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Wed 30 May, 2007 08:53 am
May 30, 2007
Justices' Ruling Limits Suits on Pay Disparity
By LINDA GREENHOUSE
WASHINGTON ?- The Supreme Court on Tuesday made it harder for many workers to sue their employers for discrimination in pay, insisting in a 5-to-4 decision on a tight time frame to file such cases. The dissenters said the ruling ignored workplace realities.
The decision came in a case involving a supervisor at a Goodyear Tire plant in Gadsden, Ala., the only woman among 16 men at the same management level, who was paid less than any of her colleagues, including those with less seniority. She learned that fact late in a career of nearly 20 years ?- too late, according to the Supreme Court's majority.
The court held on Tuesday that employees may not bring suit under the principal federal anti-discrimination law unless they have filed a formal complaint with a federal agency within 180 days after their pay was set. The timeline applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.
From 2001 to 2006, workers brought nearly 40,000 pay discrimination cases. Many such cases are likely to be barred by the court's interpretation of the requirement in Title VII of the Civil Rights Act of 1964 that employees make their charge within 180 days "after the alleged unlawful employment practice occurred."
Workplace experts said the ruling would have broad ramifications and would narrow the legal options of many employees.
In an opinion by Justice Samuel A. Alito Jr., the majority rejected the view of the federal agency, the Equal Employment Opportunity Commission, that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as "paycheck accrual."
"Current effects alone cannot breathe life into prior, uncharged discrimination," Justice Alito said in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice Thomas once headed the employment commission, the chief enforcer of workers' rights under the statute at issue in this case, usually referred to simply as Title VII.
Under its longstanding interpretation of the statute, the commission actively supported the plaintiff, Lilly M. Ledbetter, in the lower courts. But after the Supreme Court agreed to hear the case last June, the Bush administration disavowed the agency's position and filed a brief on the side of the employer.
In a vigorous dissenting opinion that she read from the bench, Justice Ruth Bader Ginsburg said the majority opinion "overlooks common characteristics of pay discrimination." She said that given the secrecy in most workplaces about salaries, many employees would have no idea within 180 days that they had received a lower raise than others.
An initial disparity, even if known to the employee, might be small, Justice Ginsburg said, leading an employee, particularly a woman or a member of a minority group "trying to succeed in a nontraditional environment" to avoid "making waves." Justice Ginsburg noted that even a small differential "will expand exponentially over an employee's working life if raises are set as a percentage of prior pay."
Justices John Paul Stevens, David H. Souter and Stephen G. Breyer joined the dissent.
Ms. Ledbetter's salary was initially the same as that of her male colleagues. But over time, as she received smaller raises, a substantial disparity grew. By the time she brought suit in 1998, her salary fell short by as much as 40 percent; she was making $3,727 a month, while the lowest-paid man was making $4,286.
A jury in Federal District Court in Birmingham, Ala., awarded her more than $3 million in back pay and compensatory and punitive damages, which the trial judge reduced to $360,000. But the United States Court of Appeals for the 11th Circuit, in Atlanta, erased the verdict entirely, ruling that because Ms. Ledbetter could not show that she was the victim of intentional discrimination during the 180 days before she filed her complaint, she had not suffered an "unlawful employment practice" to which Title VII applied.
Several other federal appeals courts had accepted the employment commission's more relaxed view of the 180-day requirement. The justices accepted Ms. Ledbetter's appeal, Ledbetter v. Goodyear Tire and Rubber Company, No. 05-1074, to resolve the conflict.
Title VII's prohibition of workplace discrimination applies not just to pay but also to specific actions like refusal to hire or promote, denial of a desired transfer and dismissal. Justice Ginsburg argued in her dissenting opinion that while these "singular discrete acts" are readily apparent to an employee who can then make a timely complaint, pay discrimination often presents a more ambiguous picture. She said the court should treat a pay claim as it treated a claim for a "hostile work environment" in a 2002 decision, permitting a charge to be filed "based on the cumulative effect of individual acts."
