Several Democrats in Congress are trying to overturn a recent Supreme Court ruling on discrimination lawsuits.
In May, the Supreme Court ruled 5 to 4 against a supervisor at a Goodyear tire plant in Alabama who discovered, after working there for nearly 20 years, that her male colleagues, including those with less experience, had been receiving higher salaries. Most courts had ruled that each unfair paycheck was a new act of discrimination, effectively a new opportunity for an employee to sue. But the justices said that the clock started running out the first time a worker was paid unfairly and that therefore, the plaintiff, Lilly M. Ledbetter, had waited too long to file suit.
The main federal antidiscrimination law, Title VII of the Civil Rights Act of 1964, says that employees must make their charge of employment discrimination within 180 days after the alleged unlawful practice occurred.
Almost immediately after the Supreme Court ruled, several Democratic lawmakers promised to pass legislation to override the decision. Representative George Miller, Democrat of California and chairman of the Committee on Education and Labor, sponsored the House’s version of the bill, which the committee approved at the end of June and expects to send to the full House soon.
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The House measure would direct a return to the interpretation of the civil rights law in which each unfair paycheck perpetuates discrimination. The measure would also apply to other forms of compensation like benefits.
Representative Howard P. McKeon of California, the senior Republican on the labor committee, said in a statement that he opposed the measure because it did not constitute “a minor tweak of labor law” but rather “guts the statute of limitations” by creating an open-ended timeline for employees to file suit.
Mark Kleiman thinks this is a perfect wedge issue, since “very few swing voters, and roughly none of the Democratic base, would need to think twice about the question whether someone who’s being underpaid now due to earlier adverse employment decisions made on the basis of race or sex ought to be able to get relief.” And yet “it looks as if the Republicans are going to kowtow to their paymasters and to the bigots in their voting base rather than trying to appeal to centrist voters.”
Nonsense.
The overwhelming majority of Republicans would agree that people who can show they have been unlawfully discriminated against should be made whole. The Supreme Court did not rule that, because Ledbetter found out too late about her lower pay that she simply had to endure future discrimination. She was entitled to sue for discrimination that occurred within 180 days of her filing suit and to seek appropriate remedies. What she was not entitled to do was reach back to the period before the statute of limitations and demand remedy.
The Court ruled, however, that Goodyear was not acting unlawfully during the 180 day period during which Ledbetter was eligible to sue. Rather, acts of discrimination decades early had put her at a pay disadvantage that was perpetuated by a percentage based annual pay re-evaluation system.
Ledbetter makes no claim that intentionally discriminatory conduct occurred during the charging period or that discriminatory decisions occurring before that period were not communicated to her. She argues simply that Goodyear’s nondiscriminatory conduct during the charging period gave present effect to discriminatory conduct outside of that period. But current effects alone cannot breathe life into prior, uncharged discrimination. Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory employment decision was made and communicated to her. Her attempt to shift forward the intent associated with prior discriminatory acts to the 1998 pay decision is unsound, for it would shift intent away from the act that consummated the discriminatory employment practice to a later act not performed with bias or discriminatory motive, imposing liability in the absence of the requisite intent. Her argument would also distort Title VII’s “integrated, multistep enforcement procedure.” The short EEOC filing deadline reflects Congress’ strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation. Nothing in Title VII supports treating the intent element of Ledbetter’s disparate-treatment claim any differently from the employment practice element of the claim.
The intent of the present law is to encourage people to work out grievances quickly and amicably without going to court. Imagine that.
Furthermore, changing the law would have the pernicious unintended consequence of delaying settlement for harm caused. A company will surely be more likely to admit wrong, or simply settle, a dispute based on 180 days’ action, since the damages would be relatively small and fighting in court would be more expensive. If, on the other hand, five or ten years’ action is involved, the damages would be much higher and litigation would be more advantageous.
