The Supreme Court has just taken another bite out of employees’ rights to challenge workplace discrimination. The decision limits employees’ ability to redress discrimination under Title VII of the Civil Rights Act of 1964 unless they can point to a “discrete act” that occurred within 180 days of the complaint.

In this case, the plaintiff, Lily Ledbetter, originally won a lawsuit against her employer, Goodyear Tire & Rubber Co., for gender discrimination. Ledbetter started her job at the same pay rate as men in similar positions, but 19 years later she was earning more than $500/month less than the lowest paid male in her position (she was the only female in that position at the time). The Eleventh Circuit Court of Appeals reversed the lower court’s ruling, and the Supremes upheld the Court of Appeals’ decision in favor of Goodyear. That means that although Ms. Ledbetter worked for 19 years receiving significantly less pay than men who were doing the same work, she could only base her claim on whatever happened in the 180 days leading up to her claim. Those 180 days, in the eyes of the court, were not enough to prove discrimination in this case. In other words, the pattern of discrimination established during the previous two decades and its cumulative financial impact on Ledbetter meant zilch to the Court.

In order to establish a claim for the pay disparity during the period before the 180 days, Ledbetter would have had to file a claim every time she failed to get an increase in salary on par with her male counterparts. As the National Employment Lawyers’ Association (NELA) pointed out in its Amicus brief, this departs significantly from violations under the Fair Labor Standards Act and National Labor Relations Act, under which employees may redress recurring violations even if those violations occurred prior to the 6 month statute of limitations period:

Preventing an employee from remedying a recurring
violation simply because the conduct is long-standing
serves no purpose. The employer is aware of the continued
consequences of its illegal acts, and employees continue to
suffer – with ever-growing heft – the expense of that
conduct. The law permits suit on recurring violations
carried out during the limitations period pursuant to
decisions to violate the law which pre-date the limitations
period because that wrongful intent is equally present in
each application of the earlier decision. A contrary rule
would permit the wrongdoer to benefit from its wrongful
act indefinitely merely because the first instance of the
repeated wrongdoing was not timely challenged

The practical effect of this decision is that employers can sleep well knowing that if they spread pay differentials among women and minorities over a long period of time – slowly and covertly widening the gap between their favored class of worker and the discriminatees each time salaries are adjusted – the law will back them up. If you think that’s fair, Ginsburg’s dissent could be enlightening.

(originally posted May 29, 2007)