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.
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