The Corner

Laboring under Obama

In addition to the Lilly Ledbetter Paycheck Fairness Act noted by David Freddoso below, Democrats are expected to push several other pieces of employment-related legislation in the first few months of the Obama administration. Among them is the Civil Rights Act of 2008. 

 

The Act contains sweeping changes to a variety of federal employment laws, including Title VII, ADA, the Fair Labor Standards Act (“FLSA”), the Federal Arbitration Act (“FAA”), and the Equal Pay Act (“EPA”). Among other changes, the bill would: 

· eliminate existing damage caps on lawsuits brought under Title VII and the ADA.  Currently, the damage caps are $50,000 for an employer with 15 to 100 employees; $100,000 for an employer with 101 to 200 employees; $200,000 for an employer with 201 to 500 employees; and $500,000 for an employer with 500 employees or more;

· add compensatory and punitive damages to the FLSA (wage and hour) so that an employee can recover those damages in addition to back pay (which can be doubled if a willful violation is found);

· amend the FAA to prohibit clauses requiring arbitration of federal constitutional or statutory claims, unless an employee knowingly and voluntarily consents to this clause after a dispute has arisen or as part of a collective bargaining agreement;

·  amend the EPA (a law that prohibits gender discrimination regarding pay) to make it more difficult for employers to use the “bona fide factor other than sex” defense by requiring the employer to prove that it was “job related” or furthered a “legitimate business purpose” and that it was “actually applied and used reasonably in light of the asserted justification”;

· make it easier for employees to recover expenses (like expert witness fees) even if they aren’t the prevailing party in a lawsuit in all respects;

· give the National Labor Relations Board authority to award backpay to illegal immigrant employees;

· provide individuals with private rights of action to sue federally-funded programs for disparate impact discrimination under Title VI, Title IX, the Rehabilitation Act of 1973, and the Americans with Disabilities Act (thereby undoing the Supreme Court’s decision in Alexander v. Sandoval). 

· condition states’ receipts of federal funds on their waiver of sovereign immunity against individual claims for monetary damages under the ADEA, the FLSA, and the Uniformed Services Employment and Reemployment Rights Act.  This would reverse U.S. Supreme Court decisions that have barred these lawsuits against state governments; and

· overturn the Supreme Court’s decision in Buckhannon Board & Care Home v. W. Va. Department of Health and Services,  that  limited the ability of civil rights attorneys to receive attorney’s fees under 42 U.S.C. § 1988. 

When combined with EFCA and the Lilly Ledbetter Paycheck Fairness Act, the Civil Rights Act of 2008 might not be the best prescription for a struggling economy, but it certainly will be an economic stimulus for lawyers.

Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

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