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Ledbetter v .Goodyear Tire & Rubber:
Although I have no background at all in employment law, I was very interested in yesterday's 5-4 decision in Ledbetter v. Gooyear Tire and Rubber.

  The issue in the case was whether Ledbetter had filed her employment discrimination case before the EEOC in time: Federal law requires that a case must be filed within 180 days "after the alleged unlawful employment practice occurred." 42 U. S. C. §2000e–2(a)(1). Ledbetter worked for Goodyear for about ten years, and after she retired in 1998 she sued Goodyear for giving her low raises on account of her gender throughout the term of her employment. Goodyear responded that under federal law she could only sue for any discrimination within the last 180 days, and that no discrimination occurred within the 180-day window.

  Five Justices agreed with Goodyear: Alito, Roberts, Scalia, Kennedy, and Thomas. According to the majority, the case was simple and the result was clear based on text and a string of precedents. To figure out how the 180 day clock runs, you just identify the alleged discriminatory act and then count the 180 days. The discriminatory act was the discriminatory raise, so Ledbetter couldn't sue over discriminatory raises from years earlier. The majority seems sort of perplexed that you could look at the case differently; after summarizing an earlier precedent that pointed to the same result, Justice Alito wrote, "It would be difficult to speak to the point more directly."

  Justice Ginsburg dissented, joined by Stevens, Souter, and Breyer. Although Ginsburg did rely on one prior precedent, much of her opinion was based on policy concerns. According to Ginsburg, differences in pay increases may be hard to identify at first, and employees may not want to sue over them when they're unclear. Requiring employees to sue within 180 days of the discriminatory raise would gut the statute, because few cases would be brought. As a result, "the unlawful employment practice" should be read as the payment of the salary, rather than the pay raise itself; because pay raises are usually cumulative, that would let an employee sue for a discriminatory pay raise long outside the 180 day window.

  It's a very interesting case, I think. I don't know enough to know which side is right, as I haven't read the prior precedents or studied the statute. I do find myself inclined towards Alito's approach because of its traditional focus on text and precedent, but without delving into the cases I can't be certain.
Tulkinghorn:
Why didn't the discovery rule apply here? Footnote 10 dodges the issue as not properly plead, but it is hard to evaluate that without going through the briefs. Sounds like a cheap dodge to me.
5.30.2007 3:09pm
JosephSlater (mail):
Orin:

You've probably at least glanced at the comments to the thread here that David Bernstein started, but I would once again recommend Paul Secunda's post on this case on Workplace Prof Blog.
5.30.2007 3:17pm
Colin (mail):
According to the petitioner's CA11 brief, at fn.13, the "Court has not yet recognized any discovery rule under Title VII, much less one calibrated to the discovery of how much other workers are paid" (emphasis original). It doesn't appear that the petitioners were asking the circuit court to create such a discovery rule, either, so the question wasn't properly before the Supreme Court.
5.30.2007 3:21pm
Anthony A (mail):
If Ginsburg has policy concerns, she should inform Congress that the wording of the law is producing bad policy outcomes, and let them fix it.
5.30.2007 3:26pm
XON:
From back in the dark recesses of history (or my internship, whichever. . .), I remember the Dept. of Defense losing several of these types of cases precisely because of the apparently-not-prevailing-anymore doctrine of a continuing violation. I almost feel clueless and penniless again reading Justice Ginsburg.

This is rather a departure; and consistent with the predictions about the rightward drift of the court.
5.30.2007 3:38pm
Zathras (mail):
The majority's cites to precedents are not impressive as impressive as they seem, considering they cited as authority a pre-1991 case which was overruled by the 1991 amendments to the Act.
5.30.2007 3:47pm
Archit (www):
I imagine Justice Ginsburg didn't focus on the text because it isn't particularly useful. It is illegal to "discriminate against any individual with respect to his compensation." The charge has to be filed within 180 days after "after the alleged unlawful employment practice occurred." Receiving a paycheck with depressed wages fits comfortably within the text of the statute.
5.30.2007 3:58pm
Steve:
If Ginsburg has policy concerns, she should inform Congress that the wording of the law is producing bad policy outcomes, and let them fix it.

And if Ginsburg's side had prevailed 5-4, you could make the exact same comment to the losers! Amazing how that works. In the real world, legislatures don't engage in an endless process of wordsmithing and clarifying statutes already on the books in response to every dispute that comes down the pike.

