May 30, 2007

"Current effects alone cannot breathe life into prior, uncharged discrimination."

Writes Justice Alito, in Ledbetter v. Goodyear Tire and Rubber Company, a 5-4 decision that makes it harder for employees to sue within the statutory time limit. Linda Greenhouse reports:
... Justice Ruth Bader Ginsburg said the majority opinion “overlooks common characteristics of pay discrimination.” She said that given the secrecy in most workplaces about salaries, many employees would have no idea within 180 days that they had received a lower raise than others.

An initial disparity, even if known to the employee, might be small, Justice Ginsburg said, leading an employee, particularly a woman or a member of a minority group “trying to succeed in a nontraditional environment” to avoid “making waves.” Justice Ginsburg noted that even a small differential “will expand exponentially over an employee’s working life if raises are set as a percentage of prior pay.”...

As with an abortion ruling last month, this decision showed the impact of Justice Alito’s presence on the court. Justice Sandra Day O’Connor, whom he succeeded, would almost certainly have voted the other way, bringing the opposite outcome.

The impact of the decision on women may be somewhat limited by the availability of another federal law against sex discrimination in the workplace, the Equal Pay Act, which does not contain the 180-day requirement. Ms. Ledbetter initially included an Equal Pay Act complaint, but did not pursue it. That law has additional procedural hurdles and a low damage cap that excludes punitive damages. It does not cover discrimination on the basis of race or Title VII’s other protected categories.

In her opinion, Justice Ginsburg invited Congress to overturn the decision, as it did 15 years ago with a series of Supreme Court rulings on civil rights. “Once again, the ball is in Congress’s court,” she said. Within hours, Senator Hillary Rodham Clinton of New York, who is seeking the Democratic nomination, announced her intention to submit such a bill.
So a key question is whether there is good reason for the various limitations in the Equal Pay Act. From Ginsburg's opinion:
Notably, the EPA provides no relief when the pay discrimination charged is based on race, religion, national origin, age, or disability. Thus,... the Court does not disarm female workers from achieving redress for unequal pay, but it does impede racial and other minorities from gaining similar relief.

Furthermore, the difference between the EPA’s prohibition against paying unequal wages and Title VII’s ban on discrimination with regard to compensation is not as large as the Court’s opinion might suggest. The key distinction is that Title VII requires a showing of intent. In practical effect, “if the trier of fact is in equipoise about whether the wage differential is motivated by gender discrimination,” Title VII compels a verdict for the employer, while the EPA compels a verdict for the plaintiff. 2 C. Sullivan, M. Zimmer, & R. White, Employment Discrimination: Law and Practice §7.08[F][3], p. 532 (3d ed. 2002).
So, go ahead, Hillary. Fix it.


The Drill SGT said...

So the claimant had other tort means but did not take them because the payoff using the method she went with was bigger... and she lost... oh well...

Simon said...

Not to entirely too blatantly blog-whore, but I have a post walking the uninitiated through Ledbetter and restating my thoughts (which haven't really changed since oral argument) here.

Anonymous said...

Perhaps a presumption-of-guilt pendulum that has swung much too far in one direction, thanks to the screeching purveyors of race/class/gender victimhood, is moving back toward the middle. One can only hope.

Underlying all the whining is the cherished belief that corporations and white males are inherently evil - as are differences in pay, position, etc. And of course any indication of discrimination must be invalid and based upon r/c/g bias.

In point of fact, most businesses make rational decisions about such things. A manager does not want a quality employee leaving and going to a possible competitor because she is not being compensated at or above market for her contribution to the company.

Exceptions are, of course, trumpeted in the press; and in the absence of legitimate complaints, any distortion will do (for example see NOW and their [discredited] propaganda about wage disparity.). Lying and misrepresentation are, after all, considered legitimate tactics on the Left. Good on the Court, in spite of its feminist former-ACLUer member's comments.

Joe Giles said...

Hillary could fix it. *snap* Just like that.

Saw a Hillary speech yesterday. Did you know it costs us xillions of dollars since all of our medical records aren't available electronically at the drop of a hat? Hillary would fix that by flipping a switch. No mention of fact that even major banks haven't been able to secure their systems. Hillary didn't seem to think this a problem.

Also, did you know it takes 17 years to get a medical product to market? Hillary said we could change that to 17 seconds. Isn't that awesome! Whammo! Done. No mention of whether John Edwards helps create that delay in the first place.

The Drill SGT said...

Also, did you know it takes 17 years to get a medical product to market? Hillary said we could change that to 17 seconds. Isn't that awesome! Whammo! Done. No mention of whether John Edwards helps create that delay in the first place.

and here I thought I keep reading the MSM do the "drug too early to market without sufficent testing" story. silly me...

