Employers beware of discrimination: employment law shifting; familiarize yourself with new laws: If the woman continues to work for the company for years and later finds out she had been denied the promotion because of discrimination, every paycheck she has received essentially reset the six month period she had to file a claim.

• Author: Brown, Andy
• Position: HR MATTERS

From a legal perspective, the past eight months or so have been fascinating to watch. There have been substantial changes to the employment law landscape, and pending legislation could bring even more changes. The changes are varied and range from a slight shocker to a genuine head-scratcher and unless you enjoy the prospect of long costly litigation, it is probably a good idea to become familiar with those changes and adjust your office policies and procedures as needed.

PAY DISCRIMINATION

Arguably, the change that will have one of the largest impacts is the Lilly Ledbetter Fair Pay Act. The act was signed into law in January 2009 and provides that workers may now bring a lawsuit for up to six months after they receive any paycheck they allege is discriminatory. The previous rule was that a claim had to be brought within six months of the initial discrimination. For example, two women, one white the other Asian, are up for a promotion, the promotion is given to the white employee and the decision is based on national origin, a protected class under Title VII of the Civil Rights Act. If the woman continues to work for the company for years and later finds out she had been denied the promotion because of discrimination, every paycheck she has received essentially reset the six month period she had to file a claim. What is less clear is the effect this law could have on things like pension, retirement or other post-employment benefits.

AGE DISCRIMINATION

On a different type of discrimination, age, the U.S. Supreme Court decided in June, rather unexpectedly, that in claims under the Age Discrimination in Employment Act (ADEA), age must be the pivotal factor in the discrimination. The case is Gross versus FBL Financial Services, Inc. and in it the court draws a very distinct line between Title VII and ADEA. Claims under Title VII need to show that a protected class is one reason for the discrimination; this is the "mixed-motive" discrimination, and the court in Gross uses the "but for" analysis, meaning the action would not have occurred without the protected class--in this case age.

GENETIC DISCRIMINATION

An interesting, if not perplexing law that was signed last year but took effect on insurers in May of this year and will take effect for employers in November, is the Genetic Information Nondiscrimination Act (GINA). One of the reasons GINA is so interesting is that it amends a number of other laws it intersects, such as the Employment...