Last week, in Part 1 of this series, I discussed the Supreme Court’s Ledbetter decision and the criticism of it that led to the introduction of corrective legislation in the form of the Fair Pay Act.

(That Act was blocked by Republicans in the Senate, but is likely to be reintroduced if the political balance shifts significantly this fall.)

Today, in Part 2, I’ll cover some reasons why I believe the impact of Ledbetter on employees is not as harsh as critics claim, and why compensation discrimination is not as different from other types of job discrimination as they claim.

First, let’s look at some of the inherent limitations of the reach of Ledbetter.

The “Loopholes”

The urgency of legislative change is diminished when the following points are all considered (quoting the “Hot Topic” publication about the Ledbetter case by the American Bar Association’s Section of Labor and Employment Law.

The Court’s ruling does not doom all compensation discrimination cases in which the plaintiffs have received unfairly low pay for more than 180 days. The majority explicitly limited its holding to “disparate-treatment pay cases,” excluding disparate impact claims from its coverage.

The majority also distinguished cases involving discriminatory “pay structures,” as opposed to individualized compensation decisions.

These limitations suggest that this ruling need not affect many class-wide pay disparity cases.

An interesting passage from Ledbetter is the one referred to above mentioning discriminatory “pay structures”:

[An] employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure.

But a new Title VII violation does not occur and a new charging period is not triggered when an employer issues paychecks pursuant to a system that is “facially nondiscriminatory and neutrally applied.” . . .

The fact that precharging period discrimination adversely affects the calculation of a neutral factor (like seniority) that is used in determining future pay does not mean that each new paycheck constitutes a new violation and restarts the EEOC charging period.

This makes the following a critical question:

What is a “pay structure” and when does it become discriminatory?

Perhaps a “pay structure” is the aggregate distribution of pay rates for a particular job or set of jobs.

And perhaps a structure “becomes” discriminatory if management becomes aware of an apparent inequity along the lines of gender or race and fails to remedy it.

At this point, arguably, the system can no longer be said to be “facially nondiscriminatory and neutrally applied.” There might be case to be made that it was discriminatorily applied, intentionally, from that point forward.

So perhaps bringing an old, otherwise time-barred inequity to the employer’s attention could, in a certain sense, revive the claim.

Another important issue was well summarized by a reader’s comment on another blog post: Read the rest of this entry »

Last week, Republicans blocked legislation (Fair Pay Act) intended to reverse last year’s Supreme Court ruling in Ledbetter v. Goodyear Tire & Rubber Co., which has been widely criticized for making it easier for employers to get away with discrimination in compensation.

Criticism of Ledbetter Decision

One writer describes Ledbetter as having the effect that as long as employers “can hide their discriminatory behavior for six months, they’ve got the green light to treat female employees badly forever.”

This statement echoes Justice Ginsburg’s dissent in Ledbetter, in which she interpreted the majority opinion as “immuniz[ing] forever discriminatory pay differentials unchallenged within 180 days of their adoption.”

Now this Senate vote has brought the issue back into the news. This is Part 1 of a two-part series on the Ledbetter case and why legislation to overturn it is not urgent — and perhaps even unwise.

For straightforward background on the Ledbetter case with quotes from the majority and minority opinions, see our prior post, “Supreme Court Upholds Time Limits on Title VII Pay Discrimination Cases in 5-4 Decision.”

The American Bar Association’s Section of Labor and Employment Law issued an edition of its “Hot Topic” publication about the Ledbetter case. The analysis is calm, rational, and insightful, discussing the case from both employer and employee viewpoints. It notes the unfairness of Ms. Ledbetter’s fate, but justifies the Court’s decision. The following block quotes are from this ABA article, unless otherwise noted. Read the rest of this entry »

In this guest post, Cynthia Shapiro, career expert and author of the best seller Corporate Confidential:50 Secrets Your Company Doesn’t Want You To Know – And What To Do About Them, offers some insider tips for resumes.

We all want to make it to the top of that teetering pile of resumes atop the hiring managers’ desks. With 400,000 workers laid off in March and 7.8 million unemployed, competition for the top jobs is fierce. But there are a few insider tips that can help you get picked as the top candidate.

1. Be Bold

Think of your resume as a one-page billboard, not a biography. Use lots of white space, bold type and bullet points, and get rid of that vague “objective.”

Be specific about your big accomplishments, not your basic job duties. For example, if they ask for “stellar sales skills,” say you increased your last employer’s sales by 10% within a 3-month period.

2. Be the perfect fit

Mirror the ad’s language in your cover letter and resume. If they ask for someone “passionate about customer service,” use those words.

Many companies use software that looks for key words to identify top candidates; usually those are the same words as you’ll see in the ads.

Even if they go through the resume pile the old fashioned way, by hand, careful wording will make you stand out and appear to be a perfect match. Read the rest of this entry »