Simon said...

"Hillary could fix it. *snap* Just like that."

At least, Congress could fix it, "jus' like tha'" as Tommy Cooper would say. Indeed, it could do it in at least two fairly obvious ways: it could change Title VII's filing period, see 42 U.S.C. § 2000e–5(e)(1), either by expanding it, or simply eliminating it altogether. Or alternatively, it could amend the statute to encompass Ledbetter's theory that any pay packet issued that is affected in any way by any previously discriminatory conduct is itself a discrete clock-starting act of discrimination.

Personally, I think the latter approach borders on the incoherent (when I get paid, the only two entities involved in that process are a payroll computer here and the bank's computer, neither of which are capable of discrimination) and would be totally inconsistent with the rest of Title VII (i.e. it would uncouple discriminatory intent from employment practice), so I'd far rather that if they have to do anything (and for reasons advanced in Justice Ginsburg's dissent, Congress probably should) they just expand the filing period.

Anonymous said...

Did you know it costs us xillions of dollars since all of our medical records aren't available electronically at the drop of a hat? Hillary would fix that by flipping a switch.

Yeah. What a hoot. Electronic medical records is something I know a considerable amount about (unfortunately) due to my job. We'll get to the promised land of secure, accessable electronic records someday, but it will take a huge amount of work. It's a big, big undertaking. And it will NOT save money. It's will cost a mint. And the more the government gets involved, the more mints it will cost.

Thorley Winston said...

Saw a Hillary speech yesterday.

Me too, she was giving a speech on health care to a friendly audience and every time the CSPAN camera panned the audience, people were sitting with their chin in one hand and looking like they could barely keep their eyes open. I listened up until the part where she trotted out the usual bogus talking points about the price of prescription drugs and I started laughing so hard I nearly fell off the treadmill.

Seriously though, health care reform is probably one of the most important domestic issues. The problem is though that with the possible exception of electronic medical records (which she’s right to point out), her prescription for health care reform is going in the wrong direction.

What we ought to be doing is giving the self-insured the same tax advantages employers get for providing health care to their employees. Let individuals and organizations including small businesses pool together to form association health plans to purchase insurance the way larger businesses do. Allow individuals to purchase health insurance from anywhere in the country which would allow them to buy actual health insurance that kicks in when one has an injury or catastrophic illness rather than prepaid health care (which is one reason BTW why premiums are so high).

hdhouse said...

See, lil' ol' simon jumps in and a thread gots to hell in a handbasket.

what started out as a 5-4 legal decision that was made with no thought to the practicality of the result (thus made stupidly) to a stupid set of comments about a practical set of observations.

how nice.

Sofa King said...


At least he had something intelligent to say. Go be a turd in someone else's punchbowl.

An Edjamikated Redneck said...

Where did the concept come form that anyone was entitled to a specific job at a specific employer?

These plaintifs accepted the amount of compensation they were offered didn't they?

Is there a law prohibiting them from looking for a new job?

Several times in my career I have looked the package being offered by my employer, figured I could get more somewhere else, found that somewhere else and turned in my notice.

A couple of these places, based on my experience and skills, I was being screwed out of thousands of dollars. I didn't sue; I LEFT.

Of course, as a white male, I probably didn't have standing to sue; I'm too evil.

Simon said...

Seems to me that the other commenters in the thread haven't been discussing the specifics of the decision, but rather have generalized it into a broader debate (if that sounds like a criticism, it isn't meant as such) in which I haven't participated. So if it's gone to hell in a handbasket, don't point at me. It's getting to a point where I have to assume you're just working through the same sort of crush on me as you and Doyle have on Ann, requiring you to snipe at every opportunity, no matter how much you have to contort reality to look like an opportunity. Have some dignity, would ya?

hdhouse said...

ohhh simple simon....with your outlook i would be searching for pulling yourself out of your own ass...dignity can come later.

as long as you dress up in the holloween costume of silliness, you get what you get.

Joe Giles said...

Apologies for driving us off the road...

...although all credit for the lame ad hominems goes to hdhouse.

Fen said...

credit for the lame ad hominems goes to hdhouse

...which can still be useful. Its a sign that Simon's raised points the Left can't refute with rational thought. Tells me I need to go back and read Simon more carefully. Thanks hd.

Unknown said...

I know you're not exactly a liberal, but you are so far to the left of your commenters. Sometimes I wonder how you can stand listening to the screeching wingnuts who populate this forum.

I think yours is the blog with the greatest dispairity between the values of the blogger and the values of her commenters. In fact, your blog may be sui generis in this respect.

Simon said...

