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Supreme Court Rules On Pay Discrimination Claims

Posted by: George Johnson
November 06, 2007
Topic: Employment Discrimination

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In May 2007, the U.S. Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., left plaintiffs' lawyers scratching their heads and Supreme Court observers raising their eyebrows. The decision strictly interpreted a key limitations provision of Title VII of the Civil Rights Act of 1964. Plaintiffs who believe that they have pay discrimination claims must now quickly bring their actions after an allegedly discriminatory pay decision occurs to avoid Title VII's brief limitations periods.

This decision also revealed ideological friction among the justices that led one to resort to an uncommonly used device for issuing a dissenting opinion.

Lilly Ledbetter was a salaried supervisor in Goodyear's plant in Gasden, Alabama, from 1979 until she retired in 1998. She sued Goodyear shortly after her retirement, alleging pay discrimination under Title VII. She contended that, in the course of her employment,

her supervisors gave her poor evaluations because she is female, and that these evaluations, in turn, improperly limited her pay, an injury she suffered with each subsequent paycheck.

After a jury awarded the plaintiff backpay and damages, Goodyear appealed. The U.S. Court of Appeals for the Eleventh Circuit reversed the district court's verdict. It held that

the plaintiff's Title VII pay discrimination claim was time-barred as to all pay decisions that were made more than 180 days before the plaintiff filed her charge of discrimination

with the U.S. Equal Employment Opportunity Commission.

With Justice Samuel Alito writing for a 5-4 majority that included Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas, the Court affirmed the Eleventh Circuit's decision. It held: "The EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination." The Court thus rejected the plaintiff's assertion that a Title VII pay discrimination action may be brought when allegedly disparate wages paid during Title VII's limitations period result from pay decisions made beyond the limitations period.

Four of the justices vigorously disagreed. Justice Ruth Bader Ginsburg's lengthy dissent called the majority opinion a "cramped interpretation of Title VII" that is "incompatible with the statute's broad remedial purpose" and the result of "a parsimonious reading of Title VII." Whereas the majority based its decision on stare decisis and legislative intent, Ginsburg's dissent focused on what she described as the "realities of the workplace"-"[c]ompensation disparities" that "are often hidden from sight."

Ginsburg added, "The problem of pay discrimination is particularly acute where the disparity arises not because the female employee is flatly denied a raise but because male

counterparts are given larger raises. Having received a pay increase, the female employee . . . may have little reason even to suspect discrimination until a pattern develops incrementally and she ultimately becomes aware of the disparity."

Ginsburg, however, did more than simply take exception with the majority's reasoning. For the second time in six weeks, Ginsburg chose the infrequently used practice of reading her dissent from the bench. The tactic "is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year," commented NewYork Times Supreme Court correspondent Linda Greenhouse.

"Justice Ginsburg's dissent reflects that she sees Ledbetter as a major blow to suits for pay equity. Her choice to read her dissent from the bench is a reflection of her strong sense that the decision is terribly unfair and will have a devastating effect on the ability of many plaintiffs to recover under Title VII for pay discrimination," said Professor Erwin Chemerinsky of Duke University Law School, a veteran of several oral arguments before the Supreme Court.

Though Ledbetter requires that plaintiffs act early in bringing pay discrimination claims, Professor Samuel Estreicher of New York University School of Law noted that, as a practical matter, later claims may not always be foreclosed. "Every paycheck is indeed a potential violation, but only in the sense that the fact that the discrimination had its origin outside the charge-filing period does not immunize a pay decision or practice that is infected by post-chargefiling period bias," he said.

While disagreement on the Supreme Court bench is not unusual, it is notable because it belies the unity that Roberts proclaimed to be a priority before he was confirmed as chief justice in September 2005. It also represents a change from the Roberts Court's early days. Under Roberts's direction, the Court issued 11 consecutive unanimous opinions in March 2006, leading commentators to declare a modern-day record.

By contrast, this term has been characterized by 5-4 splits in 24 cases, almost one-third f the decisions issued by the Court. Time will tell how and whether the Court's apparent shift in thinking with the addition of Chief Justice Roberts and Justice Alito will extend to other employment cases that come before it.

This blog is largely based on an article by David D. Powell, Jr. and Matthew B. Finnigan in the summer 2007 edition of the American Bar Association "Labor and Employment Law" newsletter.

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