Pay discrimination
The Supreme Court does so many outrageous things these days that it's hard to keep track. Still, you might want to search around a bit to read the Court's 5-4 decision about the limits under which employees can sue employers for discrimination in pay. The majority has decided that employees must file charges within 180 days of being employed. Previously the courts and the government followed a doctrine where each paycheck was considered a discriminatory act, and thus reset the 180-day clock. No longer.
Stop and consider this. In your first six months at a job, do you find out how much the others around you make? Probably not. Furthermore, imagine that you are black, or hispanic, or female. Do you spend the first six months, when you're trying to prove yourself, asking around about what others make?
Also consider how pay discrimination works. Most employers don't hire new employees at vastly different pay levels based on ascriptive characteristics. They do, however, tend to favor white men for raises and promotions (even if only at the margins), which means that initial disparities, which might not seem worthy of a lawsuit, pile up over the years--such that one day you look around at the firm where you've worked for 20 years and realize that you, the sole woman among 16 managers, make less money than any of the others, even than the ones with less seniority than you. That was exactly the situation of the plaintiff in this case. Justices Alito, Roberts, Kennedy, Scalia and Thomas have told her to get lost, arguing that she should have filed her suit back when she was first hired, back in the early 1980s. [EDIT: Sorry, back in the late 1970s; the plaintiff charged discrimination shortly before her retirement in 1998.]
In other words, this ruling is a pretty big deal. Unfortunately I don't have much advice, other than that from here forward you should try to be white and male if at all possible.
I had a long discussion about this ruling this morning with a classmate of mine, a former management labor lawyer (i.e., he represents management in labor disputes) from California. His opinion was that it was a relatively narrow ruling that will be overapplied by both the courts and the press, but he didn't know what the ultimate effects would be.
I have printed off the opinion and the dissent and will look at them myself. This is what we have parsed so far:
Title VII of the Civil Rights Act of 1964 stated that, going forward, plaintiffs would have 180 days after the commission of a discriminatory act to file complaint under the Act. Some acts of discrimination, like failure to hire or termination, are pretty obvious when they occur and have produced little debate regarding the 180-day statutory period. Pay (and to a lesser extent promotion) discrimination is harder to recognize and prove within a 180-day period, however. Employees usually take time to find out what other employees make and to compare the raises they receive (think--you can only tell if your raise is discriminatory if you know what other raises looked like). Thus they may not know they were discriminated against until after the statutory period.
In this sense pay discrimination looks like the doctrine used for establishing a hostile work environment: "Each discrete act may not be sufficient for a charge of unlawful discrimination, but combined, 'the entire hostile work environment encompasses a single unlawful employment practice.' In such cases, then, the Court recognizes the irrationality of limiting civil action to the 180-day period before the filing of the charge, and instead allows civil action on the entire hostile work environment, on all acts that together give rise to the single claim." (I'll be quoting extensively from the analysis of the case by Cornell's Legal Information Institute.)
Pay discrimination falls in between the obviousness of hiring and firing and the ambiguity of a hostile work environment, and the previous court rulings have similarly been ambiguous. Thus the basic question: can an employee use employer acts from OUTSIDE the statutory period as evidence that pay received INSIDE the statutory period was discriminatory?
There has been disagreement on this among the district courts. Several have followed the Federal EEOC in a doctrine called "paycheck accrual" in which each paycheck is considered a discriminatory act, going back to the first one. The basis for that interpretation though was Bazemore v. Friday, which specifically cited a discriminatory practice from before the Civil Rights Act was passed. Ledbetter cites practices from the early 1980s, outside the statutory period but well after the act's passage. The 11th circuit court agreed with Goodyear that Ledbetter could only introduce evidence from her most recent performance evaluations (in 1997 and 1998), which almost everyone agreed had little discriminatory practice, said that the other employer actions were time-barred under the statute of limitations, and ruled for the employer.
