Marcia McCormick of Workplace Prof Blogs comments on a case recently handed down by the 9th circuit that she says has "echoes of Ledbetter." The case, Zolotarev v. City of San Francisco, involves a suit against San Francisco for allegedly giving preferential treatment in hiring Asian and Filipino-American workers. The ruling was not one on the merits of the claim, but rather whether the suit was time-barred. The city argued that the time limit should begin once the workers became aware of the injury (in other words, once they had been informed they would not be fired). The plaintiffs, by contrast, said that the clock shouldn't start until they became aware (or reasonably should have been aware) of the legal violation -- that is, when they became aware that the city might be giving preference to Asians or Filipinos -- which came significantly after they heard about the actual hiring decision. The Court agreed with the city, and tossed the suit.
The opinion itself, however, only alludes to Ledbetter once in passing. And based on my reading of Ledbetter, I actually think that this case runs in the precise opposite direction -- with the sole linking factor that it puts a barrier in front of plaintiffs in employment discrimination suits (more specifically, in both it sets a stricter time limit for filing suits).
Recall that Ledbetter, which was also a case about statute of limitations, also basically was a fight between two competing starting points for the statute of limitations clock. Ledbetter thought that since each reduced pay check was a separate harm, the statute of limitations should restart anew each payday. Goodyear (Ledbetter's employer), by contrast, argued that the point of departure is the original discriminatory instinct which resulted in Ledbetter being paid less. The Court agreed with Goodyear.
So, if I'm reading the case right, Ledbetter stands for the proposition that its not the injury (less pay) but the "thought" (the discriminatory instinct, the legal violation) that counts. However, Zolotarev is saying exactly the opposite -- starting the clock at the injury (not getting hired) no matter when the workers could have reasonably known about the act of discrimination. These are opposing standards -- it just happens to be that in Ledbetter adopting the legal violation guideline gives us a stricter formula, while in Zolotarev adopting injury guideline does.
As far as I'm concerned, since both a material injury and a discriminatory reason are necessary for a plaintiff to prevail in these sort of suits, the clock shouldn't start until the plaintiff has reasonable knowledge of both. But what do I know?
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David,
I agree with your conclusion that the clock shouldn't begin to run until the employee should reasonably have knowledge of both the adverse employment action (injury) and the discriminatory motive. I still think that Ledbetter was very similar to Zolotarev in the way the courts considered the accrual question, though. In both cases, the courts held that the cause of action accrues when the adverse employment action is taken with a discriminatory motive. In both cases, the employer's discriminatory thought coincided with the injury. And in both cases, the plaintiffs alleged that they didn't know about the discriminatory thought until far later even. The difference is that Lilly Ledbetter, argued that she kept suffering the injury each time she wasn't paid as much as her male colleagues. In Zolotarev, there was only one injury.
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