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Why the New Administration Should Focus on Workplace Equality: Some Easy Fixes for Important Problems


Tuesday, November 25, 2008

President-elect Barack Obama has inherited an incredible and wide-ranging host of problems facing the United States, including the flailing economy and war in Iraq, to cite just the most obvious examples. These problems demand immediate, full-throttle attention, to be sure, and unprecedented amounts of money. It would be a mistake, though, to lose sight of the other issues that have been neglected or intentionally stymied by the outgoing administration, but could be addressed in straightforward ways without a significant budget impact. Workplace equality is an excellent example of just such an issue.

During the last eight years, the Bush Administration has acted several times to block Congressional attempts to expand or restore important workplace equality protections; the Administration also has acted to undercut existing protections. Under this regime, important civil rights bills have been left to languish, and workers have been left to labor under conditions of avoidable inequality.

In this column, I'll briefly discuss four issues that invite attention by a progressive administration: restoring the legal protection against pay discrimination that was undercut by the Supreme Court, removing obstacles to the enforcement of non-discrimination rights that have been erected by a variety of federal court rulings, expanding the Family and Medical Leave Act to better support working families, and granting federal non-discrimination protection for lesbian, gay, and transgender workers.

Issue #1: Pay Discrimination

Pay discrimination remains an intractable problem for working women in the United States. The gender wage gap remains stark – women earn about 77 cents for every dollar earned by a man. And although multiple variables affect that gap, it cannot be completely explained without recognizing discrimination as a major factor. It thus remains crucial that pay discrimination laws be robustly enforced.

Pay discrimination is prohibited by both the federal Equal Pay Act and Title VII, the main federal anti-discrimination law. Though the statutes protect against pay discrimination in slightly different ways, they both make it unlawful for an employer to pay a woman less than a similarly-situated man on account of her sex. The protection under Title VII, however, was drastically undercut by the Supreme Court's 2007 ruling in Ledbetter v. Goodyear Tire & Rubber.

In that opinion, which I discussed in a prior column with Deborah Brake, the Court rejected the so-called "paycheck accrual" rule that the EEOC and most courts had followed in applying Title VII's statute of limitations to pay claims. Under that rule, an employee who experiences pay discrimination could file an EEOC charge within 180 or 300 days (the time period varies by state) of receiving any paycheck containing a discriminatory amount. After Ledbetter, however that employee must file a charge within 180 or 300 days of the original decision setting the discriminatory wage. After that short period of time expires (a period during which the employee may not even know that the discrimination has occurred), the employer effectively has the right to continue paying the discriminatory wage for the life of the employee without risking liability.

Immediately after the decision in Ledbetter was issued, Congress considered two versions of a bill to restore the paycheck accrual rule – the Lilly Ledbetter Fair Pay Act and the Fair Pay Restoration Act. Because President Bush issued a Statement of Administration Policy indicating his intent to veto any such bill, these bills never became law, despite very strong Congressional support. President Obama's signing either of these bills into law would send the message that he is committed to the ideals of equality and economic security for working families.

Issue #2: Making it Easier to Enforce Non-Discrimination Rights

Though Title VII provides strong substantive protection against employment decisions based on protected characteristics like race and sex, the obstacles to enforcing those rights undermine the law's ability to truly protect them. These obstacles arise both from the express terms of the statute, and from judicial decisions undermining the statute's protections.

First, let's consider the obstacles that arise from the statute itself and that should be reconsidered. For example, under Title VII, compensatory and punitive damages are available, but capped at $300,000 for the largest employers, and at an even lower amount for smaller employers. These caps were inadequate when they were enacted in 1991, and certainly are inadequate now, having never been adjusted for inflation. Employers need a greater incentive to police their own workforce for discriminatory decision-making and actions; removing or drastically raising the damage caps would serve that purpose.

The unusually short statute of limitations under Title VII is another statutory obstacle to enforcement of non-discrimination rights. At 180 or 300 days (again, depending on the state in which the charge is filed), it pales in comparison to virtually all other limitations periods in civil law. Moreover, the Supreme Court effectively shortened the limitations period by rejecting the "continuing violations" doctrine in Amtrak v. Morgan, a 2003 case in which it held that each "discrete act" of discrimination triggers the limitations period. Under that rule, a plaintiff can only sue on claims that fell within the 180 or 300 days prior to the filing of the EEOC charge, even if those acts were at the end of a long line of similar -- or even identical -- discriminatory acts that occurred earlier.

The problem of a short limitations period is exacerbated by the nature of the claims Title VII involves: Discrimination is notoriously hard to perceive and uncomfortable to challenge. Moreover, the law is uncertain as to whether Title VII has a "discovery rule," which would permit employees to toll the statute of limitations until they discovered the discrimination. (I discussed the problem with timely filing doctrines under Title VII in more detail in a previous column with Deborah Brake.) There are thus many workers who experience unlawful discrimination, but fail to complain soon enough to protect their substantive rights.

In addition to these statutory obstacles, the weakening of the right against retaliation has also made it difficult for employees to enforce their non-discrimination rights. Though Title VII prohibits retaliation against employees who participate in filing EEOC charges or cooperate with investigations, federal courts have systematically undermined this right.

