DEVELOPMENTS IN U.S. GOVERNMENT LABOUR & EMPLOYMENT LAW THAT MAY HAVE INTERNATIONAL IMPLICATIONS

UNFORTUNATE EVENTS IN HISTORY:
THE RECENT DISENFRANCHISEMENT OF AMERICAN EMPLOYEES'
LABOUR AND EMPLOYMENT RIGHTS

By John P. Mahoney, Esq.

A discriminatory act which is not made the basis for a timely charge . . . is merely an unfortunate event in history which has no present legal consequences.

I. INTRODUCTION

This past year, there have been a number of developments in U.S. Government Labour and Employment law that may have international implications. Specifically, the Republican Bush Administration and the Republican appointed and dominated U.S. judiciary have further disenfranchised American employees from the right to be free from discrimination and retaliation, and the right to organize unions and to bargain collectively with their employers. For example, in Oakwood Healthcare, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, the Bush Administration's majority on the U.S. National Labor Relations Board [hereinafter "NLRB" or "the Board"], the U.S. Government agency that enforces labor law in the U.S. private sector, disenfranchised a substantial percentage of America's private workforce from the protections of the National Labor Relations Act (NLRA) which, in part, guarantees the right of most private sector employees to organize unions and to bargain collectively with their employers. See Oakwood Healthcare, Inc. and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), AFL-CIO, 2006 NLRB LEXIS 448; 180 L.R.R.M. 1257; 2006-7 NLRB Dec. (CCH) P17,189; 348 NLRB No. 37 (2006). Further, the United States Court of Appeals for the First Circuit held that the Age Discrimination in Employment Act (ADEA) does not prohibit retaliation against older U.S. government employees. The first such ruling by a federal appeals court since the ADEA was passed in 1967. See Gomez-Perez v. Potter, Postmaster Gen., U.S. Postal Serv., No. 06-1614 (1st Cir. Feb. 9, 2007) (Cert. pending). Last, in Ledbetter v. The Goodyear Tire & Rubber Company, Inc., 2007 U.S. LEXIS 6295 (Decided May 29, 2007) the Supreme Court of the United States recently held that it is incumbent upon a female employee to timely file a charge of unlawful employment discrimination each time an employer fails to increase her salary commensurate with the salaries of male peers and that any annual pay decision not contested immediately (i.e., within 180 days, or 45 days for federal employees), becomes "merely an unfortunate event in history which has no present legal consequences." See Ledbetter v. The Goodyear Tire & Rubber Company, Inc., 2007 U.S. LEXIS 6295 (Decided May 29, 2007) at (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977).

Given the recent activism of the Bush Administration and the Republican appointed and dominated U.S. judiciary, it is clear that the U.S. Government endeavors to make employers' transgressions against employees merely unfortunate events in history which have no present legal consequences. This paper will examine the afore-mentioned recent decisions of the Bush Administration, the Court of Appeals for the First Circuit, and the U.S. Supreme Court respectively, and their affects on U.S. and potentially international labour and employment law.

II. CASE ANALYSIS

A. Oakwood Healthcare, Inc. and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), AFL-CIO

In its decision in Oakwood Healthcare Inc., the Bush Administration's NLRB disenfranchised a substantial percentage of America's private workforce from the protections of the NLRA which, in part, guarantees the right of most private sector employees to organize unions and to bargain collectively with their employers. Specifically, through the Board's "refined" analysis to be applied in assessing supervisory status, many professional employees, such as lawyers, teachers, doctors, and registered nurses, who by 2012 could number almost 34 million and account for 23.3 percent of America's workforce, would be deprived of the right to organize unions and to bargain collectively with their employers, by virtue of the fact that they have some supervisory responsibilities in the sense of directing another's work, i.e., the daily assignment or distribution of tasks.

