It's The Thought That Counts

The Supreme Court's decision in Ledbetter v. Goodyear is a bit weird to me. And by "a bit", I mean very, and by "weird", I also mean "appalling."

In a 5-4 decision along partisan lines (Alito for the majority, Ginsburg dissenting), the Court held that a women who was suing due to sex discrimination in payment missed the 180-day deadline for filing the claim. Lilly Ledbetter started working at Goodyear in 1979, at similar pay to the men at her position. She was the only woman. By 1998, when she retired, her pay was the lowest of any worker in her position, including male managers at significantly lower levels of seniority and experience. She sued alleging sex discrimination just before she retired. However, the Supreme Court held that the 180-day statutory clock started upon the first instance of discrimination. Scott Lemieux comments:

The Court--in an opinion, natch, written by its arch-reactionary newest member--argued that Ledbetter failed to challenge the initial discriminatory pay decision within the required 180 days, and the ongoing pay discrimination did not constitute an "unlawful employment practice." As Ginsburg points out, this reading of the statute makes little sense; unlike with a firing, both because an employee may not be aware of the discriminatory nature of their pay until much later, and moreover it is illogical to hold that only an initial decision to discriminate but not the discriminatory pay itself constitutes an unlawful practice. The effect of the case is to insulate employers from wage discrimination claims as long as they can hid[e] the evidence from the employee being discriminated against for 180 days, a result contrary to the purpose of the statute that is in no way compelled by its language.

It's mind-boggling to me that the original instinct (however it came up) to discriminate is the only discrimination actionable under Title VII--while the actual, material, measurable, noticeable, empirical disparity in pay that--we should remember--is why the women is suing in the first place, isn't.

This is really not that complex. Deborah Brake and Joanna Grossman wrote on this case on the eve of oral arguments:

Discriminatory pay disparities must be susceptible to correction not just when they are first made, but as long as they are being implemented. Otherwise, unless an intervening decision corrects the disparity, a decision to discriminate against a woman early in her career can legally continue to affect every paycheck for the rest of her life, once a brief period of time following the initial decision has passed.

This should be blindingly obvious. Every pay check a women receives that is the result of gender discrimination is itself an instance of discrimination. In discrimination, it's not just the thought that counts. How the Court expects women to be able to build a colorable case of discrimination within 180 days of the original decision--a decision they might not even know resulted from discrimination and the material evidence of which, it needs to be re-emphasized, will only show up across the course of months or years of pay checks--remains elusive to me. How are women supposed to know that they're pay is lower than men in their position? Do most companies publicly post their salaries? Is there a norm in favor of discussing earnings and raises in the American corporate world that I don't know about? It's an unreachable burden, and the effect is to nearly immunize companies from suit for pay discrimination.

But there is some good news. The Goodyear case--like my last example of an evil discrimination decision--rests upon statutory law. In other words, Congress can change it whenever it wants. So even though I suspect the legal rationale behind this decision is, er, less than solid, that's not the point. If this is the burden the law places upon discrimination litigants, then the law needs to be changed. And thus, I reiterate my request to all my conservative friends who probably think this case is a prime example of the Courts not making law--if you really think this is the legislature's role, great. But I want to hear you pressing as hard as I am to get this law changed. Because this status quo is ridiculous and untenable.

Round-up of views:

Talk Left: "A disgraceful decision."

Blog of the Moderate Left: "Wow. So the two new pro-life justices have come out strongly against the rights of women to equal pay. Why, it’s almost like the anti-choice set is also anti-woman to its core."

On the Virg: "Supremes tell Women and Minorities to Eat Cake."

Via Workplace Prof, I find the one (and so far only) blogger who thinks the decision was right.

Paul Secunda gives his expert legal opinion--he, too, think Ginsburg got the better of the argument.

Any commentary by conservative blogs, especially those treating this decision with the outrage it deserves, would be appreciated in comments.