December 13, 2010

LEDBETTER ACT DOES NOT APPLY TO PENSION CHECKS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

In a ruling on an issue of first impression, the EEOC ruled on November 30, 2010 that the Ledbetter Act does not apply to pension checks (Brakeall v. EPA, EEOC, No. 0120093805, 11/30/10). The facts are as follows. Carol Brakeall starting working for the Environmental Protection Agency (EPA) in 1990 as a GS-13. She was promoted to branch chief in 1994, but remained at GS-13. In 2009, after her final paycheck, Brakeall complained to an EEO officer that she was the only woman working as a branch chief, and all other branch chiefs were at GS-15. There are two rulings here. First, the EEOC noted that Brakeall “reasonably suspected discrimination during her employment with the Agency.” Therefore, her complaint would be untimely even if discrimination occurred. Second, and more importantly for present purposes, the EEOC ruled “the record reflects that Complainant reasonably suspected discrimination during her employment with the Agency.” Thus, although there is a continuing violation in the Ledbetter Act for each paycheck (assuming a discriminatory act), there is no such violation with each pension check.

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