Pay bias claims seen on rise

By John Flynn Rooney
Law Bulletin staff writer
February 09, 2009 Volume: 155 Issue: 27

A law signed recently by President Obama aimed at combating wage discrimination among workers is expected to cause an uptick in filings of such claims, according to several local lawyers who handle employment cases.

The president signed legislation late last month that essentially reversed a 2007 U.S. Supreme Court ruling. Lilly Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 421 F.3d.

The high court's 5-4 ruling in Ledbetter denied a woman relief for discriminatory wage practices because she did not file a claim within the 300-day statute of limitations after the initial decision was made to pay her less than her male colleagues.

Lilly Ledbetter asserted that she did not become aware of the pay discrepancy until near the end of her 19-year career at a Goodyear plant in Alabama.

The new law, known as the Lilly Ledbetter Fair Pay Act, clarifies that every discriminatory paycheck represents a new violation, extending the statute of limitations for filing a claim.

The act amends Title VII of the Civil Rights Act of 1964 and other federal statutes prohibiting discrimination in employment based on sex, race, religion, national origin, age and disability.

''I think we will see many, many more lawsuits filed with pay discrimination claims, which will have the benefit to the plaintiffs of extending the period of time in which the information is relevant to the lawsuit,'' said Camille A. Olson, a Seyfarth, Shaw LLP partner who represents employers and regularly testifies before Congress on pending proposals to revise employment laws.

''It's going to be much more difficult to defend those pay claims'' due to the extension of the statute of limitations, Olson added in a telephone interview.

''I think we will probably see a lot more lawsuits by plaintiffs alleging pay discrimination and we should be seeing a more sympathetic reaction by the courts,'' said Kimberly Alexandra Yuracko, a Northwestern University School of Law professor.

''I think what this law does is make it more likely that plaintiffs who have meritorious wage disparity claims can successfully bring them,'' said Carolyn E. Shapiro, an assistant professor at Chicago-Kent College of Law.

Both Yuracko and Shapiro teach employment law.

The Ledbetter Fair Pay Act ''will turn things back to the way that it was before the Supreme Court twisted it,'' said L. Steven Platt, an Arnold & Kadjan partner in Chicago who represents plaintiffs in employment discrimination matters.

Prior to the Supreme Court's Ledbetter opinion, the law in most federal circuits was consistent with the recently enacted measure, Shapiro said.

The Ledbetter Fair Pay Act is retroactive to May 28, 2007, the day before the Supreme Court issued its decision in the Ledbetter case.

An American Bar Foundation study of employment discrimination litigation shows that the vast majority of such cases involve a lone litigant.

The study, titled ''Contesting Workplace Discrimination in Court,'' analyzed 1,788 randomly selected federal employment discrimination cases filed from 1987 through 2003.

''Most of these cases continue to be settled for relatively small amounts,'' said Laura Beth Nielsen, a foundation research professor who also is director of Northwestern University's legal studies program.

''People without lawyers have virtually no chance of the case not being dismissed,'' Nielsen added. ''They're dismissed typically for want of prosecution … very early [in the case].''

Robert L. Nelson, the foundation's director and the study's co-author, said the study tracked filings, rather than published opinions.

''If you only look at published opinions, it looks like plaintiffs do pretty well in court in discrimination cases,'' Nelson said in a telephone interview.

''But if you start from filings, you see that over half the cases settle, a fifth are dismissed, a fifth lose on motions for summary judgment, only 6 percent go to trial and the plaintiffs only win a third of the trials,'' Nelson said. ''Most of the settlements are small. We estimate that the median settlement is $30,000.''

The study further showed that less than 1 percent of the cases were certified as class action matters. Also, the Equal Employment Opportunity Commission represented plaintiffs in fewer of than 4 percent of the cases sampled, according to the study.

The foundation's report can be found on the ABF Web site.