Part II of Lorber interview regarding new pay discrimination bill

January 26, 7:15 AMBusiness Law ExaminerMatthew Nelson

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Last week, I announced that the U.S. House of Representatives had passed the Ledbetter Act,
which greatly expands the rights of an employee regarding pay discrimination claims. I also
wrote about a discussion that I had with Lawrence Lorber, Esq., regarding this bill that has
now passed the Senate and is merely awaiting the signature of President Obama. Lorber is a
former high-ranking labor department official who is currently a partner in the law firm Proskauer Rose, LLP.

In addition to the topics about which I wrote on Friday, Lorber told me that the burden of proof that Ledbetter requires of employees is that they must merely show that their pay was less than that of co-workers of the opposite sex.

This burden of proof is inconsistent with the general standard regarding discrimination claims that conditions receiving compensation on showing a discriminatory intent. In the context of an gender-based employment claim, this would require someone showing that his or her sex was the real reason for receiving less pay then a co-worker with comparable job responsibilities.

Lorber also predicted that employers and employees will reach settlements that result in employees getting a portion of the compensation that they are seeking in these lawsuits. He stated that this was a method for redistributing some of the money from employers to employees.

Lorber and I agree that a victim of pay discrimination should receive appropriate compensation. My personal opinion is that giving anyone a greatly expanded period of time to assert a claim and also not requiring that someone who is claiming discrimination prove the actual bias at least under the fairly low "beyond a reasonable doubt" standard is contrary to
established legal principles.

Requiring that someone assert a claim in what can be considered a reasonable period of time protects an alleged wrongdoer from a "surprise attack" many years after the incident on which a claim is based. It also helps ensure that the evidence that defending against such a claim requires is still available.

Please feel free to share your comments regarding this issue as additions to this entry or as e-mail to nelsonexaminer@gmail.com.