Sup. Court Explores Complexities in Job Discrimination Case

WASHINGTON, Nov. 27 — Federal law prohibits discrimination on the job, requiring employers to pay their employees without regard to race, sex, religion or national origin. Many complexities lie behind that simple statement, as a Supreme Court argument on Monday made abundantly clear.
The question for the court was how to treat a discriminatory action that happened long ago, beyond the statute of limitations for the federal Civil Rights Act, but that has effects that continue to the present day. Is each new paycheck, reflecting a salary lower than it would have been without the initial discrimination, a recurring violation that sets the clock running again? Or does the passage of time, without fresh acts of intentional discrimination, render the initial injury a nonevent in the eyes of the law?

The case was brought to the court by a woman, Lilly M. Ledbetter, who worked for 19 years as a manager at a Goodyear Tire and Rubber plant in Gadsden, Ala. For years, Ms. Ledbetter was paid less than men at the same level, and by 1997, as the only female manager, she was earning less than the lowest-paid man in the department. In 1998, after an undesired transfer, she retired and filed a discrimination charge against the company with the Equal Employment Opportunity Commission.
She took her case to federal court and won a jury award of more than $3 million in back pay and compensatory and punitive damages. Because of caps imposed by the law, Title VII of the Civil Rights Act of 1964, the judge reduced the award, to $360,000. But the United States Court of Appeals for the 11th Circuit, in Atlanta, overturned the verdict entirely. It ruled that Ms. Ledbetter had no case because she could not show any intentional discrimination in the 180 days before she complained to the employment commission.

Other federal appeals courts, including those here and in New York, disagree with that analysis, as does the E.E.O.C. The agency has long applied what is known as the “paycheck accrual rule,? under which each pay period of uncorrected discrimination is seen as a fresh incident of discrimination. So although the 180-day limit applies to discrete actions like a discriminatory refusal to hire or failure to promote, it does not, in the view of the federal agency charged with administering the statute, prevent lawsuits for the continuing effects of past discrimination in pay.

But the Bush administration has disavowed the commission’s position. After the court agreed in June to hear Ms. Ledbetter’s appeal, Ledbetter v. Goodyear Tire and Rubber Company Inc., No. 05-1074, the administration entered the case on the company’s behalf.
Irving L. Gornstein, an assistant to the solicitor general, argued that “employees who allow the 180-day period to pass may not years later, and even at the end of their careers, challenge their current paychecks on the grounds that they are the result of a number of discrete, individually discriminatory pay decisions that occurred long ago.?

When Justice Antonin Scalia asked, “Why should we listen to the solicitor general rather than the E.E.O.C.?? Mr. Gornstein acknowledged that the commission “has taken a different position,? one that he said was based on a misunderstanding of a Supreme Court precedent.

Ms. Ledbetter’s lawyer, Kevin K. Russell, said it was often difficult for employees to learn that their pay was discriminatory. Employees who receive regular raises, Mr. Russell said, may well not realize that the raises were smaller than they should have been.
“It’s only when the disparity persists,? he said, “when the different treatment accrues again and again and the overall disparity in the wages increases, that the employee has some reasonable basis to think that it’s not natural variation in the pay decisions but actually intentional discrimination.?

Justices Ruth Bader Ginsburg and Stephen G. Breyer appeared most sympathetic to Mr. Russell’s argument. Justice Breyer commented at one point that “there will be probably a significant number of circumstances where a woman is being paid less, and all she does is for the last six months get her paychecks and she doesn’t really know it because pay is a complicated thing.? It could take “even a year for her to find out,? he said.

Chief Justice John G. Roberts Jr. appeared the most skeptical, several times raising the question of how employers could shoulder the burden of defending long-ago pay decisions.
“It could be 40 years, right?? Chief Justice Roberts asked Mr. Russell, adding, “I mean, if it happened once 20 years ago, you have a case that you can bring? under the plaintiff’s analysis.

The Goodyear lawyer, Glen D. Nager, noting that the statute required proof of intentional discrimination, said the basic point was that “no one at Goodyear took Miss Ledbetter’s sex into account? in the salary she was paid in the 180 days before she filed her complaint.

The law does not permit the accusation “that there is discrimination today merely because there was discrimination yesterday,? Mr. Nager said, adding that when the “filing period passes and no charge is brought, the employer is entitled to treat that past act as if it was a lawful act.?
Justice David H. Souter asked, “Is that so even if they know it was in fact originally an unlawful act??

Yes,? Mr. Nager replied.


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