Tuesday, May 29, 2007
Some Reflections on the Ledbetter Decision
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.
"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). "
Nonsense. Any idiot with a pen can fill out an EEOC charge. Ditto for a state-level wage claim. As long as there is no penalty for spurious claims, an employee has no downside risk in filing a claim that is a close call.
Posted by: Anonymous Employer | May 30, 2007 4:16:52 PM
Justice Ginsburg, and her 3 sidekicks, fail to grasp that the Judiciary can't legislate. Their votes here just show how out of touch they are. The problem is with the law congress passed, the 180 day rule is clear. That's what the Alito and the other 4 said. There's a lot of sympathy for this lady, but courts can't set precendent on sympathy -like the "liberal minority" would LIKE to do. The problem is congress' incoherent-unintended consequences laws - not with the "conservative majority" of this court. They are ruling on the facts!
Posted by: Chris | May 31, 2007 6:03:50 AM
It seems to me that your argument would functionally remove any time limit on filing claims, regardless of the plaintiff's state of knowledge of the discriminatory intent behind a pay decision. As I understand it, you would interpret the statute so that each paycheck which is lower than it might otherwise be absent some past (perhaps many years past) discriminatory decision would constitute a new act of discrimination, beginning the 180 day clock anew.
Under that interpretation, the knowledge of the plaintiff is irrelevant. A plaintiff could experience a single, discriminatory, refusal of a pay raise, with full knowledge of the discrimination, sit on that knowledge for 5 or 10 years, and then file suit, because each subsequent paycheck reflected some impact of that long-past discrimination. Under that interpretation, I don't see where there would be any statute of limitations applicable at all.
A better rule might be that the 180 day clock doesn't began to run until the plaintiff knows or should know of the discriminatory nature of the act. But it doesn't look like that's the policy choice that Congress made.
Posted by: PatHMV | May 31, 2007 6:37:07 AM
I'd appreciate any insights on the following Ledbetter-related issue: it seems to me that this decision has the potential to substantially increase the number of cases in which the court must decide if the "discovery rule" (under which the limitation peiod begins to run when the employee discovers or in the exercise of reasonable diligence could have discovered the discriminatory act) applies to Title VII. The circuit courts are divided on whether it does. According to the Friedman & Strickler casebook and Supplement (with apologies to other Casebook authors), the following decisions are examples of courts saying the discovery rule (or a related version of equitable estoppel) does apply to Title VII or the ADEA: E.g. Ramirez, 312 F.3d 178, 182 (5th Cir. 2002); Dring, 58 F.3d 1323, 1329 (8th Cir. 1995); Sturniolo, 15 F.3d 1023, 1026 (11th Cir. 1994). The following decisions say discovery rule does not apply to Title VII or ADEA: Thelen, 64 F.3d 264, 267 (7th Cir. 1995); Oshiver, 38 F.3d 1280 (3d Cir. 1994).
In my skimming of Ledbetter, I did not see this issue discussed in either opinion. An argument could be made that in a pay discrimination case, "discovery" of the discriminatory act does not occur until a woman knows she's being paid less then a man. (And a good argument can be made that this kind of "knowledge" is distinguishable from knowledge of discriminatory intent, knowledge of which, as Ross Runkel rightly pointed out in his comment on Ledbetter, has never been required to start the limitations clock running). Even if the discovery rule does apply to Title VII, a possible argument for the employer is that "should have known" means that as soon as the discriminatory paychecks start being issued, employees could ask co-workers about their pay, and so the start of the clock is nearly simultaneous with the issuance of the first paycheck. Plaintiffs, as counters, could raise the kinds of "workplace norms" issues that Gely & Bierman discuss in their article that Justice Ginsburg cited in her dissent.
I have not thought a lot about the discovery rule since I was in practice, now more than a dozen years ago, so as I said at thwe outset, I'd appreciate any comments from those of you who have thought about the discovery rule and discrimination more recently and more thoroughly than I. If you'd prefer not to post your comment to the group, my individuakl e-mail address is firstname.lastname@example.org
Posted by: Michael Hayes | May 31, 2007 8:33:02 AM
"[T]his 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."
Do you really believe in this purposivist method of interpreting statutes? Has the literature on legislative bargaining made no impact on you at all?
Posted by: joe | May 31, 2007 10:46:29 AM
To AE: I have to agree that it's absurd to say that employees with valid claims lose them because they couldn't know they had a claim until the time for filing had passed. But even if, as you suggest, there is no down-side to employees because they can easily modify their behavior to conform to the rule, it's certainly still absurd in terms of the kind of behavior we want to promote? From the employer side, there are costs to these charges. Why would we want to encourage employees to file charges every time they receive a paycheck on the chance that they may have a claim, which would then force employers to respond? And what a riduculous waste of state agency and EEOC resources, not to mention court resources if the cases go that far.
Posted by: Marcia McCormick | May 31, 2007 6:11:04 PM
To answer Professor Hayes question, the Court addressed the discovery rule in footnote 10, basically saying they have never decided that issue and Ledbetter didn't argue that it would have made the outcome different in this case, so they don't address it now.
I think you are right that this decision will put more pressure on the courts to resolve the question of whether there is a discovery rule in these cases. That would be a lot more pro-employee than the current doctrines of equitable tolling.
One thing that is also being overlooked is that Ledbetter had a timely claim under the EPA. When asked by Justice Ginsburg why that was not pursued, here's what her lawyer said: "We should have objected to the failure to reinstate the Equal Pay Act claim. We didn't; we didn't think it was that important at the time because we still had the Title VII claim."
It would really be ironic if a plaintiff's lawyer's choice not to pursue an existing statutory claim led to a major revision of Title VII.
Posted by: Michael Fox | Jun 1, 2007 1:13:43 PM
"on 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."
and where do you find these so-called "purposes"? congress could have said "this act shall make victims whole and eradicates discriminatory practices from society at large." but instead, it enacted a statute that favors employers on some points, and employees on others.
the point is, i see a number of competing purposes reflected in the text of the relevant statutes. i don't know that i'd necessarily conclude the way the majority did, but i am certain that i would not invent some overarching purpose that just begs the question. to suggest casually that the purpose of this act is to eradicate disrcrimination from society at large (!) seems like a bit of an overstatement to me.
submitted with all due respect,
Posted by: andy | Jun 4, 2007 2:50:48 AM
I'm angry and heartbroken over this latest of decisions made by judges who will never, ever, have to worry about being in the position of plaintiff in an employment discrimination claim. While this isn't the worst case dealing with time limits (Matvia v. Bald Head Island Management, Inc, though about internal policies rather than statutory limitations, remains the most passive-aggressively mean-spirited and insensitive), it's certainly reflective of our judicial times.
Posted by: David Yamada | May 30, 2007 3:05:45 PM