Gender discrimination at work: A-OK!

We’re a little tardy in writing about yesterday’s Supreme Court ruling in Ledbetter v. Goodyear. The court ruled that employees must make their discrimination complaints within 180 days “after the alleged unlawful employment practice occurred.â€? In other words, the discrimination occurs at the time a woman is given a salary that is significantly lower than her male counterparts. If she doesn’t catch on to the pay disparity within 180 days, she’s screwed. Which is why Ledbetter’s attorneys had argued that she was discriminated against every time she was handed a paycheck for less money than her male equivalent on the job — not simply when her salary was determined. According to the Times:

Ms. Ledbetter’s salary was initially the same as that of her male colleagues. But over time, as she received smaller raises, a substantial disparity grew. By the time she brought suit in 1998, her salary fell short by as much as 40 percent; she was making $3,727 a month, while the lowest-paid man was making $4,286.

So 180 days isn’t much time to figure out a pay disparity exists. How many people — especially, for example, women in nontraditional professions — talk openly with their coworkers about how much they’re earning?
This is likely to have a chilling effect on employment discrimination suits. As Scott says,

Republicans don’t have to modify or repeal civil rights legislation, and the Court’s needn’t strike it down; the courts and/or the executive branch can just gut the legislation by making it difficult to enforce in ways that don’t attract public attention.

This decision is an even greater incentive to get behind the Paycheck Fairness Act, which would require employers to make employee salaries public so women will know sooner if they’re getting paid less for equal (or more) work.
UPDATE: In comments, Jill Zimon points out that Congressional Dems have responded to the ruling by pledging to pass a law that eliminates the time restriction.
(P.S. For your reading pleasure, Ginsburg’s dissent.)

Join the Conversation

  • Sailorman

    Don’t forget to link to Ginsburg’s awesome dissent. Which, BTW, she read from the bench–which she almost never does.

  • ikkin

    My aunt, a CPA, is crazy about the Paycheck Fairness Act. She says people have no idea the difference, which sometimes gets into the six-digit range, between women’s pay and men’s pay.

  • tabitha91

    This ruling is just straight up bullshit. For anyone who debates the need for feminism, you can point to this ruling.

  • norbizness

    Unfortunately, Exhibit A in “Why ‘keeping your powder dry’ while two reactionary justices are shoved down the throats of America is a bullshit, cowardly theory” is going to last for about 30 or so years. May there never be an Exhibit B, or goodbye Roe v. Wade.

  • http://Grace Grace

    I’ve been hoping that this would come up on feministing. I agree, tabitha91. I’m disgusted with this decision. It has always been difficult to make the pay discrimination case–less than 3% make it to trial–tiny technicalities get the cases thrown out. Now it’s about impossible. I’m too angry to say more. Guess I’ll wait for the usual suspects to comment on how there’s no longer discrimination because we have laws against it on the books or how the ‘natural’ laws of economics have to protect small business owners and how we all owe our livelihoods to big business yadayada. Sickening!

  • oenophile

    EXCELLENT decision. Sound statutory analysis and the only one mandated by law.
    This is NOT the fault of the majority. They didn’t write Title VII. It was Congress that wrote a crappy law, saying that you have only 180 days from the moment of discrimination to file a claim, whether or not you know about it.
    Blame Congress, not the justices. Blame Ginsburg for writing a dissent that has ZERO basis on the law. It’s not the job of the Court to re-write the Civil Rights Act to improve it and correct oversights; it is their job to interpret it.
    Blame Congress. Don’t waste your energy blaming people who did their job; spend it lobbying and pressuring Congress to amend Sec. 200(e)(5).

  • oenophile

    Sorry, that should be Sec. 2000, not 200.

  • http://Grace Grace

    oh yeah I forgot: how we should go lobby for more/better laws.

  • Zed

    Oenophile, your analysis is rather shallow. The Supreme Court has previously upheld a “continuing violations” doctrine when dealing with “hostile work environment” claims, which could easily have been extended to cover this.
    As to it being the only possible decision mandated by law, four Supreme Court justices disagree with you.

  • Ann

    An excellent point, sailorman. Link appears at the end of the post now.

