We all knew that the Lilly Ledbetter Fair Pay Act of 2009 would open the door to more pay discrimination cases.  Well that’s certainly coming true.  You’ll remember that the Act provided that a discriminatory pay decision made years earlier could still be actionable as each new paycheck (based on that previous discrimination) is considered to be a wrongful action.

Two courts have actually reversed their earlier decisions after applying the new Act.  In Mikula v. Allegheny County, (2009 3rd Cir.), the court found that an employer’s failure to respond to an employee’s request for a pay increase (to equalize pay with a male similarly situated) was a discriminatory compensation decision which impacted her paycheck for years.  In Tomlinson v. El Paso Corp., (2009 D. Colo) the Ledbetter Act was applied to a benefit, rather than wages. In that case the court found that an employee could continue with his age discrimination case against his employer who had changed its retirement plan. Although the change was made in 1997 and the lawsuit filed in 2004, the court found that a new act of discrimination occurred with each benefits payment.