Last week, Republicans blocked a fair pay bill that would effectively overturn a flawed ruling by the Supreme Court in a wage discrimination case, Lilly Ledbetter v. Goodyear Tire and Rubber Co. The measure was designed to bring the law in line with Congressional intent of Title VII of the 1964 Civil Rights Act, the Court's own precedents, and restore fairness to the workplace.
For nearly 20 years, Lilly Ledbetter was paid less than men with less seniority than her as a supervisor at a Goodyear plant in Alabama for doing the same job. But as soon as she received an anonymous note that made her aware of the discrimination, Ms. Ledbetter filed a complaint with the Equal Employment Opportunity Commission. A federal court agreed Ms. Ledbetter was being discriminated against and a jury awarded her more than $3 million in damages and back pay before the judge reduced the amount to $360,000 due to a damages cap prescribed by the law. But the Supreme Court in a 5-4 decision ruled that Lilly Ledbetter filed her claim too late and was not entitled to compensation.
The 1964 Civil Rights Act prohibits workplace discrimination on the basis of race, sex, creed, disability, age, but also requires that a plaintiff file a complaint within the 180 days “after the alleged unlawful employment practice occurred.” For decades, the Supreme Court and other courts understood this provision to mean that employees could sue within 180 of receiving from their last - not just their first - discriminatory paycheck, since each check represented a related yet distinct instance of discrimination.
Justice Samuel Alito, however, disagreed with that interpretation. Writing for the majority, Justice Alito argued that Ms. Ledbetter should have filed her suit with the EEOC within 180 days of the original decision to pay her differently. “Current effects alone cannot breathe life into prior, uncharged discrimination,” declared the Justice. Apparently, it did not make much of an impression on the conservative bloc on the Supreme Court that pay discrimination often occurs in small increments across time and the secrecy surrounding salary pay in the workplace makes it nearly impossible to sue as soon as a worker receives her first discriminatory pay check as Justice Ruth Ginsburg noted in her dissent.
The Ledbetter Fair Pay Act sponsored by Senator Ted Kennedy would have simply restored anti-discrimination law back to its pre-Ledbetter status. But even the status quo was too radical for certain pro-business hardliners in the Senate.
Mitch McConnell, the Minority Leader in the Senate, recently said, "We think that [the Ledbetter Fair Pay Act] is primarily designed to create a massive amount of new litigation in our country, and I think that is the reason for the resistance to its passage on our side."
Despite missing the procedural vote on the bill, presumptive presidential Republican nominee Senator John McCain also still managed to sing from the same talking points hymn book in saying, "I am all in favor of pay equity for women. This kind of legislation — is typical of what is being proposed by my friends on the other side of the aisle — opens us up for lawsuits, for all kinds of problems and difficulties in compliance. . . . This is government playing a much, much greater role in the business of a private enterprise system."
But these reactions ignore the fact that the judiciary is the last resort for many victims of discrimination. Suggesting that the ruling in Ledbetter should stand because it would hurt the pockets of the business community or to penalize trail attorneys only distracts the American people from a more fundamental point. Like it or not, the right to sue plays a vital role in how people keep the more powerful interests in our society honest and accountable for violating their rights.
More importantly, for lawmakers to argue that depriving people access to robust legal remedies against employers for violating the law only aids an extremist tendency within the judiciary to adopt more cramped interpretations of the law that end up eroding civil and worker's rights. Corporations seeking to sidestep anti-discrimination laws will also understand this wink and nod routine to mean they can act with near impunity in an effort to fatten their bottom line or cover up unfair labor practices.
But as disappointing as the failed efforts to pass legislation to correct the Ledbetter ruling have been, we also need to recognize that what gave birth to the decision itself is part of a larger ambition by conservative activists to shift the federal judiciary altogether sharply to the right. In fact, judicial nominations have long played a key role in conservative politics in stitching together the Reagan coalition during election season. While addressing a packed rally in Georgia, John McCain threw some red meat to the GOP base when he said:
I want to assure you that one of the great accomplishments of President Bush is we now have judges on the United States Supreme Court and judges who strictly interpret the Constitution of the United States of America. [snip] Two of the best of those are Judges Alito and Roberts. You can be very proud of them. My friends, I want to tell you, I will try to find clones of Alito and Roberts. I will try to find people just like them.
Well, at least we’ve been given fair warning.