  • oenophile

    The question isn’t whether or not “continuing violations” have been found in hostile work environments, but whether or not Title VII provides for continuing violations.
    You have 180 days from a
    “discrete unlawful practice.” Not a continuing one, but a DISCRETE one. The paychecks were not considered to be discriminatory acts, but rather, the performance reviews were the discriminatory acts – and none of them took place within the 180 day window.
    The problem with Ledbetter’s theory is that there would be NO statute of limitations, except if she left the company. If Congress wanted an employee to file within 180 days of termination of employment, it could have done so. The fact that it did not state its rule as such, but rather, as an explicit 180-day limitation, indicates that they meant to require plaintiffs to promptly file suit.
    Imagine if your theory were correct. Imagine if every pay decision had to be analysed anew each pay period, because there is no statute of limitations on prior pay. You would not be able to rely on old promotional or pay decisions in cutting a paycheck every other week.
    I don’t think Congress intended that to happen.
    Read United Airlines v. Evans. Read the Stevens opinion in that. I think that more than five justices agree with me, Zed. :)
    FYI: Five justices, including Scalia, the king of statutory interpretation, disagree with you.

  • Jill Zimon

    Ann – the AP has this story about Congressional Dems saying that they will work to pass a law that counters yesterday’s decision in this case. The article is here.

  • Anonymous

    This is bullshit. Our Supreme Court is bullshit.
    And Oenophile, the five supreme court justices that agree with you have proven time and time again to be ASSES. You might want to consider that before lining up with them.

  • The Law Fairy

    Five justices, including Scalia, the king of statutory interpretation
    Dude, I just vomited a little in my mouth.
    FWIW, I’ve met the guy in person and he’s an absolute asshole, on top of being overrated.
    Also, it’s worth noting that the statute in question states that an unlawful employment practice subject to the 180-day statute of limitations occurs “when a person aggrieved is injured by the application of the seniority system or provision of the system.” A paycheck seems to pretty reasonably fit this definition. Notice, too, that the majority decision starts off by saying that setting pay qualifies as a discrete act, but doesn’t explicitly say the paychecks aren’t a discrete act (at least, not from my quick reading of it). Instead, they focus on her failure to allege a specific discriminatory intent for each and every specific paycheck, since each one is only an ongoing effect of the discrimination. Even though this clearly fits within the definition above, i.e., an “application” of the discrimination, the majority, in its zeal to deny equality to women, decided to ignore the statutory text. This includes your beloved “textualist” Scalia.
    (Note as well that none of the precedent the majority cites clearly compels its implicit holding that the paychecks were not discrete occurrences).
    You seem aghast at the notion that an employer could be liable at any point in time until 180 days after the employee is fired, or after it starts treating its employees in a non-discriminatory manner. Well… why? I mean, um, is this REALLY so problematic? Seriously? Employers with an ongoing pattern of discrimination could be taken to task for it at any point in time until they discontinue the practice one way or another… isn’t that kind of the whole POINT of the statute?
    The idea that the lawsuit has to happen right when the pay raises are instituted also makes it pretty much impossible to prove discrimination. In almost any successful discrimination case you’re going to have to either prove that virtually any other explanation for the discrepancy is impossible, or you’re going to have to demonstrate systematic discrimination over a period of TIME. Unless every woman ever discriminated against is the Best Employee Who Ever Lived (which NO ONE is, except, well, I guess one person in the world), she’s going to need a LOT of facts and a LOT of evidence to prove her case, which will take… wait for it… TIME!!! Notice that there WERE two discrete acts within the specified time period acknowledged in the majority opinion, but these two specific acts were found to have insufficient evidentiary support. Mmm hmm.
    So on the one hand, it’s effectively impossible to factually demonstrate discrimination if you sue right away. But on the other hand, it’s legally impossible to make your case thanks to this sophistic opinion.
    Yeah, failing to see what’s “good” about this unless you’re opposed to equality.
    (Also, United is CLEARLY distinguishable on obvious grounds — her going to work for them as a new employee years after discrimination occurred is nowhere near the same as being SUBJECT to the discrimination. As the court noted, there was no VIOLATION in the present context, whereas clearly there is a violation here).