While you're right that Ann's politics are likely somewhat to the left of most of the regular commenters, it seems to me that the most "screeching" that takes place in the comments (certainly in the instant thread) comes from folks on the left (HDhouse, Doyle, Freder). This isn't to say that all the left-leaners are screechy (MadisonMan and Elizabeth, for example, spring readily to mind as left-leaners who are civil almost to a fault), or that none of the right-leaners ever get screechy, but as a general pattern, there are a handful of individuals who are serially hostile and shrill, and they ain't conservatives.

Ann Althouse said...

Verso: I just say what I think, and I invite people to participate in the comments. What do you think is more disturbing to me, the fact that I have so many readers who like me who are to my right or the fact that the nearly all lefty commenters are here to be abusive?

hdhouse said...


pardon moi.

the left that inhabits this board is very tired of the constant patriotic smearing and pompous holier than thou pontifications from the right.

much of what is written on here is just drivel and the left side of the aisle long ago grew tired of "meeting half way". we go to the halfway point and the right wing here doesn't budge, just asks us to take a few more giant steps in their direction.

simon, for whatever his game is, always manages a spin. always. how can anyone take his work seriously when it is just surrounded by spin. lie a little. lie a lot.

it isn't right of course and hurling crap at the simon-wall probably isn't nice, but the frustration level caused by a fair number of utter blockheads on here is pretty maddening.

blake said...


Your message is remarkably content free. Your apology, insincere sounding.

Reagan notwithstanding, "There you go again" isn't really an argument.

Bissage said...

Verso (via Simon):

Rigorous scientific inquiry has proved to an absolute certainty that I am a 23, that is, between Colin Powell and the first George Bush.

I grew up what used to be called “upper lower class.” I thought “right wing” meant stupid, violent, mouth-breathing, racist, scumbag. That was because the ones I met who were openly “right wing” were, well, . . ., were. It wasn’t until I went to college that I met “left wing” people who were absolute f*cking assholes.

I figured it had a whole lot to do with the competition for scarce resources and individuals feeling secure in the strength of their numbers. Intimidation and all that.

On the internet, there’s substantial anonymity, just as there’s little opportunity to punch someone’s lights out and little consequence to being a f*cking asshole.

I don’t think of myself as political. Bissages just want to have fun. But still one can’t help but notice things. The “left wing” commenters here at Althouse are predominantly f*cking assholes.

Maybe they’re mostly college kids practicing to make money as pundits or something. But often I get the impression they’re simply frustrated and furious and trying to prove to themselves that the world is wrong – that it’s not their fault they’re a nobody -- which might seem preferable to admitting to yourself you’re doing no better or worse in life than you deserve.

I guess pretty much the same can be said for some of the “right wing” commenters; but less so. From what I can tell, “right wing” nastiness tends to be defensive more than offensive.

Don’t get me wrong. Sometimes I enjoy watching the fight. Call it a guilty pleasure. But if it ever comes time to man the barricades in the real world, I’ll be over there on the right. They’re nicer.

Anonymous said...

Bissage, I concur. I also grew up lower than higher on the economic scale. And I grew up in Madison, Wisconsin. I was taught, or rather learned through osmosis, that the right was greedy, selfish, violent and, especially, racist. When I became an adult, I started forming my own opinions. I ended up center-right I suppose. I hold many opinions that certainly wouldn't be considered to the right (abortion, religion, immigration apparently) but I'm more comfortable over here. I came to the conclusion that if you integrate "nasty" over the left and right sides of the spectrum, it isn't even a contest. The left wins the nasty contest hands down.

Simon said...

Having a view of an issue that's different from yours isn't putting a "spin" on something, Harry. It's a difference of opinion.

Methadras said...

After reading Simon's excellent summation of the Ledbetter v. Goodyear, I was left with one glaring vignette about the whole thing, but let me disclaim something first. I understand the need for title VII, I can even appreciate it's circumstances, but the one glaring issue of title VII is the fact that it exists at all and that government impunes itself onto and into the employer/employee relationship. If an employee has a grievance of wage dispute with an employer, regardless of what the wage dispute entails, there is a facility for it. It's called civil suit.

To hold an employer liable for any wage decisions that are made with respect to his employee, as long as they are lawful, regardless of time limit is absurd. Employee salaries should be held in secret regardless and there should be policies nation-wide in every single company that says that no employee can discuss they salaries with any other employee and that doing so is a violation of employment and is subject to warning or dismissal.

Instead of having a 180 time period at the point of violation, why not simply extend it to 1 year and be done with it. That gives the grieved employee enough time to file an EEOC complaint and should smooth things out policy wise with respect to an EEOC decision for or against the employer. Government involving itself in nearly every aspect of your life leads to things like this. An issue, frankly that should never had gone beyond the civil court level.