Looking to Congress for Justice on Wage Bias

Key congressional Democrats plan to take up the challenge by Supreme Court Justice Ruth Bader Ginsburg to overturn what she called the court’s “parsimonious reading” of civil rights laws banning wage discrimination.

In a 5-4 opinion written by the newest justice, Samuel Alito, the Supreme Court said that Lilly Ledbetter, a supervisor at a Goodyear tire factory in Alabama, waited too long to claim wage discrimination under Title VII of the Civil Rights Act of 1964. She would have had to file suit within 180 days of Goodyear’s first discriminatory paycheck. Ledbetter began work at Goodyear’s Gadsen’s plant in 1979, the only female among 16 area supervisors, with pay similar to those of her male peers. Years later, she found out it had slipped dramatically. Her pay was as much as 40 percent below that of the men when she left in 1998. She made $48,000 a year, $6,500 less than the lowest paid male supervisor.

She filed a discrimination lawsuit, got support from the Equal Employment Opportunity Commission and won a $3.8 million award from a jury. A judge reduced that to $360,000. And the Eleventh Circuit Court of Appeals threw out the case, saying Ledbetter had missed the 180-day deadlines for filing suit after discrimination occurs.

In ruling against Ledbetter, the Supreme Court threw out decades of established legal principles—and appeared to ignore a 1991 law of Congress as well. If left to stand, the Alito opinion could cast doubt on thousands of pending wage discrimination lawsuits.

In an unusual move, Ginsburg read aloud the minority opinion. “In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.” She noted that “pay disparities often occur, as they did in Ledbetter’s case, in small increments; only over time is there strong cause to suspect that discrimination is at work.”

Ending her dissent, she said, “once again, the ball is in Congress’ court.”

Business groups generally applauded the Alito decision, with the U.S. Chamber of Commerce saying it “eliminates a potential windfall against employers by employees trying to dredge up stale pay claims.”

Civil rights groups and Democratic congressional leaders attacked the ruling as a dangerous setback to civil rights—and set about drafting a proposal to reiterate congressional intent about Title VII’s remedy for systemic wage inequities.

Lead sponsors include the two chairs of the committees with jurisdiction over employment discrimination, Senator Edward M. Kennedy of Massachusetts and Representative George Miller of California, as well as Senators Tom Harkin of Iowa, Hillary Rodham Clinton of New York and Barbara Mikulski of Maryland and House members Rosa DeLauro of Connecticut and Eleanor Holmes Norton of the District of Columbia.

Stanford law professor Richard Thompson Ford, writing in Slate.com, said the Ledbetter decision “basically grandfathers in longtime pay discrimination” and would tell employers to “hide your misdeed for six months and you’re not only off the hook, you get to keep cheating.” The challenge now goes to Congress. “Where the Supreme Court interprets a statue incorrectly, Congress can correct it,” says Marcia Greenberger, co-director of the National Women’s Law Center.

Three decades ago, the late Justice William Rehnquist wrote the opinion upholding the right of employers to deny medical benefits to women who were pregnant. If men could get pregnant, Rehnquist said, they, too, would be denied medical benefits—so there’s no workplace discrimination under Title VII of the Civil Rights Act of 1964. Congress responded by enacting the Pregnancy Discrimination Act, requiring employers who offered medical benefits to give unpaid leave to pregnant women.

Congress also enacted the Civil Rights Restoration Act of 1987 and the Civil Rights Act of 1991, Greenberger said, in both cases “clarifying” congressional intent on Title IX and other civil rights measures.

Justice Ginsburg in Dissent

In Ledbetter v. Goodyear, Ruth Bader Ginsburg wrote a dissent joined by Justices John Paul Stevens, David Souter, and Stephen Breyer. As she did in the recent late-term abortion ruling, Ginsburg read the dissent aloud from the bench May 29, a very unusual step for her and one that New York Times reporter Linda Greenhouse described as “an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong.” Justice Ginsburg said from the bench: “Title VII was meant to govern real-world employment practices, and that world is what the court today ignores.”

Below are excerpts of her dissent (with citations and footnotes removed):

[Lilly] Ledbetter launched charges of discrimination before the Equal Employment Opportunity Commission (EEOC) in March 1998. . . . In accord with [a] jury’s liability determination, the District Court entered judgment for Ledbetter for backpay and damages, plus counsel fees and costs.

The Court of Appeals for the Eleventh Circuit reversed. . . . Any annual pay decision not contested immediately (within 180 days), the [Supreme] Court affirms, becomes grandfathered, a fait accompli beyond the province of Title VII ever to repair.

The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. . . . Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.

Pay disparities are thus significantly different from adverse actions “such as termination, failure to promote, . . . or refusal to hire,” all involving fully communicated discrete acts, “easy to identify” as discriminatory. It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter’s situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex. . . .

Tellingly, as the record in this case bears out, Goodyear kept salaries confidential; employees had only limited access to information regarding their colleagues’ earnings.

The problem of concealed pay discrimination is particularly acute where the disparity arises not because the female employee is flatly denied a raise but because male counterparts are given larger raises. Having received a pay increase, the female employee is unlikely to discern at once that she has experienced an adverse employment decision. . . . Even if an employee suspects that the reason for a comparatively low raise is not performance but sex (or another protected ground), the amount involved may seem too small, or the employer’s intent too ambiguous, to make the issue immediately actionable—or winnable. . . .

The Court asserts that treating pay discrimination as a discrete act, limited to each particular pay-setting decision, is necessary to “protec[t] employers from the burden of defending claims arising from employment decisions that are long past.” But the discrimination of which Ledbetter complained is not long past. As she alleged, and as the jury found, Goodyear continued to treat Ledbetter differently because of sex each pay period, with mounting harm. . . .

To show how far the Court has strayed from interpretation of Title VII with fidelity to the Act’s core purpose, I return to the evidence Ledbetter presented at trial. . . .

Specifically, Ledbetter’s evidence demonstrated that her current pay was discriminatorily low due to a long series of decisions reflecting Goodyear’s pervasive discrimination against women managers in general and Ledbetter in particular. Ledbetter’s former supervisor, for example, admitted to the jury that Ledbetter’s pay, during a particular one-year period, fell below Goodyear’s minimum threshold for her position. Although Good-year claimed the pay disparity was due to poor performance, the supervisor acknowledged that Ledbetter received a “Top Performance Award” in 1996. The jury also heard testimony that another supervisor—who evaluated Ledbetter in 1997 and whose evaluation led to her most recent raise denial—was openly biased against women. And two women who had previously worked as managers at the plant told the jury they had been subject to pervasive discrimination and were paid less than their male counterparts. One was paid less than the men she supervised. Ledbetter herself testified about the discriminatory animus conveyed to her by plant officials. Toward the end of her career, for instance, the plant manager told Ledbetter that the “plant did not need women, that [women] didn’t help it, [and] caused problems.” After weighing all the evidence, the jury found for Ledbetter, concluding that the pay disparity was due to intentional discrimination.

Yet, under the Court’s decision, the discrimination Ledbetter proved is not redressable under Title VII. Each and every pay decision she did not immediately challenge wiped the slate clean. Consideration may not be given to the cumulative effect of a series of decisions that, together, set her pay well below that of every male area manager. Knowingly carrying past pay discrimination forward must be treated as lawful conduct. . . . The Court’s approbation of these consequences is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure.

This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.