Supreme Injustice On Worker Equality

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The Baltimore Sun

Supreme Injustice On Worker Equality

Clarence Page

WASHINGTON -- Did you ever have the feeling that you might be getting the shaft at your workplace? That other people might be making more money than you for doing the same work? If anything unites liberals and conservatives, it is the fundamental view that everyone deserves equal pay for equal work. But if you think you have a federal discrimination complaint, you'd better move fast. The U.S. Supreme Court ruled 5-4 last week that you have only 180 days - not after you discover the offense, but after the employer committed it - to file a complaint.

If you are one of those who think it doesn't really matter which man or woman wins a presidential election, let this court decision disabuse you of that view.

If justice matters, justices matter - and presidents appoint justices.

The case centers on Lilly Ledbetter, who was a supervisor at a Goodyear Tire & Rubber Co. plant in Gadsden, Ala., where she was the only woman among 17 managers at a particular level.

She was hired at the same pay as the guys but received smaller raises for 20 years until she realized, in 1998, that her salary was 40 percent less than the men in her position. She filed a complaint with the federal Equal Employment Opportunity Commission, which took her side.

A federal jury in Birmingham, Ala., awarded her more than $3 million in back pay and damages, which the trial judge reduced to $360,000.

But the 11th U.S. Circuit Court of Appeals in Atlanta erased the verdict. It ruled that Ms. Ledbetter failed to file her complaint within 180 days of the original discriminatory actions, as required by Title VII of the 1964 Civil Rights Act.

The EEOC argued quite reasonably that each paycheck that reflects the initial pay gap is itself a discriminatory act. That means the clock on the 180-day filing period should be reset as of each paycheck. Earlier decisions by the U.S. Supreme Court and some appeals courts had supported this "paycheck accrual" rule.

But the Supreme Court's decision, written by Justice Samuel A. Alito Jr., rejected that view. "Current effects alone cannot breathe life into prior, uncharged discrimination," Justice Alito wrote in an opinion joined by the rest of the court's new conservative wing: Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, a former head of the EEOC.

Justice Ruth Bader Ginsburg, the court's only woman, illustrated that difference in her dissent. The majority ignored well-known realities of the workplace, including the "common characteristics of pay discrimination," she wrote. After all, people don't often talk about how much they make or how big a pay raise they earn.

And even if a woman discovers she has received a smaller raise, she might not think it's worth "making waves" over. This may be particularly true of a woman or a minority who wants to get along in a white-male-dominated workplace. But that little pay difference can make a big difference over the course of years.

Justice Ginsburg also pointed out that equal-pay cases are different from most other forms of job discrimination, such as hiring and promotion cases, where the bias is likely to be apparent right away. She argued that equal-pay cases should be treated more like hostile-workplace cases, where discrimination is usually apparent only after repeated offenses.

But Justice Alito dismissed that as a "policy argument" with "no support in the statute."

That's the difference Supreme Court justices can make. The Ledbetter case offered a classic example of pay discrimination but also a classic legal loophole that lets the employer off the hook. The worker was shortchanged for 20 years, but the employer, who enjoys the fruits of that discrimination, goes unpunished because the policy began before the 180-day filing period.

An earlier conservative court in the 1980s rolled back a number of anti-discrimination reforms, only to have them restored by congressional action in 1991. Justice Ginsburg called on Congress to do it again. Democratic Sen. Hillary Rodham Clinton of New York was quick to step up with a proposal to do that.

I'm confident that the Supreme Court did not intend to hand Senator Clinton, who is running for president, a dandy campaign issue. Yet that's how our system of checks and balances works. Laws should not be legislated from the bench. If people don't like what the court has decided, they are free to urge Congress to change the laws. They can also elect presidents who will choose justices willing to do justice to the realities of the workplace.

Clarence Page is a columnist for the Chicago Tribune. His column appears Tuesdays and Fridays in The Sun. His e-mail is

Copyright © 2007, The Baltimore Sun

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