WaPo on the Ledbetter Act

This WaPo editorial on the "Ledbetter Fair Pay Act" (legislation noted here; our coverage of the antecedent Ledbetter v. Goodyear decision begins here) has a number of problems worth discussing.

Ab initio, I continue to resent the characterization of Ledbetter v. Goodyear as "severely constrict[ing] the opportunity for workers to seek redress in court for pay discrimination." Words to the same effect preface virtually all media coverage of the decision and the overwhelming majority of blogosphere coverage, to the point where it's hard to tell whether the fever-pitch hostility to the decision in those quarters is because the authors genuinely believe this misapprehension to be an accurate summary of the decision, or if it's a misrepresentation in service of lamppost journalism. This phrasing strongly implies that the Court voluntarily plucked this restriction out of the air, which isn't so. While the WaPo correctly summarizes the ruling as "[holding] that workers must file pay discrimination grievances with the Equal Employment Opportunity Commission within 180 days of an employer's discriminatory pay decision," it complains that "while [this is] a defensible reading of the law, [it] is impractical." Well, the law in question, 42 U.S.C. § 2000e–5(e)(1), says that "A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred." It seems a little bit more than merely "defensible" to read "a charge under this section shall be filed with the Equal Employment Opportunity Commission within 180 after the alleged unlawful employment practice occurred" to require that "workers must file pay discrimination grievances with the Equal Employment Opportunity Commission within 180 days of an employer's discriminatory pay decision"; indeed, it borders on tautological. It is Title VII itself, not the Supreme Court, that "severely constrict[s] the opportunity for workers to seek redress in court for pay discrimination." If Congress enacts the Ledbetter Act, it will be changing what Title VII says, not correcting a mistaken reading by the court. That's perfectly legitimate, but it's more than semantics - it goes to the heart of the respective relationships of the courts and the congress to the law of the land.

And as to the other complaint, the impracticality of the thing, if it's impractical, that's not the concern of the court; as Holmes once said of the Sherman Act, "[as a judge,] if my country wants to go to Hell, I am here to help it do it." If Congress passes bad law, you're going to get bad results. In which case, Congress ought to change the law. Which, of course, it's moving to do, and the WaPo isn't happy about that either. I share the WaPo's basic concern, but it couches that concern in language that strikes me as plain weird.

[T]he House bill would all but eliminate a statute of limitations, which was not Congress's original intent....

Even if the original intent of the legislature in passing a piece of legislation governs a court in interpreting a law,1 it most certainly doesn't bind a subsequent Congress amending that law. Title VII is actually a good illustration of the incoherency of intentionalism, insofar as, infamously, the intention of the legislators who added the sex discrimination language was to add a poison pill that might halt the legislation's passage. But once the bill had been milled through the Article I process, the intent of its authors ceased to be relevant.2 The present Congress is by no means bound to amend Title VII in accordance with the intentions of those who passed the original, or its subsequent amendments.3 What they ought to weigh is "what are the competing equities here, and how can they best be resolved with the minimum of intrusion so as to best avoid unintended consequences?"

The WaPo also says:

[T]he Senate should consider whether something other than a paycheck trigger may be fairer [to employers]. One possibility: adopting a "reasonable person" standard. That would allow a worker to file a claim beyond the 180 days now mandated by the court's decision, but not beyond the point where a court could conclude that a "reasonable person" could have or should have been aware of the discrimination.

Did the WaPo read the opinion? Responding to Ledbetter's "policy argument[] in favor of giving the alleged victims of pay discrimination more time before they are required to file a charge with the EEOC ... [because] pay discrimination is harder to detect than other forms of employment discrimination," the court expressly reserved the question of whether a discovery rule - which is what the WaPo is struggling to describe - is applicable: "We have previously declined to address whether Title VII suits are amenable to a discovery rule. Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue."4 Nor did the court say anything to either further or repudiate its express holding in Zipes that in Title VII suits, "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."5

Post facto:
Ledbetter Fair Pay Act stalls in the Senate (4/24/08)

