demonstrate a prima facie discriminatory act;
4. courts are reluctant to expand the scope of the Act to claims arising outside of Title VII, ADEA, ADA, or "parallel" state anti-discimination laws;
5. courts will not allow a plaintiff's knowing and voluntary vwaiver of an ADEA claim to be reviewed by the Ledbetter Act.

None of the above is surprising, and the pattern emerging appears to mirror the intentions of the Act.

The authors also raise the issue of something which I have discussed in other posts, articles and presentations - what is meant by other practices. They state

... though it has yet to be a focal point of litigation, the Act's nebulous reference to "other practice[s]" appears destined to spawn a wave of claims by employees unable to prove that their superiors have rendered a discrete discriminatory "decision," but have engaged in some other discriminatory compensation practice. We have by no means reached the end of the interpretive road, and employment practitioners will be watching the evolution of Ledbetter interpretation for years to come.

I couldn't agree more. The precise definition of 'other practices' is a thorny issue that will surely be the subject of much discussion and debate. As plaintiffs bring claims related to 'indirect determinants' of compensation, such as grade assignment, department or division assignment, etc., courts will be faced with deciding what is meant by 'other practices', the impact these other practices have on compensation, and whether these arguments relating to indirect determinants have any merit.