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"North Carolina has a history of carefully following the employment-at-will doctrine," Sharpe says. "Unfortunately, I think for employees, it makes it very difficult to prove your case. You have to have some really compelling evidence in order to prevail."
That doesn't mean, of course, that frivolous cases don't bedevil employers. Attorneys who represent business owners have their own war stories -- say, for instance, the manager, fired for downloading porn on his office computer, who claimed the dismissal failed to make reasonable accommodations under the Americans With Disabilities Act for his obsessive-compulsive disorder. "My [client] had to spend good money to defend that," says Ken Carlson Jr., a Winston-Salem attorney who represents employers. Carlson, who mediates claims, also teaches law at Wake Forest University.
But it does mean that just as the burden is on the state in criminal court, in employment law the burden is on individuals who often have no legal background. They typically must take action within a short time after the alleged discrimination occurred -- 180 days. And even that 180-day requirement can be tricky.
Last May, the U.S. Supreme Court found an Alabama tire plant supervisor didn't have a valid pay discrimination claim because she hadn't filed an EEOC complaint within 180 days of the time her pay was originally set. If they're not aware until long after that the pay rate is discriminatory, well, tough luck ... even if the disparity continues for years.
The supervisor, Lilly Ledbetter, was a northeast Alabama woman who learned, after nearly two decades on the job, that she was paid less than male colleagues with less seniority. By the end of 1997, Ledbetter, the only woman working as an area manager at Goodyear's Gadsden plant, was paid $3,727 a month, according to court documents. The lowest-paid of her 15 male counterparts received $4,286.
The EEOC, which argued the case on Ledbetter's behalf, said each paycheck was a separate act of discrimination. But the 5-4 court majority ruled against Ledbetter.
"Because the later effects of past discrimination do not restart the clock for filing an EEOC charge, Ledbetter's claim is untimely," Justice Samuel Alito Jr., wrote in an opinion joined by Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. " ... Current effects alone cannot breathe life into prior, unchanged discrimination." Thomas was once head of the EEOC.
Justice Ruth Bader Ginsburg's dissent, joined by Justices Breyer, Souter and Stevens, argued that most workplace salaries are cloaked in secrecy, meaning it's unlikely employees would know within 180 days if their given pay was discriminatory.
"A worker knows immediately if she is denied promotion or transfer, if she is fired or refused employment," Ginsburg wrote. " ... When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext ... The problem of concealed pay discrimination is particularly acute where the disparity arises not because the female employee is flatly denied a raise but because male counterparts are given larger raises. Having received a pay increase, the female employee is unlikely to discern at once that she has experienced an adverse employment decision."
Ginsburg urged Congress to take action. Last summer, the House of Representatives passed the Lilly Ledbetter Fair Pay Act. The Senate has yet to vote.
Such court decisions, appearing to favor employers over workers, can have a trickle-down effect on local employment attorneys, who watch the high court and the Fourth Circuit Court of Appeals to see which way the wind blows.
"You have got to be able to satisfy yourself -- and your client -- that you have a chance at prevailing on a motion for summary judgment and then at trial," says Geraldine Sumter, a Charlotte attorney.
Says Sharpe: "Certainly there are cases that come in through the office that you know something wrong has happened in the workplace, but the bigger question is: Is that a case in which we can succeed on the merits?"
Several lawyers -- both those who represent employers and employees -- say the Fourth Circuit Court of Appeals, which handles appeals from North Carolina's federal District Courts, interprets that law more conservatively than other appeals courts. "In general, its rather conservative approach is more favorable to employers than employees," says Stephen Dellinger, a Charlotte attorney who represents businesses against employee claims.
"In the Fourth Circuit," says Sumter, "the plaintiff's burden is high and it seems to get higher every year."
Barnes, of the EEOC, says her agency must consider the Fourth Court's record when deciding to take a case to court. In a case with open legal questions, she doesn't want the court to issue an opinion that would make what the agency considers "bad law." The agency might push a claimant to resolve the case outside the courts.