Pliable Precedents, Plausible Policies, and Lilly Ledbetter’s Loss

Source: Ronald Turner, Berkeley Journal of Employment and Labor Law, Vol. 30 no. 1, 2009
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From the Lexis Nexis summary:
With this analytical move, Justice Alito set the stage for the Court’s rejection of Ledbetter’s arguments that Goodyear violated Title VII when the company issued paychecks to her during the 180 days preceding the filing of her March 25, 1998 EEOC questionnaire (that period began to run on September 26, 1997), and when she was denied a salary increase in 1998. … In Justice Ginsburg’s view Ledbetter’s claim, “resting not on one particular paycheck, but on the cumulative effect of individual acts,” resembled and had “a closer kinship to hostile work environment claims than to charges of a single episode of discrimination.” … Once the Court distinguished Bazemore and gave it no precedential power relative to Ledbetter’s pay discrimination claim, her case turned on the Court’s view of the reasonableness of her proposed construction of Title VII which would commence a new charge-filing limitations period upon the issuance of each paycheck reflecting the current and continuing effects of a discriminatory act occurring several or many years ago. … Valuing the protection of the employee’s right to sue, Justice Ginsburg’s analysis is consistent with her reading of Title VII’s text and Court precedent, with her determination that employers may invoke the laches defense against unreasonably delayed EEOC charges, and with her focus on the realities and dynamics of pay discrimination (more on this below). … By contrast Justice Ginsburg argued that pay decisions and disparities in compensation are “often hidden from sight,” and that applying Title VII without taking into account the “realities of wage discrimination” deprives employees of the protections, and strips away the remedial objectives, of the statute.

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