The majority's argument is based far more on precedent than actual text. It's hardly self-evident, for example, that paying one person more than another solely because of gender isn't a discriminatory act, and that you can only complain about the original salary-setting decision. In fact, absent some sort of discovery rule, the result seems close to absurd.
5.30.2007 4:01pm
Adeez (mail):
"The charge has to be filed within 180 days after 'after the alleged unlawful employment practice occurred.' Receiving a paycheck with depressed wages fits comfortably within the text of the statute."

Archit: A primary purpose of SOL's is fairness; primarily to the defendant. However, what's missing here is the issue of NOTICE. One does not know that his paycheck contains wages that are "depressed" until he knows what his coworkers are earning. Thus, running the statute from this date is grossly unfair to the plaintiff.
5.30.2007 4:08pm
your mom (mail) (www):
Anthony, Justice G did in fact suggest congress remedy it. Much harder to do when there'd be people blocking it. And while focussing on the text does make literal interpretations easier, how about the spirit as well as the letter?

It looks like this could be applied to other folks as well, so minorities would have to also dig dirt and rock the boat to find out what others are being paid. It is exceedingly difficult to find out how much co-workers are being paid, and in fact usually causes consternation.

I suppose lawyers wouldn't be adverse to putting in discovery requests to their boss, to make sure they're being paid equally, but a line manager in a manufacturing plant? Does anyone have a practical suggestion for how someone could effectively get this information without jeopardizing office politics? Is there a reason to make this difficult?

http://whedonesque.com/comments/13271
5.30.2007 4:13pm
Anonymous Skeptic (mail):
It depends on what you mean by the "discovery rule". Here, Ledbetter did not allege that she did not know about the discriminatory conduct until she filed the claim---rather, she claimed that she did not realize the full effect of that conduct until years later. Perhaps a future claimant could allege that the employer's failure to raise Ledbetter's salary was itself discriminatory (at least given the substantial pay difference between Ledbetter and her colleagues), but she failed to appeal CA11's decision that the employer had not discriminated against Ledbetter in denying her a raise during the statute-of-limitations period. Had she done so, this case might have turned out very differently.
5.30.2007 4:14pm
David Schraub (mail) (www):
I also recommend Prof. Secunda's post, but I'm curious Professor Kerr: Clearly, we can disagree about whether the decision was legally sound. But I've yet to hear anybody argue that Ginsburg is wrong about how reading the statute this way (whether its legally proper or not) does, in fact, gut it. And Ginsburg did specifically ask that Congress should remedy the problem. So can we at least unite across spectrum to demand said legislative reform?

I don't mean to be accusatory. It's just that liberals hear countless lectures about how if a given policy is bad, let the legislatures, not the courts, fix it. All well and good (though such statements usually grossly understate the degree of indeterminancy and room for interpretation in a given law), but the corrolary to that is that y'all have to work to get the legislature to actually go out and fix it. Otherwise, it's letting court rulings act as cover for bad lawmaking.

What I've been waiting to hear is a conservative reaction to this case that says, in effect, "If this ruling is right, then this law has a serious problem, and needs to be changed."
5.30.2007 5:31pm
Anderson (mail) (www):
What I've been waiting to hear is a conservative reaction to this case that says, in effect, "If this ruling is right, then this law has a serious problem, and needs to be changed."

Well said. Anyone?
5.30.2007 5:40pm
acroso:
"This is looking more and more like the Bush administration's domestic version of Iraq: a big risky gamble, based on wishful thinking and nonexistent administrative competence that will end in disaster?"

-May16th Kausfiles from slate magazine.

Dead on analogy for this debacle. The only way Bush can cement his legacy as the dumbest president in history is with Domestic Iraq. He wants to mess up our country like he has messed up our foreign policy.

We have to secure the borders over there so we don't have to secure em over here. Where can I sign up to secure Iraq's borders??

http://www.slate.com/id/2166678/
5.30.2007 5:47pm
Steve2:
I asked this on Bernstein's thread, where it was kinda off-topic and got ignored. Anyway, is there any reason for the dichotomy of "only the initial decision to pay is a discrete discriminatory act and subsequent payments were all non-discriminatory effects" versus "each paycheck is a unique, discrete, discriminatory act?" I'd think "the decision to pay coupled with the actual payments constitute a single ongoing discriminatory action" would make the most sense as to framing it.
5.30.2007 5:49pm
JLAWYER (mail):
"What I've been waiting to hear is a conservative reaction to this case that says, in effect, "If this ruling is right, then this law has a serious problem, and needs to be changed." "

. . . except that the legislative remedy already exists: The Equal Pay Act.

