The Equal Employment Opportunity Commission (EEOC) recently revised its Compliance Manual to conform with the Lilly Ledbetter Fair Pay Act (the Act).

The Act overturned the US Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 US 618 (2007), which held that a charge of compensation discrimination based on sex under Title VII of the 1964 Civil Rights Act must be filed within 180 days of an affected paycheck in states without a state fair employment practice agency or within 300 days of a paycheck in states that have such an agency, and that later paychecks allegedly infected by the same discrimination do not trigger new filing periods under the so-called “continuing violation” theory.

The revised section of the Compliance Manual now provides as follows:

An aggrieved individual can bring a charge up to 180/300 days after receiving compensation that is affected by a discriminatory compensation decision or other discriminatory practice, regardless of when the discrimination began. If a charge alleges compensation discrimination under Title VII, the ADA, the Rehabilitation Act, or the ADEA, the filing period begins when any of the following occurs: 1) the employer adopts a discriminatory compensation decision or other discriminatory practice affecting compensation; 2) the charging party becomes subject to a discriminatory compensation decision or other discriminatory practice affecting compensation; or 3) the charging party’s compensation is affected by application of a discriminatory compensation decision or other discriminatory practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such discriminatory decision or practice.

Payment of compensation is actionable if it is affected by either a discriminatory compensation decision or some other discriminatory practice. For example, a charging party may challenge within 180/300 days any paycheck that is lower than it otherwise would be because of the discriminatory denial of a career ladder promotion. In a career ladder promotion, an individual is promoted to a higher pay and/or grade level based on whether that individual meets certain predetermined performance, time-in-grade, or other criteria.

Example - After working for the Respondent for nearly 10 years as a production supervisor, CP learns she is being paid less than the other four production supervisors in her department, who are all men. Immediately after learning about the pay discrepancy, CP files an EEOC charge alleging sex-based wage discrimination in violation of Title VII. The investigation shows that CP generally received lower pay raises than her male counterparts as the result of lower performance ratings, which CP alleges to have been discriminatory. Although these performance ratings and related pay raises all occurred more than 300 days before CP filed her charge, they affected her pay within the filing period. Therefore, CP’s pay discrimination charge is timely.

These time frames apply to all forms of compensation, including the payment of pension benefits. However, because the congressional findings state that “[n]othing in [the Lilly Ledbetter Fair Pay Act] is intended to change current law treatment of when pension distributions are considered paid,” it may be determined that pension benefits are considered paid “upon entering retirement and not upon issuance of each annuity check.” Therefore, to avoid potential timeliness issues, an individual who is considering challenging his or her pension benefits is strongly encouraged to file a charge within 180/300 days after retirement.

The EEOC’s revision of its Compliance Manual is an important reminder to employers to review their compensation practices to ensure they could withstand challenges of discrimination.  The Arent Fox Employment Law Group regularly advises employers on compensation and other employment discrimination issues, and defends them against administrative and judicial claims with respect to the same.  If you have questions about the EEOC’s revised Compliance Manual or any related issues, please feel free to contact us.

Michael L. Stevens
stevens.michael@arentfox.com
202.857.6382