If the U.S. Supreme Court were to put a six-month clock on any claim of pay discrimination, new employees might as well bring their attorneys to orientation. Such is the farce the court would create if it overturns two decades of legal and administrative precedent under Title VII of the Civil Rights Act.
The law says that employees cannot be paid less because of their race, sex, religion or national origin, and Lilly Ledbetter is a prime example of why courts and federal agencies have consistently interpreted the 180-day deadline the same way. Ledbetter, a 19-year manager at the Goodyear Tire and Rubber plant in Gadsden, Ala., long suspected her pay might be low. But she never knew until she received an anonymous letter just after she resigned. She was being paid $6,708 less than the lowest-paid and least-experienced male in the same job.
Twice, in 1986 and 2002, the high court has ruled that each paycheck can be challenged as discriminatory. Congress, in reauthorizing the law in 1991, specifically acknowledged the court's interpretation. And the Equal Employment Opportunity Commission, over which Justice Clarence Thomas once presided, has consistently enforced the law in the same manner.
The EEOC's own Compliance Manual offers the relevant legal distinction. On the one hand, "a discrete act, such as failure to hire or promote, termination, or denial of transfer, is independently actionable if it is the subject of a timely charge." On the other, "repeated occurrences of the same discriminatory employment action, such as discriminatory paychecks, can be challenged as long as one discriminatory act occurred within the charge filing period."
This is only common sense, but the Bush administration doesn't see it that way. The solicitor general told justices Monday that the court should abandon the practice, handing what amounts to a free pass to Goodyear and other employers. The EEOC, which had filed an amicus brief on Ledbetter's behalf in the lower courts, was nowhere to be found.
Employers do have an interest in finality and in being able to fairly defend themselves in suits that involve past behavior, as the 11th U.S. Circuit Court of Appeals suggested in siding with Goodyear. But it is also true that Ledbetter was harassed because of her gender, that she was resented by supervisors because she was one of precious few women to be named manager, and that her pay was as much as 40 percent lower than men in the same job and with less seniority. So is she to be punished now for initially giving her employer the benefit of the doubt?
Goodyear has no choice but to fight Ledbetter on procedural grounds, but the high court need not be so gullible. This is not a case, as Chief Justice John Roberts suggested in oral argument, of employees dredging up 40-year-old paycheck disputes. This is simply about keeping the courthouse door open to those who discover what they believe to be discriminatory pay. If the court retreats from its own precedent, it will leave most victims with no recourse.