True, the EPA doesn't cover minorities, etc., but the real remedy would be to extend the EPA to all protected categories, rather than codifying and extending the already nebulous continuing violations doctrine in Title VII.
5.30.2007 6:01pm
ATRGeek:
Professor Kerr,

To make something explicit, this is a crucial premise in your summary of the majority's argument:

"The discriminatory act was the discriminatory raise"

That proposition cannot be extracted directly from the text of Title VII. Rather, the majority relies on certain precedents, along in fact with a lot of policy considerations (which the precedential cases in question also relied on). For example, see the discussion on pages 11-12 involving problems of proof after the passage of time, including footnote 4, and also the discussion on pages 20-21 which appears to be a reductio argument of some sort.

So, it is really a battle of policy arguments, along with a battle of not quite dispositive precedents which themselves were based on policy arguments. This sort of policy focused discussion is not too surprising, because that tends to happen in close statute of limitations cases (if the application of the SOL is not clear).

From a purely theoretical view, probably the most interesting thing to me is what to do with Lorance and the Civil Rights Act of 1991. It seems to me that if the majority wants to cite the logic of Lorance outside of its direct context, it makes some sense to note that Lorance was overruled by subsequent legislation, which perhaps also has implications outside of its direct context.
5.30.2007 6:02pm
theobromophile (www):
I'm conservative and think the law ought to be changed... by Congress, not the Supreme Court. They are best able to craft a specific exception to the applicable SOL, either by extending the time period for pay discrimination cases (such as five years, not six months) or running the SOL clock from when the employee knew of or should have known about the discrimination.

Ledbetter's theory, taken to its logical conclusion, would result in a 180-day period beginning at the termination of employment (as that is when a person would stop receiving paychecks) - which effectively guts the SOL.

The 180-day period makes a lot of sense for many types of discriminatory acts: being propositioned by one's boss, being denied a raise or a promotion, being denied benefits (for example, reimbursement for classes taken), or being fired or demoted on account of pregnancy. Salary does not fit well into the "discrete act" requirement, which again indicates that a separate rule for disparate pay should be implemented by Congress.

I'm not sure that the majority's reading of the SOL guts the statute, as Title VII encompasses pretty much every employment decision that can be made, pay being but one of those decisions. No denying that this is either a massive oversight by Congress or a huge policy error (after all, the relevant section was last amended in 1972, right?), but either error is best fixed by Congress.
5.30.2007 6:27pm
ATRGeek:
theobromophile,

It is not quite true the Ledbetter's position would have the SOL begin running at termination. Presumably it would also begin running if the employer took corrective pay action (eg, a big raise to put the employee's salary into the position it would have been in if not for the discrimination), since that would end the sequence of discriminatory paychecks.

Incidentally, that would also probably give the employee pretty effective notice of the injury, which is maybe not such a bad result (that the SOL begin running with this notice).
5.30.2007 6:40pm
theobromophile (www):
ATR,

True - an employer that takes corrective action would begin running the SOL clock, although such action would be rare. I have to ask: would the fact that the company took corrective action, but did not compensate the employee for lost wages during the discriminatory time period, also constitute an ongoing wrong? If the worker was shorted $20 over five years, and the company, realising this, increases her salary by $20, would their continued failure to pay her the $100 constitute an ongoing violation?

If a promotion were denied 20 years ago, which continues to affect the employee's pay in 2007 (due to a series of small, lost opportunities), the SOL would not begin to run until termination or reinstatement of back pay - which means that every employment decision is fair game.

Many employees put part of their paychecks into a 401k. Arguably (and correct me if I am wrong), the existence of the 401k, which would be smaller (and thus accrue less interest) could constitute an ongoing violation.

