The Alito Court: Women Need To Sue Right Away All The Time

Update [2007-5-29 15:28:41 by Big Tent Democrat]: As Scott Lemieux points out, here is a chance for the Dem Congress to redeem itself somewhat. Overrule the Court's statutory interpretation please.

Via AdamB, another reason why Justice Alito is a disastrous addition to the Court (surely O'Connor would not have voted with the majority in this case.) Today in a 5-4 decision, Ledbetter v. Goodyear, Alito writng for the Court, wrote:

Ledbetter’s arguments here—that the paychecks that she received during the charging period and the 1998 raise denial each violated Title VII and triggered a new EEOC charging period—cannot be reconciled with Evans, Ricks, Lorance, and Morgan. . . . ©urrent effects alone cannot breathe life into prior, uncharged discrimination; as we held in Evans, such effects in themselves have “no present legal consequences.” 431 U. S., at 558. Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.

Sounds reasonable? Not really, but if you think so you should not after reading Justice Ginsberg's dissent:

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 reasons for 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.

Pay disparities are thus significantly different from adverse actions “such as termination, failure to promote, … or refusal to hire,” all involving fully communicated discrete acts, “easy to identify” as discriminatory. See National Railroad Passenger Corporation v. Morgan, 536 U. S. 101, 114 (2002) . It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter’s situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.

On questions of time under Title VII, we have identified as the critical inquiries: “What constitutes an ‘unlawful employment practice’ and when has that practice ‘occurred’?” Id., at 110. Our precedent suggests, and lower courts have overwhelmingly held, that the unlawful practice is the current payment of salaries infected by gender-based (or race-based) discrimination—a practice that occurs whenever a paycheck delivers less to a woman than to a similarly situated man. See Bazemore v. Friday, 478 U. S. 385, 395 (1986) (Brennan, J., joined by all other Members of the Court, concurring in part).

Title VII proscribes as an “unlawful employment practice” discrimination “against any individual with respect to his compensation … because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). An individual seeking to challenge an employment practice under this proscription must file a charge with the EEOC within 180 days “after the alleged unlawful employment practice occurred.” §2000e–5(e)(1). See ante, at 4; supra, at 2, n. 1.

. . . In Bazemore, we unanimously held that an employer, the North Carolina Agricultural Extension Service, committed an unlawful employment practice each time it paid black employees less than similarly situated white employees. 478 U. S., at 395 (opinion of Brennan, J.). Before 1965, the Extension Service was divided into two branches: a white branch and a “Negro branch.” Id., at 390. Employees in the “Negro branch” were paid less than their white counterparts. In response to the Civil Rights Act of 1964, which included Title VII, the State merged the two branches into a single organization, made adjustments to reduce the salary disparity, and began giving annual raises based on nondiscriminatory factors. Id., at 390–391, 394–395. Nonetheless, “some pre-existing salary disparities continued to linger on.” Id., at 394 (internal quotation marks omitted). We rejected the Court of Appeals’ conclusion that the plaintiffs could not prevail because the lingering disparities were simply a continuing effect of a decision lawfully made prior to the effective date of Title VII. See id., at 395–396. Rather, we reasoned, “[e]ach week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII.” Id., at 395. Paychecks perpetuating past discrimination, we thus recognized, are actionable not simply because they are “related” to a decision made outside the charge-filing period, cf. ante, at 17, but because they discriminate anew each time they issue, see Bazemore, 478 U. S.,at 395–396, and n. 6; Morgan, 536 U. S., at 111–112.

Subsequently, in Morgan,we set apart, for purposes of Title VII’s timely filing requirement, unlawful employment actions of two kinds: “discrete acts” that are “easy to identify” as discriminatory, and acts that recur and are cumulative in impact. See id., at 110, 113–115. “[A] [d]iscrete ac[t] such as termination, failure to promote, denial of transfer, or refusal to hire,” id., at 114, we explained, “ ‘occur[s]’ on the day that it ‘happen[s].’ A party, therefore, must file a charge within … 180 … days of the date of the act or lose the ability to recover for it.” Id., at 110; see id., at 113 (“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act.”).

“[D]ifferent in kind from discrete acts,” we made clear, are “claims … based on the cumulative effect of individual acts.” Id., at 115. The Morgan decision placed hostile work environment claims in that category. “Their very nature involves repeated conduct.” Ibid. “The unlawful employment practice” in hostile work environment claims, “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.” Ibid. (internal quotation marks omitted). The persistence of the discriminatory conduct both indicates that management should have known of its existence and produces a cognizable harm. Ibid. Because the very nature of the hostile work environment claim involves repeated conduct,

“[i]t does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id., at 117.

Consequently, although the unlawful conduct began in the past, “a charge may be filed at a later date and still encompass the whole.” Ibid.

