Stuart Taylor, in The National Journal, on the May 29 SCOTUS Title VII Ledbetter ruling—5-4, with the conservatives in the majority—which the NYT opined, “struck a blow for discrimination this week”:
Are Alito and company really such heartless, pro-discrimination brutes? Hardly. Ginsburg’s dissent was well put. But Alito had the better of the argument as to congressional language and the Court’s own precedents, in my view. And as a policy matter, it’s far from clear that justice would be better served by the Ginsburg approach of opening the door wide to employees who, like the plaintiff in this case, wait for many years to claim long-ago—and thus difficult to disprove—pay discrimination.
The majority’s reading of the relevant provisions of Title VII of the 1964 Civil Rights Act, which bans employment discrimination based on (among other things) sex, rested on three points that Ginsburg did not dispute.
* Congress provided an unusually short statute of limitations for Title VII lawsuits such as plaintiff Lilly Ledbetter’s—180 days “after the alleged employment practice occurred”—in a political compromise designed to promote conciliation over litigation.
* Title VII required Ledbetter to prove that the “employment practice” involved intentional discrimination in pay based on sex.
* Her employer, Goodyear Tire & Rubber, did not intentionally discriminate against her during the 180 days before she filed her complaint.
Case closed, one might think: This lawsuit was time-barred by Congress.
But lawyers for Ledbetter, who was paid significantly less than any of her male colleagues, and Justice Ginsburg had a theory to get around the 1964 act’s seemingly plain language:
Because supervisors intentionally discriminated against Ledbetter by putting her on a lower-paid track than her male colleagues years before she filed her claim, the argument goes, then—even if nobody ever intentionally discriminated against her again—each new paycheck amounted to a new act of discrimination, resetting the 180-day clock.
That’s a stretch. True, most federal appeals courts have reached similar conclusions, but never, as Alito stressed, has the Supreme Court allowed such a Title VII suit to proceed without evidence that at least some intentional discrimination occurred within the 180-day period.
Four of the Court’s prior decisions—in 1977, 1980, 1989, and 2002—held that Title VII’s statute of limitations cut off any claims based on discriminatory acts that occurred more than 180 days before the claim was filed, even if those acts continued to adversely affect the plaintiff’s pay or status into the 180-day period.
Ginsburg stressed another decision, Bazemore v. Friday, from 1986. But while somewhat ambiguous, Bazemore involved allegations of intentional, race-based pay discrimination during, as well as before, the 180-day period.
The Ledbetter case exemplifies the policy judgment underlying such congressionally mandated time limits. The main acts of discrimination alleged by Ledbetter dated to the early 1980s and mid-1990s, when she says a supervisor retaliated against her for shunning his sexual advances by giving her smaller raises than similarly situated men. Ledbetter knew no later than 1992 that she was earning less than most male colleagues. But she waited to sue until July 1998, when she was ready to retire. By the time of trial, the alleged harasser had died, leaving Goodyear in no position to dispute her claims.
The approach proposed by Ginsburg and the three other dissenters could effectively nullify Congress’s 180-day statute of limitations in all, or at least most, pay-discrimination lawsuits—even, Alito suggested, if the plaintiff waits 20 years to sue after learning of a single allegedly discriminatory act. Ginsburg responded that judges could use legal doctrines including “laches” to throw out claims filed unreasonably late. Or, as Alito explained, they might not.
The inevitable cost of any statute of limitations is that some valid claims will be time-barred. Congress, not the courts, is supposed to strike the cost-benefit balance. And Congress is free to change or fine-tune the provision to make it more plaintiff-friendly, as Ginsburg and others have urged. But is it the Court’s job to fine-tune it by strained interpretation?
And yes, that question is meant rhetorically—though sadly, and in a way that should be quite worrisome, not to Justice Ginsberg, who in her dissent effectively invited Congress to change the law in a way that it fits with her political policy preferences.
As Ed Whelan at Bench Memos puts it:
In yesterday’s ruling in Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court ruled, by a vote of 5 to 4, that a pay-discrimination claim under Title VII cannot be based on the continuing effects of allegedly discriminatory acts that occurred outside the charging period. Justice Alito’s majority opinion concluded that four Supreme Court precedents “squarely foreclosed†that argument. Justice Ginsburg, in dissent, offered a different reading of the applicable precedents.