I do think that 180 days is far too short a time; however, the proper solution is not to make companies liable for things that happened decades ago.
5.30.2007 7:01pm
ATRGeek:
theobromophile,

I don't think failing to provide back pay would be an ongoing violation according to Ledbetter's theory (although she could sue for back pay within the SOL). I'm not sure about the 401K, but I suspect it would also not be an ongoing violation. Again, to start the SOL running I think it would be enough to start paying her what she would have been making without the alleged discrimination, because her argument was that the paychecks were the discriminatory acts.
5.30.2007 7:14pm
KeithK (mail):
I'll agree that 180 days is a rather short time limit for making claims of pay discrimination, which can be subtle. On the other hand, allowing the clock to reset everytime a paycheck is received completely guts the very idea of a filing limit. Congress could pick a middle ground and make an exception to the filing limit for this type of action. I won't venture what a reasonable time limit would be except to say that it ought to be a lot less than 20 years.
5.30.2007 7:59pm
OrinKerr:
KeithK,

That sounds reasonable to me, too.
5.30.2007 8:28pm
Steve:
What I've been waiting to hear is a conservative reaction to this case that says, in effect, "If this ruling is right, then this law has a serious problem, and needs to be changed."

My conservative colleague at work, who supports the surge in Iraq and thinks the Wall Street Journal editorial page is a font of wisdom, said this decision seemed absurd and that 180 days from the initial pay decision is obviously way too short a time period. So there's one.

As a policy matter, I'm sympathetic to the view that employers need a statute of repose so they won't have to justify a pay decision that occurred 20 years ago. So maybe both possible outcomes would have led to bad results.
5.30.2007 8:31pm
Judge H. Lee Sarokin (mail):
I envision this scenario as a result of the opinion:

Plaintiff's Counsel: Your Honor, my client immediately upon learning of the discrimination in her pay filed the necessary claims and this suit.

Defense Counsel: Your Honor, based upon the Ledbetter case we have an absolute defense to this action. We are not some Johnny-Come Lately to discrimination. We have been doing it for years, and we start the day a woman, an African American or a Hispanic is hired. Our credo is that none of them should make the same as a white male for the same work or position. Even though the disparity in their pay continues to this very day, since plaintiff and the others have worked for us well beyond the 180 day limit the complaint must be dismissed.

The Court: In that case, since you obviously have discriminated for a long time, the motion to dismiss is granted.
5.30.2007 8:45pm
Lee R (mail) (www):
Congress could pick a middle ground and make an exception to the filing limit for this type of action. I won't venture what a reasonable time limit would be except to say that it ought to be a lot less than 20 years.

Why just pick a specific length of time? The real problem is "when did the employee have enough info to be deemed to have 'discovered' the violation?" You can keep the 180 day period in the statute, but start that period running from a reasonable date of discovery.

That seems to be the underlying issue in the case, although (as so often happens) the court really doesn't deal with it.
5.30.2007 9:10pm
PTB:
The fascination for me in this decision (and perhaps a blinkered view) is that the majority conspicuously refused to apply a "discovery exception" when the case clearly presented an opportunity to do so (and which I doubt the Court say, ten years ago, would have passed up). But what is a "discovery exception"? It is a judge-made rule designed to fix a perceived legislative error or failure to act. Previous decisions on this or similar issues have made it clear, it would seem, that in the view of the Court, this error, readily addressable by the legislative branch(es), has persisted too long. Is the Congress indifferent or hostile to fixing the error? Perhaps, but that isn't clear either. What is clear to me (personal opinion alert) is that legislatures generally have become entirely habituated to allowing the courts, with devices like the "discovery exception", to patch or cure what they are too busy, indifferent or lazy to fix themselves. An acccretion over time of such events slowly blurs the outlines of the separation of powers, erodes inter-branch deference, and rewards a lack of energy in the legislative branch, not (personal opinion alert) a good thing, and the quality of our governance institutions diminish as a result. So, while the majority never mentions it, I would like to think their refusal to utilize here a fig leaf (such as a discovery exception) to obscure reality, together with the majority's (I suspect actually intended?) inducement to Justice Ginsburg sharply to call attention to the simplicity of curing this sad lacuna and call Congress on the carpet to do so, is a very effective double-barrelled strategy by the Court (or at least the majority) to start reversing the momentum of this sorry decline in legislative energy and effectiveness. Anyway, I sure hope so.
5.30.2007 9:13pm
wavemaker (www):
My understanding is that many/most employment discrimination statutes carry relatively short SOL's, in part because they were a compromise ("sop") to the employer community and in part because they were rationalized by the notion that a victim being subjected to unfairness in a work environment would have every motivation to act quickly.


