June 04, 2007

Supreme Court Notebook - Ledbetter

How much do you know about the salaries of your coworkers? Talking among peers about compensation is always a little awkward and one-third of private employers actually prohibit such discussions of wages. The odds are that unless you are in charge, in the payroll department, or downright nosy, you probably don't know much about the compensation of your coworkers. This would make it nearly impossible for you to discover -- especially within 180 days of the time your pay is set -- that you are a victim of pay discrimination. Yet last week, the Supreme Court ruled that pay discrimination claims not brought within 180 days of setting the discriminatory salary are time barred. Unless you are nosy, you're out of luck.

The case, Ledbetter v. Goodyear Tire and Rubber Company, was brought by the only female supervisor at a Goodyear tire plant in Alabama. Ms. Ledbetter discovered late into her twenty year career at Goodyear that the salaries of males in the same position as her were higher -- the lowest paid man was paid $4,286 a month while Ms. Ledbetter earned only $3,727. In the trial court, Ms. Ledbetter was awarded $360,000 in back pay and compensatory and punitive damages, but that award was erased on appeal. Last week, the Supreme Court agreed with the appeals court, holding that Ms. Ledbetter brought her claim too late.

The law states that in order to bring an employment discrimination claim, the plaintiff must show that she suffered an "unlawful employment practice" in the 180 days prior to filing her complaint. Until last week's ruling, the Equal Employment Opportunity Commission operated under the theory that each paycheck distribution that reflected the discriminatory pay constituted a new "unlawful employment practice" that retriggered the 180 day clock. The Supreme Court, voting 5-4, disagreed.

Justice Ginsburg, notably the only woman on the Supreme Court (and someone who is paid the same amount as her male colleagues), read a blistering dissent from the bench. Justice Ginsburg wrote that even though Ms. Ledbetter had established that discrimination (as opposed to performance inadequacies) accounted for the pay differential, the Court's ruling "grandfathered" such discrimination in. "The unlawful practice," she wrote, "is the current payment of salaries infected by gender-based discrimination -- a practice that occurs whenever a paycheck delivers less to a woman than to a similarly-situated man."

I am not the first to criticize this decision and Senator Hillary Clinton has already pledged to introduce legislation that would render the decision moot. But it is disturbing that five members of the Supreme Court, including President Bush's two appointees, could be this out of touch with the purpose of discrimination laws. The world the Ledbetter opinion would create is one in which it is illegal to discriminate in pay based on gender, but only for the first 180 days after that pay is set. If an employer avoids a complaint during those first six months, the employer is free to discriminate for the rest of an employee's career.

The Supreme Court would dispute this characterization. They would argue that this is not so much a case about pay discrimination as it is about statutory construction. A theme of the more conservative members of the court -- including Justice Alito in this case -- is that it is not the Supreme Court's job to set public policy, but to interpret the law by strictly adhering to legislative text. The Bush Administration, however, who weighed in against the EEOC's interpretation, was singularly concerned with setting policy and the Supreme Court delivered precisely the policy the Administration sought. Even if the message the Supreme Court claims to have sent is "draft clearer legislation," the message they actually sent is "employers are free to discriminate if they are not caught in the first 180 days."

The advice to Americans is clear. For those beginning new jobs in the future, it would be wise on the first day to shake your coworkers' hands with the question, "And how much are you paid?" This will not only make you popular around the office, but if you do otherwise, the Supreme Court has ruled, you may simply be out of luck down the road.

June 03, 2007

Voting for Present and Future Memphis

(NOTE: This column appeared in the Commercial Appeal)

City government plays two distinct roles in the life of a city. First, it must deal with the issues of today, delivering services and providing a safe environment in which citizens can pursue their day-to-day business. Performing this role requires competence in management and administration as well as a commitment to serving a city's residents.

Second, government must dream of what a city will look like tomorrow. Elected leaders set priorities and policies that can affect the direction of a city well beyond the term of any elected official. Such dreaming requires both vision for the future and the ability to enact policies that point the city toward that vision.

With four months until the most important city election since 1991, it is time for Memphians to start thinking about which candidates provide the right combination of competence and vision to steer Memphis into the next decade and beyond. Too often, coverage of the elections focuses on the issues of today with little attention paid to the candidates' vision for tomorrow. Although the short-term tasks of government -- including, most importantly, confronting crime -- are what keep a city's wheels spinning, it is the forward-thinking vision that gets a city moving ahead.

So what are the issues Memphians ought to be quizzing the City Council and mayoral candidates about to get a sense of what they see in tomorrow's Memphis?

At the top of the list is education. If Memphis is to move forward, it will have to be on the shoulders of a new generation of citizens with the skills and learning abilities to support the 21st-century economy. Too often, this newspaper reports a story about a business that was considering a move to Memphis, but decided not to relocate here due in part to the "education level" of the workforce. Raising that level for Memphis students -- whether they attend city, county or private schools -- must be a priority.

Another top priority is how each candidate sees Memphis thriving economically in the future, as a vibrant business community can provide the jobs that will allow thousands of Memphians to flourish. The city government has several tasks in the area of economic development, beginning with support for existing businesses to help them prosper. In addition, leaders can sell the city's benefits to businesses considering a move to or growth in Memphis. Finally, and perhaps most critically, city government can strategically revitalize areas of the city best placed to attract the type of business growth that can lift an entire city.

Memphis is already well placed to become the nation's 21st century distribution hub if it can intelligently develop its "aerotropolis," or the distribution center built around the multibillion-dollar global air shipping industry. Candidates should present ideas to keep Memphis ahead of this curve and seek other areas in which the city can push ahead of the competition.

Finally, in this election, coming as it does during what feels like a turning point in local politics, the candidates should step forward to change the tone of pessimism and divisiveness that afflicts Memphis. For too long, Memphis has divided itself into factions -- racially, geographically, economically, politically -- that have stunted city prosperity. As factions grapple amongst themselves over municipal power, the larger community is left with the status quo.

For Memphis to truly move forward, city leaders must search for common ground, take risks that do not serve only the interests of their own political group, and be willing to consider opposing viewpoints with respect. Changing the self-identity of Memphis is not a task that can be accomplished in one term in office, but it is a challenge candidates must be willing to confront if Memphis is to reach its potential over the next decade.

It is up to all Memphis voters to ask the questions that push this year's candidates to present their ideas and priorities for the future. Only then will voters be able to reward those candidates who are thinking seriously about where our city could be in 2017 while still addressing the problems of 2007.