Top-ranked employment attorney offers thoughts on pay-discrimination lawsuit legislation

January 23, 8:10 AMBusiness Law ExaminerMatthew Nelson

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My entry on Tuesday that mentioned the new bill, which likely has received a favorable vote in the U.S. Senate by now, that is known as Ledbetter Act caught the eye of Lawrence Lorber, Esq.

Lorber  is a former high-level labor department official and has practiced employment law for decades; he is currently a partner in the Washington, D.C., law firm Proskauer Rose, LLP.. Lorber also testified about the Ledbetter Act in front of the Senate Judiciary Committee in October 2008.

Lorber, who truly is a gentleman attorney, offered very kindly to share his perspective on Ledbetter with me.

We first discussed the fact that Ledbetter allows an employee who claims that he or she received unequal treatment regarding compensation "or other practices," which refers to training and a wide variety of other employment-related goodies, to seek the difference between the compensation that that person received and what they assert that he or she would have received absent that supposed discrimination any time during his or her employment and often for an extended time after that employment ended.

This potentially open-ended period for seeking a recovery is contrary to the well-established legal principle that limits the right of someone to claim that another person wronged him or her to a very specific period after the supposedly wronged person did know about that injury or should have discovered it.

Lorber stated that he raised that issue during his testimony before the Senate committee and that Senator Lahey, who chaired the committee, responded that such a limitation period did not apply in a capital case; capital cases are those that involve murder and other very serious crimes. Lorber told me that he responded that pay discrimination was not a capital crime.

Lorber said as well, and I agree with him, that pay discrimination exists and should be remedied but that reasonable limits should be imposed regarding the right to seek such a remedy.

Lorber pointed out that there was strong evidence that Ledbetter herself knew that her employer was paying her less than her male counterparts at least six years before filing her lawsuit. Lorber did add that an employee can recover compensation for pay discrimination for only the two years before he or she filed a lawsuit.

Lorber mentioned as well that similar standards apply regarding pension benefits that a retired employee contends would have been higher if no pay discrimination had occurred. As Lorber pointed out, this has tremendous potential to further strain our ailing pension system.

In the interest of keeping this entry relatively short, I will post part II of it early next week. This will address both what I consider a shockingly low burden of proof that an employee must meet and the manner that Lorber predicted that lawsuits regrading claims under this new law will be resolved.

I encourage both men and women to add their two cents regarding this topic as additions to this entry or as e-mail to nelsonexaminer@gmail.com. I would like to mention as well that next week will be my last writing this column and that I have some strong entries planned for my last hurrah.