I'm going to quote at length here:
"Ledbetter now argues that the Eleventh Circuit's decision diverges too radically from the Bazemore ruling and from the spirit of Title VII itself. Under the Eleventh Circuit's rule, Ledbetter contends, an employee is penalized for giving the employer the benefit of the doubt or for failing to recognize an initial pay disparity until it is made the basis for a percentage raise. Ledbetter maintains that simply looking to the most recent pay assessment before the 180-day period is insufficient, because even if the most recent decision is not discriminatory-perhaps a valid denial of a raise-the basic pay rate may still be a product of earlier discrimination.
"Ledbetter argues that Bazemore places an obligation on employers to eliminate any portion of a pay rate that is based on past discrimination, no matter how long in the past the discriminatory act of determining the rate took place, and regardless of any intervening non-discriminatory pay assessments. Furthermore, Ledbetter maintains, the language of Title VII itself focuses on the consequences of the discriminatory act, here the wage itself, not simply on the decision to discriminate.
"Ledbetter views the prospect of harm from the Eleventh Circuit's rule as very real; she notes, for instance, the minimal likelihood of an employee's willingness to file a charge against her employer for discrimination within the first six months on the job. Also, an employee may not immediately acknowledge discrimination for what it is, especially when pay assessments and raises are based on a facially neutral "merit" system.
"Ledbetter also contends that the EEOC and many federal circuits, including the Eleventh Circuit itself until the decision at hand, followed her interpretation of Bazemore and allowed plaintiffs to reach back past the statutory period in finding pay discrimination."
The issue here is one of timing. How should the statute of limitations be applied? Quoting again,
"Although the Supreme Court's holding in this case will not greatly affect Title VII remedies, as the statute itself already limits back pay to the two years prior to the filing of a charge, the decision will have a substantial effect on the limits of civil liability for compensation decisions by employers. If the Court affirms the Eleventh Circuit's decision, employers will be freed from worries about liability for long-ago pay discrimination, provided that they are careful to regularly assess in a non-discriminatory fashion. Employers who take care that future pay decisions are made lawfully will be relieved from threat of civil litigation regarding decisions made in the distant past. On the other hand, individuals who may wish to litigate using Title VII will need to take great care to keep a close watch on any possible pay discrepancies and to file charges on anything remotely suspicious within the 180-day window, instead of waiting to see if the suspicions are played out in future decisions or adjustments."
I'd just note the biased used of phrases like "the distant past" in that quotation. After all, we're talking about a six-month window here!
Here is perhaps the main point: "Although it may make sense from the standpoint of enforcing Title VII to require prompt reporting of discriminatory conduct, the Court may nevertheless rule in favor of Ledbetter in order to put the burden of preventing discrimination on the more powerful party."
We can thus summarize. The statute of limitations in the Civil Rights Act is, in some non-trivial sense, too short to be very useful in assessing pay discrimination. Many prior rulings have acknowledged the impracticality of this statute and have therefore interpreted the law in such a way as to make it realistically possible for employees to file pay-discrimination charges. The Supreme Court's decision ignores those practical realities and instead insists on a strict reading of the law. It does not eliminate a right to sue for pay discrimination, but it does raise the bar for proving discrimination by shortening the period from which evidence may be presented.
This is the meat of Justice Ginsburg's dissent. Quoting from it:
"The Court's insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter's case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.
"Pay disparities are thus significantly different from adverse actions "such as termination, failure to promote, … or refusal to hire," all involving fully communicated discrete acts, "easy to identify" as discriminatory. It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter's situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex."
Actually, Ginsburg's dissent is worth reading in its entirety. She lays out the problems with the ruling as clearly as you would like.
It's a bullshit ruling, but also a relatively narrow one. The Court has misrepresented Congress's intent, as should be obvious. Congress must now act to pass another Civil Rights Act that will supersede the wording on which the conservative majority of the Court relies. It has done this before--some provisions of the 1991 Civil Rights Act were passed explicitly to correct what Congress saw as the Court's incorrect interpretation of statutory periods in seniority systems in the Lorance decision. Will Congress so act, and will Bush sign that act into law? Ah, that's the question, isn't it?