In Oakwood Healthcare Inc., the Board dealt with the determination of the appropriate bargaining unit for purposes of a Union election. Specifically, the Acting Regional Director of the NLRB issued a Decision and Direction of Election finding that the Employer's charge nurses, whose supervisory status was in dispute, should be included in the petitioned-for unit of all registered nurses (RNs) working for the Employer at its Oakwood Heritage Hospital. The Employer filed a timely request for review of that Decision. By Order, the Board granted review solely with respect to the issue of whether the Employer's charge nurses are supervisors under the Act. Upon review, and in light of the U.S. Supreme Court's 2001 decision in NLRB v. Kentucky River Community Care, 532 U.S. 706, 713 (2001), the Board reversed the decision of the Acting Regional Director and found that certain charge nurses should be excluded from the unit as statutory supervisors. Specifically, the Board found that in providing patient care, Charge nurses are responsible for overseeing their patient care units, and they assign other RNs, licensed practical nurses (LPNs), nursing assistants, technicians, and para-medics to patients on their shifts.

Section 2(11) of the NLRA defines "supervisor" as:

any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

As held by the U.S. Supreme Court in Kentucky River Community Care, pursuant to this definition, individuals are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 supervisory functions (e.g., "assign" and "responsibly to direct") listed in Section 2(11); (2) their "exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment;" and (3) their authority is held "in the interest of the employer." Kentucky River Community Care, 532 U.S. at 713. Further, the U.S. Supreme Court held that supervisory status may be shown if the putative supervisor has the authority either to perform a supervisory function or to effectively recommend the same. See id. at 711-712. Relying upon that U.S. Supreme Court decision in Kentucky River Community Care, and broadly interpreting "assign" as encompassing the routine daily assignment or distribution of tasks, the Board, split 3-2 along political lines, held that an employee who daily assigns or distributes tasks, even if they do not perform any of the other 12 supervisory functions, are statutory supervisors under the Act, if such assignment is exercised with independent judgment. See Oakwood Healthcare, Inc. 2006 NLRB LEXIS 448 at 17 - 19.

As noted in the dissent to the Board's decision in Oakwood Healthcare Inc., that "decision creates a new class of workers under Federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees." Oakwood Healthcare, Inc., 2006 NLRB LEXIS 448 at 70. Into that category fall most professional employees. Significantly, the Board's interpretation of "assign" as encompassing the daily assignment or distribution of tasks threatens to sweep almost all professionals outside of the NLRA's protection. Presumably, most professionals who work with assistants or as team leaders routinely play a role in assigning out the day's work. As such, the Bush Administration controlled Board has neutered the NLRA's application and authority for governing labor relations in America's post-industrial work force. With this decision, the Board has disenfranchised the majority of professional employees of the right to organize unions and to bargain collectively with their employers in America's growing service economy. Congress should immediately act and make clear its intention not to exempt professional employees who daily assign or distribute tasks from the protection of the NRLA or to allow employers to create "straw bosses" to limit coverage of the NLRA within their workforces. Obviously, the Bush Administration's ruling in Oakwood Healthcare, Inc., if adopted by other national governments, could have a destructive impact on unionization globally.

B. Gomez-Perez v. John E. Potter, Postmaster General, United States Postal Service

In a startling decision issued earlier this year, the United States Court of Appeals for the First Circuit, which has jurisdiction over the New England states and Puerto Rico, held that the Age Discrimination in Employment Act (ADEA) does not prohibit retaliation against older federal employees! See Gomez-Perez v. Potter, Postmaster Gen., U.S. Postal Serv., No. 06-1614 (1st Cir. Feb. 9, 2007). This is the first such ruling by a federal appeals court since the ADEA was passed in 1967.

In Gomez-Perez, the Appellant, a postal service employee, sued the U.S. Postmaster General and the U.S. Postal Service [hereinafter "USPS"], claiming, inter alia, that her supervisor violated § 15 of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.S. § 633a, by retaliating against her after she filed an equal employment opportunity complaint of unlawful age discrimination. The United States District Court for the District of Puerto Rico dismissed the action, and the employee appealed.

The Appellant worked as a window distribution clerk at a post office in Puerto Rico in October 2002, when she requested a transfer to another post office in Puerto Rico so she could be closer to her mother, who was ill. The Appellant's supervisor approved the transfer, and the Appellant moved to the other post office. Approximately one month later, the Appellant requested a transfer back to the first post office, but her supervisor denied the request. The Appellant filed an equal employment opportunity complaint with the USPS, alleging that she was the victim of age discrimination, and she filed an action against the Postmaster General and the USPS after her complaint was denied, alleging that her supervisor and other employees harassed her because she filed her complaint. The district court found that the Postmaster General and the USPS were immune from suit, and it dismissed the employee's action. The Court of Appeals for the First Circuit held that although the USPS and the Postmaster General had waived sovereign immunity with respect to ADEA suits, the district court's decision to dismiss the employee's action was correct because 29 U.S.C.S. § 633a did not allow federal employees to sue for retaliation.

