You've come a long way, baby — a long way down the road back toward the 1950s, all over again, it seems. When former Justice Sandra Day O'Connor graduated near the top of her law school class at Stanford, she was offered jobs at law firms as a legal secretary. At least Justice Ruth Bader Ginsburg, who similarly graduated at the top of her Columbia class, was able to secure a position as a lawyer — but only after being turned down by Justice Frankfurter who had no interest in hiring a woman. That's some progress.
Justice Ginsburg went on to found the Women's Rights Project for the ACLU, which has done groundbreaking work on women's issues for years ever since. She is a pioneer in opening the doors that a whole lot of us now take for granted as having been there all the time — she not only opened those doors, in some cases, she helped to build them from the ground up.
Which makes yesterday's Supreme Court decision on women's pay equity all the more profoundly appalling in so many ways. In a spare 5-4 majority, led by Justice Samuel Alito (thanks again to all the fabu Senators who voted for cloture — heckuva job!), ruled that women have a limited window of opportunity to bring a case of pay discrimination — even if they have only recently discovered the differential in pay and that it was attributable to gender.
In an opinion by Justice Samuel A. Alito Jr., the majority rejected the view of the federal agency, the Equal Employment Opportunity Commission, that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as “paycheck accrual.”
“Current effects alone cannot breathe life into prior, uncharged discrimination,” Justice Alito said in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice Thomas once headed the employment commission, the chief enforcer of workers’ rights under the statute at issue in this case, usually referred to simply as Title VII.
Under its longstanding interpretation of the statute, the commission actively supported the plaintiff, Lilly M. Ledbetter, in the lower courts. But after the Supreme Court agreed to hear the case last June, the Bush administration disavowed the agency’s position and filed a brief on the side of the employer.
What this means is this: the Supreme Court has overturned longstanding precedent in the way that it has handled these cases, there is no tolling of the time period any longer as each paycheck is handed out until someone finds out they've been shafted. Because, you know, employers often tell employees flat out that they are breaking the law and why — that's easy as pie to find out in most large corporations. Not. And, as an added bonus, the Bush Administration has reversed the government's longstanding practice of empowering employees who may have been wronged and, instead, filed a brief on behalf of the corporate interests.
Justice Ginsburg, in a stinging rebuke from the bench, read aloud her dissent (I cannot emphasize enough how rare this is.). I wanted to share a bit of her words with everyone:
In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.
Title VII was meant to govern real-world employment practices, and that world is what the court today ignores.
There is a reason that legislation on gender pay equity is needed — and needs to be taken seriously. The woman involved in the case that the Supreme Court decided was a supervisor — the only female supervisor — at a Goodyear plant, where she had worked for 20 years. She learned about the pay disparity issue late in her career — but that did not matter to the majority in this decision. As Justice Ginsburg further explained:
In a vigorous dissenting opinion that she read from the bench, Justice Ruth Bader Ginsburg said 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.
An initial disparity, even if known to the employee, might be small, Justice Ginsburg said, leading an employee, particularly a woman or a member of a minority group “trying to succeed in a nontraditional environment” to avoid “making waves.” Justice Ginsburg noted that even a small differential “will expand exponentially over an employee’s working life if raises are set as a percentage of prior pay.”
By the time the litigant in this particular suit learned of the gender inequity in her paycheck compared to her male counterparts, she was making 40 percent less than they were a year. Now, who wants to tell me that gender equity in salaries and benefits is a non-issue and not worth discussing? Anyone? The Supreme Court just threw the ball back into the legislative court — kudos to any legislators who pick it up and run with it.
SCOTUSblog has much more on this, including analysis on the broad impact that this decision is likely to have on all types of discrimination suits: Title VII covers "race, color, religion, sex or national origin." This one is huge.
(Huge thank you to scarecrow who sent me some notes on this case from last night's NewsHour report, which I missed due to getting The Peanut ready for bed. It was incredibly helpful in deciphering some of the info and spin on this.)