  • legallyblondeez

    Okay, so I read the dissent before skimming the majority opinion, but here are a few quick points to explain how overly facile and utterly detached from reality, precedent, and the statute the majority opinion is:
    * Prior Supreme Court precedent held that each paycheck a black employee received constituted a discriminatory act when the pay scale was based on a racially discriminatory seniority system. Appellate courts almost universally (with the notable exception of the appellate court in this case) decided the same with regard to other pay disparities. I realize there is a pretty little provision in Title VII for seniority systems. Since pay is often based at least partially on seniority, I fail to see how this case compels a different conclusion.
    * Title VII is a remedial staute, and thus should be liberally construed to accomplish its purpose. This militates in favor of adopting a continuing violations theory in relation to the 180 day rule for instances of discrimination that are exacerbated or cumulative, like successive pay decisions, including the actual act of paying salaries.
    *In addition, the fact that pay is opaque in many situations prevents discovery of the discriminatory act until well beyond 180 days after a pay decision. Further, the disparity may not be apparent even when aware of salaries until it is exacerbated by successive pay decisions (since raises are often a percentage of salary and successive decisions may each individually be discriminatory).
    Ginsburg has about 12 other brilliant reasons this is ridiculous. Even without her help I could see that the majority failed to even consider deviation from the assumption that pay decisions are one-time acts, which makes no sense given how long-term employment in most contexts actually works.

  • Cruella

    180 days is nothing. When I worked in the city I was specifically told that I should never disclose my own salary to anyone else in the firm and should report anyone who told me theirs. And since when was the hallmark of discrimination “it can be noticed within 180 days”? It wouldn’t be oppression if people were open about it.

  • Mike

    That’s terribly tragic that the supreme court mandated 180 days for discrimination claims. I believe you when you say that women are reserved about their salaries. Most people don’t even discover that they’re discriminated until long thereafter. Even after the discovery, employers try to disprove the discrimination claim anyway. I’m so glad that the Dems are doing something about this. It will restore my pride in the democratic party after they capitulated the war to the president with that bill with no time table. I hope that they pass it becuase more time should be given to discrimination claims.

  • Heroine of the Story

    Oh for the love of… I hope the dems will do something about this, but I don’t have much faith. C’mon Boxer… I don’t understand how these court rulings pass. This is just the barefoot-and-pregnant movement crap rearing it’s ugly head. *wingnut logic* They feel unwanted in the workplace? They’ll leave! *end wingnut logic* How does Scalia SLEEP at night?

  • legallyblondeez

    In case the Dems need ideas, I do agree with oenophile on one count: this could easily (and maybe less controversially?) be solved by inserting an amendment to the 180-day rule along the lines of “180 days from the time at which plaintiff knew or reasonably should have known of the discriminatory act.”
    Though I still think the majority opinion is reaching for an excuse to kick this case and is completely ludicrous to suggest that the Equal Pay Act is an acceptable substitute for Ginsburg’s interpretation of Title VII, since it only applies to sex discrimination–what’s a person of color to do?
    Ahem. Yeah. The Supreme Court got it wrong, and Congress has many options for making it right.

  • Ninj4

    A couple of points from my 2cents bag:
    1) Sharing of pay information (non-opaque pay) – Personally I find my pay information to be a private information much like my insurance numbers, birthdays etc. Now while I may be willing to share this with others voluntarily I do not believe this should be enforced on any specific individual, sharing personal data should be a choice not one which is ramrodded through.
    2) 180 days limitation – This seems fair, after a promotion people are normally looking around at salaries and seeing how they did, to impose a longer time on this seems to make the point of discrimination the paycheck rather than the raise (which you likely agreed too). Raises are not normally mandatory for a company, they could feasibly keep you at the same rate of pay for your duration of service, them choosing not to is a bow to market pressure and presumably staff loses. Thus to argue that any pay raise is discriminatory is very difficult anyway, my company offers 0-12% increases based on performance and haggling at the interview, would it be discrimination if all the men got 12% and the women 0% simply due to performance or haggling ability or rather a reflection of the actual work performed?
    3) How do you actively determine discrimination in a performance related environment where the baseline is good performance of tasks, surely this then comes down to the individual offering raises, if you have multiple people offering this then you will have disparity. For example to perform a job and do it well is never beyond good in my mind, you are performing as paid to. To achieve an excellent rating you would need to go above and beyond the job requirements, however from working in small companies I am aware that certain people consider doing the job well to be an excellent rating well worthy of praise. Is this actually discrimination or simple differences of opinion of performance, and if this is discrimination is it something the government rather than the company should be talking about.
    4) Beyond the initial salary period how can anyone actually argue discrimination in a performance based system where there are no specific rules or regulations relating to the advancement of salaries. In a school for example seniority relates to pay directly as does school roll, in a programming field pay and seniority are only vaguely related due to base pay and % increases (so what may not have been discrimination each time may appear to be after a long time).
    Simple example of 3% vs 12%
    Now assuming we are looking at an average performer vs a good performer then our differences in salary are huge already due to no actual discrimination other than merit based awards. How can you actively determine which is discrimination and which is not?

