The Texas Supreme Court ruled last week in Prairie View A&M University v. Chatha, that the federal Lilly Ledbetter Fair Pay Act (Ledbetter Act), amending Title VII to provide that a discriminatory pay decision occurs each time a paycheck is received and not just when an initial salary decision is made, does not apply to the Texas Commission on Human Rights Act (TCHRA).  When a claimant files a discriminatory pay claim under federal law, the 180-day limitations period to file a complaint with the EEOC begins each time a claimant receives a paycheck containing a discriminatory amount. The Court ruled that because the Texas Legislature has not similarly amended the TCHRA, the 180 day limitations period begins on the first day that the claimant is informed of the compensation decision. Thus, a discriminatory act occurs at the time of the initial discriminatory act, not when the consequences of the act start having a discriminatory effect.  Therefore, the claimant in the Chatha case lost because she did not file a complaint within 180 days of the first day she became aware of the discrimination.  The Court of Appeals decided the case by ruling that the Ledbetter Act did modify the TCHRA and grafted the less restrictive rule on the TCHRA.  However, the Texas Supreme Court overruled the Court of Appeals (and two federal courts who had predicted the Texas Supreme Court would rule that the Ledbetter Act was engrafted onto the TCHRA) and, in essence, punted the issue to the Republican controlled Texas Legislature to see what they will do with the issue (Note: the Ledbetter Act has been opposed by the Republicans at the federal level, if that helps with your opinion as to what the Texas Legislature is likely to do about the issue).

In an interesting footnote (number 13) in the Chatha opinion, the Court states:  “We note that a situation could arise where an employer has adopted a facially discriminatory payment system
that would potentially constitute an act of intentional discrimination anytime the employer issued a check to a disfavored employee. See Ledbetter, 550 U.S. at 634; Cooper-Day, 121 S.W.3d at 84. However, neither party alleges that situation applies here
.”  The Cooper-Day v RME Petroleum Co. case cited by the Supreme Court states at page 84: “Pay discrimination  does not continue to occur until the last allegedly discriminatory paycheck is received unless the employer has implemented a facially invalid payment system and continues to pay under that system or the unequal pay is part of, or a repetition of, a past employment violation.”  This footnote may indicate a strategy to use in these type cases,  if applicable.

The Chata opinion means that in a situation involving a pay discrimination that is beyond the 180 day limit will now need to be brought under Title VII and not under the TCHRA.  However, this could be problematic in situations involving the State of Texas or its entities because of the Eleventh Amendment to the U.S. Constitution problem of suing a state in federal court.  This should not be a problem in claims against political subdivisions which are not generally protected by the Eleventh Amendment and can be sued in federal court.