Equal Pay After Ledbetter v. Goodyear

^{See also: Women's Rights 101}

Note: This ruling has little or no discernible impact on the majority of wage discrimination lawsuits. The Equal Pay Act of 1963 provides relief for gender-based wage discrimination with a much longer window, and with a lower required evidentiary standard, than the Title VII statutes impacted by this ruling. I am not an attorney, and cannot give advice on the viability of specific wage discrimination lawsuits. If you believe that you are a victim of wage discrimination, it is best to contact an attorney as soon as possible to determine which options are available to you.

Much like the Gonzales v. Carhart ruling six weeks ago, this week's Supreme Court ruling in Ledbetter v. Goodyear has been perceived as an attack on women's rights. It doesn't help that both rulings were 5-4 majorities in which all of the majority justices were male Roman Catholics, or that the dissenting opinions in both cases were written by the only woman on the Court.

In the Gonzales case, the issue was simple application of the Casey standard: Does a ban on live intact D&X constitute an undue burden on a woman's right to choose to have an abortion? In Ledbetter, the question, once again, is statutory: Does the 180-day window on wage discrimination lawsuits proposed in Title VII apply (impractically) to the actual decision by employers to grant a discriminatory wage, or does another standard apply? And, if so, which standard?

Case background: Longtime Goodyear employee Lilly Ledbetter discovered, right before her retirement, that she had been subjected to gender-based wage discrimination over the previous 19 years. She sued for back wages under Title VII (the Civil Rights Act), and was awarded $360,000 by a federal judge. Goodyear, presumably hoping to avoid a precedent by which other wage-discriminated women could sue for damages, appealed all the way to the U.S. Supreme Court. The Court held in a 5-4 majority that Goodyear was not liable, citing the text of Title VII:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter ...

It would be consistent with the statute to apply this 180-day standard in cases of wage discrimination. It would also be counterproductive to the goals of the legislation, as (a) it would limit backpay to a six-month maximum, and (b) it would require employees who are being discriminated against to somehow know what other employees are earning.

In her dissent, Justice Ruth Bader Ginsburg applied the standard set in National Railroad Passenger Corporation v. Morgan (2002), in which Justice Clarence Thomas wrote a ruling that held that the 180-day maximum does not apply in hostile work environment cases because:

Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct ... The "unlawful employment practice" therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own ... Such claims are based on the cumulative affect of individual acts.

Why are wage discrimination claims treated differently from hostile work environment claims? Justice Thomas, who wrote the 5-4 Morgan ruling then flipped to join the 5-4 Ledbetter majority this week, would seem to be in a unique position to explain that. But he issues no concurrence. He did join Justice Samuel Alito's majority ruling, which explains the distinction thusly:

Morgan distinguished between "discrete" acts of discrimination and a hostile work environment. A discrete act of discrimination is an act that in itself "constitutes a separate actionable 'unlawful employment practice'" and that is temporally distinct ... As examples we identified "termination, failure to promote, denial of transfer, or refusal to hire" ... A hostile work environment, on the other hand, typically comprises a succession of harassing acts, each of which "may not be actionable on its own." In addition, a hostile work environment claim "cannot be said to occur on any particular day" ... In other words, the actionable wrong is the environment, not the individual acts that, taken together, create the environment.

The trouble is that without the individual acts, there would be no hostile work environment. The individual discrete acts that create a hostile work environment seem no different, in principle, from the individual paycheck discrepancies that create long-term wage discrimination. Justice Alito's argument makes no sense to this layperson, and I have to wonder how much sense it makes to Justice Alito.

That said, the problem may not rest with Justice Alito. The Morgan precedent is extremely difficult to apply, being as it is a judicial solution to a legislative oversight. Justice Sandra Day O'Connor wrote in her dissent at the time:

The Court’s [majority ruling] is based on a characterization of hostile environment discrimination as composing a single claim based on conduct potentially spanning several years ... I agree with this characterization. I disagree, however, with the Court’s conclusion that, because of the cumulative nature of the violation, if any conduct forming part of the violation occurs within the charge-filing period, liability can be proved and damages can be collected for the entire hostile environment. Although a hostile environment claim is, by its nature, a general atmosphere of discrimination not completely reducible to particular discriminatory acts, each day the worker is exposed to the hostile environment may still be treated as a separate "occurrence," and claims based on some of those occurrences forfeited. In other words, a hostile environment is a form of discrimination that occurs every day; some of those daily occurrences may be time barred, while others are not.

If it sounds like the justices are all over the map on this one, the problem may be that the statute itself is too broad and needs to be revised. A literal reading of the 180-day window, absent context, would indicate exactly what Justice Alito suggested in his ruling--and it would also overturn Morgan. Suits based on hostile work environment, wage discrimination, and other forms of discrimination that are not by their nature easily reducible to individual discrete actions are unaddressed, and have been long unaddressed, by the broad wording of the 180-day window.

It is in recognition of the non-discrete nature of wage discrimination that the Equal Pay Act of 1963 uses a four-year window instead of an 180-day window. Congress should revise Title VII accommodate a similar non-discrete discrimination standard with an equal or longer window, one that incorporates claims of both hostile work environment and wage discrimination. The Supreme Court has already demonstrated that it cannot interpret this statute in a meaningfully consistent way. The responsibility now falls on Congress to refine the language of Title VII so that it does a better job of addressing long-term discrimination.

See also:

• Employment Discrimination