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Court no help on unequal pay

By A TIMES EDITORIAL
Published June 1, 2007

Missing from the Supreme Court's sex discrimination ruling on Tuesday was a recognition of the reality of the workplace. A slim 5-to-4 majority essentially slammed the door on future Title VII pay discrimination claims by making the window of time in which to bring those claims unreasonably narrow. Now it is up to Congress to reverse the damage.

The case was brought by Lilly Ledbetter, who had been a supervisor at Goodyear Tire and Rubber's plant in Gadsden, Ala., for 19 years. By the time Ledbetter retired in 1998, she was the only woman working as an area manager and her pay discrepancy relative to male area managers, some with less seniority than she had, was between 15 and 40 percent.

The company claimed the disparity was due to her poor performance. But a jury thought otherwise. One supervisor admitted on the stand that Ledbetter had received a "Top Performance Award" in 1996. And testimony was elicited from two women, former plant managers, who described pervasive gender discrimination. One was paid less than the men she supervised.

The jury ruled for Ledbetter. But her victory was short-lived. A federal appellate court reversed on the basis that she had not filed a sex discrimination complaint within 180 days of the unlawful employment practice, as Title VII of the 1964 Civil Rights Act requires. The Supreme Court, in upholding the appellate court, said that because she didn't file a complaint within six months of any discriminatory decisions relative to her raises or pay level she was barred from bringing suit.

Justice Samuel Alito, who replaced Justice Sandra Day O'Connor on the court, wrote the majority opinion. A passionate dissent was written by Justice Ruth Bader Ginsburg, the court's lone female jurist, who spent much of her prior career as a litigator on women's rights cases.

Ginsburg drew the obvious distinction between one's ability to respond to a discriminatory firing, promotion or hiring denial, and one's predicament when a discriminatory pay discrepancy occurs. In one case, the act is instantly knowable and can be acted upon. But when unequal pay is at issue, the victim might not know that she is being slighted, since salary information is often kept secret.

To shield employers from liability for discriminatory pay practices if they can keep victims in the dark for 180 days is to reward unlawful behavior. It's a very crimped reading of a protective statute.

Also, because the impact of pay disparities is cumulative, as raises are often granted as a percentage of pay, a harm that might not seem like a federal case at first can become one when the differences are compounded through years of unequal treatment.

This is why the Equal Employment Opportunity Commission and most appellate courts treated every unequal paycheck as a new violation. The 180-day time frame began anew with every paycheck that was infected by sex discrimination.

But the high court discarded this longstanding understanding of pay equity claims under Title VII, and with that any real possibility that employees will be able to redress salary wrongs committed against them.

At the close of her dissent, Ginsburg noted that the "ball is in Congress' court," inviting lawmakers to correct the court's "parsimonious reading of Title VII." The Democratic leadership should do just that.

[Last modified May 31, 2007, 22:41:16]