That this plaintiff waited until after she had retired seems rather calculating, and more than a modest gamble.

Nonetheless, running a statute from the date of offense, when it is not recognizable to one exercising ordinary diligence, is unfair. I wonder if the legislative history of the federal statute reveals anything abotu debate over the "knew or should have known" standard, which would seem to be more appropriate in cases like this.

I concur with PTB's observation regarding the laziness of legislative bodies, although I'd be impressed if SCOTUS was as conniving as s/he surmises.
5.30.2007 9:35pm
David M. Nieporent (www):
The majority's cites to precedents are not impressive as impressive as they seem, considering they cited as authority a pre-1991 case which was overruled by the 1991 amendments to the Act.
Zathras, new laws do not "overrule" court cases in the way that new court decisions overrule old ones. New laws change the law; they do not hold a prior decision to be incorrect. Hence, Lorance remains a correct interpretation of the original version of the law. Since the original version of the law applies here -- the 1991 amendments only applied to the category of acts to which Lorance related, which are not the same ones at issue here -- Lorance, when combined with the other cases which all interpret Title VII the way the majority does, still provides guidance.

Ginsburg kind of hand waves away the other cases, focusing only on Lorance because she can make this specious argument that it was overruled.
5.30.2007 10:34pm
neurodoc:
According to today's Washington Post, the "jury had originally awarded Ledbetter more than $3.5 million because it found 'more likely than not' that sex discrimination during her 19-year career led to her being paid substantially less than her male counterparts." How could they have arrived at an figure of "more than $3.5 million," is it because the law allows for something like triple damages, or were they just sticking it to the employer? Even if one took the difference between each paycheck the plaintiff received (in the end ~$45K/year) in the course of 19 years (up to 1998) and that received by her highest paid co-worker (~$63K/year), with "indexing" to bring it all to present value and the effects on retirement benefits factored in, how could the economic damages amount to >$3.5K? Was Gooyear (sic) being hit with "punitives," whether denominated as such or not? (Did the WaPo perhaps fold in attorneys fees as part of the award figure?)
5.30.2007 10:53pm
neurodoc:
I would like to think their refusal to utilize here a fig leaf (such as a discovery exception) to obscure reality, together with the majority's (I suspect actually intended?) inducement to Justice Ginsburg sharply to call attention to the simplicity of curing this sad lacuna and call Congress on the carpet to do so, is a very effective double-barrelled strategy by the Court (or at least the majority) to start reversing the momentum of this sorry decline in legislative energy and effectiveness.

PTB, yours is an interesting take on this decision, both the majority and the minority opinions, but what evidence would you cite of a "decline in legislative energy and effectiveness"? Congress was more energetic and effective in the past, and has been less and less energetic and effective over the course of time? How long has this putative trend been going on?
5.30.2007 11:07pm
byomtov (mail):
On the other hand, allowing the clock to reset everytime a paycheck is received completely guts the very idea of a filing limit.

But each paycheck is a discriminatory act. If it is wrong to pay Ledbetter less than a coworker because of her sex then it is wrong every time it happens. That it is a consequence of some decision made many years ago doesn't change that.
5.30.2007 11:09pm
Guest12345:
But each paycheck is a discriminatory act.


I don't think that is the case. Each paycheck is based on a predetermined pay rate. At each instance, under regular operations you would not have an opportunity to receive a pay increase. It was the act of setting the pay rate that was discriminatory, not the act of paying that rate.
5.30.2007 11:41pm
wb (mail):
I have yet to a discussion of how the "discriminatory pay decision" was actually made. That question goes to the heart of whether the issuance of a paycheck is in itself a discriminatory act. I have no knowledge of Goodyear compensation policies for salaried employees. I can only infer that from some of the arguments of the plaintiff. Namely that the pay decisions were based on multiple discriminatory performance evaluations.

In many companies, employees in job categories like Ledbetter's receive pay increases that are directly and often mechanically determined by the evaluation. I find it difficult in such a case to accept that the pay raise algorithm is in itself discriminatory. Hence it would seem that the majority's reading of Bazemore is correct.

To be sure the effects of pay actions accumulates slowly and my be difficult for the employee to understand until many years have passed. However, unfair or discriminatory evaluations are very easy to spot as individual occurrences.
When you get an unfair rating, you get an unfair pay raise - again identifiable as an individual occurrence.

