Friday, June 1, 2007

More on Ledbetter

Richard Thompson Ford has a good article on the Ledbetter decision over at Slate. He makes an important point that I ignored in my post below. Alito focuses on intent rather than consequences. In other words, an action is not discriminatory so long as it is not intended to be discriminatory (even if it has discriminatory consequences). The argument goes like this: while the initial pay raise may have been discriminatory, there is no reason to suggest that all subsequent raises were discriminatory (and this gets us back into the 180 day issue discussed in the post below). However, Ford makes a good point:

Ledbetter argued that she was paid less than that of her male co-workers because of her sex right up until she retired. To prove this, she showed that her employer intentionally discriminated against her at some point in setting her salary, and every subsequent paycheck was an application of the original set point. Who cares whether the subsequent salary decisions were intentionally discriminatory? Goodyear continued to pay Ledbetter less than her co-workers for the same work because of her sex. That's sex discrimination. When it first decided to discriminate against her should be irrelevant.
So, the Court is saying that discriminatory intent must be shown within the past 180 days. However, an application of that discriminatory intent may not itself be discriminatory intent. What are the implications of such an argument?
If an employer pays a woman less because of her sex, and isn't found out within the 180- or 300-day period, the employer can continue to pay the discriminatory wage. For employers, the lesson is obvious—hide your misdeed for six months and you're not only off the hook, you get to keep cheating. For employees, the lesson is equally clear: Sue early and often. If you suspect your boss might be discriminating with regard to your pay, you can't afford to wait around until you're sure.
This is simply absurd. An action can be representative of discrimination even if it isn't intended to be discriminatory. Even if Ledbetter received equal pay raises after the initial raise (which is unlikely), her salary still reflects discrimination. Indeed, the act of her receiving her unfairly low paycheck seems like discrimination to me. A decision to not give a woman a fair raise because she is a woman is discrimination, yes, but that is not the end of the discrimination. Continuing to support that decision by paying her less is discriminatory, even if it isn't intended to be.

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