ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Thursday, April 24, 2008

Senate to Employees: You're on Your Own

In Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court ruled, in a 5-4 decision, that Title VII required that a plaintiff allege that defendant acted with discriminatory intent in making adverse pay decisions during the 180 days prior to the filling of a complaint with the Equal Employment Opportunity Commission (EEOC).

Lilly Ledbetter was employed as a manager by Goodyear from 1979-1998.  Initially she was paid the same as her male counterparts, but over time her pay slipped until she was paid significantly less than the lowest-paid male manager.  A jury rejected Goodyear's claim that it had non-discriminatory reasons for the pay disparity and awarded Ledbetter back pay.  The Eleventh Circuit reversed, finding that the allegedly discriminatory conduct had occurred prior to the 180-day window dating from the time of Ledbetter's complaint to the EEOC.  Justice Alito, writing for the majority, agreed, based on the statutory language and precedent.

Ledbetter and the dissent made policy arguments in favor of a more lenient rule.  Because employees are not entitled to know what their peers are being paid and because pay discrimination only occurs in slow imcrements that have a cumulative effect, Ledbetter argued that the 180 window should be expanded.  Justice Alito would not address those arguments, saying the court's role was simply to apply the statute as written.

The decision was thus, in effect, a remand back to Congress to clarify its legislative intent.  It attempted to do so through the Lilly Ledbetter Fair Pay Act of 2007, which effectively overrules Ledbetter and which passed the House by a vote of 225-199.  But the Act will not come to a vote in the Senate because it failed to win the 60 votes necessary to overcome Senate procedural rules.  Candidates Clinton and Obama returned to Washington to speak in favor of the Act and to cast their votes.  Candidate McCain remained on the campaign trail, but according to the New York Times, he said "he would have opposed the bill since it could contribute to frivolous lawsuits harmful to businesses."  Senator Hatch further explained the motives of the all but six Republican Senators who opposed the Act:  “The only ones who will see an increase in pay are some of the trial lawyers who bring the cases.”

So, employees who want to protect themselves against pay discrimination will have to negotiate harder during those oh-so-even-handed discussions they have with their employers when they take their positions.  Ms. Ledbetter, for example, after nearly 20 years in a supervisory position with Goodyear, was making nearly $45,000 a year.  With such princely resources at her disposal, imagine her bargaining power!

[Jeremy Telman]

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