The insidious part of the employment relationship is that many employees are afraid to rebut or grieve the evaluation. But absent a history of grievances or rebuttals in the file by the employee, it is difficult for many not to see the plaintiff's claim as an action just before retirement to remedy an discriminatory situation that she was aware of for a long time. Getting back to Title VII, it seems that the legislative intent in the 180 day window was to prevent exactly that kind of litigation.
5.31.2007 12:07am
ATRGeek:
wb,

Poor evaluations may be easy to spot, but it is likely less easy to spot that you are getting poor evaluations because of your gender. Indeed, you may need to know what sort of evaluations people of the other gender are getting in similar circumstances, and that will not necessarily be readily apparent to you.
5.31.2007 12:20am
nunzio:
The best argument in Ginsburg's dissent is when she points out that the 180-day charge filing period with the EEOC is not really a limitations period as shown by the fact that Title VII allows backpay damages for up to two years before the charge is filed. The majority doesn't even address this point.

Here, the plaintiff should have received the difference in pay for the past 2 years worth of paychecks that was the result of sex discrimination. The other 18 years of discriminatory paychecks would be out of bounds.
5.31.2007 12:36am
wb (mail):
ATRGeek,

In my experience with thousands of evaluations, employees are pretty savvy, especially after a few years in the workplace. It is far too common that employees accept abusive or unfair employment conditions - just check out any teaching hospital. More legislative protection is needed.


While I sympathize with the plaintiff and agree that employees need more protections, I find it hard to disagree with the reasoning presented by the majority.
5.31.2007 12:40am
libertarian soldier (mail):
Neurodoc:
There was a thread on this over at Althouse. It seems she could have also made a claim under a different statute, but that would have precluded her from seeking punitive damages, so she made the claim under this one.
5.31.2007 1:04am
David M. Nieporent (www):
Poor evaluations may be easy to spot, but it is likely less easy to spot that you are getting poor evaluations because of your gender. Indeed, you may need to know what sort of evaluations people of the other gender are getting in similar circumstances, and that will not necessarily be readily apparent to you.
ATRGeek: that's true, but -- putting aside that it's a policy argument for a discovery rule -- it doesn't really distinguish this type of case from any other disparate treatment discrimination case. For instance, if you're not hired because you're a woman, it's easy to spot that you're not hired, but it's likely less easy to spot that you're not hired because of your sex. Indeed, you may need to know the makeup of the applicant pool, and that won't necessarily be readily apparent to you.


But each paycheck is a discriminatory act. If it is wrong to pay Ledbetter less than a coworker because of her sex then it is wrong every time it happens. That it is a consequence of some decision made many years ago doesn't change that.
The majority addresses and rejects that. The definition of discriminatory act requires discriminatory intent. There was no discriminatory intent in issuing the paycheck -- a purely mechanical process. The discriminatory intent was when the raise wasn't given.
5.31.2007 1:33am
ReaderY:
I've often wondered whether Justice Stephens has moved to the left or has stayed in place and watched the rest of the Court move to the right. It would appear that on this issue, Justice Stephens once accepted a view closer to the current majority, so this issue may represent an example of leftward movement.
5.31.2007 4:46am
ReaderY:
I've often wondered whether Justice Stephens has moved to the left or has stayed in place and watched the rest of the Court move to the right. It would appear that on this issue, Justice Stephens once accepted a view closer to the current majority, so this issue may represent an example of leftward movement.
5.31.2007 4:46am
ATRGeek:
David M. Nieporent,

I agree these issues of discovery are not completely unique to this case, but I think it is worth remembering that not knowing other people's evaluations is just part of the problem in a pay case. If, for example, those evaluations were used to make promotions, then presumably it would be easier for the employee to detect any systematic gender discrimination by simply observing who got the promotions. But when the evaluations are used for pay decisions, then it is not as easy for the employee to detect gender discrimination because the employee also does not know how others are getting paid.

Keep in mind, by the way, that I was just responding to wb's original claim that while discriminatory pay raises may be difficult to spot, discriminatory evaluations should be easier to spot. I think that could be true in some circumstances, but in circumstances where the evaluations are primarily determining pay and both the evaluations and the pay effects are being kept confidential, then I don't think the employee is necessarily in a better position to detect the discrimination at the time of the evaluation.

