Tuesday, May 29, 2007
Rick has already posted the outcome of today's Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074 (U.S. May 29, 2007). With all due respect to my friend, Ross Runkel, whose post on the case Rick links to, I must disagree with his conclusion that the case was rightly decided. Even though I also rightly predicted the outcome of this case, I don't believe this outcome is the right one.
Here are some thoughts that I have after now reading the entire majority and dissenting opinion through:
1. The crucial distinction between the majority opinion by Justice Alito and the dissent by Justice Ginsburg comes down to really just one question: under Morgan, is pay discrimination a discrete act like a termination or failure to promote or is it more like a cumulative series of individual events like hostile work environment sexual harassment? If the former, cases like Ricks and Evans apply, and you can't depend on stale claims to give life to connected, but not independently discriminatory, claims. If the latter, you only need one event to occur in the relevant time period, and if each discriminatorily-infected pay check is seen as constituting such an event, the claim may be still timely even though many of the pay decisions and paychecks fall outside the statutory period.
2. On this critical point, I think Justice Ginsburg gets the better of the argument. As with hostile work environment sexual harassment claims, individual pay decisions by themselves do not have the obvious discriminatory intent that discrete acts such as terminations or failures to promote do. It is not until many discriminatory wage decisions have occurred that the discriminatory conduct becomes clear to the employee. Often, it takes many years for this pattern to develop before the employee realizes that she might have a cognizable claim. This state of affairs is very similar to hostile work environment cases where one incident of harassment alone does not necessarily indicate to the employee that a sexually abusive and intimidating environment has been, or will be, created.
3. Once you make the decision that pay discrimination is more like sexual harassment than a discriminatory termination, the rest of the analysis follows. For instance, issues about notice to employers about stale claims are addressed the same way that they were addressed in Morgan by Justice Thomas - by relying on equitable theories such as laches. Also, and as Justice Ginsburg points out, cases like Evans and Ricks become inapposite because those cases dealt with past discrete acts of discrimination - firing for having a baby and denial of tenure.
4. A lot of emphasis is placed on Bazemore by both the majority and dissent. I'm not sure given how Morgan divides the employment discrimination world for statute of limitations purposes it matters whether Bazemore was about just current discriminatory pay structures as Justice Alito believes, or about all discriminatory pay decisions as Justice Ginsburg believes. Once discriminatory pay decisions are seen as most comparable to sexual harassment claims, it really doesn't make a difference.
5. There is also a lot of talk about the resurrection of the Lorrance case and its now legislatively superseded decision about discriminatory-enacted seniority systems. It seems to me that given the outcome of this case and the express invitation by Justice Ginsburg, Ledbetter may indeed suffer the same fate as Lorrance, especially if there is both a Democratic-controlled Congress and Democratic President. The Civil Rights Act of 2009 might do the same thing with Ledbetter that the Civil Rights Act of 1991 did to Lorrance.
6. Thinking back to Melissa Hart's article about the lack of deference the Supreme Court has given to the EEOC over the years, we have in Ledbetter another example where the majority disagrees with EEOC's expert interpretation of the statute (even though Chevron deference is concededly not applicable).
7. Some kudos: Justice Ginsburg both cited to Rafael Gely and Len Bierman's piece on the lack of employee discussions of salary information and to Charlie Sullivan, Mike Zimmer, and Rebecca White's employment discrimination casebook for clarification of the relationship between Title VII and the Equal Pay Act (EPA).
In sum, this decision is inconsistent with the purposes of the Title VII to both make victims of discrimination whole and to eradicate employment discriminatory practices from society at large. It leads to an absurd situation where employees either must bring pay claims prematurely when there is not enough evidence that there has been unlawful pay discrimination or wait to a later time when there exists more substantial evidence of pay discrimination and be barred from bringing such claims by the statute of limitations (as in Ledbetter). This inequitable state of affairs cannot stand and, it is my hope, it will be legislatively nullified.