Court Protects Gender Discrimintion

As Ruth Bader Ginsburg notes, the evidence of gender discrimination in the case of Ledbetter v. Goodyear, decided today by the Supreme Court, is unambiguous:

Lilly Ledbetter was a supervisor at Goodyear Tire and Rubber’s plant in Gadsden, Alabama, from 1979 until her retirement in 1998. For most of those years, she worked as an area manager, a position largely occupied by men. Initially, Ledbetter’s salary was in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. By the end of 1997, Ledbetter was the only woman working as an area manager and the pay discrepancy between Ledbetter and her 15 male counterparts was stark: Ledbetter was paid $3,727 per month; the lowest paid male area manager received $4,286 per month, the highest paid, $5,236.

Despite this, and contrary to the judgment of the EEOC, the Court by a bare 5-4 majority threw out the discrimination claim she brought under the Title VII of the Civil Rights Act. The Court–in an opinion, natch, written by its arch-reactionary newest member–argued that Ledbetter failed to challenge the initial discriminatory pay decision within the required 180 days, and the ongoing pay discrimination did not constitute an “unlawful employment practice.” As Ginsburg points out, this reading of the statute makes little sense; unlike a single discrete act such as a firing, an employee may not be aware of the discriminatory nature of their pay until much later, and moreover it is illogical to hold that only an initial decision to discriminate but not the discriminatory pay itself constitutes an unlawful practice. The effect of the case is to insulate employers from wage discrimination claims as long as they can hide the evidence from the employee being discriminated against for 180 days, a result contrary to the purpose of the statute that is in no way compelled by its language.

The effect of Sandra Day O’Connor being replaced by Alito is particularly stark in this case. O’Connor–who was offered only secretarial jobs after graduating third in her Stanford Law class–had a good record on gender discrimination, while Altio’s record on both gender issues and civil rights claims more broadly is atrocious. The useful idiots who claimed Alito was a moderate notwithstanding, his vote in this case was inevitable; I held out a shred of optimism that Thomas and Scalia might defer to the EEOC based on the former’s opinion in the Morgan case, but this was apparently hopeless optimism. Although these kinds of cases flay under the radar, this is a major way the Alito-fied Court will work to advance bad outcomes. Republicans don’t have to modify or repeal civil rights legislation, and the Court needn’t strike it down; the courts and/or the executive branch can just gut the legislation by making it difficult to enforce in ways that don’t attract public attention.

To end on a slightly less defeatist note, as Ginsburg did, because this is a case of statutory interpretation Congress can respond to the Court by changing the language of the statute to override the Court’s unduly narrow interpretation. They should start working to do so immediately.