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.