By the way, on behalf of the majority you claim: "The definition of discriminatory act requires discriminatory intent." I would first note that this is not quite enough to make the majority's argument. Rather, they need to claim that a discriminatory act requires the discriminatory intent be ongoing through the time in which the act occurs, which is how they get to the conclusion that a discriminatory act does not include within its scope anything that happens after the original discriminatory intent is no longer present.

Second, I would point out that the text of the Act contains no such definition of a discriminatory act. The majority argues that you can derive such a definition from the cases they cite, but the dissent obviously disagrees on what those cases stand for and has other cases which it believes support a different definition of a discriminatory act (one which would not require ongoing intent coincident with ongoing acts).

So, I agree that the majority addresses these issues. But whether they are right is a different matter.
5.31.2007 8:41am
ATRGeek:
By the way, this issue is actually an old one in the philosophy of action.

The classic example (slightly updated) is something like this: you are playing baseball in your street without due regard for your neighbors, and you negligently hit the ball into the air. While it is flying through the air, you are knocked unconcious by a collision with another player. The ball then crashes through a neighbor's window.

Question: is the ball going through the window part of your negligent act?

By the majority's theory, I guess it wouldn't be, because you no longer possess the requisite state of mind at that time (since you are unconcious). But that is not necessarily the obvious answer, and indeed many would argue things like that your act at least includes any possible (not necessarily probable) causal events that you could have foreseen at the time of your negligence. Others would then respond that there is distinction between your acts and their consequences, and while you might be responsible for both, the consequences are not part of the acts. Still others would point out that the only thing you directly do is form the will to do something, and everything else--even the movements of your body--would be consequences and not actions given this distinction, which is not how people normally think about actions. And so on.

Anyway, it is a very tricky area, and I just wanted to note these issues are not unique to this case (and that the majority's crucial premise is not as obvious as they seem to think).
5.31.2007 9:13am
anonVCfan:
5.31.2007 10:01am
byomtov (mail):
But each paycheck is a discriminatory act.


I don't think that is the case. Each paycheck is based on a predetermined pay rate. At each instance, under regular operations you would not have an opportunity to receive a pay increase. It was the act of setting the pay rate that was discriminatory, not the act of paying that rate.

I'd say both. It is hardly beyond the power of the company to change someone's pay at an unusual time. Isn't that what they should do if they realize they are disriminating?

The majority addresses and rejects that. The definition of discriminatory act requires discriminatory intent. There was no discriminatory intent in issuing the paycheck -- a purely mechanical process. The discriminatory intent was when the raise wasn't given.

So suppose Goodyear hires Ledbetter at a non-discriminatory rate of pay and sets up the payroll program to automatically cut her pay six months later. By your reasoning isn't the pay cut "a purely mechanical process." Wasn't the discriminatory act that required intent six months in the past, and hence not subject to legal action?

It seems to me that the argument being made is that discrimination only occurs when a plan to discriminate is made, and not when it is carried out. That doesn't make sense to me.
5.31.2007 11:05am
PGofHSM (mail) (www):
Could someone familiar with Bazemore's pay system explain how it possibly could be distinguished from what happened to Ledbetter? From what I can tell, both were instances of nondiscriminatory pay systems that resulted in disparate pay, due to the base wages having been determined on a racist/sexist basis. Alito's assertion that applying the pay system to Bazemore's black plaintiffs, without correcting for prior discrimination, was illegal, but applying a similar performance based pay system to Ledbetter's female plaintiff, without correcting for prior discrimination, was entirely proper, struck me as incoherent and inexplicable.
5.31.2007 12:04pm
nunzio:
PGofHSM

My understanding is that Bazemore was "facially" discriminatory. In other words, the company had an explicit policy of paying blacks less for the same work at the same seniority level.

Here, Goodyear had a "facially neutral" policy, but just paid a certain female less than similarly-situated males.

In fairness to the Plaintiff here, if she had known the Court would make this rather fine distinction she probably would have tried to prove an unwritten policy/practice that women got paid less.
5.31.2007 1:30pm
JLAWYER (mail):
Best analysis of this case so far:

http://employerslawyer.blogspot.com/2007/05/
payday-blues-at-supreme-court.html#links
5.31.2007 3:38pm
dick thompson (mail):
I am wondering how many posters actually are involved in evaluations and pay raises. When you are evaluated you are called into your supervisor's office and the two of you look over an evaluation by the supervisor of your work. You can either protest that or accept it. If you sign and accept it, then you are essentially saying that you agree with the evaluation or that you do not disagree with the evaluation. That evaluation is the basis of promotions and pay raises and bonuses. That is the way businesses work. If Ledbetter did not protest or "grieve" her evaluations for 20 years but all of a sudden after she retires decides that she was discriminated against for 20 years, Goodyear has 20 years of her agreeing with the evaluation by signing the form to back them.

