Why We Need an ERA

For anyone who tries to deny that Bush Administration appointments (both GHW and GW) were political, here's further proof that this is just not so.

We need a new ERA (and a new president and a couple new Supreme Court justices while we are at it)!

All women and men who have hard-working wives, siblings, and daughters ought to be outraged by this decision from "the new conservative court".

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Justices’ Ruling Limits Suits on Pay Disparity
By LINDA GREENHOUSE
Published: May 30, 2007

WASHINGTON, May 29 — The Supreme Court on Tuesday made it harder for many workers to sue their employers for discrimination in pay, insisting in a 5-to-4 decision on a tight time frame to file such cases. The dissenters said the ruling ignored workplace realities.

The decision came in a case involving a supervisor at a Goodyear Tire plant in Gadsden, Ala., the only woman among 16 men at the same management level, who was paid less than any of her colleagues, including those with less seniority. She learned that fact late in a career of nearly 20 years — too late, according to the Supreme Court’s majority.

The court held on Tuesday that employees may not bring suit under the principal federal anti-discrimination law unless they have filed a formal complaint with a federal agency within 180 days after their pay was set. The timeline applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.

From 2001 to 2006, workers brought nearly 40,000 pay discrimination cases. Many such cases are likely to be barred by the court’s interpretation of the requirement in Title VII of the Civil Rights Act of 1964 that employees make their charge within 180 days “after the alleged unlawful employment practice occurred.”

Workplace experts said the ruling would have broad ramifications and would narrow the legal options of many employees.

In an opinion by Justice Samuel A. Alito Jr., the majority rejected the view of the federal agency, the Equal Employment Opportunity Commission, that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as “paycheck accrual.”

“Current effects alone cannot breathe life into prior, uncharged discrimination,” Justice Alito said in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice Thomas once headed the employment commission, the chief enforcer of workers’ rights under the statute at issue in this case, usually referred to simply as Title VII.

Under its longstanding interpretation of the statute, the commission actively supported the plaintiff, Lilly M. Ledbetter, in the lower courts. But after the Supreme Court agreed to hear the case last June, the Bush administration disavowed the agency’s position and filed a brief on the side of the employer.

In a vigorous dissenting opinion that she read from the bench, Justice Ruth Bader Ginsburg said the majority opinion “overlooks common characteristics of pay discrimination.” She said that given the secrecy in most workplaces about salaries, many employees would have no idea within 180 days that they had received a lower raise than others.

An initial disparity, even if known to the employee, might be small, Justice Ginsburg said, leading an employee, particularly a woman or a member of a minority group “trying to succeed in a nontraditional environment” to avoid “making waves.” Justice Ginsburg noted that even a small differential “will expand exponentially over an employee’s working life if raises are set as a percentage of prior pay.”

Justices John Paul Stevens, David H. Souter and Stephen G. Breyer joined the dissent.
Ms. Ledbetter’s salary was initially the same as that of her male colleagues. But over time, as she received smaller raises, a substantial disparity grew. By the time she brought suit in 1998, her salary fell short by as much as 40 percent; she was making $3,727 a month, while the lowest-paid man was making $4,286.

A jury in Federal District Court in Birmingham, Ala., awarded her more than $3 million in back pay and compensatory and punitive damages, which the trial judge reduced to $360,000. But the United States Court of Appeals for the 11th Circuit, in Atlanta, erased the verdict entirely, ruling that because Ms. Ledbetter could not show that she was the victim of intentional discrimination during the 180 days before she filed her complaint, she had not suffered an “unlawful employment practice” to which Title VII applied.

Several other federal appeals courts had accepted the employment commission’s more relaxed view of the 180-day requirement. The justices accepted Ms. Ledbetter’s appeal, Ledbetter v. Goodyear Tire and Rubber Company, No. 05-1074, to resolve the conflict.

Title VII’s prohibition of workplace discrimination applies not just to pay but also to specific actions like refusal to hire or promote, denial of a desired transfer and dismissal. Justice Ginsburg argued in her dissenting opinion that while these “singular discrete acts” are readily apparent to an employee who can then make a timely complaint, pay discrimination often presents a more ambiguous picture. She said the court should treat a pay claim as it treated a claim for a “hostile work environment” in a 2002 decision, permitting a charge to be filed “based on the cumulative effect of individual acts.”

In response, Justice Alito dismissed this as a “policy argument” with “no support in the statute.”
As with an abortion ruling last month, this decision showed the impact of Justice Alito’s presence on the court. Justice Sandra Day O’Connor, whom he succeeded, would almost certainly have voted the other way, bringing the opposite outcome.

The impact of the decision on women may be somewhat limited by the availability of another federal law against sex discrimination in the workplace, the Equal Pay Act, which does not contain the 180-day requirement. Ms. Ledbetter initially included an Equal Pay Act complaint, but did not pursue it. That law has additional procedural hurdles and a low damage cap that excludes punitive damages. It does not cover discrimination on the basis of race or Title VII’s other protected categories.

In her opinion, Justice Ginsburg invited Congress to overturn the decision, as it did 15 years ago with a series of Supreme Court rulings on civil rights. “Once again, the ball is in Congress’s court,” she said. Within hours, Senator Hillary Rodham Clinton of New York, who is seeking the Democratic nomination, announced her intention to submit such a bill.