An employee who has been discriminated against must first file a complaint with the Equal Employment Opportunity Commission before going to court. To do so, he must file that complaint within 300 days from the last discriminatory act committed by the employer.
However, what is the “last discriminatory act”? Does the meaning change based on the type of discrimination? What exactly constitutes the “last discriminatory act” is an important question because it can mean the difference between a timely complaint and one that is late. Further, the meaning was recently redefined by the Lilly Ledbetter Fair Pay Act.
Generally, the last discriminatory act is when the alleged discrimination actually occurred, or when the employee learns of the alleged discrimination. For example, if an employee if fired because of his race, the 300-day time limit begins to run on the day he was fired.
Applying this rule, the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co.
ruled that a woman who had been paid less later in her career because of poor, discriminatory performance reviews early in her career did not timely file her EEOC complaint. In its analysis, the Court reasoned that the discriminatory decisions that lead to Ledbetter being paid less were, by definition, the last discriminatory act, and thus her time limit began to run at that time—not starting over each time she was paid less as a result.
In response to this ruling, Congress passed the Lilly Ledbetter Fair Pay Act in 2009 which altered the definition of what an unlawful employment practice when it comes to compensation. Under this Act, discrimination in compensation occurs when an employer adopts discriminatory compensation practice, when an employee is subjected to a discriminatory compensation practice or decision, or when an employee is affected by the application of a discriminatory compensation practice, including when the employee is paid.
Therefore, in cases of discriminatory compensation the “last discriminatory act” occurs each time an employee is paid as a result of a discriminatory decision. In Ms. Ledbetter’s case, this would mean that her time-limit started fresh each time she was paid less because of the earlier discrimination.
Thus, the Lilly Ledbetter Fair Pay Act provides more leeway for those employees affected by discriminatory compensation by giving them more time to file their complaints to the EEOC.