The whole concept of this to me is ludicrous. She is evaluated, usually, annually. If she disagreed then she had 180 days (or 6 months or half a year) to protest it and get heard. If she did not do that, why should the company after 20 years all of a sudden agree that they had discriminated against her for all those years and why should anyone outside of the company decide the same thing. This sounds like an ambulance chasing lawyer deciding to throw spaghetti against the wall to see if it would stick and maybe he could make some pocket change from it.

If you want to extend the time limit to one year, maybe, or at most 2 years, That should have given her far more than enough time to protest this. Twenty years is just out of the question. The ramifications are staggering. How long are the records required to be held by the companies. How can we at the distance of years and different company policies and different supervisors and possibly even different corporations supposed to track down the state of mind of the evaluator of that long ago. You probably do not even have anyone to check it out with as they have probably left the company or died by this time. Without knowing the state of mind of those people then in the decisions they made, trying to analyze them at this distance is impossible and if you cannot prove the discrimination at that point in time, then you really have no case IMNSHO.
6.1.2007 12:13am
William E. Shea (mail):
PGofHSM, the Bazemore defendant had overtly separate pay scales for black and white employees prior to 1964. In 1965, in response to passage of the Civil Rights Act of 1964, the employer unified the pay scales and partially eliminated the previously-existing disparities in pay. This was especially interesting because governmental employers weren't covered by Title VII until 1972.

I'd summarize Bazemore/Ledbetter as saying this:

The Court will impute current discriminatory intent to the employer, and will consider each check a separate employment practice starting a new SOL clock, if today's paycheck reflects facial discrimination in pay-setting in the past. Doesn't matter if the "facial" aspect of the discrimination has been eliminated by a later unification of pay scales. But the Court won't impute intent, and won't consider the check a separate employment practice, if today's check doesn't reflect that prior facial discrimination.

You've got to draw a line somewhere, but Title VII, by its terms, doesn't talk about drawing the line in this way. I do find the decision well-supported (perhaps "well-supportable" would be more accurate) by Bazemore, though. Goodyear's attorney, in the merits brief, did an excellent job of showing that Bazemore is reconcilable with precedent only if it's read as not throwing out the SOL for paycheck cases. The Solicitor General's brief (in commendably plain language) made essentially the same argument.

If full disclosure is encouraged here: I'm the Shea referenced in the Ledbetter opinion (Shea v. Rice) so I do have a dog in the fight.
6.1.2007 11:57am
Art Marquardt (mail):
Everyone knows if they are paid what they are worth. A good mid level manager or technical employee gets a competing job offer or two every month if they have any contacts outside of their employer, and even if they don't get unsolicited offers, there are always the help wanted adds to inform one of the approximate wage rates for a job. One hundred and eighty days seems more than fair once you acknowledge the this.

The only real question here is what her value to someone else was. That determines what she should be paid. The rest is all a huge smoke screen. I don't know the specifics of this case, but I know that an offer from another employer in your hand works to get much larger raises than your good work in your current job. It is possible that the highest paid co-worker had played this card once or twice in his career. There can be other reasons for a disparity in pay than unlawful discrimination.
6.2.2007 1:39am
elChato (mail):
As the court notes, had Ledbetter not dropped her Equal Pay Act claim, she would not have had this problem- in Justice Ginsburg's words "she would not have encountered a time bar" because a claim charging denial of equal pay accrues anew with each paycheck, under the EPA.

I'm not an expert in this field but it appears the effect of Ledbetter can be avoided by pressing Equal Pay Act claims in such cases. As Justice Ginsburg notes this will not help Title VII plaintiffs outside of gender discrimination cases (she says it will impede suits by "racial and other minorities"- even non-"minorities" can sue for relief under Title VII).

The Court has not addressed whether a "discovery rule" applies in Title VII cases, Ledbetter did not ask the Court to decide that question (see fn. 10).
6.3.2007 4:55pm