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As noted last week, I was looking forward to the court's decision today in Ledbetter v. Goodyear with great interest. While I generally have limited interest in civil rights cases, this case has a fun statutory interpretation dimension as a hook for me. This post aims to introduce the case to the non-legal reader, and includes a brief interlude of my own somewhat unvarnished view of it.
Title VII prohibits an employer from, inter alia, “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 1 An aggrieved employee can bring the matter to the EEOC, which will try to bring the employer into compliance, but – to cut to the chase – if this doesn’t work, or if the commission dismisses the charge or declines to pursue the employer, the employee can bring a civil action against the employer.2
In order for an aggrieved employee to pursue a Title VII claim, however, Title VII itself (the same statute authorizing the suit3) also requires that the aggrieved employee must file the charge with EEOC within an exceedingly narrow time window: in most cases (and certainly here), a mere 180 days after the discriminatory event. That may seem short, but that’s what Congress provided; writing for a majority in a previous Title VII case, Justice Stevens – who joins today’s dissent – noted that “it seems clear that … [imposing statute of limitations] represented a judgment [by Congress] that most genuine claims of discrimination would be promptly asserted and that the costs associated with processing and defending stale or dormant claims outweigh the federal interest in guaranteeing a remedy to every victim of discrimination.”4 In fact, the 180 day limit includes a subsequent amendment by Congress to loosen the rules: as originally enacted, the filing period was a positively brutal 90 days, where it remained until Congress decided in 1972 to relax the rule to the present 180 day limit.
This 180 day clock “is triggered when a discrete unlawful practice takes place.”5 In a practical sense, this becomes a time window: the discrimination that the civil suit alleges must have taken place within a 180 day time window before the plaintiff filed charges with EEOC. This case turns on the question of when a discriminatory act takes place.
At a minimum, all agree that “a pay-setting decision is a ‘discrete act,’” and ergo, if that act is polluted by intent to discriminate on the grounds prohibited by Title VII, that decision starts a clock on the filing period. 6 The question that the court was asked to decide was whether each individual pay packet thereafter starts the clock anew.
Ledbetter was employed by Goodyear between 1979 and her retirement in 1998. Goodyear’s pay structure at the time was the familiar pattern of salaried employees being reviewed regularly to determine whether or not they merited adjustments in their pay. After Ledbetter retired, she brought a Title VII suit alleging that several of those evaluations had discriminated against her because of her sex, with the result that by the time of her retirement, her salary was less than it would have been absent the discrimination during these reviews. A jury believed her. The problem with her claim – and this is the grounds for both the Court of Appeals reversal of the trial court’s finding in her favor and the result today – was that while all agree (as mentioned above) that “a pay-setting decision is a ‘discrete act,’” and thus these discriminatory reviews were discrete clock-starting acts, none of them took place within the 180 window prior to Ledbetter’s filing with EEOC. In an attempt to preserve the claim, Ledbetter advanced what might be considered a “poisoned well” theory: when an employer decides to discriminate in a pay decision, although that event is a discrete act, located at a definite point in time, it poisons the well, and thereafter, every sip is also a discrete violation.
The main problem with this theory, from my perspective (as I argued in December), is that it’s absolutely insane: Title VII’s statute of limitations would have evaporated if this theory had carried the day. In practical terms, the clock would never start ticking, unless or until the employee leaves the company, or shortly thereafter. As the court notes, under Ledbetter’s theory – accepted by the dissent – “if a single discriminatory pay decision made 20 years ago continued to affect an employee’s pay today, … the employee could file a timely EEOC charge today, … even if the employee had full knowledge of all the circumstances relating to the 20-year-old decision at the time it was made.”7 The principle animating this argument balloons alarmingly: as the Chief Justice pointed out at oral argument (and counsel for Ledbetter agreed), even if a new owner takes over the company, notices “that the women are making 20 percent less than the men[,] [the new owners] don’t escape liability by paying everybody the same going forward, because perhaps if nondiscriminatory decisions had been made the women would have making 20 percent more than the men. You have to go back and revisit every pay decision or you're exposed to liability for current pay.”8 And it may not even be a defense that “an employer that has just purchased a business, thinks that [the existing structure is] a neutral criterion to base wages or bonuses or increase on a prior pay scale and he doesn't know about the prior discrimination.” 9
In short, this theory is flawed because it would uncouple discriminatory intent from action (despite the plain language of the statute requiring both, see supra note 6), and, in practical terms, would eviscerate the statute of limitations. Cutting a cheque is an action wholly divorced from the determination of how much that cheque is worth; what Ledbetter sought to establish is that it is not only a willfully discriminatory act that creates a cause of action, but also any subsequent nondiscriminatory events that flow from that act. Yet, preventing that kind of rolling, ongoing liability seems to me to be precisely the purpose of having a statute of limitations, a time window in which claims may be filed. It's no coincidence that "SoL" is short for both "statute of limitations and "soldier out of luck."
