Who Says Campaigning Senators Aren't Working

Despite the heated Presidential primaries, Senators Clinton and Obama (along with Senator Kennedy and a host of others) introduced the Civil Rights Act of 2008, S. 2554, demonstrating that there can be things done while on the campaign trail.

These changes would have a demonstrable effect on how employers train their supervisors and will affect the calculus behind allowing cases to go to trial. In other words, if you're an employer, these changes affect the ability to defend and protect yourself.

Here's how:

The 1991 Civil Rights Act was the first major revamping of the 1964 Civil Rights Act and provided for trial by jury and emotional distress awards, but limited damages. The 2008 version would eliminate these damage caps and those damage caps under the Americans with Disabilities Act (ADA).

The Equal Pay Act (EPA) allows for a "bona fide factor other than sex" defense as justification of "disparate treatment." Such a bona fide factor would be something such as education or experience, anything as long as it's not related to the sex of the employee. The changes proposed would require the defensible factor be both related to the position in question and that which furthers a legitimate business purpose, as the reason for the difference in pay. It would also expand remedies to include punitive damages where none currently exist.

Employers would also be prohibited from retaliating against employees who share salary information with their co-workers, although that has already been deemed to be a violation of National Labor Relations Act (NLRA) provisions. In March 2007, the Circuit Court of Appeals for Washington DC decided Cintas v National Labor Relations Board (NLRB) in which it was determined that an overly broad policy concerning the confidentiality of wages and terms and conditions of employment, which could have a chilling effect on the National Labor Relations Act (NLRA).

The Fair Labor Standards Act (FLSA) is amended under this law to have added compensatory and punitive damages to the remedies available, in addition to back pay, which is doubled if an underpayment is intentional and not in "good faith." It would also be easier for employees who win a discrimination or pay case to recover some legal expenses from their employers, including the cost of providing expert witnesses.

Other provisions amend the Federal Arbitration Act (FAA) arbitration clauses and Age Discrimination in Employment Act (ADEA) disparate impact analyses, among other changes.

The message has served that both Clinton and Obama not only back these changes, but are sponsoring them. These are some substantial changes to the law and changes that would require an increased compliance and training burden on employers.