Whether or not you recognize it by name, most of you by now have read about Ledbetter v. Goodyear Tire and Rubber Co. That’s the case in which the horrible, right-wing, run-amok activist Roberts Supreme Court, via right-wing Justice Alito, held that when Congress wrote, in the Title VII of the Civil Rights Act of 1964, that anyone feeling he or she has been the victim of pay discrimination must file a complaint within 180 days (in Alabama and a few other states; 300 days in others), Congress actually meant what it said. As Justice Alito said in introducing his majority opinion:
This case calls upon us to apply established precedent in a slightly different context. We have previously held that the time for filing a charge of employment discrimination with the Equal Employment Opportunity Commission (EEOC) begins when the discriminatory act occurs. We have explained that this rule applies to any “[d]iscrete ac[t]” of discrimination, including discrimination in “termination, failure to promote, denial of transfer, [and] refusal to hire.” [Citation omitted]. Because a pay-setting decision is a “discrete act,” it follows that the period for filing an EEOC charge begins when the act occurs. Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII. Petitioner also contends that discrimination in pay is different from other types of employment discrimination and thus should be governed by a different rule. But because a pay-setting decision is a discrete act that occurs at a particular point in time, these arguments must be rejected.
According to the uproar that erupted on the editorial pages of the mainstream press and among liberal interest groups (but I repeat myself), you’d think that the Roberts Court, in holding that Congress intended to do what it did when it started the statute of limitations clock running at the time the “discrete act” of discrimination occurred, had abolished the Equal Pay Act and sentenced future generations of women to lives of servitude, barefoot and pregnant.
Liberals, civil rights groups, and their media friends thus made overturning Ledbetter one of the most important items on their agenda, and their agent, President Obama, dutifully made the Lilly Ledbetter Fair Pay Act the first bill he signed into law.
As Stuart Taylor wrote in The National Journal (Jan. 31),
Congressional Democrats, liberal groups, and the media have thoroughly distorted the facts underlying the Ledbetter law to advance their agenda of opening the door wide to all manner of job-discrimination lawsuits.
The new law will virtually wipe out the 300-day time limit (180 days in Alabama and some other states) during which employees can file claims of discrimination under Title VII of the 1964 Civil Rights Act. Disgruntled employees will now be free to wait many years before hauling employers into court for supposedly discriminatory raises, promotions, or any other actions affecting pay.
The longer the wait, the more difficult it will be for the employer to contest an employee’s one-sided and perhaps false account of the case, because key witnesses may have retired or died and records such as performance evaluations may have been discarded.
Indeed, some of the Ledbetter law’s vague language could be construed as opening the doors for people to sue a company even years after retiring, on the theory that each new pension check is too small because of some claim of discrimination by some long-since-departed (or dead) supervisor.
This law represents an overreaction to a May 2007 Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber Co., that provoked an explosion of ill-informed media outrage and propelled the losing party, retired Goodyear employee Lilly Ledbetter of Alabama, to a speaking role at last year’s Democratic National Convention.…
Believe it or not, I don’t want to discuss the merits of either the Court’s opinion or the new law overturning it, at least not now. Lest you think the issue is clear-cut, however, I urge you to look at Orin Kerr’s excellent posts on Volokh (here and here) as well as the many comments (a number of them quite good) both posts engendered.
What I do want to do here, and most emphatically, is to call attention to a BIG SURPRISE that may be in store for the Obamanauts who are now celebrating doing away, in effect, with the time limitations on filing pay discrimination complaints. I wish I had thought of this looming unintended consequence myself, but I didn’t. I’m indebted for it to Michael Rosman, General Counsel of the Center for Individual Rights, whose email to me I quote with permission:
Hi John. Now that President Obama has signed the Ledbetter bill into law, it might be an appropriate time to remind the readers of your blog that you do not need to be a minority or a woman to take advantage of its provisions. Specifically, anyone who was harmed in the 1970’s or 1980’s (or later) by a race-conscious affirmative action program can sue for damages if that person is still receiving a check (paycheck or pension) from the same employer that somehow reflects the injury.
Given all the public and private employees (and now retirees) who have been injured since the late 1960s by the preferential treatment given to others because of their race, sex, or ethnicity, I suspect the Obamanauts may not be altogether pleased by the flood of litigation their folly may produce.
ADDENDUM
Several astute, observant reader/editors have pointed out that Ledbetter dealt with Title VII of the Civil Rights Act, not the Equal Pay Act, and I have corrected my text above. For an impressive, thorough, and thoughtful exposition of the issues involved see the excellent posts by Hans Bader here, here, here, and here.
UPDATE
See additional discussion here.