In response, Justice Alito dismissed this as a "policy argument" with "no support in the statute."
As with an abortion ruling last month, this decision showed the impact of Justice Alito's presence on the court. Justice Sandra Day O'Connor, whom he succeeded, would almost certainly have voted the other way, bringing the opposite outcome.
The impact of the decision on women may be somewhat limited by the availability of another federal law against sex discrimination in the workplace, the Equal Pay Act, which does not contain the 180-day requirement. Ms. Ledbetter initially included an Equal Pay Act complaint, but did not pursue it. That law has additional procedural hurdles and a low damage cap that excludes punitive damages. It does not cover discrimination on the basis of race or Title VII's other protected categories.
In her opinion, Justice Ginsburg invited Congress to overturn the decision, as it did 15 years ago with a series of Supreme Court rulings on civil rights. "Once again, the ball is in Congress's court," she said. Within hours, Senator Hillary Rodham Clinton of New York, who is seeking the Democratic nomination, announced her intention to submit such a bill.
Oral Dissents Give Ginsburg a New Voice on Court
May 31, 2007
Supreme Court Memo
Oral Dissents Give Ginsburg a New Voice on Court
By LINDA GREENHOUSE
WASHINGTON ?- Whatever else may be said about the Supreme Court's current term, which ends in about a month, it will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.
Both in the abortion case the court decided last month and the discrimination ruling it issued on Tuesday, Justice Ginsburg read forceful dissents from the bench. In each case, she spoke not only for herself but also for three other dissenting colleagues, Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.
But the words were clearly her own, and they were both passionate and pointed. In the abortion case, in which the court upheld the federal Partial-Birth Abortion Ban Act seven years after having struck down a similar state law, she noted that the court was now "differently composed than it was when we last considered a restrictive abortion regulation." In the latest case, she summoned Congress to overturn what she called the majority's "parsimonious reading" of the federal law against discrimination in the workplace.
To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year. Justice Antonin Scalia has used the technique to powerful effect, as has Justice Stevens, in a decidedly more low-key manner.
The oral dissent has not been, until now, Justice Ginsburg's style. She has gone years without delivering one, and never before in her 15 years on the court has she delivered two in one term. In her past dissents, both oral and written, she has been reluctant to breach the court's collegial norms. "What she is saying is that this is not law, it's politics," Pamela S. Karlan, a Stanford law professor, said of Justice Ginsburg's comment linking the outcome in the abortion case to the fact of the court's changed membership. "She is accusing the other side of making political claims, not legal claims."
The justice's acquaintances have watched with great interest what some depict as a late-career transformation. "Her style has always been very ameliorative, very conscious of etiquette," said Cynthia Fuchs Epstein, the sociologist and a longtime friend. "She has always been regarded as sort of a white-glove person, and she's achieved a lot that way. Now she is seeing that basic issues she's fought so hard for are in jeopardy, and she is less bound by what have been the conventions of the court."
Some might say her dissents are an expression of sour grapes over being in the minority more often than not. But there may be strategic judgment, as well as frustration, behind Justice Ginsburg's new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are not open to persuasion on the issues that matter most to her.
Justice Alito, of course, took the place of Justice Sandra Day O'Connor, with whom Justice Ginsburg formed a deep emotional bond, although they differed on a variety of issues. And Chief Justice Roberts succeeded Chief Justice William H. Rehnquist, with whom Justice Ginsburg often disagreed but maintained a relationship that was at times surprisingly productive.
For example, in 1996, over Justice Scalia's vigorous dissent, the chief justice gave Justice Ginsburg his vote in a decision holding that the Virginia Military Institute's men-only admissions policy was unconstitutional. In 2003, they made common cause in a case that strengthened the Family and Medical Leave Act. When Justice Ginsburg criticized a Rehnquist opinion, she did so gently; today's adversary could be tomorrow's ally.
