Dems Looking to Reverse Justices’ Limits on Pay Claims

By Staff Report

Sep. 16, 2011

In a controversial pay discrimination case handed down last month, the Supreme Court majority asserted that Congress intended to strictly limit the time period in which a claim could be filed. The minority strongly disagreed. Congress now may settle the dispute, as Democrats in the House and Senate are poised to advance bills to overturn the ruling.

The court’s May 29 decision was hailed as a victory for employers because it will narrow the scope of pay cases. It held that Lilly Ledbetter, a former supervisor at a Goodyear plant, could not sue the company for paying her less than it paid men for the same job over most of her nearly 20-year tenure.

By a 5-4 vote, the court held that an employer is not liable for pay discrimination that occurs outside of the federal statute of limitations for such cases—180 or 300 days, depending on the state.

A discrimination case “is triggered when a discrete unlawful practice takes place,” Supreme Court Justice Samuel A. Alito wrote for the majority.

Current circumstances “cannot breathe life into prior, uncharged discrimination,” Alito wrote. “Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory employment decision was made and communicated to her.”

In a sharp dissent, Justice Ruth Bader Ginsburg argued that Congress never intended for discriminatory pay differentials to go unchallenged outside the limit because back pay can be awarded for up to two years prior to the time that a discrimination charge is filed.

Now Congress can tell the court exactly what it meant. Sens. Edward Ken­nedy, D-Massachusetts, and Hillary Rodham Clinton, D-New York, among others, have written a bill that would amend Title VII of the Civil Rights Act of 1964 to state that the statute of limitations “runs from the date of each payment of a discriminatory wage,” according to a statement.

A similar House measure, sponsored by Del. Eleanor Holmes Norton, D-District of Columbia, would ensure that a claimant could sue for continuing violations. A statement from Norton’s office says that “reasonable time frames can be developed.”

With Democratic majorities in both the House and Senate, prospects for the legislation are good. “There will be tremendous pressure on President Bush to sign the bill,” says Charles Craver, a professor of law at George Washington University.

The potential impact on business is uncertain. “You could legislate around this case,” says Arthur Chinski, a lawyer with Buchalter Nemer in Los Angeles. “A lot would depend on how they define a continuing violation.”

In Ledbetter’s view, Goodyear committed a continuing violation each time it issued her a check. A trial jury awarded her $3.5 million, which the judge reduced to $360,000. But the 11th U.S. Circuit Court of Appeals in Atlanta overturned the verdict, citing the 180-day limitation.

Ginsburg wrote that such a restriction ignores the realities of today’s workplace, where pay information is secret. A worker may not immediately recognize discrimination or may be “averse to making waves” while “trying to succeed in a non-traditional environment.”

Even if Congress doesn’t affirm Ginsburg’s view, the original court ruling may have only a symbolic effect on companies.

“[Discrimination] tends to happen inadvertently,” Craver says. “Most employers do try to watch wage increases to see if there’s any pattern that could create liability. Even if you’re going to win, you don’t want the lawsuit.”

But a civil rights advocate asserts that the decision undermines women and minorities.

“It encourages employers basically to hide the ball and try to disguise discrimination rather than to uncover and address it,” says Jocelyn Samuels, vice president for education and employment at the National Women’s Law Center in Washington.

Mark Schoeff Jr.

Supreme Court Rules Against Cumulative Pay Discrimination

Tool: Employer Pay Equity Self-Audit 

Does Discrimination Depress Women’s Pay?

How to Avoid Getting Sued for Recruiting Discrimination.


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