Chicago Tribune Editorial - Sterile thinking on pay equity

Chicago Tribune Editorial - Sterile thinking on pay equity
Copyright © 2007, Chicago Tribune
Published June 4, 2007

Under federal law, it's illegal for employers to discriminate on the basis of sex, so Lilly Ledbetter should have had a good claim against Goodyear Tire & Rubber.

When she started at its Gadsden, Ala., plant in 1979, she was paid the same as her male colleagues, but by the time she left in 1998, she was the only woman at her management level and was making less than the lowest-paid man. A federal court found she had been wronged. She was awarded $360,000.But last week the Supreme Court, by a 5-4 vote, said it didn't matter whether her employer broke the law. The Civil Rights Act of 1964, it noted in an opinion written by Justice Samuel Alito, says any claims must be filed within 180 days of the discriminatory act. The decisions that had the effect of shortchanging her had been made more than six months before she filed her suit. So she was out of luck.

Time limits for civil rights cases make sense, so that companies don't have to defend themselves against charges that should have been raised long ago, instead of postponed until evidence has vanished and memories have faded. The problem here is not the notion of applying the time limit to Ledbetter, but the way the court applied it. It essentially said that the pay discrimination occurs only when a biased decision is made and never mind the repeated later occasions when it is translated into actual compensation.

Ledbetter, by contrast, made the eminently sensible argument that each paycheck she got reflected ongoing discrimination, a view shared by the Equal Employment Opportunity Commission, which supported her suit. In her dissent, Justice Ruth Bader Ginsburg agreed.

"Our precedent suggests, and lower courts have overwhelmingly held, that the unlawful practice is the current payment of salaries infected by gender-based [or race-based] discrimination -- a practice that occurs whenever a paycheck delivers less to a woman than to a similarly situated man," she wrote. Under the court's decision, she said with justified amazement, "knowingly carrying past discrimination forward must be treated as lawful conduct."

The majority's sterile reading of the statute ignores the realities on the ground. A woman who is fired on the basis of sex knows she has been fired. But a woman who suffers pay discrimination may not discover it until years later, because employers often keep pay scales confidential. The consequence of the ruling will be to let a lot of discrimination go unpunished.

Unless, of course, Congress acts to revise the law to reflect the dictates of common sense. Democratic leaders in both houses have already announced their plans to do exactly that. The court's decision was a mistake. Congress should waste no time correcting it.