Stop and consider this. In your first six months at a job, do you find out how much the others around you make? Probably not. Furthermore, imagine that you are black, or hispanic, or female. Do you spend the first six months, when you're trying to prove yourself, asking around about what others make?
Also consider how pay discrimination works. Most employers don't hire new employees at vastly different pay levels based on ascriptive characteristics. They do, however, tend to favor white men for raises and promotions (even if only at the margins), which means that initial disparities, which might not seem worthy of a lawsuit, pile up over the years--such that one day you look around at the firm where you've worked for 20 years and realize that you, the sole woman among 16 managers, make less money than any of the others, even than the ones with less seniority than you. That was exactly the situation of the plaintiff in this case. Justices Alito, Roberts, Kennedy, Scalia and Thomas have told her to get lost, arguing that she should have filed her suit back when she was first hired, back in the early 1980s. [EDIT: Sorry, back in the late 1970s; the plaintiff charged discrimination shortly before her retirement in 1998.]
In other words, this ruling is a pretty big deal. Unfortunately I don't have much advice, other than that from here forward you should try to be white and male if at all possible.
I had a long discussion about this ruling this morning with a classmate of mine, a former management labor lawyer (i.e., he represents management in labor disputes) from California. His opinion was that it was a relatively narrow ruling that will be overapplied by both the courts and the press, but he didn't know what the ultimate effects would be.
I have printed off the opinion and the dissent and will look at them myself. This is what we have parsed so far:
Title VII of the Civil Rights Act of 1964 stated that, going forward, plaintiffs would have 180 days after the commission of a discriminatory act to file complaint under the Act. Some acts of discrimination, like failure to hire or termination, are pretty obvious when they occur and have produced little debate regarding the 180-day statutory period. Pay (and to a lesser extent promotion) discrimination is harder to recognize and prove within a 180-day period, however. Employees usually take time to find out what other employees make and to compare the raises they receive (think--you can only tell if your raise is discriminatory if you know what other raises looked like). Thus they may not know they were discriminated against until after the statutory period.
In this sense pay discrimination looks like the doctrine used for establishing a hostile work environment: "Each discrete act may not be sufficient for a charge of unlawful discrimination, but combined, 'the entire hostile work environment encompasses a single unlawful employment practice.' In such cases, then, the Court recognizes the irrationality of limiting civil action to the 180-day period before the filing of the charge, and instead allows civil action on the entire hostile work environment, on all acts that together give rise to the single claim." (I'll be quoting extensively from the analysis of the case by Cornell's Legal Information Institute.)
Pay discrimination falls in between the obviousness of hiring and firing and the ambiguity of a hostile work environment, and the previous court rulings have similarly been ambiguous. Thus the basic question: can an employee use employer acts from OUTSIDE the statutory period as evidence that pay received INSIDE the statutory period was discriminatory?
There has been disagreement on this among the district courts. Several have followed the Federal EEOC in a doctrine called "paycheck accrual" in which each paycheck is considered a discriminatory act, going back to the first one. The basis for that interpretation though was Bazemore v. Friday, which specifically cited a discriminatory practice from before the Civil Rights Act was passed. Ledbetter cites practices from the early 1980s, outside the statutory period but well after the act's passage. The 11th circuit court agreed with Goodyear that Ledbetter could only introduce evidence from her most recent performance evaluations (in 1997 and 1998), which almost everyone agreed had little discriminatory practice, said that the other employer actions were time-barred under the statute of limitations, and ruled for the employer.
