David Cohen, President, DCI Consulting Group, Inc., offers another unique “inside the Beltway” perspective on important EEO developments:

A “must-watch” case for employers now pending before the U.S. Supreme Court asks how long an employee who is the victim of unlawful pay discrimination has to file a claim. The case was brought by Lilly Ledbetter, a former female supervisor for Goodyear Tire & Rubber Company. 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 (Ledbetter v. Goodyear Tire & Rubber Co., U.S. No. 05-1074).

Key Issue:
The key issue in the case is how to treat a discriminatory pay action that occurred beyond the 180-day statute of limitations under Title VII, when that decision has effects that continue to the present. Simply put, Ledbetter argues that each new paycheck with a lower salary than it would have been without the initial discrimination sets the statute of limitations again. Goodyear claims that without new acts of intentional discrimination during the 180-day statute of limitations, Ledbetter does not have a claim.

Oral Argument:
Last November, I sat through the lively one-hour oral argument on this case before a packed Supreme Court and listened to skillful lawyers politely but aggressively spar with the justices to score points on their positions.

U.S. Government v. EEOC:
One interesting twist that became obvious during the oral argument is how the U.S. Government, who sided with Goodyear in this case, has taken a position totally at odds with the EEOC, its own agency. The commission has long applied the “paycheck accrual rule” under which each pay period of uncorrected discrimination is considered a new discriminatory act. EEOC would apply the 180-day statute of limitations to “discrete” actions, like a discriminatory refusal to hire or failure to promote, but it would not prevent claims for the continuing effects of past discrimination in pay. When asked by Justice Antonin Scalia why the Court should listen to the solicitor general rather than the EEOC, the Government attorney simply explained the commission’s position was based on a misunderstanding of a Supreme Court precedent.

Even after listening to the oral argument first-hand, I find it difficult to predict which way the Court is leaning. But comments made by certain justices are revealing.

For example, 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.

The Court’s decision in this case is expected by summer.

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