I’m not going to parse the arguments and counter-arguments here. I instead want to highlight Ginsburg’s remarkable invitation to Congress “to correct this Court’s parsimonious reading of Title VII.†More precisely, at the end of her dissent, after citing previous instances in which Congress has responded to the Court’s supposedly “cramped interpretation[s]†of Title VII by enacting legislative amendments, Ginsburg writes: “Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this parsimonious reading of Title VII.â€Â
One might contend that Ginsburg is not in fact inviting Congress to act, but rather that she is merely noting that Congress “may actâ€Â. Given Ginsburg’s assertion that “the ball is in Congress’ court†and her clear view that the Court’s “parsimonious†reading warrants “correct[ion]â€Â, that would be slicing the salami very thin. Indeed, the newspapers have accorded Ginsburg’s statement its natural meaning. The Washington Post, for example, states that Ginsburg “called for Congress to correct what she sees as the court’s mistake.†And the New York Times states that Ginsburg “invited Congress to overturn the decision†(and that “[w]ithin hours†Hillary Clinton “announced her intention to submit such a billâ€Â).
What business is it of Ginsburg’s to invite Congress to legislate on a matter, much less to legislate in a certain way? I suppose that it’s no wonder that a justice who can’t separate judging from politicsâ€â€and whose decisionmaking routinely indulges and entrenches her own political preferencesâ€â€would see no reason to refrain from advising Congress how to carry out its legislative function.
I am sympathetic to the claim that 180 days may not be long enough to discover discriminatory practices and file a claim—but such is the way the laws are written, meaning that this is a case about interpreting legislative policy as it exists, not as it ought to be, according to liberal justices. And the policy exists in its current form for pragmatic reasons: at a certain point, the ability for an employer to defend against long-ago charges of discrimination is troubled by changes in company policy, changes in personnel, loss of records, death of participants, etc.
And besides, there are other remedies available by law for pay-discrimination cases. Here, once again, Taylor again:
[…] suggestions by Ginsburg and the media that the decision leaves women such as Ledbetter with no adequate remedy for pay discrimination—because they may not even know what their male peers are paid until more than 180 days after the allegedly discriminatory pay-setting decision—are vastly exaggerated.
It’s true that some victims of pay discrimination will be initially ignorant of their peers’ pay and thus out of luck as far as Title VII is concerned. But Ledbetter, who waited six or more years to sue after learning of the pay disparities, is not one of them.
Besides, Title VII is not the only remedy for sex-based pay discrimination. The Equal Pay Act of 1963 requires employers to pay women as much men doing “equal work” in the same establishment, with exceptions including merit pay. This law does not require proof of intentional discrimination. And it has a much longer, three-year statute of limitations.
Ledbetter sued under the Equal Pay Act as well as under Title VII. But the trial judge threw out the former claim. The exact reasons are unclear, but it appears that few men at Goodyear had jobs similar enough to Ledbetter’s to meet the definition of “equal work.” Ledbetter did not appeal, perhaps because the big bucks are in punitive damages, which are unavailable under the Equal Pay Act.
The judge allowed the Title VII claim to go to trial. The jury found sex-based pay discrimination and awarded Ledbetter $223,776 in back pay, $4,662 for mental anguish—and $3,285,979 in punitive damages. The judge reduced this to $60,000 in back pay and the congressional maximum $300,000 in (mostly punitive) damages.
This is the award that the justices overturned (as had a federal appeals court) on the ground that the Title VII claim should never have gone to the jury because there was no proof of intentional discrimination during the 180-day period set by Congress.
By the way, it’s debatable, if legally irrelevant, whether the jury was right to find that Ledbetter was a victim of sex discrimination. While she and two other women testified that male supervisors at the plant were openly biased against women, other witnesses disagreed. And the evidence as to Goodyear’s intent was old and stale.
It was clearly established, on the other hand, that the pay disparities between Ledbetter and similarly situated men were largely attributable to the cumulative effect of repeated layoffs, which made her ineligible for raises in 1986, 1987, 1988, and 1990, and which she has not alleged to be discriminatory.