If there has been any such meeting of the minds between Justice Ginsburg and her new colleagues, it has not been evident. She may have concluded that her side's interests are better served by appealing not to the court's majority but to the public. "She's sounding an alarm and wants people to take notice," said Debra L. Ness, president of the National Partnership for Women and Families, an advocacy group that focuses on the workplace.
Goodwin Liu, a law professor at the University of California, Berkeley, was one of Justice Ginsburg's law clerks when the court decided the 2000 election case, the bitterly divided Bush v. Gore decision, from which she dissented. Even during that freighted period, Professor Liu said, "I was struck by how much of an institutional citizen she was, how attuned to the wishes of her colleagues and to not giving offense."
Professor Liu said that when he read the dissent on Tuesday, it occurred to him that in recounting the workplace travails of the plaintiff, Lilly M. Ledbetter, Justice Ginsburg was also telling a version of her own story. "Here she is, the one woman of a nine-member body, describing the get-along imperative and the desire not to make waves felt by the one woman among 16 men," Professor Liu said. "It's as if after 15 years on the court, she's finally voicing some complaints of her own."
Another of the justice's friends, Prof. Judith Resnik of Yale Law School, noted that throughout her legal career, Justice Ginsburg has been deeply concerned about questions of access to the courts and the remedial powers of federal judges, themes she has explored in both majority and dissenting opinions. "Those of us reading not just the grand-slam cases but the quieter ones have heard her voice," Professor Resnik said. She added, "Now that the stakes are going up, more people will be listening."
Injustice 5, Justice 4
May 31, 2007
New York Times Editorial
Injustice 5, Justice 4
The Supreme Court struck a blow for discrimination this week by stripping a key civil rights law of much of its potency. The majority opinion, by Justice Samuel Alito, forced an unreasonable reading on the law, and tossed aside longstanding precedents to rule in favor of an Alabama employer that had underpaid a female employee for years. The ruling is the latest indication that a court that once proudly stood up for the disadvantaged is increasingly protective of the powerful.
Lilly Ledbetter, a supervisor at the Goodyear Tire & Rubber Company in Gadsden, Ala., sued her employer for paying her less than its male supervisors. At first, her salary was in line with the men's, but she got smaller raises, which created a significant pay gap. Late in her career, Ms. Ledbetter filed a complaint with the Equal Employment Opportunity Commission. A jury found that Goodyear violated her rights under Title VII of the Civil Rights Act of 1964.
Goodyear argued that she filed her complaint too late and, by a 5-4 margin, the Supreme Court agreed. Title VII requires employees to file within 180 days of "the alleged unlawful employment practice." The court calculated the deadline from the day Ms. Ledbetter received her last discriminatory raise. Bizarrely, the majority insisted it did not matter that Goodyear was still paying her far less than her male counterparts when she filed her complaint.
In dissent, Justice Ruth Bader Ginsburg noted that there were strong precedents supporting Ms. Ledbetter. The Supreme Court ruled in a similar race discrimination case that each paycheck calculated on the basis of past discrimination is unlawful under Title VII. The courts of appeals have overwhelmingly agreed. So did the E.E.O.C., the agency charged with enforcing Title VII.
In addition to interpreting the statute unreasonably and ignoring the relevant precedents, the majority blinded itself to the realities of the workplace. Employees generally do not know enough about what their co-workers earn, or how pay decisions are made, to file a complaint precisely when discrimination occurs. At Goodyear, as at many companies, salaries were confidential. The court's new rules will make it extraordinarily difficult for victims of pay discrimination to sue under Title VII. That is not how Congress intended the law to be enforced, merely how five justices would like it to be.
It is disturbing that Anthony Kennedy, the court's swing justice, cast the deciding vote in favor of gutting a key part of the Civil Rights Act. Fortunately, Congress can amend the law to undo this damaging decision. It should do so without delay.
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