Constitutional Law

A Way Forward On Bringing Challenges To Workplace Discrimination

by David A. Drachsler, vice chair of the Virginia Council on Human Rights

Cyrus Mehri and Ellen Eardley make some very useful recommendations in their ACS Issue Brief, “21st Century Tools for Advancing Equal Opportunity: Recommendations for the Next Administration.” As someone who worked for over thirty years on the Executive Order 11,246 program at the U.S. Department of Labor, I think the proposal that equal employment data collected by the Office of Federal Contract Compliance Programs be in electronic form and available to the public is an excellent one. I do question the need for filing what amounts to duplicates of this information with the SEC.

My guest blog post for ACS, however, focuses on the issue of time limits for filing a charge under Title VII of the Civil Rights Act of 1964. The Mehri-Eardley piece states “we are aware of no other federal law with such a short limitations period [as Title VII].” In fact, such statutes in the employment law arena are legion. The prime example is the National Labor Relations Act, the statute upon which Title VII was to a great extent modeled. It provides “That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board. . . .” Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. Section 160(b). 

There are many other statutes in the employment law area that provide as short, or even a shorter, time limit for filing a complaint or charge. A list of these laws can be found on the U.S. Department of Labor web site, and they are:

·         Occupational Safety and Health Act (30 days)

·         Surface Transportation Assistance Act (180 days)

·         Asbestos Hazard Emergency Response Act (90 days)

·         International Safe Container Act (60 days)

·         Federal Rail Safety Act (180 days)

·         National Transit Systems Security Act (180 days)

·         Clean Air Act (30 days)

·         Compensation and Liability Act (30 days)

·         Energy Reorganization Act (180 days)

·         Federal Water Pollution Control Act (30 days)

·         Pipeline Safety Improvement Act (180 days)

·         Safe Drinking Water Act (30 days)

·         Sarbanes-Oxley Act (90 days)

·         Solid Waste Disposal Act (30 days)

·         Toxic Substances Control Act (30 days)

·         Wendell H. Ford Aviation Investment and Reform Act for the 21 st Century (90 days)

Indeed, a new law was added to the list this year, section 219 of the Consumer Product Safety Improvement Act of 2008. That whistleblower protection provision for employees in the consumer product industry requires any person who believes they have been discriminated against in retaliation for disclosures protected by the act to file a complaint with the Secretary of Labor within 180 days of the date of discrimination.

As I pointed out in my article “But I Just Found Out About it Now, Discovery Rule May Help Pay Discrimination Claims After 'Ledbetter'” in Legal Times, July 25, 2007, the Lily Ledbetter Fair Pay Act could create many difficult issues for the courts to resolve, even as it settles one- that the time runs from the receipt of each check which reflects a discriminatory pay decision. Here is one example: if an employee is denied a promotion, allegedly for discriminatory reasons, every paycheck they receive for the rest of their career with that employer will be lower as a result of the discrimination. (Assume discrimination can be proven.) Ten or fifteen years later, can they still file a charge, and ultimately a lawsuit, because in the most current pay period their pay was lower? If so, can they also seek promotion to the job denied? If not, could they continue to work in a lower rated job but receive the pay associated with the promotion they were denied?

A much more practical and achievable change to Title VII would be to write a discovery rule explicitly into the statute. There are many laws today that include a discovery rule, and most circuits have held that a discovery rule is applicable to Title VII charges.

Full post as published by ACS Blog on October 27, 2008 (boomark / email).