Beyond that, before the case went to the jury, a federal magistrate judge found that Ledbetter’s relatively low pay reflected “weak” job performance, not sex discrimination. He noted that most of her performance evaluations were “at or near the bottom”: 15th out of 16 area managers, and 23rd out of 24 salaried employees in tire assembly in both 1996 and 1997, for example. Ledbetter said the evaluations were tainted by discrimination.
The 180 day limit may seem arbitrary—and, in fact, it is, in the strictest sense—but it (like the voting age or drinking age) is nevertheless a clear, unambiguous legal cutoff point.
To wish it weren’t is one thing; but to try to finesse a legal interpretation to get around the clear language of the law is precisely the kind of judicial activism that should worry anyone—of any ideological stripe—who is committed to the rule of law and the separation of powers.
Because it is in providing the proper interpretation of the law as written and intended (even if the intent was to designate an arbitrary cutoff point for filing suit) that the Court is acting according to its role—and not, as Ginsburg (and the 3 other liberal justices) would like, as philosopher kings.
That the media is willing to carry water for such judicial activism not only marks it as liberal—but as active participants in a campaign to overturn the will of the people by judicial fiat when the will of the people doesn’t track “correctly” with its own idea of social justice.
Man, every time I think I cannot regard Justice Ginsburg the less…
I would contrast the howls of OUTRAGE when someone in Congress disagrees with the Court and proposes legislation to “correct” error, should they happen to have an “R” after their name. [Bullying! Intimidation! No respect for the Court or the Law!]
Bah.
Seems you and me are in the minority here, MJ.
Brings to mind the story of Judge Learned Hand and Justice Oliver Wendell Holmes where Judge Hand exhorted Holmes to, “Do justice, Sir! Do justice!” Judge Holmes replied, “That is not my job, sir. My job is to apply the law.”
That said, I worked in the Goodyear Gadsden plant for about 18 months in 1983-84 and, if I saw any rampant discrimination it was against us “damn yankees.”
A guy I talked to in Mississippi once said he was 15 before he knew “damn yankees” was two words…
The thing I can’t figure out about court decisions like this one, as well as Kelo, is how a majority of the court can read what seems like relatively plain text and conjure up a meaning from somewhere out in left field. Sometimes it just seems like they’re making shit up. Other puzzlements: the 4th amendment seems pretty clear on requiring search warrants; where did the notion that some “compelling state interest” obviates that provision for certain favored witch hunts such as DUI checkpoints?
The difference is, according to the folks in Gadsden, that the damn yankees don’t go back.
I thought it was kind of funny that they thought someone from Missouri, of all places, was a yankee. Iowa, maybe. Boston, definitely. But Missouri? That’s a stretch.
I’m a Missourian, too, and I saw that look of puzzlement when I told people that. My response was usually, “slave state.” I didn’t mention we stayed in the Union, however…
The Gadsden of “Don’t Tread on Me”? No wonder that Southern pride is the strongest there.
Missouri, the schizophrenic state. Wonder if that’ll fit on the new license plates?
Yes, but it’s a fine old venerable doctrine in many if not most jurisdictions that delayed discovery tolls the statute of limitations. Given the fact so many companies strive to keep salaries confidential, delayed discovery would be a quite reasonable doctrine to apply here.
Folks may disagree, and there’s certainly an argument to be made that it doesn’t apply here. But this is not a doctrine that Justice Ginsberg pulled out of her ass or anything.
As for this:
It is not unusual or improper for a court to invite the legislature to weigh in if it [the legislature] believes the court has misconstrued a statute. The legislature doesn’t have to take the court up on its invitation; it’s free to say, in effect, thanks, but no thanks.
There are also instances where, once the court has ruled by striking a statute down, the legislature, without invitation, redrafts the statute in the hope it will pass constitutional muster. This has happened recently, as I’m sure all good right-wingers know, with various state abortion statutes.
Sometimes a state legislature will even note in the body of the statute itself that it is intended to overrule a particular court decision.
This is not a problem, people. It’s the way our system works.
If you had left out the “as I’m sure all good right-wingers know” part, you would have seemed much more reasonable.
But, of course, you couldn’t resist.
Oh, I think what I said was pretty mild, a gentle tweaking at most.
