Posted by: bridget | 29 May 2007

Ledbetter v. Goodyear: Policy Doesn’t Trump Statutory Intepretation

The Supreme Court announced its decision in the Ledbetter v. Goodyear case today. Five justices (Alito authored the opinion and was joined by Scalia, Thomas, Kennedy, and Roberts) ruled that an employee has 180 days from the first discriminatory paycheck to file a complaint with the EEOC under its applicable statute of limitations period. If paychecks were received during the statute of limitations period, but were based on pre-SOL discrimination, she may not recover damages for those, either.

Title VII states (Sec. 2000) that:

(e) (1) A charge under this section shall be filed within onehundred 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….

The plaintiff’s theory is that each paycheck constituted continuing discrimination. Her final paycheck, she argued, encompassed the discriminatory pay practices of several years prior to the EEOC filing. She also alleged that each paycheck constituted a separate discriminatory violation; however, the majority held that, if such were the case, she would be required to file an EEOC complaint with respect to each paycheck.

Justice Ginsburg, in her dissent, stated that:

The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasonsfor those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.

There are strong public policy considerations for adopting the plaintiff’s argument: it allows employees who have no reason to know of discrimination or pay disparities to recover for them. It does not require an employee to determine, for example, that man routinely get larger pay raises than similarly-situated women. Pay discrimination results in real and calculable damages, and Sec. (e)(1) serves to limit employer liability for those damages.

Such are excellent policy arguments which indicate that Congress committed an error in its drafting of Title VII. Nevertheless, the correct result is the one adopted by the majority. Sec. (e)(1) unambiguously conveys the intent of Congress to limit liability to the 180 days prior to a filing of a complaint with the EEOC and does not contain a separate rule for pay decisions, regardless of whether or not a separate rule would advance the purposes of Title VII and provide a just outcome. If this is bad policy, such is not the province of the Supreme Court: Congress is free to re-write Sec. (e)(1) to allow for additional time for pay discrimination lawsuits.

Edit: Simon has an excellent post that analyses the Goodyear decision in much more depth.

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Responses

  1. Sounds just like Ginzberg. Soon the left will start talking about the non-liberal judges as the Gang of 5. ……………. Next Stop Lauderdale

  2. I agree. And Congress can fairly easily fix this in one of two ways: it could change Title VII’s filing period, see 42 U.S.C. § 2000e–5(e)(1), either by expanding it or eliminating it altogether. Or alternatively, it could amend the statute to encompass Ledbetter’s theory that any pay packet issued that is affected in any way by any previously discriminatory conduct is itself a discrete clock-starting act of discrimination.

    Personally, I think the latter approach borders on the incoherent and would be in some tension with Title VII’s threshold question insofar as it would uncouple discriminatory intent from employment practice, so I’d far rather that if they have to do anything (and for reasons advanced in Justice Ginsburg’s dissent, Congress probably should) they just expand the filing period.

    The more amusing aspect in all this is to compare the incompatible – indeed, diametrically opposed – views of the Title VII filing period reflected by Mohasco Corp., which Justice Stevens wrote, and Justice Ginsburg’s Ledbetter dissent, which Justice Stevens joined.

  3. Steve,
    I noticed that no one has complained about the religion of the Gang of 5 in this case and said that they are the puppets of the Pope. (See, Carhart v. Stenburg, 2007.)
    Simon,
    Thank you for commenting (and thank you for the shout-out on your own blog).
    You are correct: the second method would be senseless. A court could also expand the “discrete act of discrimination” theory into other arenas.
    Congress could change the filing period for pay discrimination only, while leaving the 180 day requirement intact for other claims (improper firing, sexual harassment, etc). Alternatively, it could institute a requirement that a person file within 180 days of learning about the discrimination (or having reason to know of the discrimination), which would avoid the Ledbetter result of requiring someone to file about something she did not know about in order to recover.
    Excellent analysis on your site.


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