[Orin Kerr, January 27, 2009 at 7:20pm] Trackbacks
Congress Passes Legislation Overturning Holding of Ledbetter v. Goodyear Tire & Rubber:
The Associated Press reports that Congress has finally passed legislation overturning Ledbetter v. Goodyear Tire & Rubber:
Congress sent the White House Tuesday what is expected to be the first legislation that President Barack Obama signs into law, a bill that makes it easier for women and others to sue for pay discrimination, even if the discrimination has prevailed for years, even decades.After reading that news I took a quick nap, and I had a dream that it was 20 years from now and I was at a law school conference called The Right-Wing Roberts Court: How Bad Was It — Pretty Cruddy, or Really Super Awful Terrible? In my dream, I overheard the following conversation between a critic of the Roberts Court and a first-year law student who was unfamiliar with its history in the early days of the 21st Century:
White House press secretary Robert Gibbs said Obama would sign the bill, a top priority for labor and women's rights groups, Thursday during a public ceremony in the East Room.
The bill is a response to a 2007 Supreme Court ruling that said a person must file a claim of discrimination within 180 days of a company's initial decision to pay a worker less than it pays another worker doing the same job. Under the bill, every new discriminatory paycheck would extend the statute of limitations for another 180 days.
The measure, said House Speaker Nancy Pelosi after receiving a congratulatory phone call from Obama, is "a bold step to move away from that parsimonious interpretation" of the Supreme Court.
Critic: The Supreme Court of the early 21st Century was perhaps the most conservative, most activist Supreme Court ever.
Student: Oh, really? What did they do?
Critic: Well, they had one outrageous case in particular, Ledbetter v. Goodyear Tire & Rubber, that became a real cause celebre for civil rights activists. That was really a huge case — the worst of the worst.
Student: Did they strike down an important law as unconstitutional?
Critic: Well, no, it was a statutory case resolving a 2-1 circuit split.
Student: What was it about?
Critic: It's kind of technical, actually. An employment discrimination law required claimants to file their claims 180 days "after the alleged unlawful employment practice occurred." The employee, Ledbetter, was discriminated against in her pay many years earlier. But she didn't find out that she had been underpaid until years later. So the question was whether she could still sue despite the 180 day rule. The employer argued she was too late, because the alleged unlawful employment practice was discriminating against her years before. Ledbetter argued that her pay in the present still reflected the impact of the discrimination she faced years ago, so that her current pay was also an "unlawful employment practice" and she could still sue.
Student: Sounds like a great question of statutory interpretation! And a pretty tough one — I can see why there was a circuit split.
Critic: Well, it doesn't seem that hard to me. Think about it from a policy perspective: It guts the law if an employee can't sue just because the employer hid the discrimination for more than 180 days. But we had a rightwing activist Supreme Court back then, and the Court ruled 5-4 that the "unlawful employment practice" was the discrimination in the past. Because the actual discrimination had occurred years earlier, Ledbetter was too late.
Student: Well, I definitely don't like that as a matter of policy, at least. I hope the Supreme Court will overturn that case someday: It's terrible that we have been suffering under that rule all these years!
Critic: Oh, Ledbetter didn't last very long. Congress overturned it about 19 months later: It adopted Ledbetter's view in the case, so Ledbetter could then sue. That's been the law for the last 20 years, so the Ledbetter case didn't actually stop anyone from suing in the end. But there was a window of 19 months in which we weren't sure if the legislation would pass. It was terrible, and it was all caused by the archconservative Roberts Court resolving that circuit split the wrong way. That's why I think the Roberts Court was beyond just Pretty Cruddy, and was genuinely Really Super Awful Terrible.