Specifically, the Court of Appeals found that in order for the Appellant to bring suit against the USPS and its Postmaster General, the Court needed to find an "unequivocal" waiver of immunity that is expressed in "specific" statutory language. Further, the Court of Appeals noted that 29 U.S.C. § 623(d), the parallel ADEA provision governing private employers, does provide an explicit cause of action for retaliation:

It shall be unlawful for an employer to discriminate against any of his employees . . . because such individual . . . has opposed any practice made unlawful by this section, or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this Chapter.

Finding the absence of statutory language providing a claim for retaliation in § 633a for federal government employees, when compared with the explicit prohibition on retaliation in § 623(d), the Court of Appeals held that the ADEA prohibits retaliation by private employers, but not by federal government employers. The First Circuit's decision in Gomez-Perez concluded that if Congress had intended the anti-retaliation provision that applies to private sector employers, i.e., 29 U.S.C. § 623(d), to apply to the federal government, it would have said so explicitly.

To date, the U.S. Equal Employment Opportunity Commission (EEOC), which is the federal agency that enforces the ADEA in the federal government, has not changed its view that federal agencies are legally prohibited from retaliating against federal employees who file age discrimination complaints. Nevertheless, the First Circuit's decision in Gomez-Perez is a dangerous one that must be immediately reversed, especially because it is in conflict with other federal courts of appeals decisions that have held that the ADEA does prohibit retaliation in the federal government. See Forman v. Small, 271 F.3d 285, 296-97 (D.C. Cir. 2001)(stating that it would be "difficult to imagine how a workplace could be 'free from any discrimination based upon age' if, in response to an age discrimination claim, a federal employer could fire or take other action that was adverse to an employee").

Congress should not await a potentially adverse ruling by the Supreme Court of the United States resolving the conflict between the First and DC Circuits on this extremely important protection for federal employees. (On March 30, 2007, Ms. Gomez-Perez filed a still pending petition seeking Supreme Court review in her case). Instead, Congress should act immediately to clarify the ADEA to expressly prohibit retaliation in federal employment.

While addressing the retaliation issue, Congress should also amend the ADEA to provide for awards of compensatory damages and attorneys fees for employees who are successful in prosecuting age discrimination and retaliation cases. Compensatory damages of up to $300,000 for emotional and physical distress, as well as harm to reputation, plus any out of pocket compensatory damages, as well as attorneys fees, are already awardable to employees in race, color, sex, national origin, religion, and disability discrimination, as well as in retaliation cases based upon those types of underlying categories of discrimination, but not in age-based discrimination or retaliation cases. Treating age discrimination and retaliation cases less seriously than complaints of discrimination or retaliation based upon any of those other legally recognized EEO categories is unreasonable and unfair, especially to long-term federal employees who tend to be those who would have reached the threshold 40 years of age to be eligible to file an age discrimination case. Age as a basis for a discrimination complaint should be treated the same as all the other recognized bases for an EEO complaint. Otherwise, it becomes too easy for a federal agency employer to get away with discriminating and retaliating against its older workers. This sad reality should be remedied promptly if we are serious when we say that the federal government strives to be a model EEO employer. If adopted by other national governments the decision in Gomez-Perez could spell the death knell for retaliation cases based upon age discrimination.

In a decision issued last month, the Supreme Court of the United States held that it is incumbent upon an employee to file a timely charge of unlawful employment discrimination each time an employer fails to increase his/her salary commensurate with the salaries of peers (who are not of the employee's protected EEO categories) and that any annual pay decision not contested immediately (i.e., within 180 days or 45 days for federal employees), is time barred. See Ledbetter v. The Goodyear Tire & Rubber Company, Inc., 2007 U.S. LEXIS 6295 (Decided May 29, 2007). As a result, employees must now file pay discrimination claims against their employers with only the most remote suspicion of unlawful employment discrimination if employees wish to preserve their right to file such claims when the discriminatory pay disparity would otherwise become known to them. As a practical matter, this case further does away with the "continuing violation theory" in pay cases.