  • Cruella

    Ninj4… Your first point is that you wouldn’t tell anyone what your salary is. Then your second point is that 180 days is easily enough to figure out if you’ve been conned. So we get 180 days to torture you into telling us your salary and then get the case filed? We’d have to torture pretty hard, but based on your other remarks I’m prepared to give it a go… hahaha.

  • Ninj4

    180 Days is a long time, despite having a “no-talky about paycheck” rule at my work I knew most people I worked with salary to within a hundred dollars within a month simply through conversation about other stuff. Direct disclosure was up to them however most people are fairly incompetent about keeping secrets.
    But you really ignored what I thought was the point of my post Cruella, how do you determine the difference between actual discrimination and perfectly legitimate practices… I don’t belive in discrimination (in the not causing it way rather than the tooth fairy way), however I can see a large number of ways in which non-discriminatory actions could be easily seen as discriminatory, capping the statuete of liability means that you limit the ability of previous potentially legitimate / discriminatory to contribute the the current legitimate / discriminatory effects. So in my stupid example the first pay rise may have been legitimate and the second discrimination however the effects are only so pronounced because of the previous actions.
    Steps off soap box for a while to let others have a go.

  • sbsanon

    Ninj4, you are right, it is REALLY hard to prove that you have been discriminated against in a work situation, and the employer is going to do everything they can to show that it was performance or something else, not discrimination. Having a 180-day limit for discovering the discrimination is like icing on the cake, effectively making it even harder than it already is to prove discrimination, if not impossible.
    One problem with trying to separate performance from discrimination is that gender bias can show up in the very process of evaluating performance.
    For the record, I have been working at my current company for over two years and I have no idea what my coworker’s salaries are.

  • Kimmy

    Five years (almost six) for me, sbsanan, and I can say the same thing. Every single place I have ever worked has had some variation on the “talk about your salaries and you’re both fired” rule. So I don’t talk about it. I need my job.
    Thank goodness I work in an all-female office (boss, too), so I don’t have to worry about that kind of discrimination. But for those that do, 180 wouldn’t be nearly long enough to find out about it and then amass enough information to prove it.

  • The Law Fairy

    Ninj4, it’s interesting you’re so protective about your salary information, yet you would impose a harsh time limit on others to find out what it is in case they’d been discriminated against. Also, you claim that you know your coworkers’ salaries… how do you know they’re not lying?
    Also, there’s nothing to fear from pay transparency. If anything, it forces employers to be more competitive with their salary structure in order to acquire the top talent. If that’s you, salary transparency is the sort of thing you should welcome with open arms.
    In my industry, employee salaries have been transparent for years now, and guess what? Base salaries have skyrocketed over the past decade, and there’s far FAR less discrimination against female employees than there used to be. Entering classes out of law school have rough gender parity, and every person at any given level makes the exact same base salary. However, at the management level, pay is much less transparent and harder to pin down. Interestingly enough, there are also still HUGE problems with sex discrimination at that level.
    Very interesting.

  • legallyblondeez

    TLF makes a good point. In most of the top law firms, pay is not just transparent, it’s lockstep. But even in smaller firms the transparency in the big ones has made it clear what they need to pay to get top talent, and it’s reasonably easy to find out what someone with your experience is worth, then haggle for some extra if you think you’re a superstar.
    To address your other point, Ninj4, you are correct that it is difficult to determine when pay discrimination is based on performance or on a person’s gender, race, etc. However, in this case a jury determined based on evidence we don’t have in front of us–not just a numbers game–that the plaintiff was given substantially smaller raises and therefore paid much less because she is a woman. The 180-day rule doesn’t change any of the proof needed, it just means that a person who has been discriminated against has virtually no chance of knowing about, much less gathering, enough proof to make her case within that time.

  • GamesOnline

    This is bullshit. Our Supreme Court is