Pay disparities, of the kind Ledbetter experienced, have a closer kinship to hostile work environment claims than to charges of a single episode of discrimination. Ledbetter’s claim, resembling Morgan’s, rested not on one particular paycheck, but on “the cumulative effect of individual acts.” See id., at 115. See also Brief for Petitioner 13, 15–17, and n. 9 (analogizing Ledbetter’s claim to the recurring and cumulative harm at issue in Morgan); Reply Brief for Petitioner 13 (distinguishing pay discrimination from “easy to identify” discrete acts (internal quotation marks omitted)). She charged insidious discrimination building up slowly but steadily. See Brief for Petitioner 5–8. Initially in line with the salaries of men performing substantially the same work, Ledbetter’s salary fell 15 to 40 percent behind her male counterparts only after successive evaluations and percentage-based pay adjustments. See supra, at 1–2. Over time, she alleged and proved, the repetition of pay decisions undervaluing her work gave rise to the current discrimination of which she complained. Though component acts fell outside the charge-filing period, with each new paycheck, Goodyear contributed incrementally to the accumulating harm. See Morgan, 536 U. S., at 117; Bazemore, 478 U. S., at 395–396;cf. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481 , n. 15 (1968).2

The realities of the workplace reveal why the discrimination with respect to compensation that Ledbetter suffered does not fit within the category of singular discrete acts “easy to identify.” A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext.

Compensation disparities, in contrast, are often hidden from sight. It is not unusual, decisions in point illustrate, for management to decline to publish employee pay levels, or for employees to keep private their own salaries. See, e.g., Goodwin v. General Motors Corp., 275 F. 3d 1005, 1008–1009 (CA10 2002) (plaintiff did not know what her colleagues earned until a printout listing of salaries appeared on her desk, seven years after her starting salary was set lower than her co-workers’ salaries); McMillan v. Massachusetts Soc. for the Prevention of Cruelty to Animals, 140 F. 3d 288, 296 (CA1 1998) (plaintiff worked for employer for years before learning of salary disparity published in a newspaper).3 Tellingly, as the record in this case bears out, Goodyear kept salaries confidential; employees had only limited access to information regarding their colleagues’ earnings. App. 56–57, 89. . . .

Read the whole dissent. Alito stands demolished and the Republican majority revealed as indifferent to gender discrimination. A disgraceful decision.

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  • Display: Sort:
    I like it. The minute I see that a (5.00 / 1) (#6)
    by jpete on Tue May 29, 2007 at 05:39:53 PM EST
    discriminatory trend is starting, I should sue.  Only there seem to be some problems:

    1.  Suing is not such a good way to get on with your boss.  It's better to wait until it is pretty egregious, to say the least.


    2.  It's damn hard to spot a trend when it is just starting.

    Other than that....

    Apparently ... (none / 0) (#7)
    by Sailor on Tue May 29, 2007 at 06:37:46 PM EST
    ... oculus just got his wish;-)

    Not yet. (none / 0) (#8)
    by oculus on Tue May 29, 2007 at 06:46:38 PM EST
    huh? (none / 0) (#9)
    by jpete on Tue May 29, 2007 at 07:39:36 PM EST
    Glad to oblige, but I don't think I did.

    You didn't. At ease. (none / 0) (#10)
    by oculus on Tue May 29, 2007 at 07:42:05 PM EST
    Thanks! (none / 0) (#11)
    by jpete on Tue May 29, 2007 at 09:06:23 PM EST
    Is this getting wierd or what?

    Yes. Doubtless everyone else is (none / 0) (#12)
    by oculus on Wed May 30, 2007 at 12:05:02 AM EST
    reading the entire Ginsberg dissent.

    Ha! nt (none / 0) (#14)
    by jpete on Wed May 30, 2007 at 02:13:53 PM EST
    It seems that women... (none / 0) (#1)
    by Dadler on Tue May 29, 2007 at 04:39:23 PM EST
    ...need to worry about a lot more than men do.  Is that the mark of an equitable society?

    Get over your problem (none / 0) (#2)
    by koshembos on Tue May 29, 2007 at 04:43:54 PM EST
    Get over the Democrats not voting the way you want; would have made no difference, was still veto proof.   Wait until September and even then if you want to vanquish Bush bring a million people to the mall.

    Time to grow up!

    Ummmm (none / 0) (#3)
    by Big Tent Democrat on Tue May 29, 2007 at 05:09:53 PM EST

    huh?! n/t (none / 0) (#4)
    by andgarden on Tue May 29, 2007 at 05:27:36 PM EST
    Let's wait for an explanation--by (none / 0) (#5)
    by oculus on Tue May 29, 2007 at 05:29:03 PM EST
    someone else.

    After reading Ginsberg's dissent, I agree (none / 0) (#13)
    by oculus on Wed May 30, 2007 at 12:10:29 AM EST
    majority opinion does women no favors.  Justice Ginsberg, in section C, distinguihes the cases Justice Alito says require the result he reached.