WHEN THE FAILURE TO PROMOTE EQUALLY IS NOT THE SAME AS THE FAILURE TO PAY EQUALLY
A few months back, I talked here about the well-known Ledbetter v. Goodyear Tire and Rubber case, and about Congress’ subsequent overturning of that case – with President Barack Obama’s blessing, if not his urging – by the Lilly Ledbetter Fair Pay Act (“FPA”).
While the FPA certainly didn’t do employers in this country any favors when it gave employees the near-continuous right to bring equal pay claims under Title VII of the Civil Rights Act of 1964, we learned late last week that some sanity remains with regard to the scope of that law — at least in some courts.
On Friday, the Third Circuit Court of Appeals – which covers Pennsylvania, New Jersey and Delaware – issued a very important decision limiting the extent of the FPA when it held in Noel v. Boeing Co. that the failure to promote does not constitute “discrimination in compensation” under the Act, even though those claims inherently allege an impact on an employee’s pay.
The Plaintiff in the case was a black Haitian national who worked for Boeing as a sheet metal assembler. He attempted to internally challenge with his union Boeing’s failure to promote him on several occasions, but when that avenue brought him no relief, he eventually filed a formal grievance with the Equal Employment Opportunity Commission (“EEOC”) and then a Title VII suit for discrimination.
Following a bench trial, the District Court ruled against the Plaintiff on all counts. He appealed, but only challenged one of the District Court’s rulings – that the failure to promote him to a particular job classification was not timely filed with the EEOC because it came more than 300 days after the alleged discriminatory decision. His argument on appeal was that because Boeing’s failure to promote him resulted in him receiving lower pay, the FPA was violated with each paycheck he received, and because the FPA was violated with each paycheck – so the argument went – his charge with the EEOC was timely.
After carefully analyzing the plain language in and history behind the FPA, and after noting that other courts have consistently treated failure-to-promote claims differently than pay disparity claims, the Third Circuit Court reiterated that the FPA was designed specifically to overturn Ledbetter and, in the process, provide greater protection to wage discrimination, but not other types of discrimination. While acknowledging that many employment decisions ultimately have some impact on compensation, the Court went on to state that the FPA was expressly designed to address pay decisions because they are often concealed and not discovered until after the limitations period expires, while promotion decisions are discrete acts that are easy to identify. As such, the Court upheld the dismissal of the Plaintiff’s claim.
The FPA has cast a large shadow ever since it was passed. In maintaining the distinction under that Act between the failure to promote equally and the failure to pay equally, the Third Circuit Court of Appeals made sure it didn’t cast an even bigger one.