Sure, many States have that doctrine (Illinois for example) – But this is a specified SOL in the USC – not common law tort in state court. You might want to run a Lexis search on that (or God forbid, Westlaw) before relying on such. Did Justice Ginsburg specify discovery tolling? Not in this case, as there was clear evidence that there was no tolling – she knew about the alleged bad act years before filing.
Your point fails on mootness.
As for Justice Ginsburg’s constant political tone and readiness to do anything to reach a desired result – that is the worst part of her jurisprudence, not her misreading of a statute or precedent. It is her willingness to ignore them in pursuit of an end result.
I don’t see the complaint here, especially the eternally hyperventilating NY Times. It is certainly open for the duly elected representatives of the people to amend the law if it so poopy. None of these oligarchs has said they can’t, they just said they didn’t. Quite different from their usual outrages
Yes, I realize we’re talking about a federal statute with its own SOL. I wasn’t “relying” on the delayed discovery doctrine, but simply pointing out that such doctrines as tolling, delayed discovery, continuing violation, etc. etc. are legal doctrines that are out there and have been around for quite a while. Justice Ginsburg wasn’t simply fashioning an oddball outcome out of whole cloth.
In fact, though, I didn’t realize the claimant knew about the alleged discrimination years before. I agree: That’s a problem.
As for Ginsburg being willing to “misread” a statute to get to the end result—please. She couldn’t be any worse than Scalia. That man will take a single word, find some obscure definition for it that has nothing to do with the statute in which it’s embedded, and on that slim foundation build himself a brand new law.
Which reminds me—here’s what gets me about so-called strict constructionists. They do the same darn thing lib justices do—or did, there being no truly lib justices left to speak of—they’re just less up front about it. Lib justices at least tell you when they’re taking policy considerations into account. Strict constructionists are just as adept at getting where they want to go by whatever means necessary. They just smear the resulting pig with “strict constructionist” lipstick when they’re done.
BTW, it’s not clear from the cited article that plaintiff knew for a period of years that she was on a lower pay track, just that she’d been on a lower pay track for years.
Maybe I shall go read the decision..
[tu quoque, hmm?]
And Justice Ginsburg is a “moderate” or a “conservative”? Pray, what are your categorizations of those joining in the dissent?
In this instance, yes. Yes she was. Laches – OMG !!11!1!1 She presumably wrote that with a straight face. SOL doesn’t apply but laches would….graaahhh!
If “actus” hadn’t already caused me to eat my IL ARDC card – I’d be doing it right now.
And here I thought Christine had done gone and fallen in the car crusher.
Slarti,
I am afraid that I am starting to dip into the Jameson, and I might not be too much help on this thread the rest of tonight.
Laches. Jeebus Pete.
The chick has no idea she is being discriminated against, she files the lawsuit and discovers the extent of the discrimination and the Court rewards her company’s secrecy in the extent in which they discriminate and Major John and Jeff argue that’s what the statute is for?!? Yes, it’s not there to protect workers or prevent frivolous claims, it’s there to reward company’s for keeping discrimation secret as long as possibel, so their liability is limited. Excellent reading, gents. That statute wasn’t written to protect employees, but to protect employer’s from paying too much to discriminate.
I’d be breaking into Zurich’s mainframe post-haste to make sure you aren’t being screwed, MJ, ’cause every day is a day they get away with paying you less.
And, isn’t that the point. At some level, given the high cost of counsel and the few lawsuits, the company can make a cost-benefit analysis that screwing people cost less than paying 180 days worth of damages? Ah, the Supremes, always looking out for the little guy.
Why should we reward people who are content to languish in a job, feeling underpaid and growing increasingly bitter? Barnacles is what they are.
It’s a little known fact that, in addition to not finishing his Ph.D, Jeff also watches a lot of CourtTV and is pretty up on legal stuff.
TimB, If you had bothered to read the post, you would see there are remedies that go out further than 180 days- they just don’t have that fat, contingency fee lawyer appeal now do they?
How do you square your position against the longer SOL in the other applicable statutes?
money means everything in civil damages. It is the deterrence. Personally, I’m not a contingency lawyer (or a lawyer), but I do recognize what makes the corporate types blanch.
