by Patricia A. Schaeffer, Vice President-Regulatory Affairs

The Supreme Court has issued a long-awaited decision that will make it harder for workers to sue their employers for pay discrimination (Ledbetter v. Goodyear Tire and Rubber Company).

The case was brought by Lilly Ledbetter, a former female supervisor for Goodyear Tire & Rubber. She claims discriminatory salary reviews going back several years outside the Title VII 180-day statute of limitations should be considered to prove disparate pay during the statutory limitations period.

The Supreme Court held that employees may not bring suit under Title VII of the Civil Rights Act of 1964 unless they have filed a formal complaint within 180 days after their pay was set. The Court ruled the 180 day timeline applies even if the effects of the initial discriminatory act were not immediately apparent to the employee and even if they continue to the present day. The opinion was written by Justice Samuel A. Alito Jr. and joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

The dissent was written by Justice Ruth Bader Ginsburg and joined by Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer. Justice Ginsburg took the rare step of reading her vigorous dissent from the bench saying the majority opinion “overlooks common characteristics of pay discrimination.” She said that given the secrecy in most workplaces about salaries, many employees would have no idea within 180 days that they had received a lower raise than others. Justice Ginsburg invited Congress to overturn the decision, and within hours, Senator Hillary Rodham Clinton of New York, who is also seeking the Democratic nomination for President, announced her intention to submit such legislation.

Last November David Cohen, President of DCI Consulting Group, Inc. attended the oral argument held at the Supreme Court in the Ledbetter case. In hindsight, his observations about which way the court was leaning after oral argument were right on the money:

“…Chief Justice John Roberts, Jr. expressed concern several times about how employers could shoulder the burden of defending pay decisions made years ago. And Justice Scalia did not seem to grasp any difference between a promotion (which all agree would come under a 180-day limitations period) and a salary increase. In contrast, Justice Clarence Thomas, a former chair of the EEOC, was silent during the oral argument.”

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