Legal Affairs June 2007

'Injustice 5, Justice 4'

The media's portrayal of a May 29 Supreme Court ruling on sex-based pay discrimination was way off the mark.

This headline, borrowed from a New York Times editorial, pretty well sums up the news media's portrayal of a May 29 Supreme Court ruling that an Alabama woman suing her former employer for sex-based pay discrimination had not filed her claim within the congressionally prescribed time limit.

In The Times, that headline could only refer to one grouping: The usual four conservatives plus sometime-conservative Justice Anthony Kennedy voting down the usual four liberals. With Bush-appointed Justice Samuel Alito writing the majority opinion, and Clinton-appointed Justice Ruth Bader Ginsburg reading her dissent from the bench and urging Congress to "correct" the Court, this rather technical case, Ledbetter v. Goodyear Tire & Rubber, instantly became a magnet for media moaning of the barbarians-at-the-gate genre.

"The Supreme Court struck a blow for discrimination this week," The Times began. The Court "has read the law so rigidly that it has misread life," chimed in the Los Angeles Times. The Washington Post's front-page news report devoted (by my count) four paragraphs to the nuts and bolts of the decision, four and a half paragraphs to the majority's analysis and supportive quotes, and 17 and a half paragraphs to Ginsburg, her dissent, and other critics. "A harsh and rigid reading of the law ... striking for its lack of empathy," Ellis Cose complained in Newsweek. He seconded the American Civil Liberties Union's charge that this was an "astonishing decision" by an "activist court."

Are Alito and company really such heartless, pro-discrimination brutes? Hardly. Ginsburg's dissent was well put. But Alito had the better of the argument as to congressional language and the Court's own precedents, in my view. And as a policy matter, it's far from clear that justice would be better served by the Ginsburg approach of opening the door wide to employees who, like the plaintiff in this case, wait for many years to claim long-ago—and thus difficult to disprove—pay discrimination.

The majority's reading of the relevant provisions of Title VII of the 1964 Civil Rights Act, which bans employment discrimination based on (among other things) sex, rested on three points that Ginsburg did not dispute.

  • Congress provided an unusually short statute of limitations for Title VII lawsuits such as plaintiff Lilly Ledbetter's—180 days "after the alleged employment practice occurred"—in a political compromise designed to promote conciliation over litigation.
  • Title VII required Ledbetter to prove that the "employment practice" involved intentional discrimination in pay based on sex.
  • Her employer, Goodyear Tire & Rubber, did not intentionally discriminate against her during the 180 days before she filed her complaint.
  • Case closed, one might think: This lawsuit was time-barred by Congress.

    But lawyers for Ledbetter, who was paid significantly less than any of her male colleagues, and Justice Ginsburg had a theory to get around the 1964 act's seemingly plain language:

    Because supervisors intentionally discriminated against Ledbetter by putting her on a lower-paid track than her male colleagues years before she filed her claim, the argument goes, then—even if nobody ever intentionally discriminated against her again—each new paycheck amounted to a new act of discrimination, resetting the 180-day clock.

    That's a stretch. True, most federal appeals courts have reached similar conclusions, but never, as Alito stressed, has the Supreme Court allowed such a Title VII suit to proceed without evidence that at least some intentional discrimination occurred within the 180-day period.

    Four of the Court's prior decisions—in 1977, 1980, 1989, and 2002—held that Title VII's statute of limitations cut off any claims based on discriminatory acts that occurred more than 180 days before the claim was filed, even if those acts continued to adversely affect the plaintiff's pay or status into the 180-day period.

    Ginsburg stressed another decision, Bazemore v. Friday, from 1986. But while somewhat ambiguous, Bazemore involved allegations of intentional, race-based pay discrimination during, as well as before, the 180-day period.

    The Ledbetter case exemplifies the policy judgment underlying such congressionally mandated time limits. The main acts of discrimination alleged by Ledbetter dated to the early 1980s and mid-1990s, when she says a supervisor retaliated against her for shunning his sexual advances by giving her smaller raises than similarly situated men. Ledbetter knew no later than 1992 that she was earning less than most male colleagues. But she waited to sue until July 1998, when she was ready to retire. By the time of trial, the alleged harasser had died, leaving Goodyear in no position to dispute her claims.

    Presented by

    Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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