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Lilly Ledbetter may have lost her case in the Supreme Court, but she’s gained some allies in the House of Representatives. Rep. George Miller (D-CA) commented that the decision in Ledbetter v. Goodyear Tire and Rubber Case, “…according to the Supreme Court, if a worker does not file within 180 days of the employer’s decision to set her pay unlawfully, she has to live with that discrimination paycheck after paycheck. This ruling will force Congress to clarify the law’s intention that the ongoing effects of discriminatory decisions are just as unacceptable as the decisions themselves.” [Gavel] [ELcom]
Beyond the obvious sex discrimination aspects of the case, lies another example of the decimation of the rights of supervisory employees under Republican governance. The bottom line may well be that the Bush Administration and its allies on the Supreme Court, are no more interested in the welfare of plant supervisors than they were in addressing issues faced when nurses and other caregivers were reclassified as supervisors. Evidently, only the needs of those in the corner offices and board rooms are worthy of the interest, and the protection, of the Executive and the Supreme Court. Ms. Ledbetter was, after all, a supervisor at the Gadsden, Alabama, Goodyear Tire and Rubber plant. If her rights as a supervisor can be successfully challenged by the corporation, one can only imagine the challenges that might be faced by line employees.
It does, indeed, take an extremely narrow reading of Title VII of the 1964 Civil Rights Act to decide that Ledbetter should have been able to determine when Goodyear executives decided to discriminate against her. The Act itself is very clear, “It shall be unlawful employment practice for an employer to …to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin...” [EEOC]
The timing in Ledbetter’s case illustrates the loophole Goodyear was able to exploit. She was hired at the Gadsden, Alabama plant in 1979, and for a few weeks her pay was the same as her male cohorts. Goodyear’s policy prevented employees from discussing supervisory wages with one another, so it wasn’t until 1998 that she discovered she was being paid less than all her male cohorts, even recently employed men with less job experience. She filed a discrimination charge with the EEOC less than a month after finding out what had been going on. Goodyear countered that her low pay was the result of poor performance as evaluated under the provisions of a 1982 company policy. However, Goodyear’s real “trump card” was that the “timely filing rule” (six month limit) meant to foster speedy resolutions and to prevent suits based on historic actions, decreed that Ledbetter could only present evidence of discrimination taking place after September 26, 1997. [Docket]
The core of Ledbetter v. Goodyear is “Whether and under what circumstances a plaintiff may being an action under Title VII of the Civil Rights Act of 1964 alleging pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.” [Scotus] Justice Alito’s decision for the majority carefully addressed that issue, and that issue alone.
Justice Alito’s majority opinion held that “because a pay setting decision is a discrete act that occurs at a particular point in time…” Ledbetter’s claim must be rejected. The decision is rendered almost incomprehensible by the attempts to explain why precedents that clearly point to a reversal of the 11th Circuit’s decision should not apply. The logic is tortured and the prose nearly obscurant.
Justices Ginsburg, Stevens, Souter, and Breyer dissented. Ginsburg’s dissent states, “Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reason for those differentials.”
Ginsburg’s dissent also stretches the time frame by arguing, “...each payment of a wage of salary infected by sex-based discrimination constitutes an unlawful employment practice; prior decisions, outside the 180 day charge-filing period, are not themselves actionable, but they are relevant in determining the lawfulness of the conduct within the period.” [scotus]
In short, the majority took the narrowest possible scope for their decision in Ledbetter, and then applied the narrowest possible interpretation of precedents (Morgan, 536 US 117; Bazemore 478 US 395; and Ricks, 449 US 250) to reach their conclusions. Ginsburg’s dissent incorporates a broader scope, and more general interpretation of the precedents most commonly cited by both the majority and minority on the Court.
The Ginsburg Dissent also offered some guidelines to the Congress. “Congress never intended to immunize forever discriminatory pay differentials unchallenged with 180 days of their adoption. This assessment gains weight when one comprehends that even a minor pay disparity will expand exponentially over an employee’s working life if raises are set as a percentage of prior pay.” Her final statement was more direction than guidance: “As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.” [scotus] (emphasis added)
Representative Miller has taken Justice Ginsburg’s advice, and introduced the “Lilly Ledbetter Fair Pay Act” H.R. 2831, on June 22nd. Miller’s bill takes Alito’s decision head on: “The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.”
The bill clarifies the timing on “unlawful employment practices,” saying: “For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” Thus knocking the slats out from under Justice Alito’s carefully parsed prose.
The House Education and Labor Committee took testimony on the bill including that of Mrs. Ledbetter on June 12th. The Chamber of Commerce, predictably, argued against the measure saying that Ms. Ledbetter was (1) asking for special treatment; (2) “frustrating Congress’ design for attempting to resolve such matters…without litigation; (3) that the rule was adopted to start the clock when discriminatory decisions were made, not when the consequences are felt; (4) therefore, causing “instability and confusion in the law.”
However, the talking point (without reference to the actual provisions of the bill) will no doubt follow the Chamber’s tocsin that the Ledbetter Decision was good because it “recognized the profound unfairness inherent in a limitations rule that would permit an individual to sleep on his or her rights for years, or even decades, before raising a claim of discrimination.” [Mollen CoC pdf] Clearly, Mr. Mollen, speaking for the Chamber, apparently didn’t read Justice Ginsburg’s dissent. However, that may not matter to Chamber of Commerce officials who will reduce their argument to a sound bite (“sleep on their rights … for decades”) in attempting to rationalize the effects of discriminatory practices, such as those of Goodyear.
The Fair Pay Act of 2007 is scheduled for a mark up session at 10:30 a.m. on Wednesday, June 27, 2007.
Desert Beacon 