Needless to say, the court was a little more polite in its dismissal of Ledbetter's arguments, but made essentially the same points.
1. It would uncouple discriminatory intent from action.
It was quite clear in terms of prior precedent that Ledbetter’s argument must fail; the court quoted no less an authority than the opinion for the court by Justice Stevens (who, as noted above, joins today’s dissent without comment) in United Airlines v. Evans: “A discriminatory act which is not made the basis for a timely charge … is merely an unfortunate event in history which has no present legal consequences.” As the court notes somewhat sardonically, “[i]t would be difficult to speak to the point more directly.”10
In Evans, an airline maintained a salary system based on seniority; the plaintiff was fired, in an assumedly discriminatory act, and although subsequently rehired several years later, was then treated as a new employee for seniority (and thus salary) purposes. Evans argued, similarly to Ledbetter, that although a suit for the initial discriminatory act was time barred, “the airline’s refusal to give her credit for her prior service gave ‘present effect to its past illegal act and thereby perpetuated the consequences of forbidden discrimination’”; the Supreme Court refused to “take the airline’s discriminatory intent in 1968, when it discharged the plaintiff because of her sex, and attach that intent to its later act of neutrally applying its seniority rules.”11
Similarly, in Delaware State College v. Ricks,12 a college librarian was refused tenure, and given a non-renewable one-year contract. When that contract expired, Ricks filed with EEOC, alleging that the denial of tenure was based in discrimination in violation of Title VII. Of course, this was well outside of the 180 day period, but Ricks argued that the clock should start at the end of the one year contract, not the denial of tenure. The Supreme Court refused to “take the discriminatory intent that the college allegedly possessed when it denied Ricks tenure and attach that intent to its subsequent act of terminating his employment when his nonrenewable contract ran out.”13
In sum, the court concluded that these and other precedents stand for the proposition that “[t]he EEOC charging period is triggered when a discrete unlawful practice takes place,” and that more to the point, “[a] new violation does not occur, and a new [180 day] period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination” (although naturally, “if an employer engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed”).14 To accept Ledbetter’s argument that each pay packet starts the clock anew “would shift intent from … the act that consummates the discriminatory employment practice … to a later act that was not performed with bias or discriminatory motive,” to the effect that despite the plain requirement of the statute, “liability [would be imposed] in the absence of the requisite intent.”15
2. In practical terms, it would eviscerate the statute of limitations.”
Accepting Ledbetter’s argument
would distort Title VII’s “integrated, multistep enforcement procedure.” Respectful of the legislative process that crafted this scheme, we must “give effect to the statute as enacted,” and we have repeatedly rejected suggestions that we extend or truncate Congress’ deadlines.
Statutes of limitations serve a policy of repose. They “represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.”16
Finally, a word about Bazemore v. Friday.17 Ledbetter argues that Bazemore “requires different treatment of her claim because it relates to pay,”18 and that Bazemore supports her theory that each paycheque starts the clock anew, even if not coupled with a specifically discriminatory intent (that is, back to the “poisoned well” theory noted above). The court makes short work of this, pointing out that such a reading of Bazemore requires one to believe that the court gutted Title VII’s requirement for actual discriminatory intent and overruled Evans and Ricks, without saying a word about so doing.
While Bazemore does say, as Ledbetter advances, that “Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII,”19 that case involved plainly distinguishable facts, and the statement must be set into context. The background of that case was that prior to 1965, the North Carolina Agricultural Extension Service was segregated, with black employees receiving less pay. In 1965 the two branches were merged, and after the extension of Title VII to public employees in 1972, “black employees brought suit claiming that pay disparities attributable to the old dual pay scale persisted.”20 The Supreme Court concluded that “when an employer adopts a facially discriminatory pay structure that puts some employees on a lower scale because of race, the employer engages in intentional discrimination whenever it issues a check to one of these disfavored employees. An employer that adopts and intentionally retains such a pay structure can surely be regarded as intending to discriminate on the basis of race as long as the structure is used.”21 This “‘holding in no sense gave legal effect to the pre-1972 actions [by the North Carolina Agricultural Extension Service], but, consistent with Evans … focused on the present salary structure, which is illegal if it is a mere continuation of the pre-1965 discriminatory pay structure.”22
That is, “Bazemore stands for the proposition that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure.”23 But Ledbetter has not asserted that Goodyear imposed a discriminatory pay structure. In order to make this case analogous to Bazemore, wherein there was a pay structure directly tethered to discriminatory intent, Ledbetter would have had to have shown that Goodyear had “adopted its performance-based pay system in order to discriminate on the basis of sex.” Just as in Evans, where the seniority system itself was neutral and non-discriminatory (and thus gave rise to no cause of action) even if there was a previous discriminatory act that reduced plaintiff’s seniority, and just as in Ricks, where the one-year contract itself was neutral and non-discriminatory (and thus gave rise to no cause of action) even if there was a previous discriminatory act that made it necessary for the plaintiff to seek that contract), here, there is no suggestion that the performance system itself is anything but neutral and non-discriminatory, but rather, that there were isolated incidents of discrimination within the system. That is, it's the difference between a per se corrupt system and abuses of a non-corrupt system.
