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.

On Ledbetter v. Goodyear

In Ledbetter v. Goodyear, the Court reached another 5-4 ruling; another one that would have gone the other way had O'Connor still been on the Court.

I always recommend reading Linda Greenhouse's articles, so here's her explanation.

And here is some commentary that I find rather agreeable.

Down to business. At issue here is how to interpret a statute involving sexual discrimination in the workplace. The statute requires that complaints be filed within 180 days of a given incident. So, if a woman thinks that a male candidate for a job was chosen over her simply because of gender, she has 180 days to file a complaint. Fair enough. But, this case involves pay raises, something that affected women may not know about until well after 180 days.

Some specifics to this case. When hired, Ledbetter's salary was the same as her male counterparts', but over time, she consistently received smaller raises, allowing for a rather drastic gap in pay. Indeed, at the time of the complaint, she was making $3,727 a month, while the lowest-paid man was making $4,286, and the highest-paid man was making $5,236. The discrimination seems undeniable.

However, in order to file a complaint, she would have had to have done so within 180 days of any of the "incidents," or in other words, any of her raises. But she had no reason to believe that her raises were discriminatory. After all, when I received my last raise, I was sworn to secrecy; I assume most companies have very similar policies. So, she had little to no way of knowing that there was even an issue within the given 180 days. Look at it this way; she could find out about blatantly discriminatory practices 181 days after they happened, but according to the Court's (majority opinion authored by the fresh-faced Samuel A. Alito) interpretation of the statute, she would not be allowed to pursue legal action.

Of course, the majority claims that they are simply enforcing legislative intent. They provide a "strict" reading of the statute; 180 days means 180 days. No "legislating from the bench!" But, I have a hard time believing that the legislature that crafted this statute would have meant that Ledbetter would not be able to pursue legal action. Indeed, a strict reading of the words of the statute requires that the Court rule the way it did, but a "strict" reading is not always the best way to find legislative intent. It is likely that no legislators envisioned this sort of a scenario, and thus they did not necessarily intend for this to be the outcome.

Of course, given that this is a case of statutory interpretation (i.e. not Constitutional interpretation), Congress can rephrase the statute and, for all intents and purposes, overrule this ruling. The Court has used this logic many times in the past: if you don't like a law and it doesn't raise any Constitutional questions, take it up with Congress, not us! Fair enough; this same logic has been used to do some great things (to allow for the New Deal, for instance - but they were saying "Congress clearly intends this, you insane judges have to stop coming up with non-existant constitutional concepts to back up your laissez-faire ideologies"), but this is different. This is strict for the sake of being strict (or for the sake of giving women the shaft). The statute is clearly designed to do away with gender discrimination, so the Court is using the statute's words to work contrary to the statute's goals.

Maybe it's just me, but isn't ensuring the statute's goals more important than ensuring a strict reading of the words?