Font Size: 
Federal Judge: Ledbetter Law Limited to Fair-Pay Claims
New Jersey Law Journal
June 05, 2009
A federal judge in Newark, N.J., has narrowly construed the Lilly Ledbetter Fair Pay Act as extending workers' time to sue only for claims based on pay bias -- not other acts of bias, such as failure to hire.
"While the Act certainly contains expansive language ... it ... does not save otherwise untimely claims outside the discriminatory compensation context," U.S. District Judge Katharine Sweeney Hayden wrote Tuesday in Richards v. Johnson & Johnson, 05-CV-3663.
But the ruling, which also denied Johnson & Johnson's motion for summary judgment, allows the plaintiff to pursue his race and age discrimination claims under Title VII, the Age Discrimination in Employment Act and the New Jersey Law Against Discrimination.
The Ledbetter Act, which became law on Jan. 29, was passed in response to a 2007 U.S. Supreme Court decision curtailing the time to sue for employment discrimination. In Ledbetter v. Goodyear Tire & Rubber (pdf), 550 U.S. 618, the Court held that the limitations period begins to run with the first discriminatory paycheck, displacing precedent that treated each instance of lower pay resulting from discrimination as a "continuing violation" that restarted the clock.
The statute was made retroactive to May 28, 2007, the day before the Supreme Court ruling.
Just how far the legislation went in restoring the continuing-violation doctrine is now dividing the courts.
Hayden cited three cases in support of her decision, including one on May 21, Rowland v. CertainTeed Corp. (pdf), 2009 U.S. District LEXIS 43706, in which Judge Berle Schiller in the Eastern District of Pennsylvania refused to apply the statute's relaxed time limits to a failure-to-promote claim
Hayden also cited Leach v. Baylor College of Medicine, 2009 U.S. Dist. LEXIS 11845 (S.D. Tex. Feb. 17, 2009), and Vuong v. New York Life Insurance Co., 2009 WL 306391 (S.D.N.Y. Feb. 6, 2009).
Not cited was a Feb. 4 decision by Judge Jerome Simandle in Camden, N.J., who applied the statute to a case not directly about unfair pay. Gilmore v. Macy's Retail Holdings, 06-Civ.-3020, was a claim by a Macy's employee who said she was denied the opportunity on account of her race to sell more expensive jewelry and thus receive higher bonuses.
Other cases that read the statute more broadly include Rehman v. State University of New York, 596 F. Supp. 2d 643 (E.D.N.Y. 2009), which applied it to a claim for failure to rehire, and Bush v. Orange County Corrections Department, 07-CV-588 (M.D. Fl. Feb. 2, 2009), a discriminatory-demotion claim.
Michael Richards, a 48-year-old man of Asian descent, employed as a financial analyst at Johnson & Johnson Consumer Products Companies since 2000, alleged that from the start of his employment he received unjustified low ratings on his potential to advance on account of his race and age and that the company kept giving low ratings in retaliation for his complaints about unfair treatment.
He also alleged that he did not get other positions, despite being qualified, because the company favored younger, non-Asian applicants.
In denying summary judgment, Hayden held that Richards made out a prima facie case of discrimination, that Johnson & Johnson came up with nondiscriminatory justifications and that Richards sufficiently rebutted those reasons. For example, he presented statistics showing that of 23 jobs allegedly denied him, none went to an Asian and only one to an applicant older than 40.
Hayden found that Johnson & Johnson's allegedly discriminatory actions were "discrete (albeit related) acts, were independently actionable, and were not part of a single continuing violation."
Therefore, Richards' federal claims were barred for positions denied 300 days before the Dec. 2, 2003, filing of his Equal Employment Opportunity Commission complaint. She also held state LAD claims were barred for positions denied two years before he sued on July 22, 2005.
Hayden also held that the Ledbetter Act did not alter prior law allowing plaintiffs to use time-barred acts of discrimination to prove claims that are not time-barred.
While the act "does not save untimely discrimination claims outside the compensation context, the statute explicitly affirms the evidentiary principle ... that Title VII and the ADEA do not bar an employee from using time-barred acts as background evidence in support of other timely claims," she wrote.
Richards' attorney, Alan Schorr, says the decision "allows us to try our entire case that he has been systematically discriminated against since he was hired but limits the damages." As a result, "we will be able to show discrimination from 2000 to 2003, but won't be able to recover for it," says Schorr, who heads a Cherry Hill, N.J., firm.
He disagrees with Hayden's interpretation of the act, saying its language makes it "clear that the continuing violation doctrine is alive and well."
Schorr notes that Section 2 of the act specifically refers to Ledbetter's effect in restricting the time to sue for discriminatory compensation decisions or "other practices" that affect compensation.
He does not plan to appeal because he is eager to go to trial but says if the company appeals the denial of summary judgment, he will cross-appeal on the Ledbetter issue.
The Supreme Court will ultimately have to determine whether the act resurrected the continuing-violation doctrine, he predicts.
Johnson & Johnson's lawyer, Francis Dee of McElroy, Deutsch, Mulvaney & Carpenter in Newark, was out of the office and could not be reached for comment. His co-counsel, David Reilly, also of McElroy Deutsch, declines comment.
