Opening Argument - 'Injustice 5, Justice
4'
By Stuart Taylor Jr
June 9, 2007.
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 180day 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.
The approach proposed by Ginsburg and the three other dissenters could effectively
nullify Congress's 180-day statute of limitations in all, or at least most, paydiscrimination lawsuits -- even, Alito suggested, if the plaintiff waits 20 years to sue after
learning of a single allegedly discriminatory act. Ginsburg responded that judges could
use legal doctrines including "laches" to throw out claims filed unreasonably late. Or, as
Alito explained, they might not.
The inevitable cost of any statute of limitations is that some valid claims will be timebarred. Congress, not the courts, is supposed to strike the cost-benefit balance. And
Congress is free to change or fine-tune the provision to make it more plaintiff-friendly, as
Ginsburg and others have urged. But is it the Court's job to fine-tune it by strained
interpretation?
Meanwhile, the suggestions by Ginsburg and the media that the decision leaves women
such as Ledbetter with no adequate remedy for pay discrimination -- because they may
not even know what their male peers are paid until more than 180 days after the allegedly
discriminatory pay-setting decision -- are vastly exaggerated.
It's true that some victims of pay discrimination will be initially ignorant of their peers'
pay and thus out of luck as far as Title VII is concerned. But Ledbetter, who waited six or
more years to sue after learning of the pay disparities, is not one of them.
Besides, Title VII is not the only remedy for sex-based pay discrimination. The Equal
Pay Act of 1963 requires employers to pay women as much men doing "equal work" in
the same establishment, with exceptions including merit pay. This law does not require
proof of intentional discrimination. And it has a much longer, three-year statute of
limitations.
Ledbetter sued under the Equal Pay Act as well as under Title VII. But the trial judge
threw out the former claim. The exact reasons are unclear, but it appears that few men at
Goodyear had jobs similar enough to Ledbetter's to meet the definition of "equal work."
Ledbetter did not appeal, perhaps because the big bucks are in punitive damages, which
are unavailable under the Equal Pay Act.
The judge allowed the Title VII claim to go to trial. The jury found sex-based pay
discrimination and awarded Ledbetter $223,776 in back pay, $4,662 for mental anguish -and $3,285,979 in punitive damages. The judge reduced this to $60,000 in back pay and
the congressional maximum $300,000 in (mostly punitive) damages.
This is the award that the justices overturned (as had a federal appeals court) on the
ground that the Title VII claim should never have gone to the jury because there was no
proof of intentional discrimination during the 180-day period set by Congress.
By the way, it's debatable, if legally irrelevant, whether the jury was right to find that
Ledbetter was a victim of sex discrimination. While she and two other women testified
that male supervisors at the plant were openly biased against women, other witnesses
disagreed. And the evidence as to Goodyear's intent was old and stale.
It was clearly established, on the other hand, that the pay disparities between Ledbetter
and similarly situated men were largely attributable to the cumulative effect of repeated
layoffs, which made her ineligible for raises in 1986, 1987, 1988, and 1990, and which
she has not alleged to be discriminatory.
Beyond that, before the case went to the jury, a federal magistrate judge found that
Ledbetter's relatively low pay reflected "weak" job performance, not sex discrimination.
He noted that most of her performance evaluations were "at or near the bottom": 15th out
of 16 area managers, and 23rd out of 24 salaried employees in tire assembly in both 1996
and 1997, for example. Ledbetter said the evaluations were tainted by discrimination.
Ginsburg, whose dissents from this and other 5-4 conservative rulings have brought much
media adulation, has said she feels "lonely" on the bench since Justice Sandra Day
O'Connor, her only female colleague, retired. And some suggest that O'Connor would
have voted with Ginsburg in this case.
Perhaps. But a 2002 decision relaxing Title VII's filing deadline in a case involving a
years-long pattern of racial harassment suggests otherwise. The majority opinion, then
described by The New York Times as "an important victory for workers," was written by
Justice Clarence Thomas, whom Adam Cohen of The Times maligned after the Ledbetter
decision for "reflexively" opposing "discrimination claims of minorities and women."
The author of the dissent, which called for strict enforcement of the statute of limitations
against "all types of Title VII" plaintiffs, was Sandra Day O'Connor.