Thursday, May 31, 2007

The United States Supreme Court strikes again

Yesterday, in a 5-4 decision, the US Supreme Court savaged employees’ rights to sue their employers for pay discrimination. In a nutshell, employees who discover that their employers have been unlawfully discriminating against them cannot bring suit unless they do it within 180 days of its first occurrence—regardless of when the disparity became known to the employee. The plaintiff in the case that the Court heard, Lilly M. Ledbetter, was the only woman manager among sixteen at a Goodyear Tire plant in Alabama. Linda Greenhouse writes (in yesterday’s New York Times): “Ms. Ledbetter's salary was initially the same as that of her male colleagues. But over time, as she received smaller raises, a substantial disparity grew. By the time she brought suit in 1998, her salary fell short by as much as 40 percent; she was making $3,727 a month, while the lowest-paid man was making $4,286.” (Read Greenhouse’s account here.)

Greenhouse notes: “As with an abortion ruling last month, this decision showed the impact of Justice Alito's presence on the court. Justice Sandra Day O'Connor whom he succeeded, would almost certainly have voted the other way, bringing the opposite outcome.”

Justice Ruth Bader Ginsburg (whose “vigorous dissenting” opinion was joined by Justices John Paul Stevens, Stephen G. Breyer, and David H. Souter) argued that

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."

Apparently Senator Hilary Rodham Clinton has said she intends to propose legislation to address this evisceration of Title VII protections. But we shall see.


baby221 said...

That's the one nice thing about working on the floor in retail/customer service -- I always know how much everyone around me is being paid, so I'd know right off the bat if there were a serious pay discrepancy.

I realise that my situation doesn't help this lady, but at least I can show support by refusing to buy from that company.

And hopefully sometime SOON the court will realise what a fucking stupid decision they made and they'll undo it.

Nancy Jane Moore said...

Don't hold your breath hoping that the current Supreme Court will recognize the error of their ways. This is exactly the same majority that recently undercut abortion rights, something I blogged about on In This Moment.
Right wing control of the court was one of the major objectives of the religious right, and Bush has delivered. We now have four extremist, activist right wing justices -- Roberts, Scalia, Thomas and Alito. Kennedy -- the fifth in this majority -- is the only possible swing vote, and he is certainly on the conservative side of moderate.
We are stuck with this court for some time to come, since the most likely retirements will come from the other side, judging by age and health.
I am glad to see Justice Ginsburg reading her dissents from the bench, something Linda Greenhouse addressed well in an analysis piece in the NY Times. But, given that Greenhouse suggests Ginsburg is taking a public stand because she has decided she can no longer be effective behind the scenes, that also does not bode well for any change on the current court.
The appointment of conservative activists to both the Supreme Court and the federal courts of appeal is going to haunt us for some time to come.
BTW, I'm a big believer in citing to original sources. You can read the court's opinion -- including Justice Ginsburg's dissent -- here (PDF alert).