Under U.S. law, Title VII of the Civil Rights Act of 1964 makes it an "unlawful employment practice" to discriminate "against any individual with respect to his compensation . . . because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). An individual wishing to challenge an employment practice under this provision must first file a charge with the EEOC. § 2000e-5(e)(1). Such a charge must be filed within a specified period (either 45, 180 or 300 days, depending on where the employee is employed) "after the alleged unlawful employment practice occurred," ibid., and if the employee does not submit a timely EEOC charge, the employee may not challenge that practice in court, § 2000e-5(f)(1).

Lilly Ledbetter was a supervisor at Goodyear Tire and Rubber's plant in Gadsden, Alabama, from 1979 until her retirement in 1998. For most of those years, she worked as an area manager, a position largely occupied by men. Initially, Ledbetter's salary was in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. By the end of 1997, Ledbetter was the only woman working as an area manager and the pay discrepancy between Ledbetter and her 15 male counterparts was stark: Ledbetter was paid $3,727 per month; the lowest paid male area manager received $4,286 per month, the highest paid, $5,236.

Ledbetter launched charges of discrimination before the EEOC in March 1998. Her formal administrative complaint specified that, in violation of Title VII, Goodyear paid her a discriminatorily low salary because of her sex. That charge was eventually tried to a jury, which found it more likely than not that Goodyear paid Ledbetter an unequal salary because of her sex since 1979. In accord with the jury's liability determination, the district court entered judgment for Ledbetter for backpay and damages, plus counsel fees and costs.

The Court of Appeals for the Eleventh Circuit reversed. Relying on Goodyear's system of annual merit-based raises, the court held that Ledbetter's claim, in relevant part, was time barred. Specifically, Title VII provides that a charge of discrimination "shall be filed within [180] days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). Ledbetter charged, and proved at trial, that within the 180-day period, her pay was substantially less than the pay of men doing the same work. Further, she introduced evidence sufficient to establish that discrimination against female managers at the Gadsden plant, not performance inadequacies on her part, accounted for the pay differential. Nevertheless, the U.S. Supreme Court held that it was incumbent on Ledbetter to file charges year-by-year, i.e., each time Goodyear failed to increase her salary commensurate with the salaries of male peers and that any annual pay decision not contested immediately (i.e., within 180 days), becomes a fait accompli beyond the province of Title VII ever to repair.

As properly noted in Justice Ginsburg's dissent in my view:

[T]he United States Supreme Court's insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter's case, in small increments and cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not reasonably place the employee on notice that she is being subjected to discrimination.

Pay disparities are thus significantly different from adverse actions such as termination, failure to promote, or refusal to hire, all involving fully communicated discrete acts, easy to identify as discriminatory. It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter's situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.

The realities of the workplace reveal why the discrimination with respect to compensation that Ledbetter suffered does not fit within the category of singular discrete acts easy to identify. A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Compensation disparities, in contrast, are often hidden from sight. It is not unusual, decisions in point illustrate, for management to decline to publish employee pay levels, or for employees to keep private their own salaries. Tellingly, as the record in this case bears out, Goodyear kept salaries confidential; employees had only limited access to information regarding their colleagues' earnings.

The problem of concealed pay discrimination is particularly acute where the disparity arises not because the female employee is flatly denied a raise but because male counterparts are given larger raises. Having received a pay increase, the female employee is unlikely to discern at once that she has experienced an adverse employment decision. She may have little reason even to suspect discrimination until a pattern develops incrementally and she ultimately becomes aware of the disparity. Even if an employee suspects that the reason for a comparatively low raise is not performance but sex (or another protected ground), the amount involved may seem too small, or the employer's intent too ambiguous, to make the issue immediately actionable -- or winnable.

Nevertheless, once again, the Bush Administration and its Republican-appointed Supreme Court majority have limited the scope of traditional sex discrimination pay claims under Title VII. If adopted by other nations, such analysis could to great harm to the notion of equal pay for equal work regardless of the workers' genders.

III. CONCLUSION