Lilly Ledbetter Fair Pay Act and Section 1981 Claims

Judge Frederick Martone of the District of Arizona issued an interesting opinion recently in Ekweani v. Ameriprise Financial, Inc., 2010 U.S. Dist. LEXIS 24219, 108 Fair Empl. Prac. Cas. (BNA) 1266 (D. Az. Mar. 3, 2010), where Plaintiff argued that the LLFPA applied to his compensation claim predicated on the denial of a promotion, said claim being pursued under 42 U.S.C. § 1981.

In rejecting the claim, the court made one interesting observation and one interesting holding.

First, the Court observed that the LLFPA arguably might not have any impact on claims under Section 1981, as the LLFPA amended Title VII, the ADEA, the ADA, and the Rehabilitation Act, but not specifically Section 1981. But while the Court suggested that “Congress did not amend § 1981 through the Ledbetter Act,” it noted that the courts use Title VII as a guide in resolving Section 1981 claims. At any rate, the Court went on to state that it “need not decide whether the legal principles from the Ledbetter Act apply to Section 1981 compensation discrimination claims, because Plaintiff did not bring one.” This issue is, in different clothing, the same issue that we posted about recently here, where Texas courts have read the LLFPA into the state anti-discrimination statute. Further, note that Judge Yvette Kane of the Middle District of Pennsylvania has adopted essentially the same reasoning, reading the LLFPA into the Pennsylvania Human Rights Act. Summy-Long v. Pa. State Univ., 2010 U.S. Dist. LEXIS 27953 (M.D. Pa. Mar. 24, 2010).

The Court in Ekweani skirted this issue, and disposed of the LLFPA case by adopting the reasoning of the panel of the D.C. Circuit, Judge Daniel Ginsburg writing, in Schuler v. PriceWaterhouseCoopers, LLP, 595 F.3d 370, 375 (D.C. Cir. Feb. 16, 2010), in which it was held that “the decision whether to promote an employee to a higher paying position is not a ‘compensation decision or other practice.’” On this issue, the courts remain divided. See, e.g., Barnabas v. The Board of Tr. of the Univ. of the District of Columbia, 2010 U.S. Dist. LEXIS 17711 (D.D.C. Mar. 1, 2010) (finding, in light of Schuler, a failure to promote to full time professor is not a compensation decision or other practice); Bush v. Orange County Corrections Dep’t, 597 F. Supp. 3d 1293, 1295 (M.D. Fla. 2009) (holding that while plaintiff’s complaint about demotions and pay reductions that occurred sixteen years before EEOC charge was filed would plainly be barred under Supreme Court’s Ledbetter decision, “with the passage of the [LLFPA] Plaintiff’s Title VII claims [were] no longer administratively barred”); Rehman v. State Univ. of New York at Stony Brook, 596 F. Supp. 2d 643, 651 (E.D.N.Y. 2009) (in case involving allegations that defendant refused to propose the plaintiff for appointment to associate of full professor with tenure, court held that although plaintiff filed his EEOC charge on April 13, 2007, under LLFPA, his wage discrimination claims based upon actions occurring on or after April 13, 2005, two years prior to his EEOC charge, were timely, which claims presumably included the defendant’s refusal to consider him for tenure); Rowland v. Certainteed Corp., 2009 U.S. Dist. LEXIS 43706 (E.D. Pa. May 21, 2009) (holding that plaintiff’s untimely “failure to promote” claim was not saved by the Act because it was not a discriminatory compensation claim and thus was not within the scope of the Act); Gentry v. Jackson State Univ., 2009 U.S. Dist. LEXIS 35271 (S.D. Miss. April 17, 2009) (holding that a denial of tenure to a university professor qualified as a compensation decision or other practice affecting compensation within the Act, and that the professor’s Title VII claim based on that tenure denial was thus timely even though it was filed well after the 180-day deadline under Title VII for timely submission of claims); Shockley v. Minner, 2009 U.S. Dist. LEXIS 31289 (D. Del. Mar. 31, 2009) (applying LLFPA to find failure to promote claim timely).

Presumably Ekweani will now be the subject of an appeal to the 9th Circuit.

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