I have also needed counsel before and been unable to retain it because I didn’t have the….retainer. Since corporations have people like you working for them (and there is nothing wrong with that), the employee has nothing and limiting damages means limiting the opportunity for employees to have counsel available to them… No matter though
Have you read the post, Timmy? I said I was sympathetic to the 180 day period being perhaps too short — but the fact is, that’s the way it was written by the legislature. They weighed numerous considerations, I’d imagine — some of which are raised in this case (the supposed discriminator in question is no longer around to defend himself) — and they decided on the 180 day constraint.
The law is pretty straightforward, it seems to me. And to Stuart Taylor, among others.
As for Christine’s point about Scalia, well, I’ve been pretty tough on him for his work in Raich — and regular readers know I’m more of a Thomas guy. So I’m not sure what the purpose of that comment was.
And puzzled — having nothing to add — brings out the chickenlawyerhawk argument.
I guess s/he’s waiting for John Edwards to tell him what to think.
Bottom line: Ginsburg should not be telling the legislature to “fix” a law that they believed, when they wrote it, placed the time constraint at the proper point — arbitrary though it may be — given the concerns of both the plaintiff and the businesses called on to defend themselves.
If she wishes to quick the bench and run for legislative office, that’s her prerogative; but as it stands, all she did was give certain lawmakers a reason to draft legislation that would overturn the law (by expressing her political / ideological outrage, relyin solely on emotional appeals.
Which isn’t her function, I don’t believe.
Of course, my not being a lawyer, I’m not supposed to have an opinion on this kind of thing. We’ve reached the era of absolute credentialism. Which is why I just mailed my baseball gloves to Barry Bonds.
Not being a professional, what business do I have playing ball?
Not being a professional, what business do I have playing ball?
You have none, Jeff.
“money means everything in civil damages. It is the deterrence. Personally, I’m not a contingency lawyer (or a lawyer), but I do recognize what makes the corporate types blanch.”
Yeah some evil, omnipotent “corporation” [cue evil laughter] crushing little guys like Mark Lanier, Weitz & Luxenburg, and the quintessential “little guy” Peter Angelos. Deterence decades after the fact, eh?
Ask all those thousands of employees of the US Shipbuilding industry about “deterence”…oops, Mr. Angelos got there first.
Not being retarded, I don’t think any of us can respond to puzzled, although I do appreciate it’s dedication to truth in labeling.
As for Christine’s point about Scalia, well, I’ve been pretty tough on him for his work in Raich  and regular readers know I’m more of a Thomas guy. So I’m not sure what the purpose of that comment was.
The point, Jeff, is that it’s not all about you. Major John made a comment about Justice Ginsburg being a judicial activist, and I responded that at least the so-called lib justices are honest about what they’re up to.
Major John, of course, responded with his favorite comeback, which I’m thinking of having emblazoned on a T-shirt for him.
I assume you’d like that in OD green, Major?
Sorry, Christine. Got confused. This being my site and all, and your not having directed that comment at anyone in particular.
For what it’s worth, though (and to you, I suspect it ain’t worth much), I think Scalia shows far more fidelity to the Constitution and laws as written than Ginsburg does.
Of course, I think she conceives of her role as SCOTUS Justice quite differently than does Scalia.
Which woulld account for the difference in judicial philosophy as it typically plays out.
Personally, I’d like to see a Court that comes to most decisions 7-2, 8-1, or unanimously. That would let me know that the law is being interpreted and applied, and that the political bent of the Justice is ancillary to the way he or she approaches the role of SCOTUS Justice.
What’s with this ugly new website layout?
"I think Scalia shows far more fidelity to the Constitution and laws as written than Ginsburg does."
Scalia is faithful to the Constitution and our laws the way some conservative Christians are faithful to the Bible: literal about the things they agree with, otherwise interpreting the written word with a certain latitude.
"Sorry, Christine. Got confused. This being my site and all, and your not having directed that comment at anyone in particular."
‘S OK. Actually I’d quoted something the major had said, but the quote feature doesn’t seem to work quite the same with this new setup, so it didn’t stand out very well. Now I shall simply include the name of whoever I’m responding to.
Christine,
Your military fashion knowledge is obsolete. ACU pattern or tan.
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