Research shows that retaliation is a common occurrence; as many as 60 percent of employees who pursue discrimination claims experience it. Research also shows that the fear of retaliation actively deters employees from enforcing their rights. Yet, federal courts routinely discount both of these facts. They define retaliation much too narrowly, independent of the context in which it occurs.

In addition, when defining the right of retaliation, courts have imposed a "reasonable belief" requirement, which means that employees are protected against retaliation only if they had a reasonable legal and factual basis for the underlying complaint of discrimination. As construed by most courts, "reasonable" means "right" and requires an employee to have full and accurate facts about the discriminatory act, as well as full knowledge of the legal doctrines that shape his or her non-discrimination rights. As with the timely-filing doctrines, the gap between what courts expect and what employees know and do is stark, leaving many unable to enforce the substantive rights Title VII purports to offer.

All of these problems could be remedied with appropriate legislation – a bill to raise or eliminate damage caps, extend the limitations period, and more clearly define the scope of the right against retaliation. These changes would not expand existing law, but would more effectively honor the substantive commitments of Title VII.

Issue #3: Restoring and Expanding the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA), adopted in 1993, provides eligible workers with up to 12 weeks unpaid leave per year, as needed, to tend to their own serious health conditions or to care for a child or other family member. The FMLA is an important first step in providing job security for = working families, especially mothers, who still perform a disproportionate share of caretaking tasks and often need leave because of the physical effects of pregnancy and childbirth. However, the FMLA has serious and obvious gaps.

First, because the FMLA only applies to employers with at least 50 employees, nearly half of American workers are not covered. Second, because the leave is unpaid, many workers cannot afford to take it. One study found that 78 percent of workers who did not take leave despite being eligible simply could not afford to do so.

Efforts to expand the FMLA have been frequent, but thus far, unsuccessful. Indeed, rather than supporting efforts to expand the FMLA, the current Administration has pushed in the other direction. The Department of Labor recently issued new regulations that will effectively make it harder for eligible employees to use FMLA leave. (A critique of the new regulations is available at; readers may also want to consult the new regulations themselves. The changes relate to issues like the amount of notice employees must give before taking leave and how long a time employers have to grant or deny a request, medical certification requirements, employer access to health information about workers and their families, and the ability to use paid vacation leave during an FMLA leave. With the exception of an expansion of rights for military families, the changes all cut against workers, rather than in favor of them.

In their Blueprint for Change, Barack Obama and Joe Biden pledged their support for expanding the FMLA, including a promise of $1.5 billion to fund an initiative in all 50 states to offer paid FMLA leave. Hopefully this funding will still be possible given the astronomically-expensive bailout of the financial industry, but, even if not, the FMLA can be strengthened and expanded in a revenue-neutral way. A simple, but important change would be to extend coverage to employees who work for employers with at least 15 or 25 employees, rather than 50. Employers have reported being relatively unburdened by the FMLA – despite their pained pleas to the contrary during the eight years the law was debated prior to enactment – and there is no reason not to give it the same scope as Title VII. Something must be done to ease the burdens on those trying to balance work and family, particularly in such tough economic times.

Issue #4: Extend Federal Non-Discrimination Rights to Gay, Lesbian, and Transgender Employees

Advocates have been fighting for decades to protect gay and lesbian workers from employment discrimination at the federal level, thus far unsuccessfully. Title VII prohibits sex discrimination, but not sexual-orientation discrimination. The sex-discrimination ban has been successfully invoked in some cases by gays, lesbian, and transgender employees who were able to show that the discrimination or harassment they experienced constituted sex-role stereotyping. But for most who experience discrimination on the basis of sexual orientation or gender identity federal law provides no cause of action.

The longstanding exclusion of this type of discrimination from Title VII was poised to end this past year, though, when the House of Representatives passed the Employment Non-Discrimination Act of 2007 (ENDA). ENDA would have filled an important gap in Title VII and extended protection to a class of workers regularly subjected to discrimination.

Two versions of ENDA were considered – one that covered gender-identity discrimination, and one that did not. In some ways, transgender employees have had more success in proving sex discrimination – as I have written about in an earlier column – than gay and lesbian employees have. But, still, their victories have been scattered and they've suffered many more losses than wins. It thus makes sense to make ENDA as broad as possible in order to promote workplace equality for all.

ENDA has not become law – at least, not yet. As with the Ledbetter-fix, President Bush issued a Statement of Administration Policy promising to veto the bill, so it never proceeded beyond Capitol Hill. Now, however, advocates and Congressional sponsors will soon have the opportunity to put the bill before a President who appears strongly committed to workplace equality and civil rights.

The Obama Administration Has a Chance to Truly Improve Workplace Equality

A new presidential administration always brings change. Let's hope that the change the Obama Administration ushers in includes the restoration of non-discrimination rights that have been undermined by federal courts, and expands the law to fill unacceptable gaps that persist. Workplace equality is a win for everyone.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University and is currently a visiting professor of law at Vanderbilt University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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