1. 1. Which I don't think it does. To borrow somewhat from my comment here, I'm not an intentionalist, and you'll find that most - not all, to be sure, but the overwhelming majority - of originalists and legal conservatives aren't interested in original intent, either in constitutional interpretation, see, e.g., Scalia, Common-Law Courts in a Civil-Law System in A MATTER OF INTERPRETATION 29-37 (1997), or statutory interpretation, see, e.g., Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol'y 59 (1988). Intent is not law (cf. H.L. Deb 6 Oct 2003 c129 (remarks of Lord Wedderburn) ("[t]he Government seem to think that they make law by standing at the Dispatch Box. That is neither a democratic nor a justifiable view. Their intentions are not law. Their interpretations are not law. It is what is in the Bill and what goes on the statute book that is law"), and "is elusive for a natural person, fictive for a collective body [like a legislature]," Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol'y 61, 68 (1994) (accord Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (Scalia, J., concurring) ("it is virtually impossible to determine the singular 'motive' of a collective legislative body"). And for that matter, even if all agreed that the purposes and intentions of legislators was controlling in the contstruction of a statute, "no legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law." Rodriguez v. United States, 480 U.S. 522, 525-6 (1987) (per curiam); see also Federal Reserve Board v. Dimension Financial, 474 U.S. 361, 373-74 (1986). Statutes are a vector not an arrow, and title VII's limits - including the filing period - are as much a part of the statute's design as its other attributes.
2. 2. The Constitution defines the process by which law is made; what's passed through that process is law, and what isn't, isn't. A Congressman doesn't need an intent to make law, only a vote; even if a collective body was capable of a unified intent, Congress is quite capable of making law without any intent. "[C]oncepts [of statutory interpretation] ... which posited an intent that was generally discernible ... ha[ve] been discredited by critics who established the futility of discerning an intent for all questions of statutory meaning. ... [S]tatutory words themselves are [now] said to announce Congress' considered judgment, to embody a chosen legislative compromise, to strike a balance between opposing policy arguments." Richard Pildes, Note, Intent, Clear Statements, and the Common Law: Statutory Interpretation in the Supreme Court, 95 Harv. L. Rev. 892 894-5 (1982) (internal quotations marks and footnotes omitted) (quoting City of Milwaukee, 101 S. Ct. at 1791; Mohasco Corp., 447 U.S. at 826; Mobil Oil Corp., 436 U.S. at 623).
   
   My position on legislative intent - which is strong medicine, even for textualists, some of whom refer to a kind of "objective intent," e.g. Nelson, What is Textualism? 91 Va. L. Rev. 347 (2005); Scalia, supra, at 17 - was once critically characterized as being that "once legislators write law, and ... circumstances bring up the law for [judicial] scrutiny and review, ... the intent of people elected to debate, craft and vote a law in doesn't have any relevance anymore." I wouldn't run screaming from that description. At oral argument once, Larry Tribe ran over time, and averred that he'd been intending to reserve some of his time for rebuttal. The Chief Justice replied, typical Rehnquist, bluntly: "you didn't." A legislator who protests "I didn't mean that!" when a textualist judge gives a reading to a statute should receive a similar answer: "that's what you wrote, though." It is the law that governs, not the intentions of any particular legislator.
3. 3. And in any event: "Laws lack spirit. Legislation is compromise. Compromises have no spirit; they just are. For example: the absence of a private right of action may be a limit on a substantive rule, the price some group charged to assent to the rule itself. You imply a private action because this would promote enforcement; hindering enforcement may have been the key to any legislation at all. If this is unprincipled, it is the way of compromise. Law is a vector rather than an arrow. ... Sometimes Congress specifies values or ends, things for the executive and judicial branches to achieve, but often it specifies means, creating loopholes but greater certainty. Using legislative history and an imputed 'spirit' to convert one approach into another dishonors the legislative choice as effectively as expressly refusing to follow the law." Easterbrook, Text, History and Structure, supra, at 68; accord Easterbrook, What Does Legislative History Tell Us? 66 Chi.-Kent. L. Rev. 441, 444 ("laws have no 'spirit,' that they are complex compromises with limits and often with conflicting provisions, the proponents of which have discordant understandings").
4. 4. Ledbetter, slip op. at 23 n.10 and accompanying text (citation omitted) (citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, n.7 (2002).
5. 5. Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982), a statement the court reaffirmed recently, see Morgan, supra, 536 U.S. at 121.