I'm going to quote at length here:
"Ledbetter now argues that the Eleventh Circuit's decision diverges too radically from the Bazemore ruling and from the spirit of Title VII itself. Under the Eleventh Circuit's rule, Ledbetter contends, an employee is penalized for giving the employer the benefit of the doubt or for failing to recognize an initial pay disparity until it is made the basis for a percentage raise. Ledbetter maintains that simply looking to the most recent pay assessment before the 180-day period is insufficient, because even if the most recent decision is not discriminatory-perhaps a valid denial of a raise-the basic pay rate may still be a product of earlier discrimination.
"Ledbetter argues that Bazemore places an obligation on employers to eliminate any portion of a pay rate that is based on past discrimination, no matter how long in the past the discriminatory act of determining the rate took place, and regardless of any intervening non-discriminatory pay assessments. Furthermore, Ledbetter maintains, the language of Title VII itself focuses on the consequences of the discriminatory act, here the wage itself, not simply on the decision to discriminate.
"Ledbetter views the prospect of harm from the Eleventh Circuit's rule as very real; she notes, for instance, the minimal likelihood of an employee's willingness to file a charge against her employer for discrimination within the first six months on the job. Also, an employee may not immediately acknowledge discrimination for what it is, especially when pay assessments and raises are based on a facially neutral "merit" system.
"Ledbetter also contends that the EEOC and many federal circuits, including the Eleventh Circuit itself until the decision at hand, followed her interpretation of Bazemore and allowed plaintiffs to reach back past the statutory period in finding pay discrimination."
The issue here is one of timing. How should the statute of limitations be applied? Quoting again,
"Although the Supreme Court's holding in this case will not greatly affect Title VII remedies, as the statute itself already limits back pay to the two years prior to the filing of a charge, the decision will have a substantial effect on the limits of civil liability for compensation decisions by employers. If the Court affirms the Eleventh Circuit's decision, employers will be freed from worries about liability for long-ago pay discrimination, provided that they are careful to regularly assess in a non-discriminatory fashion. Employers who take care that future pay decisions are made lawfully will be relieved from threat of civil litigation regarding decisions made in the distant past. On the other hand, individuals who may wish to litigate using Title VII will need to take great care to keep a close watch on any possible pay discrepancies and to file charges on anything remotely suspicious within the 180-day window, instead of waiting to see if the suspicions are played out in future decisions or adjustments."
I'd just note the biased used of phrases like "the distant past" in that quotation. After all, we're talking about a six-month window here!
Here is perhaps the main point: "Although it may make sense from the standpoint of enforcing Title VII to require prompt reporting of discriminatory conduct, the Court may nevertheless rule in favor of Ledbetter in order to put the burden of preventing discrimination on the more powerful party."
We can thus summarize. The statute of limitations in the Civil Rights Act is, in some non-trivial sense, too short to be very useful in assessing pay discrimination. Many prior rulings have acknowledged the impracticality of this statute and have therefore interpreted the law in such a way as to make it realistically possible for employees to file pay-discrimination charges. The Supreme Court's decision ignores those practical realities and instead insists on a strict reading of the law. It does not eliminate a right to sue for pay discrimination, but it does raise the bar for proving discrimination by shortening the period from which evidence may be presented.
This is the meat of Justice Ginsburg's dissent. Quoting from it:
"The Court's insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter's case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.
"Pay disparities are thus significantly different from adverse actions "such as termination, failure to promote, … or refusal to hire," all involving fully communicated discrete acts, "easy to identify" as discriminatory. It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter's situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex."
Actually, Ginsburg's dissent is worth reading in its entirety. She lays out the problems with the ruling as clearly as you would like.
It's a bullshit ruling, but also a relatively narrow one. The Court has misrepresented Congress's intent, as should be obvious. Congress must now act to pass another Civil Rights Act that will supersede the wording on which the conservative majority of the Court relies. It has done this before--some provisions of the 1991 Civil Rights Act were passed explicitly to correct what Congress saw as the Court's incorrect interpretation of statutory periods in seniority systems in the Lorance decision. Will Congress so act, and will Bush sign that act into law? Ah, that's the question, isn't it?