The Supreme Court recently issued a number of decisions that have raised more than a few eyebrows. One of those Supreme Court cases, on discrimination in pay, drew the ire of some experts and lawmakers-but others have voiced their support.
The 5-4 ruling in Ledbetter v. Goodyear Tire & Rubber Co. says pay discrimination is based on a single decision, and an employee has six months from the time of that decision to file charges with the Equal Employment Opportunity Commission. If pay is lowered as a result of the decision, it’s considered an effect, and “later effects of past discrimination do not restart the clock for filing an EEOC charge,” according to the supreme court ruling. (For more on the Ledbetter v. Goodyear Tire & Rubber Co. case, see The Salary Reporter: Supreme Court Rules for Employers in Pay-Discrimination Suit.)
“The majority opinion I think was less persuasive,” said Carl Tobias, Williams Professor at the University of Richmond School of Law in Virginia. He said the ruling is unrealistic about how long it would take an employee to discover an act of discrimination, find a lawyer and bring a claim. “All of those practicalities I think the majority ignores, or at least doesn’t recognize.”
Some consider the ruling a narrow interpretation of Title VII, part of the Civil Rights Act that prohibits workplace discrimination.
Justice Ruth Bader Ginsburg offered a vehement dissent, saying, “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.”
Piper Hoffman, a partner with Outten & Golden, a New York-based law firm that represents employees, said the decision is wrongheaded. “It shows that this court fundamentally does not understand the American workplace and is not sympathetic to the legislative goals of Title VII, and all of that is very bad,” Hoffman said.
Hoffman said the court is encouraging workers to find out what colleagues are earning-a bad policy move. “Often that information can damage relationships in the workplace,” she explained.
Employers also might set policies against such information-sharing, Hoffman said.
“Under the National Labor Relations Act employers can’t prevent employees from organizing, like a union. But if they’re sharing their compensation information solely for their own interests, employers can have policies against that. Some already do, and I predict that many more will have such policies as a result of this decision,” she said.
Todd Alan Ewan, a partner in the Labor and Employment Practice Group of Mitts Milavec, a law firm in Philadelphia that represents employers, said such policies are risky.
“You can set up a policy to say you can’t talk about your paycheck; I think you’ll have problems, though. Under the National Labor Relations Act you have to let employees talk about employment issues. Even in a non-unionized work environment, if an employee complained to the National Labor Relations Board, the employer might face some serious problems,” Ewan said.
Ewan said the Ledbetter ruling was fair and consistent, and future cases will benefit from the tightened timeframe.
“One thing you find is that evidence disappears over time. Recollections are not as sharp, people die, quit, etc.,” he said. “When you are looking at 180 days, all that has a chance of being much more sharp, so it’ll benefit everybody.”
Congress and Supreme Court Cases on Discrimination in Pay
Some members of Congress reacted to the May 29 ruling almost immediately: Sens. Hillary Rodham Clinton, Edward Kennedy, Tom Harkin and Barbara Mikulski issued a May 30 release criticizing the Supreme Court’s decision. On June 27, the House Education and Labor Committee passed legislation to “clarify that every paycheck or other compensation resulting, in whole or in part, from an earlier discriminatory pay decision constitutes a violation of the Civil Rights Act.”
Naomi Schoenbaum, policy counsel at the National Partnership for Women and Families in Washington, said Congress can correct the decision, which is “a step back for civil rights and all those who believe in protecting and promoting equal employment opportunities.”
Tobias of the University of Richmond said the decision reflects a developing pattern on the Roberts Court-one favoring business-and that Congress might be able to amend the law.
“It’s a political saleable item for members of Congress to campaign on. … The business lobby has lots of resources and might bring them to bear in this situation, so it could be difficult,” he said.
As to how crucial Supreme Court cases on discrimination in pay will be for political campaigns, only time will tell.