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January 29, 2009

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So cute! I already like you on FB and also get your posts on Google Reader. :)

You say that employers can now be sued for unintentional discrimination. In fact, that's been the case since long before this law. And rightly so. If I make hiring decisions for my company, and I add employees intermittently and believe that I offer each one a fair wage (rather than hiring a bunch of people all at the same time, where discriminatory pay decisions might be more obvious), and then it turns out that I consistently give women lower pay than their male counterparts in the same positions, then I have engaged in discrimination. Regardless of whether I intended to discriminate or not, these women still have been harmed -- and therefore my company has an obligation to make them whole.

One thing we've largely overlooked in our efforts to convince people that "discrimination is bad" is that it is perfectly possible for very nice, well-meaning people to act in a discriminatory way. Almost /everyone/, of all races, fails the Harvard race test. We live in a society where subtle* discrimination is still the norm, and we all are influenced by it. There are mechanisms we can use to mitigate against this "unintentional" discrimination -- like putting all our employees and their salaries into a simple Excel (or free OpenOffice) spreadsheet and looking at how the salaries compare across race, gender, disability, age, and sexual orientation lines -- and all the law requires is that employers use these simple tools to prevent discrimination. It's not hard. It's just about fairness.

(*Please don't jump down my throat for the word "subtle"...I /get/ that blatant discrimination still exists too. But I'm more concerned with the prejudices inherent in all of us who would like to think we're too enlightened to need anti-discrimination tools.)

My understanding is the same as Michael's--you can bring a claim within 180 days of your last discriminatory paycheck. In theory (and reality?), even if you learned of your employer's discriminatory policy 10 years ago, you could still sue today if this is within 180 days of your last paycheck. You're not helping other employees who are also "victims" by keeping quiet about the discrimination, but you may get more damages by waiting.

"Anyone can sue about any alleged workplace wage discrimination, no matter how far back it may have occurred."

That's not true. The law doesn't remove the statute of limitations, it only resets it every time the employee gets a "discriminatory" paycheck. The way your post is worded suggests a person who was discriminated against in wages 30 years ago and hasn't worked at that job for 29 years can now sue.

here's a novel idea: pay your employees the same rate if they do the same job and have the same or similar skills.

wow.

Thankfully, some of the posters here are more skillful in the art of "deconstructing what happens in law" than the author of this blog.

Proving intent can be hard. Plus this will force employers to make sure they're making rational pay decisions

blah blah blah blah.

Your post seems to fault the fact that employers can be sued for wage discrimination even if it is unintentional--as if the fact that the discrimimination is unintentional excuses it. Is wage discrimination OK as long as the employer didn't really mean it? In that case, there should be no claims for negligence because, even if the negligence caused someone damage, the negligent person did not really mean to cause the damages.

thank god. Why in the world would the "discovery rule" -- which aplpies in almost every single SOL context I've ever seen -- not apply to wage discrimination?

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