Fair Pay Act of 2009

On January 27, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 (Public Law 111-2). The new law reversed the Supreme Court's decision in Ledbetter v. Goodyear Tire and Rubber Co., 550 U.S. 618 (2007), restoring major protection to employees suffering from pay discrimination. The Ledbetter decision had barred employees from filing claims of pay discrimination unless a manager had made an intentionally discriminatory pay-setting decision within the relevant filing deadlines. Prior to the Ledbetter decision, the EEOC and many courts permitted employees to file charges of wage discrimination so long as the employees had received an improperly-reduced paycheck within the relevant filing deadline; for federal employees, this permitted charges to be filed so long as the employee had received a reduced paycheck within the 45 calendar days prior to the employee's contact with the EEO office.

The Ledbetter decision struck down this broad approach, permitting pay discrimination complaints only where the employee could show that a discriminatory pay-setting decision had occurred within the relevant filing deadline. Cases where the discriminatory pay-setting decision had occurred long ago but whose effects continued to the present-even those where a recent, follow-up non-discriminatory pay-setting decision had occurred-were blocked by the Ledbetter decision. Late discovery of the existence of the pay disparity provided little defense for the employee. Although Ledbetter was a private sector decision (where the deadlines are 180 or 300 days), the effects of the decision were even stronger in the federal sector due to the far shorter 45 calendar day EEO filing deadline for federal employees, especially in agencies where managers are not limited to general schedule-type increments in setting exact pay figures for employees.

The Lilly Ledbetter Fair Pay Act of 2009 reverses this requirement and allows employees to challenge pay discrimination so long as the employee has received a discriminatorily-reduced paycheck with the applicable filing deadline. As a result, employees who might only have learned about discriminatory disparities in pay long after the pay-setting decision occurred may now potentially be able to seek a remedy through the EEO process. The new law extends this employee protection to discrimination on the bases of sex, race, color, national origin, religion, age, disability and reprisal for prior protected EEO activity. Further, the new statute is retroactive, restoring the claims of employees dating back to the date of the Ledbetter decision which had previously been barred by the Supreme Court's decision.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/ .

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