Following the U.S. Supreme Court’s lead in Ledbetter v. Goodyear Tire & Rubber Co., the appellate court in New Jersey has ruled that plaintiffs suing for wage discrimination in New Jersey cannot rely on the “continuous trigger” theory, by which each paycheck restarts the running of the statute of limitations.
In Alexander, three long-time female Seton Hall University professors filed a lawsuit against Defendant/Respondent Seton Hall University, and various Seton Hall officials, alleging age and sex discrimination in pay in violation of the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et. seq. Plaintiffs alleged that they did not know when the disparity commenced and argued that it “continued” until within two years of the complaint. Relying on Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), Seton Hall argued that “any pay discrimination was based on a ‘discrete act’ as of the time any disparity commenced, which was outside the statute of limitations (that is more than two years before the complaint was filed).” Seton Hall thus claimed that the “continuing trigger” theory was inapplicable under Ledbetter.
Plaintiffs alleged that they suspected that male professors were paid more than female professors in equal positions. In 2005, Plaintiffs obtained copies of summaries that had been compiled to include faculty information such as college, gender, rank, and salary, which they contended underscored their claim of disparity. Plaintiffs further claimed that their salaries were disproportionately lower than newer, younger male professors holding similar positions for the same or shorter periods of time.
The trial court determined that Ledbetter applied and that “once the statutory filing period is expired the present effects of a discriminatory salary decision have no present legal significance or consequences and therefore, such a decision cannot form the basis of a charge of discrimination.” Pursuant to Ledbetter, an employer’s decision to set an employee’s pay or salary is a “discrete act.” Therefore, “paychecks received as a result of discriminatory pay decisions occurring outside of the limitations period, which merely represented a continuing impact of those time-barred decisions cannot form the basis for plaintiffs’ complaint.” Further, LAD claims are subject to a two-year statute of limitations. The Court noted that “allowing plaintiffs to recover for pay decisions more than two years old would defeat the purpose of the statute of limitations, especially since plaintiffs alleged they always suspected that disparities existed.”
The Appellate Division affirmed the trial court’s decision. Finding that Plaintiffs did not allege “discrete acts” of discrimination within the statute of limitations nor facial or intentional discrimination when the disparity began, the Court affirmed the dismissal of Plaintiffs’ complaint on statute of limitations grounds. Further, the Appellate Division analyzed Congress’ amending of Title VII in response to Ledbetter to include the Lilly Ledbetter Fair Pay Act of 2009 (“FPA”). The FPA, however, did not exist when Plaintiffs’ complaint was originally dismissed and Plaintiffs’ complaint was based on the LAD. The Appellate Division stated: “we believe that we would be more faithful to our state jurisprudence by following Ledbetter, particularly in the absence of a post-Ledbetter amendment to LAD.”