Title VII permits recovery in civil suit for an action, provided that the suit is preceded by a complaint filed with EEOC within 180 days of the discriminatory act. Limiting the time period for filings was part of the compromise by which Congress sanctioned such a suit. Today, the court wisely refuses the temptation of uncoupling the 180 day period from the discriminatory event. Justice Ginsburg’s dissent concludes with an impassioned plea for Congress to do the right thing. She’s probably right: she is probably correct that Title VII’s statute of limitations "overlooks common characteristics of pay discrimination," to the extent that "[p]ay disparities often occur, as they did in Ledbetter’s case, in small increments[,] [and] cause to suspect that discrimination is at work develops only over time."24 This may well result in the denial of a “remedy … [for] every victim of discrimination,” as Justice Stevens blithely acknowledged in Mohasco, supra (since Mohasco, Justice Stevens has since, perhaps, since discarded old wisdom – or to put it more critically, acquired new ignorance25, but in declining to write in this case, does so sub silentio). But to be clear, that is a balance that Congress has previously made, and it is the job of Congress to rebalance as it sees fit; "[u]nder our constitutional framework, federal courts do not sit as councils of revision, empowered to rewrite legislation in accord with their own conceptions of prudent public policy,"26 and should "not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason[,] [but rather, must] ... take the statute as [they] find it."27 In this case, "[i]t is best, as usual, to apply the statute as written, and to let Congress make the needed repairs."28 That a statute is unfair is not free license for the courts to rewrite it.
UPDATE: for a countervailing view of the case, see this post by Paul Secunda at Workplace Prof blog. HT: Joseph Slater. Respectfully, I think Paul's got some interesting points, but I don't find them persuasive. Paul's argument that "this decision is inconsistent with the purposes of the Title VII" amounts to an argument that Title VII was badly drafted such that its text is inadequate to its purpose. Okay - and? A maxim as true today as it was in 1791 is that "[n]othing is more common than for laws to express and elect more or less than was intended." The court's decision yesterday is correct if one believes that courts should give effect to what the statute actually says, compared to what one might wish it to say, or what some members of Congress might have preferred it to say. While it's true that the filing period may well "lead to an absurd situation where employees either must bring pay claims prematurely when there is not enough evidence that there has been unlawful pay discrimination or wait to a later time when there exists more substantial evidence of pay discrimination and be barred from bringing such claims by the statute of limitations," and while both Paul and Justice Ginsburg probably have the best of the argument that the statute should be amended, it comes down (as ever) to a question of who gets to decide: if the statute, correctly construed, is inequitable or in tension with its own purposes, should the court fix the mistake or leave that to Congress? It seems clear to me it's the latter.
AND: a lot of the critical commentary rests on what I think is a flawed premise. For example, Echidne of the Snakes argues that the Ledbetter court's refusal to read the filing period out of Title VI means that "you, a possible victim of discrimination, have 180 days to act. That is half a year. I hope you know all the facts within that time." But this argument assumes that the 180 day period doesn't toll. To the contrary, however, the Supreme Court has held specifically that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling," Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982), see also Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990), a point reaffirmed recently by the court, see Morgan, supra, at 121, and expressly reserved today, see slip op. at n.10. Thus, if you have a pay review but have no reason to suspect the result was animated by discriminatory intent, but a year later you unearth evidence showing that it did, it seems to me that prevailing caselaw holds that the clock starts running at the point that a reasonable person exercising due diligence could discover the intent, not necessarily at the point that the original decision was made. While it would not change my view of the case if the filing period didn't toll, (because while I agree with many critics that this narrow time window ignores the realities of discrimination, it's ineluctably what the statute requires, in my view, even if that ought to be changed), if the filing period can toll, a significant chunk of the criticism evaporates.
Reactions to Ledbetter (6/4/07)
Ledbetter again... liberal versus conservative judicial philosophies (6/7/07) (Pat)
Some more thoughts on Hein and WRTL (6/26/07)
Ledbetter - Congress springs into action (7/13/07)
Ledbetter - Congress springs into action II (7/31/07)
WaPo on the Ledbetter Act (8/15/07)
Communicating with Congress (3/22/08)
Ledbetter Fair Pay Act stalls in the Senate (4/24/08)