Congress may overturn controversial Supreme Court opinion on employment discrimination

This week Congress may take the first steps to undo a recent U.S. Supreme Court decision that curtails employment discrimination claims.  On May 29, the Supreme Court decided Ledbetter v. Goodyear Tire and Rubber Co., Inc., dismissing a claim for twenty years of sex discrimination manifested as discriminatory pay.  A jury had awarded Ledbetter, a female employee who worked in a male-dominated workforce, $3,514,417 in damages, which the trial court later reduced to $360,000. The decision resulted in the dismissal of plaintiff’s Title VII claim because, the court said, she waited too long to file it. 

A claim under Title VII must be filed within 180 days after the last discriminatory act occurs.  The "act" may be a discrete event, such as a termination or demotion.  Or it may consist of a series of events that are not individually actionable, but cumulatively violate the statute, such as harassment that becomes “severe” and thus, actionable, over time.  The act underlying plaintiff’s claim was a history of discriminatory performance evaluations that resulted in lower pay raises.  As the evaluations all occurred more than 180 days before she filed a claim with the EEOC, the majority of the court held that the claim was time barred.  The court reasoned that to hold otherwise would allow a plaintiff to pursue a claim based on a decision that occurred twenty years ago, even if she knew the circumstances at the time.

Well, not exactly, according to Justice Ruth Bader Ginsberg.  Writing for the four dissenters, Justice Ginsberg pointed out that employees like Ledbetter who are subject to discriminatory pay practices have no immediate cause to suspect discrimination. (In fact, according one report, Ledbetter learned of the discrimination when she was 60 years old and on the verge of retirement, when she received an anonymous letter stating her pay was significantly less than that of her male co-workers.) Many employers don’t share information about pay differentials, and pay disparities often occur in small increments over time, as they did here.  Moreover, employers are not defenseless when employees raise stale claims.  They can assert defenses such as waiver, estoppel, and equitable tolling.  Reading her dissent from the bench, Justice Ginsberg urged Congress to “correct” the Court. 

Congress may grant Justice Ginsberg’s request.  Although it cannot revive Ledbetter’s claim, the House Education and Labor Committee is scheduled to hear testimony from Ledbetter today to consider legislation to overturn the Supreme Court’s decision.