Courting Big Business

On Tuesday, a 5-4 Supreme Court majority gutted one of the most fundamental workplace safeguards established by Title VII of the 1964 Civil Rights Act -- its guarantee that employees' paychecks not be reduced on grounds of race, gender, religion, age, or ethnicity. The Court's decision so disturbed Justice Ruth Bader Ginsburg, a lifetime gender discrimination foe, that she made the rare gesture of  reading aloud her 20-page dissenting opinion from the bench.

Justice Samuel Alito's majority opinion confirms other signals from the Court's first two terms under Chief Justice John Roberts: a four-justice bloc -- Alito, Roberts, Antonin Scalia and Clarence Thomas -- appears dead set on overriding, undermining, or otherwise neutralizing major laws enacted by liberal Congresses (and taken for granted by the public) over the last two-thirds of the 20th century. In this case, Ledbetter v. Goodyear Tire & Rubber Company, the foursome, augmented by swing Justice Anthony Kennedy, shredded the handiwork of the Congress that passed the original Civil Rights Act, ruling that employees must make their discrimination complaints within 180 days after the alleged unlawful employment practice occurred.

With its majority opinion, the Court also effectively ripped up a legislative "fix" enacted in the Civil Rights Act of 1991, designed to overturn a 1989 Rehnquist Court decision that had gutted precisely the same provision at issue in Ledbetter. Showing noteworthy chutzpah, Alito extensively referenced the 1989 Rehnquist Court decision, which, until Tuesday, had been considered a dead letter, not once cited by the Court since Congress dispatched it 16 years ago.

The case was brought by Lilly Ledbetter, a supervisor at a Goodyear Tire & Rubber Co. plant in Gadsden, Alabama, from 1979 to 1998. When she retired, she earned $3,727 per month as one of 16 area managers; salaries of the other 15 -- all of whom were men -- varied from $4,286 to $5,236, or 15 to 40 percent higher than hers. At trial, Ledbetter persuaded the jury that this dramatic differential stemmed from gender-biased decisions made early in her career, which shunted her to a lower track, a fate that proved irreversible and in the jury's estimate justified a compensatory award of $228,438 plus $3.2 million in punitive damages, which the trial judge reduced to a total of $360,000.

But, the Supreme Court held, the jury had no right to hear Ledbetter's complaint, on the ground that Title VII contains a statute-of-limitations provision which requires workers to file their complaint within 180 days after the last act they allege to be discriminatory. Ledbetter had contended that her most recent paychecks were part of a chain of acts which flowed from and were infected by the original company decisions to give her second-class status. The Court's decision to the contrary, as Justice Ginsburg noted in her dissent, "grandfathered" and immunized the sexist practices that side-tracked Ledbetter's career, and made the seminal injustice "a fait accompli beyond the province of Title VII ever to repair."

The Court's interpretation effectively neuters Title VII as a safeguard against discriminatory pay practices. In the real world, many employees, Ledbetter included, only learn what their colleagues earn by happenstance over long periods of time. Typically, most employees would try other, less confrontational options before resorting to litigation and risking the effective end of their career with that employer. Indeed, sensible public policy considerations should encourage such informal, career-preserving resolutions rather than pressuring discrimination victims to race to court to preserve their legal options. Indeed, as Justice Ginsburg pointed out, an act of pay discrimination might not only be initially invisible to the employee, but might well be impossible to prove in court until its incremental effects build up through years of unequal paychecks. So Tuesday's decision turns the Civil Rights Act into Catch-22 -- out of court if you file fast, and out of court if you wait.

Of course, the Congress that passed the 1964 Civil Rights Act hardly intended a result so puny and absurd. To get this common-sense message through, the Congress that developed the 1991 "fix" clarified in a committee report that "Where, as was alleged in [the 1989 case overturned by the new law], an employer adopts a rule or decision with an unlawful discriminatory motive, each application of that rule or decision is a new violation of the law" [emphasis added] -- i.e., the last paycheck tainted by the original abuse counts and the 180 day statute of limitation does not bar the victim from her day in court.

Increasingly, the actions of the Roberts Court are making clear that a critical priority for this Democratic Congressional majority -- and any subsequent Democratic majorities -- must be to reclaim and protect such landmarks as the Civil Rights Act. Members of Congress need to get mad and get even -- this time around, using tamper-proof legislative "fixes" and some displays of institutional anger and saber-rattling. These activist justices will have to be disabused of the skepticism, evident in this case and others, that Congress has the political will or capacity to get its way or defend its constitutional turf. The instant pledges of Senator Hillary Clinton and others to introduce legislation to undo Ledbetter is a promising sign and a step in the right direction.

In the meantime, they can expect more opinions in this vein from the Roberts Court. Justice Alito's solicitude for employers is not new. Before joining the Supreme Court in February 2006, as an appellate judge on the Third Circuit Court of Appeals, he repeatedly pressed legal theories or factual interpretations, usually in dissent, designed to keep juries from hearing employment discrimination claims. In one such case, the majority opinion observed that his position "would immunize an employer" even if he or she were motivated by "conscious racial bias." In another, the majority noted that if his approach represented the law, "few if any [discrimination] cases would survive."

In moving his campaign against worker protections to the Supreme Court, Alito and his fellow zealots have drifted far from a recognizably conservative vision of their role. Their message to working citizens like Lilly Ledbetter is clear enough: you may play by the rules, but we will use our life-tenured authority to keep Congress from applying those rules to your boss. So much for equal justice, the rule of law, or respect for Congress.

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