The New Jersey Law Against Discrimination, N.J.S.A. §§
10:5-1 - 10:5-30 (the "NJLAD"), bars all public and private employers from
paying unequal wages on the discriminatory basis of, among other protected
characteristics, age or gender. The statute of limitation for civil
lawsuits brought under the NJLAD is two years. Montells v. Haynes,
133 N.J. 282, 285-286 (N.J. 1993). For further discussion of the
NJLAD, see here.
In Alexander v. Seton Hall University (N.J. Nov.
23, 2010), the New Jersey Supreme Court, by a 5-to-1 vote, held
that a worker suing under the NJLAD for the payment of wages on a
discriminatory basis may recover back pay for up to two years preceding
the filing of the lawsuit, even where those disparate wages resulted
from discriminatory pay decisions which the employer made more than
two years ago, "as long as the wage remains tainted by the original
By contrast, the Alexander Court held, an employee
suing under the NJLAD for unequal wages is time-barred from
recovering back pay for any pay periods more than two years before the
commencing of the lawsuit, "regardless of the length of time [the] plaintiff
has been subjected to discriminatory pay."
The New Jersey Supreme Court's Alexander decision
provides that under the NJLAD, as under (recently amended) federal law,
"Each payment of . . . discriminatory wages . . . constitutes a renewed
separable and actionable wrong."
Specifically, in 2009, the U.S. Congress enacted the
Lilly Ledbetter Fair Pay Act (the "FPA"), which amends Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). The
FPA makes clear that an unlawful act occurs "each time wages, benefits, or
other compensation is paid" resulting from an earlier discriminatory
compensation decision or other practice. 42 U.S.C. §
2000e-5(e)(3)(A). Further, the FPA permits:
recovery of back pay for up to two years preceding the
filing of the charge, where the unlawful employment practices that have
occurred during the charge filing period are similar or related to the unlawful
employment practices with regard to discrimination in compensation that
occurred outside the time for filing a charge.
42 U.S.C. § 2000e-5(e)(3)(B). For further
discussion of Title VII, see here.
In Alexander, the plaintiffs were three
female tenured professors at Seton Hall University, each more than 60 years of
age, whom the University had hired in 1976, 1981, and 1987,
respectively. The plaintiff professors had sued Seton Hall
under the NJLAD in 2007, alleging that they were paid unequal wages in
comparison to younger and/or male employees. This pay
inequity had taken place, the plaintiffs maintained, since not
later than 2004-2005, when the University compiled a written,
internal report documenting "that higher salaries were paid to newer,
younger faculty members as compared to those paid to longer-term, older faculty
members," and that Seton Hall further engaged in a pattern of disparate
compensation based on gender.
The motions court had dismissed the Alexander plaintiffs'
complaint as time-barred, holding that any disparate wages paid
to the plaintiffs, including those paid within the two years immediately preceding
the complaint's filing, were simply the result of allegedly discriminatory
salary decisions that occurred outside of the NJLAD's two-year statute of
limitations. New Jersey's Appellate Division had affirmed the trial
court's final order dismissing the plaintiffs' case.
In Alexander, the New Jersey Supreme Court
reversed and remanded for reinstatement of the plaintiff professors' timely
claims of wage discrimination. That is, the Alexander Court held
"that plaintiffs' complaint was timely in respect of the allegedly
discriminatory wages paid during the two years immediately prior to the filing
of their complaint."
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